SUPREME COURT.-IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5354, 25 May 1878, Page 2 (Supplement)

SUPREME COURT.-IN BANCO.

: PETERS V. JOSEPH AND OTHERS. _ Judgment of tlicir Honors the Chief Justice and Mr. Justice Richmond, delivered on luesday, Bth January, 1878 In tills case the ileSendonts. obtained.a rule idsi, In accordance irith leave reserved at the trial, to enter the verdict lor them on the first count, on the ground that all the goods proved to have been taken bj the defendants were comprised in the hill of sale. The question Is, whether the expression " stock-in-trade " where used il> the bill of sale, comprises tools used hr the plaintiff in his trade as a cabinet-maker ; if such tools are not so comprised, then the plaintift is entitled to recover damages in respect of the taking of them under the (list count, which is for conversion. The bill of sale was, as appears from the recitals therein, given by the plaintiff, who was a cabinetmaker, to ’secure the defendants in respect of goods supplied by them to him for Ini business as a cibinetmaker. It assigns all his stock-in-trade on premises mentioned, or other premises occupied or xised by him in his business. . . W'e think that there is a clear distinction between stock-in-trade ami utensils or tools of trade ; and that the first expression does not include what are tools or trade unless there be something in the context extending the expression beyond its ordinary mean{,.The stock-in-trade would ordinarily include goods for sale, and materials to bo worked uj» into articles for sale; but under neither head would the implements for use in the manufacture of the artic.es for sale be Included. As there is nothing .m the bill of sale in this case which does extend the ordinary meaning of the expression stock-in-trade, we think that the defendants did not acquire the tools under it. and consequently that they were guilty of the conversion of the tools, and not entitled to have the verdict on the first count entered for them. The defendants also obtained a rule nisi for a new trial nn three grounds. First, that the findings of the jury on the second and third issues were against the weight of evidence, and against the direction of the Jl The declaration contains two counts. The first for conversion of the stock-in-trade and tools; the other for trespass on the premises, and the taking and converting the same stock-in-trade and tools. The fiisfc and second issues seem to have been framed so as to be applicable to both counts so far as they aver a conversion of plaintiff’s stock-in-trade and tools. , . . A . , , , . At the trial, and at the instance of the defendants, and against the contention of tjie pldntiff, the plaintiff was compelled to elect to limit his claim : unde the first count to the tools, and to proceed iiuder the second count for the conversion of the stock-in -trade ; and the jury were directed to deal with the first count as limited to the claim for the conversion of the tools, and they, in consequence, separated the damages, and gave £ls as damages under the first count. . i 11 The first a»ul second issues were answered by the jury in the affirmative generally, and the defendants contend that there should be a new trial of the whole record, because of this general finding. # Cut the contention was based on a misunderstanding The learned counsel for the defendants argued as if the jury Uvl found that for the purposes of the first count the defendants had, against the direction of the Judge, converted the stock-in-trade as well as the tools; but inasmuch as the jury were directed to deal separately with each count, hmitingtlie first count to the tools, and the secon I to stock in-trade, and to assess damages on each count separately, and as they did assess damages separately, we think that it does not follow from the general altirmntive finding on the first ami second issues that therefore they found for the plaintiff under the first count that the defendants converted * the stock-in-trade, On tlio contrary, we think, that so much of the first and second Issues as applies to the first count limited to the claim for conversion of the tools, Is separable from the rest of these two issues ; and that the findings upon these issues may be distributed;'consequently that the defendants are not entitled to a new trial of these issues on the ground contended for. * , , The second ground on which a new trial uas mo\eu for was that the Judge at the trial misdirected the jury in directing them that the defendants entry upon the plaintiff's premises and the seizing the roods under the bill of sale were unlawful, because such entry and taking too promptly followed the dem»ud of payment made on behalf ol the It appeared from the evidence that the demand, though made on the plaintiff personally, was made by o »o who did not allow to the plaintiff that lie had authority to receive payment, and that the seizure was made instantly after the demand without