LAW REPORT.
SUPREME COURT.- IN BANCO. (Before His Honor Mr Justice Chapman.) Friday, July 25. BINDER V. CAMPBELL. Costs Taxation Several Issues Applicability of Evidence—Discretion of Regis-trar-Interrogatories, order for, amendment of, after taxation. Where there are several issues, and the defendant is entitled to the general costs of the cause, but the plaintiff has succeeded on some of the issues, he (the plaintiff) will be entitled only to the costs of the evidence which was exclusively applicable to the issues on which he succeeded. In taxing costs, the Registrar is the sole judge of the applicability of evidence, and of allraatters of fact as distinguished from questions of principle. Where an order made m the course of a cause is silent as to costs, the Court will not after taxation amend the order by inserting a clause making the costs costs in the cause.
Rule nisi for review of taxation of plaintiff’s costs and to amend order of judge by inserting clause making the costs costs in the cause. B. C. Haggitt, on Thursday, July 3rd, showed cause. G. Cook in support of the rule. The facts of the case and the arguments of counsel will be found fully set out in the judgment. Judgment was now delivered by his Honor as follows:—
Chapman, J.—Rule to review the taxation of costs in tin's action. The declaration contains three counts: The first two upon contracts, the third a count for goods sold and delivered. At the trial the plaintiff proved the contracts, but failed upon an issue of his readiness and willingness to deliver the bills of lading according to the terms of the contract. The plaintiff also failed on the issues framed upon the third count. In taxing the costs, the Registrar disallowed to the plaintiff the costs of certain witnesses examined under a coin mission in England, on the ground that these witnesses did not apply exclusively (Collinsen’s affidavit employs the word “ wholly ”) to the two first counts, but were applicable also to the third count, on which the plaintiff failed. The plaintiff also claims the costs of the declaration. There is also a second and altogether distinct branch of the rule, asking for an amendment of an order made by me in Chambers in June, 1871, by adding. a clause that the costs of the interrogatories referrred to in the order be costs in the cause. In showing cause, cases were cited to show that the Registrar’s taxation is right; that the plaintiff is not entitled to the costs of certain witnesses examined under the commission, who were called substantially to prove the issues under the first and second counts, because the evidence of these witnesses applied also to the issues under the third count, upon which he failed; the learned counsel for the defendant contending that where the defendant is entitled to the general costs, the evidence of such witnesses must, in order to entitle the plaintiff to them, apply exclusively to the issues on which the plaintiff succeeds. The cases relied on are Lardncr r. Dick, 2 Cr. and Mee 389, and 2 Dowl 333 ; Richards v. Cohen, 1 Dowl 533 ; Crowthcrv. Elwdl, 4 M. and W. 71 ; and certain passages in “ Marshall on Costs,” purporting to be a summary of the results of these and other cases.—(Marshall, 131, 199, 267.) In all the above cases, the plaintiffs succeeded on some of the issues, and the defendants on others, the plaintiffs having the general costs ; and in all of them it was held that the plaintiff was entitled to the costs of witnesses who gave evidence in support of the issues found for him, although the evidence applied also to issues on which he failed ; whereas, to entitle the defendants to the costs of witnesses, their evidence must apply solely to the issues found for them. In thy last-named case, Alderson B. says : f ‘ The only definite rule is that laid down by Bayley, 8., in Lardncr v. Dick, that where some issues are found for the plaintiff and some for the defendant, the latter
is not entitled to the expense of his own witnesses, unless their evidence relates exclusively to the issues found for him.”