any interval whatever. This being the case the plaintiff had no time whatever allowed to comply with the demand by seeking the de'endants and paying them. For this reason the entry and seizure were too promptly made, for there was no default until the plaintiff had had a reasonable time under the circumstances to comply with the demand ; therefore there was no misdirection. . , . The last ground urged was that the damages given on the second count were excessive. The second c rant was for trespass on the plaintiff’s premises and seizure of his goods, with a claim for special damage. The defendants p’eaded ft general denial, and justified under the bill of sale alrcadyreferred to. The justification failed by reason of the entry and seizure before default, inasmuch as’ the defendants entered and seized too soon after demand. It appeared from the evidence that both the plain iitf and the defendants Carried on business in ellimjtnn, and within a very short distance of each other, consequently but a short time would under the-circunia-ftitcea Lave been reasonably sufficient for tbe plaintiff to seek the defendants, , , , If the plaintiff bad been able to pay and bad required time to get the money from his bank or other pla- e of deposit, be might have been entitled to a reasonable time for that purpose ; but it U manifest from the evidence that lie was utterly unable and unprepared to pay. The debt with which the goods were charged was, as found by the jury. £9OB. The value of the goods sold if calculated on the basis of Diamond s valuation anil the plaintiff's own evidence as to subsequent transactions, was £614. The evidence of the plaintiff put it higher, but we think it .manifest that the weight of evidence was that Hie value of the good, was less than the amount of tile debt. It may be tiiat t « goods were misused in the course of the seizure, and that the sale was improperly conducted : but the defendants are not responsible for snob misconduct it there were such in this action. The action, though'tor trespass mid conversion, yet is not a case of bare tort. The complaint of the plaintiff really is that the defendants in breach of the terms'of the bill of sale entered and seized’without allowing a reasonable time to elapse lietwen demand and entry and seizure. VTe think that in such a else the measure ol damages is the loss which the plaintiff has actually sustained by being deprived of tiro possession tff tho goods during the interval hetween demand and tbc expiration of such a tune thereafter as was under the circumstances reasonable for permitting the plaintiff to comply with the In briefly v, Kendall and others. 21 L.J.. Q B. 161, the Court, leave being reserved, reduced the damages to a nominal amount. That was an action «f trespass and conversion for an entry and seizure, nnder a hill of sale, without sufficient notice. In Chinnery v. Viall, 29 L.J., Exch 181: Johnston v. is tears, 63 L.J., C.f. 132; and Donald v. Suckling, 38 I, .1 D Ji. 240, per Shoe, J„ the principle of the decision in briefly v. Kendall is explained as being that though tlie action was for a trespass, yot it was in substance for a breacli of contract, and that in such a case the measure of damage is tho loss which 1 the plaintiff had really sustained by being deprived of tli. possession of the goods. See also Toms v. Wilson, 32 L J., (J.B. 33, per Blackburn, J., where lie intimates that in such a case as the prefent the damages must ordinarily be only nominal. In Briglity v. Norton, 32 f,.J , (f.B. 30, where the jury gave about the value of the goods as damages, no question was raised as to the measure of damages, or as to Hie amount given Massey v. Sladen, 3S D.J., V-xcli. 34, the Court apparently were of opinion that but for Hie agreement at the trial as to the amount of damages it would have been difficult te establish a right to more than nominal damages. . , , In Hie present case nominal damages were perhaps all that the jury should have given. . If. ind cd. Hie jury had given somewhat more than nominal damages we should not have been disposed to disturb the verdict, but the amount found by the jury on Hie second count is so excessive that wc think' there must be a new trial of tho second count. This will involve a new trial of all the issues framed (hereon and on Hie pleadings, thereby including Hie first and second Issues, so far as they apply to the stock-in-trade. .... , . , , ~ No objection was made by the defendants on the ground that the bill of sale contains no stipulation for quiet enjoyment by the plaintiff of Hie stock-in-trade till default Wo therefore give no opinion whether in Hie absence of such a stipulation, the plaintiff had such an Interest in the stock-in-trade as to enable him to recover damages for Hie seizure of them by Hie defendants. ’’ ’ • The question of the costs of the first trial must he reserved till af er the new trial, but as Hie defendants have succeeded in this rule Hie plaintiff must pay the costs of the rule.