In all the above cases the party succeeding is the plaintiff, but Mr Marshall in reviewing them, and before noticing the cases to which I shall presently refer, does not hesitate to apply tha rule to cases in which the defendant succeed ; that is, he translates plaintiff into party in the passage cited from page 131. This reading scorns to have been adopted by the Registrar in this case. The defendant succeeds upon an issue (denying the plaintiff’s readiness and willingness to deliver up the bills of lading upon the defendant’s acceptance of the bills) which answered the action. The plaintiff succeeded in proving the counts on the contracts (except as to the above averment), and failed on the general count. Is he entitled to the costs of witnesses partly and principally applicable to the issuer; on which lie succeeded, and partly to that on which he failed ? Had he succeeded in the action and so been entitled to the general costs, he would undoubtedly have been so entitled, although the evidence also applied to an issue or to issues on which he failed. But it remains to be considered whether he is so, as the . losing party ; and whether Mr Marshall was justified, as I have expressed it, in translating plaintiff into party, in the passage referred to. Of this I cannot entertain a doubt. Upon principle, there seems no reason why there should be one rule applicable to a successful plaintiff and another applicable to a successful defendant, or one rule against a defendant failing, and another against a plaintiff failing ; and there is not wanting express authority on the point. In Wei by v. Brown, 1 Exch. 770, which was not cited in the argument, the defendant was the successful party. The plaintiff, who was an attorney, succeeded in establishing part of his demand, but the defendant pleaded two pleas, each going to the whole cause of action — one the statute of limitations, the other setting up the want of a signed bill of costs. The defendant failed on the first plea, but succeeded on the second. It was held that the defendant was entitled to the costs of witnesses attending to prove the third issue, whether their evidence app’ied also to other issues or not, and that the plaintiff was entitled to the costs of witnesses who appeared solely to prove the issue found for him, and also the second issue (on which the defendant failed) both or either. The same principle as applied to a successful defendant’s costs was adopted by the Court of Queen’s Bench in Harrison v. Bash, 4W. R., 199. The case of Sewell v. Pard, 17 C.8., 636, is to the same effect. There the defendant succeeded, and it was held that he was not disentitled to the costs of witnesses called to support the issue on which he succeeded, merely because they applied also to issues on which he failed. This case was relied on by the learned counsel for the plaintiff, and would have applied, if the latter had been entitled to the general costs. As he was not so entitled, the case of Welby v. Broton, as to the necessity for the evidence being solely applicable, applies. Such being the rule, and such the principle on which the Taxing Officer has proceeded, what foundation is laid for the interference of the Court ? The learned counsel for the plaintiff says: The test is this—strike out the two first counts, and all the evidence under the commission -would have been unnecessary; in other words, he contends that the whole of the evidence taken under the commission was solely (or exclusively, as Alderson, 8., expresses it) applicable to the two first counts on which he succeeded. But who is the judge of that ? I answer, the Taxing Officer, and not the Court, This has always been maintained by the several Courts at Westminster. It is for the Taxing • Officer to judge what and how many witnesses he will allow—whether their evidence is applicable to the issues, and every matter of fact as distinguished from principle, about which any question arises. He must no doubt exercise his discretion, but when he has done that the Court will not interfere. Skelton v. Seward, 1. Dowl. 411, is a strong case, because the Master disallowed all the witnesses called to prove the inuendoes in an action for libel, and yet the Court would not interfere. In Doe deni. Smith v. Webber, 2, Add. & Ell., 448, the Master allowed witnesses whom the Judge who tried the cause had rejected. In both these cases there was a str mg temptation to interfere, but the Court seems to have thought it better to adhere to the rule. Eldcrtonv. Emnicns, 5, D. & L., 277, applies more closely to this case. It was there decided that on taxing the costs of witnesses on several issues where some were found for the defendant, it is for the Master to judge whether the evidence of such witnesses is exclusively applicable to such issues or not. But Mr Cook contends that the plaintiff is at least entitled to the costs of the declaration. The answer is, that he did not succeed in proving his whole declaration. Where lie failed was in proving the material averments of his readiness and willingness to deliver the bills of lading to the defendant on his acceptance of the bills of exchange in accordance with the contract. The case is analogous to an action against the drawer of a bill of exchange, where the plaintiff proves everything except notice or dishonor. True, he established part of his declaration, and so far as the costs of witnesses are concerned, I think the issues divisible. If divisible under the general issue, a fortiori they are so under our general form of denial, which is really a specific and distinct traverse of each and every material averment made in one general form. But it was on the assumption of this divisibility of the counts that this question of exclusive applicability has arisen.
The second branch of the rule claims an indulgence. In an order made by me in June, 1871, for the examination of the defendant on interrogatories, it was not asked that the costs should be costs in the cause. I am now asked to amend my own order by adding such a clause. I should not have hesitated a moment to make the amendment at any time before taxation, if application*had been made in Chambers. But now two questions arise. Have I jurisdiction in disposing of a rule of Court to amend the order ? and if yes, Is not the application too late? No doubt orders are varied or amended on appeal by an adverse party; but then the order is brought before the Court. In Cranch v. Treqcniny, 5, Dowl, Littledalc, J., sitting in the Practice Court, refused to amend an order of Abinger, C. 8., unless it was first made a rule of Court. The only difference here is, that the motion is before the same Judge who made the order. Hence, lam not prepared to say that I should have refused, if the motion had come before me earlier. But this comes after taxation, and in Hayne v. Robertson, 17, 0.8.. 548, the Court refused to amend, not an order, but a rule of its own (by inserting a similar clause), at a subsequent time. I think that I ought not to amend the order by rule of Court, and I am inclined to think that after the costs have been taxed, the application comes too late. But in refusing to amend the order by rule of Court, I must he understood to do so without prejudice to a motion for the purpose in Chambers, should the learned counsel, on further consideration, think it worth while to apply. Rule discharged, with costs.
His Honor intimated his intention to sit in Banco on and after Wednesday next.
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Evening Star, Issue 3255, 26 July 1873, Page 2
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2,031LAW REPORT. Evening Star, Issue 3255, 26 July 1873, Page 2
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