; Thursday, Mat 10. peters v. Joseph and another. Judgment herein was delivered by the Court. The Chief JusticeIn this case a role nisi, was on the 2Dth March last granted by Mr. Ji'stico Richmond, on the application of Mr. Barton, on behalf of the plaintiff, calling the defendants to show cause why an order made by myself on the 22nd of February last in chambers on a summons taken out by tbo defendants should not be rescinded. ' The object of the summons was to obtain liberty to withdraw the pleas to the second count of the declaration, and to pay money Into Court, and plead such payment to the second count. The order made on this suranto s was as follows; “On hearing Mr. -Travers for the parties, and on reading! the summons herein, dated ISth February lost., I do order lliat the defendants do have leave to withdraw the pleas pleaded by them to Die second count of the declaration In this action, and to pay into Court the sura of £lO, and to plead such pay: meut in satisfaction of Die plaintiffs claim under Die raid second count, nnd that Dio defendants, bo at liberty to give notice in mitigation of damages under the said sec ml count; and I do further order that tlie costs of and incidental to this order and the costs of the amendment be plaintiff* costs in the cause in any event: and I do also further order, by consent, that the .'question as to payment of the costs of Die first trial of the Issue raised on the second count, and of the costs of the rule for a new trial, as affected by tills application, bo reserved for the consideration, of the Court at the time of the disposal by the Court of the. question as to the costs which are reserved by the rule for a new trial, the defendants also undertaking not to' proceed In the meantime with the taxation of-the costs granted by the said rule. ■ ■ And the grounds on which the rule nisi had boon granted wen . I. That the esld order, dated the 22nd day of February, 1373 was net served upon the plaint!?, er hia t/llcilof, uatUthal 12tb day of-March, lc*3, aid 'fiS by the

2. That the said order in effect varies and alters the rule of this Court, dated the 17Hi day of October, 1877, made in this action for a new trial of the issues joined in Hie action. 3. That Hie said order improperly reserves Hie question as to the payment of Hie costs of the first trial of Hie issues raised on tho second count, and of the costs of the said rule for a new trial. 4. That the said order purports to he made by consent, meaning thereby by tiro consent of all parties to Hie action, and no consent was ever given on behalf of Hie plaintiff to the said order. 5. T hat the said order was drawn up so as to deprive Hie plaintiff of all costs of this action, and force him either to go to trial upon an issue which the Judge would direct tile jury against him, or would force him to allow himself to be nonsuited, or to abandon Iris action and pay all costs. In this suit, at Hie time when the summons for leave lo withdraw lire pleas was_ made, there had been a trial, and as to the issues raised on Hie second count of tbe declaration the defendants bad obtained a rule absolute for a new trial. By that rule the Court gave to the defendants the costs of the rule, and ic served the question of the costs of the first tn.M That rule was wot appealed against by the plaintiff. On the contrary, the plaintiff had endeavored to force the defendants to the new trial at the January sittings, but had failed for reasons unnecessary to refer to. This Court, in its judgment on making absolute the rule for the new trial, had decided that tlia tUm-iges awarded by the jury on the second count wore excessive, and in effect that_ in such a case as the present the damages were nominal- - The second count was for trespass on a riiop ami premises, and conversion of goods. The defendants held a bill of sale over the poods to secure advances, and the bill of sale gue powers of entry on the premises, and of seizure an I sale of the goods, upon default of tho payment on demand * in writing. The defendants in their picas justified the entry and seizure and-sale, of the goods on tho ground that the plaintiff had made default of payment on demand. The entry ami seizure appearing to have been made immediately, without any interval whatever of time after tho demand, this Court, on the authority of English decisions, concluded that the justification failed as an absolute answer, but concluded, also on the authority of English decisions (amongst others Hnerhy v. Kendall and Others, 21 L.J.. (J. 8., id) that in .snclij case the measure of damages is the loss winch the plaintiff has really sustained by being deprived of his possession of the goods too soon; and further, that in this case the damages‘Which could properly be given for such deprivation were nominal. J he debt with which tho goods were charged was as found by the jury £9OB, while the value of the goods seized was, on the evidence of one of tho plaintiffs witnesses, £514. His own evidence put the \alue higher, but less than the debt focured. .. . .. The defendants, by their summons.on which the now impeached order was obtained, appear to have determined to net upon the decision to give up the pleas of justification, and admit their liability to some damages, and pay those damages into Court, and for that purpose took out a summons already mentioned. There can bo no question of the power ot a Judge at chambers to grant such an application ait any stage of a suit—such an application has been grunted at the triad or even later after a rule for u new trial. The’2Bothof the rules of the Court, of ISuC, is as follows 1 “ Even after the defendant has pleaded a Judge's order may be obtained to withdraw the plea, in order to pay money into Court and plead such payment.” . tiucli an order is made on terms. Ihe terms are the payment’of' the costs of the application ami the payment of Hie costs cf the amendment; and in order to avoid the delay and expense of an interlocutory taxation, the payment of such costs, like the payment of the costs of other amendments, may, instead of belli? made a condition precedent to the withdrawal of pleas and amendment, he mad payable to the plaintiff in any event, but to stand over till the conclusion of the suit. ' See Day’s Common Law Procedure Act, pa?e 7J, where be says “ Some Judges, in order to avoid interlocutory taxation, direct the costs to be the corta of the party (not amending) in the cause in any event, and this, which is a graving, is generally the most beneficial practice.'' ■ „ ’ ■ ,1 ... In Jones v. Williams, 42 L.J., Q. 8., p. 48. which was a case of an order for leave to pay into Court after a trial and new trial ordered: so free of objection , are such terms that in that case the order was made by consent, r i See an earlier case, Harold v. Smith, 29 L. J., Exch., n 141 where an order for leave to amend was granted and to pay into Court after plea pleaded.—notice of trial given,—and only five days before the first day of the sittings of the Court where the trial was to be had. In that case there had not been a trial, and the order was not by consent; but the payment of the costs of Hie application and the amendment was not ma le a condition precedent; hut the order made was; the defendant be at liberty lo amend by Hie payment into Court of £79, Hie costs to be plaintiff s costs in the cause at all events and Bramwell, 8., at p. 144, as to this portion of that order, says: TV Inch order was not in the usual terms, that the defendant had liberty to amend upon payment of the costs in the order but hi aubutnnee it amounted to the usual order to amend upon payment of the costs of the amendment—there was something not quite of course in the order, hut in substance it amounted to the usual order to amend upon payment of coats occasioned by the amendment.” , . The order made in the present case as to these costs, the costs of the application and amendment, is in conformity with these precedents, and is, I think, beneficial, convenient, and just lo botii parties. _ The plaintiff nnder such an order would have the benefit of those costs, whatever may be Hie result of Hie suit, even though tho plaintiff should he non suited • it is true they are not taxable immediately, and it the defendants should recover any costs m the suit against the, plaintiff, such costs may be set off against the costs of Hie amendment, but this is inaoiit'is las* I understand, contended that an order to amend .and pay money into Court after a ride absolute for a new Ir'al is improper, nr it made, that the payment of Hie casts of the first trial and of the costs of the rule for the new trial should be mode a condilion of the granting of such order. There is no authority tor eitli r contention ; the authorities awl precedents are the other way (see Archbold’s Queen's Benclv Riactice voli, p. 1304. citin" an Anonymous case from Tubl, h/2); Monej has been allowed to be paid into Court even after I''bare Already referred to Jones v. Williams. In tint case the plaintiff had a verdict at the first trial; tho defendant obtained a rule absolute for a new trial on the ground that the damages were excessive and the verdict against the weight of evidence ; the costs of the first trial were by the rule to abide the event. The cause was set down for the new trial on the 21 Hi May and on tho Kith May Hie defendant obtained an order to amend his pleas by adding a plea of payment into Court of £5. in that case no condition was imposed in the order lo amend as to Hie payment of Hie costs of the rule for the new trial or of the first trial; indeed, as already pointed out, the order was a consent order. This case then is an instance in which Hie order was made after a rule for a new trial, and without imposing terms as to the costs of the first trial. , , . , ~ It lias not, so far as precedents show, been the practice to make the payment of tbe costs of a first abortive trial a condition in Hie somewhat analogous case of permitting a defendant after a rule for a new trial to withdraw pleas for the pm pose of letting jnd-ment go by default, or that of permitting a plaintiff to discontinue after a rule for a new trial, and this is so both where tho costs of the first trial have been ordered to abide Hie event and where'the rule is silent as to such costs; but in the present case the Court has not yet decided as to the costa of Hie first trial. . „ . , , , r . in Peacock v. Harris. 5 Ail and Ellis ioi, there was a verdict against defendant. He obtained a rule for a new trial, nothing being said therein as to the costs of Hie first trial, and then withdrew his pleas, suffered judgment by default, and on a writ on inquiry damages were assessed, but it was held that the costs ot the first trial were not part ot the costs in the cause to he paid by him. It was argued that by withdrawing his pleas lie showed that tho first verdict was right on Hie merits, and that lie had no defence to Hie action. In that case ho must have obtained a Judge's order for leave to withdraw his pleas. Yet it 1< evident that Hie condition ot paying the coats of Hie first trial and the rule was not imposed upon him. So in the case of a new trial obtained by plaintiff, and afterwards leave to discontinue granted, such leave is granted without imposing Hie condition ot paying the costs of the first trial, if the nde for Hie new trial is silent as to these costs. (See Gray v Cox, 2 Dow], 220 ; Daniel v. Wilkin, 22 L, J., Exch. 73.) The reason being that where there lias been an abortive trial from the fault of neither party, neither party is to be mulcted in Hie costs of such a trial. Not even that party, whether plaintiff or defendant, who by Ids subsequent acts shows that lie ought not to have sued or defended as Hie case may bo. In Hie present case there is the additional reason why the order for , leave to amend should have been grants V without imposing any condition as to Hie eosts of the first trial and the rule ; that reason is, that the rule gave the costs of tho rule to Hie defendant, and reserved the costs ot the first trial for tho consideration of the Court itself. It is therefore, I think, plain that tho order for leave to amend ought not to have given the costs of the first trial to the plaintiff, nor ought it to have given him the costs of the rule, nor ought It to have taken away those costs from the defendants. , The order was, I think, right in leaving those costs quite unaffected, as it does. But it was beneficial to the plaintiff to have Hie question of ids right to those costs left open for future argument, and that the order docs ; hence Hie insertion ot Hie concluding part of Hie order. This concluding part does, I think, substantially contain what I minuted on tho summons, though it is not exactly tho same. What was minuted was as follows “ J grant tbs application to withdraw tne pleas to the second count, and to pay £lO intoCourton the secand count, and to plead it. and to give with plea a notice in mitigation of damages. •' The costs of this application and tho costs of the amendment to be the plaintiff’s costs in tho cause iu any cven't. As to the payment of the costs of the first trial of the issues raised on Hie second count, and Hie costs of the rule lor a new trial by consent, this question to be reserved for the consideration of the (.'ourt at the lime of the disposal by tbe Court of Hie question as to costs, which was reserved by the rule for Hie new trial; and if tbe Court should be of opinion that the payment of those costs ought properly .to have been made a condition of the leave to withdraw idea and pav money into Court.’ then tho plaintiff to have those costs, oven though the Court would not have given them under the question reserved by tho rule, and notwithstanding that os to live costs of Hie rule they arc ordered thereby to be paid to tho defendant. ■' The defendant undertaking not to proceed in the taxation of costs of the ride In the meantime and until the Court shall otherwise order." Tills portion of Hie order is not strictly nn order at all, but Is a reservation by agreement of parties of particular questions to be dealt with thereafter by the Court. TTiis course, ,1 am disposed to think, needed the assent ol both parties. Hence it was so minuted by me, and being so minuted, was So drawn up, and properly so. It may be that the words '■ by agreement of parties’ 1 would have more accurately expressed what I intended by my minute. Itli'nk the words used are substantially the same. ■ : • It’is objected that Hie order is drawn ■ up by consent. wtsrs.-s no consent was given. V/Jtfc regajl to that it is mzecituzy fur ire to fcfrr to wfcat took place before «e ia cljiajliep fur-

thcr than this—That the clerk from the plaintiff’s solicitor’s office who appeared to oppose the summons offered no arguments, and gave no reasons why the application should not be granted. He stated simply that he opposed the application. I took time to consider the application, and on the occasion when I stated that !, was prepared to .make the order Mr. Fitzherbert (plaintiff s solicitor) requested that the question as to the costs of tho rule should also be reserved as well as the question as to the costs of the first trial. To fcMs I assented, and required the defendants’ undertaking not to tax the costs under the rule iu the meantime.

The order conforms to the minute mule by me, and read out to the parties at the time move than once without objection. If it is alleged that there was nb intention to assent to this reservation, the proper course was for the plaintiff's solicitor to have brought the matter before me in chambers. See Hall v. West, 13 L. J. Exch. 31, ID. and L. O. P., 412. There an order was drawn up as by consent; on an application by mle to set it aside on the ground that it was improperly drawn up as a consent order: the Court refused to entertain that objection, for that if it was not correctly drawn up in that respect, he ought to have gone to the Judge who made it, and that the Court, would assume it was right. AUlckou, 1». says, “ You should have come to me to set it right before you came here.” The rule was discharged, with costs. If this were alleged as a misnml.'rstandmg, it should have been represented to me in chambers. If it had been then it is manifest, for tho reasons above given, I must have refused to give to the plaintiff either the costs of the first trial or of the rule, and the order would have been silent as to them, as it In effect is—that is, it docs not give them lo either one side or the other, but leaves them as they were before the order.

The whole of this portion of the order is plainly beneficial to the plaintiff, and lie has, from the date of the order till the present time, had the benefit of the defendants’ undertaking not to tax or enforce tho costs which the rule for the new trial g*ve him. The provision of the Resident Magistrates Act as to cost of actions iu the Supreme Court has been given as a reason why the order ought to have contained a special order as to the costs of the cause. No instance has been pointed out; 1 have found none where such a provision has been made in such an order. While on the other hand, though'the same necessity has existed, similar orders are found in the reports without any such provision. .See Jones v. Williams supra: see Waylclt v. Windham, ,33 L.J., Exch. 172, in which it is' clear that no suclx provision had been Imposed when leave whs given to amend. J. find no mention in any hook of practice of tho imposition of such a condition in such an order.

Even if I were of opinion that the effect of that provision in the Resident Magistrates Act is that contended for by tho plaintiff, where money has been paid into Court and taken out. I should, nevertheless, be of opinion that it was not a matter to be considered when granting leave to pay the money into Court. If the Legislature has in such cases, intentionally or not, deprived the plaintiff of his costs, it is not for this Court or any Judge of it to defeat by his order provisions of the law. Mr. Travers contended on showing cause that tho provision applied only to the case of a recovery after trial, and not to the case of judgment by default, or judgment without & trial. If that be so, as I think it is. ami the money piid into Court be taken out in satisfaction, then the plaintiff will get the costs of the cause, without any order of a Judge. He would get those under the general rules relating to the payment of money into Court; and it is for iliat reason that no provision is, so far as I can find, ever made, in orders for the payment of money into Court, as to the costs of the cruse.

When the order in the present case was made no question as to the operation of the provision of the Resident Magistrates Act was raised, nor did it occur to me; but being now raised I state that the inclination of my opinion is that the provision applies only to the case of a recovery after trial. lam disposed to think that the words at tho end of the provision, 4< unless the Judge before whom tho case is tried shall certify that the case was a proper case to have been «o tried,” may be held to retied back, to use the words of Mr. Justice Coltman, on the former part of the section, and show that it applies only to cases where a trial of the cause has taken place, and does not apply to the case of a judgment by default, or judgment for a sum paid into Court without a trial. To uso the language of Mr. Justice Coltman in Reed v. Shnrbsole, 13, L. J., C. P., p. 225, “the effect would be very serious if any other construction were adopted; great embarrassment would bo introduced, and plaintiffs would frequently be most unjustly deprived of their costs.” This opinion was pronounced by him, and the majority of the Court (J. Cresswell only dissenting) on the construction of a very similar provision in the first English County Court Act. Tills decision was approved in Slates v. Mackie, 19, L. J., C. P. 89, iu which case, on its being motioned at tho bar, with regard Reed v. Shnrbsole, that Crosswell dissented, J. Maulo said “Reed v. Shnrbsole shows how strong the opinions of the majority of the Court must have been when they decided contv ry to the.view taken by my brother Cresswell.

In the judgments givci by the Judges other than Coltman, the same stress is-not laid upon the.effect of the addition of the words providing for the certificate of the Judge at the trial. See also per Williams J. in Prew v. Squire, 20, L.J., C.P., 175, as to Reed v. Shmbsole. If this be the true construction of the proviidon in the Resident Magistrates Act, then, if the plaintiff takes the money out of Court, lie is entitled to the costs of the c*use up to the time of the money being paid Into Court. Howover, the point has not, I believe, been heretofore decided ; it was scarcely argued at the argument of the rule; Mr. Travers stating that Ills view was that the provision in the Resident Magistrates Act woul I not take array the costs, ami consented, ns I understand, to have the order varied or amended, so as to put the question beyond doubt. The Register Informs mo that the practice in this district has been to tax costs in such cases on the supposition that the Resident Magistrates Act does not apply. This being so I feel myself at liberty to concur with my Brother Williams’that in this case the order may be amended so as to put the question in this case beyond doubt. I ought not to omit to observe i hat tuis amendment ought to have been asked for by the plaintiff of the Judge who ma le the order, for unti he had decided that question it was I ililuk improper to appeal to the Court, and hid that objection been raised by Mr. Travers I should have felt bound to consider whether this Court could properly by its rule sanction 4 a practice which lam disposed to think improper. Stick a practice is calculated to*increase the cost of litigation. There should be no appeal to tho Court till it is ascertained that the Judge at chambers has decided the point. The only remainining objection is one not to the order itself but to the defendants’ delay iu the drawing up ami service of it. The order was obtained in vacation, and the defendants seem to have assumed that as no pleadings are deliverable during vacation, in this case the plea of payment into Court could not bo delivered till after the vacation, which expired on the 10th of March. Whatever the reason may h ive been, the order was not served until the 12tU March. It was contended that the mere nun-service for this is an abandonment or waiver of the order. I am inclined to think that this is nut tho result of the authorities or the meaning of the rule which exists as to the matter. I think that the party who obtains an order does not serve it forthwith, and if the other side has a step to take within or at a particular time; then if the order, which would have prevented or stayed that step, is not served before that time, the step may be taken, ami stands valid, but if though |thcre be a step to bo taken yet if there is no fixed time for the taking it, then if the order is served before the taking-tha step the opposite side has lost his opportunity of treating tho order has waived and if he takes the step afterwards the step is invalid if the order would have made it so if it had been served forthwith after it was made. Sec Charge v. Farhall, 4 B. and. Ci.- 800; Kenney v. Hutchinson, 9 L. J., N. S., Exch. (jO. ’ I find no case of an trder having been sot aside on the ground of not having been served forthwith. The questions as to whether an order may be treated as waived because of delay in service have arisen on applications by the party who obtained the order to set aflido a step taken by the opposite aide. The only case I have found where delay in service was urged as a ground for setting the order aside was Eandford v. Alcock, 12 L. J., Exch. *10; but tho order was held valid and subsisting on the ground that the opposite side could not have taken another step. : At tho argument of this rule I asked for a case in which an’ order had been set aside on the ground of delay in service, but none was pointed out to me. Itsejms to me that as tho plaintiff took no steps between the making tho order and the service was not prejudiced by the delay that he cannot use each delay as a ground for setting aside the order, and that his steps taken subsequently to the service are not valid. I also think that there was delay not accounted for in taking steps to set aside the order. Inasmuch asAtio plaintiff was enjoying the advantages of the defendants' undertaking to suspend his right to en/dree the costs of the nUo of tho new trial, his abdication to tho Court ought to have been without any delay. . . As to the imputations of fraud and misconduct that have been so freely made, I think that they deserve no further remark than that they are, in my opinion, entirely unsupported. The rule is made absolute for amending the order by tho addition of the fallowing terms If the plaintiff shall tako out of Court the sum paid in in satisfaction of the claim in respect to which it Is paid in, ho shall be entitledTo sucli costs up to the time of payment into Court as he would have been entitled to if tho cause of action iu reference to which the money paid into Court were one not within tho jurisdiction of the Resident Magistrate's Court. Each party will pay his own costs of this rub Mr, Jußtico Williams'delivered judgment as follows ; In this case the plaintiff brought his action on t declaration containing two counts, At the trial the plaintiff obtained a verdict on the first count for a trifling amount, and on tbe second for the sum of £tfoo.- The defendants subsequently obtained a rule nisi to enter a verdict for the defendants on tho first count, and for a new trial on both counts.

The rule was made absolute for a new trial of the issues raised on tho second count, but the verdict on tho first couir. was left undisturbed.

It was ordered by the rule absolute that the coats of and incident to the first trial should abide tho further order of the Court, and that tho 'plaintiff should pav to iho defendants fhn costs of and incident |,n flic rule. Tho rule was made .absolute on tho bth January, and on tho 15th February the defendants took out a summons asking for leave to .withdraw the pleas to t-lic second cause of action, 1 o pay into Court tho sum of £lO. in respect of it to plena such payment into Court, and to bo allowed to add to the plea a notice that they would give In evidence in mitigation the matters set forth in the plea proposed to bo withdrawn. On the 22nd February a Judge’s*ordor was made on tho terms of the summons. The order also provided that tho costs of and incidental to the order And tho Costs of . tho amendment should bo plaintiff’s costs in tho cause in uny event. The order then proceeded in these terms*— “ And I do also: further order, by consent, that tho’ question as to payment of the costs of tho first trial of the issues raised on the second count and of the costs of the rale for t. new trial, as affected by this application, be rs-etved for tho coarideratioa of ths Court at the tijpe o( tije di*pos«i by the Court ol the

tions as to costs which are reserved by the rule for tho new trial, the defendants also undertaking not to proceed in the meantime with the taxation of costs granted by tbe said rule.” This is the order that the plaintiff now seeks to set aside. There can be doubt as to the power of a Jud<e at any time to make an order allowing a defendant to withdraw a plea and pay money into Court. The interests of a plaintiff are protected by the rules which give him his costs tip to the time of the payment of money into Court if he choose to accept the amount paid in satisfaction. If he declines to accept it he declines at his own risk, and if he fails to recover more than the amount paid in he has to pay the defendant’s costs incurred subsequently. If the defendant pays money in Court he admits the cause of action, and the plaintiff is freed from the necessity of leading uny evidence in support of his chum except such a j tends to show the amount of damage he has sustained. Rrl i a facie therefore it is .for the advantage of a plaintiff that at any stage of the proceedings tho defendant should be allowed to pay money into Court, as by so doing he .admits a wrong done to tho plaintiff, and leaves open only the question of how much the plaintiff is entitled to re over. It was suggested by the plaintiff in tbe present' case that as the Court had decided on the rule for a new trial that on the second count the plaintiff would be entitled to recover only nominal d images, hotvms prejudiced by the leave given to the defend mis. If the Court has in effect so decided, no doubt a Judge at nisi prius would bo bound by such decision, ami it would have been his duty in case the plaintiff, instead of taking the money out of Court had replied damages ultra, to have directed the jury accordingly, and the plaintiff' would therefore gain nothing by a second trial, although if the plaintiff considered the law as to the measure of damages untenable, he could'have come to the Court to review tho Judge’s direction, and reconsider their own decision. Suppose, however, that the record had remained unaltered, still the law as to the measure of damages being the same the Judge would have been equally bound to direct that nominal damages only be given, and the jury would have been bound to follow such direction. The extraordinary argument used by Mr. B*rtun, that if the record had been left unaltered he might have induced the jury to defy the direction of the Judge, and to give a verdict contrary to law, is, of course, : no reason for not allowing the defendant to withdraw his pleas. Such an unfortunate contingency might, 'moreover, happen with’equal probability with tho record in Us altered as well as in its unaltered state. Another objection urged was, that it took away from tbe plaintiff the power lo apply to amend by adding a count. Clearly it does nothing of the kind,: 1 can only say that if the plaintiff had wished to amend it is strange he lias not long ago made an application for the purpose. Apart, therefore, from any effect the 2stl» section of the Resident Magistrates Act may have, the first part of the order is unobjectionable, unless it is rendered objectionable by something inserted iu the latter part of the order, or from the omission of some condit on which should have been imposed by the order on the defendants/; It seems to me that tho latter part of tho order which purports to be by consent has practically no effect at all. In leaves insfafu quo the questions of the costs of the rule and of tho first trial, and so far as it has any operation it operates in favor-of tho plaintiff', as it suspends tho issuing of execution by tho defendant for the costs he hail obtained by the rule. If this part of the order is stated erroneously to have been made by consent it is clear that the Judge who made the order should have been resorted to so that any doubt as to what actually took place on the making of the order should be set at vest, and the order, if necessary, amended. The Court will not now interfere with ihfe, order on the ground of this mistake, if mistake it bo, : unless it also appears that the o-der is impeachable by reason of some condition not having been imposed on tho defendants which ought to have been Imposed. Ought then any condition to have been imposed on the defendants either as to paying the costs of the first trial, or as to abandoning the costs he had obtained by the rule for a new trial., The order leaves both these matters’ ns they were left by the Court, and does not prevent the Court hereafter from giving the plaintiff' the costs of the former trial if it thinks fit to do so; I see no reason why tho order should have Imposed any such conditions. When a defendant upon being defeated at his first tria* obtains a rule for a new trial, and then withdraws his pleas and suffers judgment by default, ho has not to pay to the plaintiff the costs of the first trial (Peacock v. Harris, SA. and E., 454). So also when a plaintiff defeated at the first trial obtains a rule for a new trialaud then discontinues, lie h-‘S not to pay the defendant the costs of the first trial (Jollift'e v. Mundy, 4 M. and W., 502). Why therefore when a defendant, after having obtained a rule for a new trial, pays money into Court,, must it be made a condition of his doing so that he should pay the costs of the first trial? These costs fall to the ground unless some mention of them is made in tho rule for h new trial. In the present case the costs were reseived for the subsequent decision of the Court. It would have been manifestly wrong for the Judge to have adjudicated upon the question, and thus have prevented the C mrt from exercising the power it had reserved to itself. It would have been also wrong for tho Judge to have interfered with the costs of the rule that had been given by tho Court, It by no means follows that because the defendant pays money into Court, he was not justified in moving for a new trial; ami unless it were made perfectly clear to the Judge that tho rule had been ‘altogether futile, there is no reason why the defendant should have been made to waive the costs the Court had given him. The question .iu the case which has given me the most difficulty is as to the effect of section 28 of The Resident Magi tmtes Act, 18(37, in depriving plaintiff of his coats. There is no need on the present occasion to decide the precise effect of that section. The construction placed upon it by Mr, Barton may or may not be the correct one, but at any rate a great deal of argument could be adduced favorable to Mr, Barton’s view. If Mr. Barton's view on this point is correct, and if it is necessary in any action brought in the Supreme Court, where the plaintiff lias recovered a less sum than he might have recovered iu the Magist ate’s Court, that in order to entitle him to any costs there must be a trial and a certificate of the presiding Judge, then It might follow in the present case that if the plaintiff took out of Court the money paid in lie would be entitled to no costs at all. 1 think that.if the defendants obtained the concesi slou of being allowed to pay money into Court it would have been a fair condit'on : (hat the plaintiff should not run the risk of being possibly deprived of his costs by a side wind. The question,’however, of the construction of the Magistrates Act was not raised before the Judge who made the order, and the plaintiff has therefore himself to thank if any reference to it was-omitted in the order.. It was admitted, as I u ulcrstood, by Mr. Travers, that according to His construction of the order and of the ‘Magistrates Act it was neither the intention of the order nor the effect of the Act to deprive the plaintiff .of these costa. As this is so, though-there may be some doubt as to whether it is strictly right to vary the order in this particular, yet it does not seem unreasonable that the O urt should now so amend the order that the doubt might be set at rest. I think that tho order might bj amended by making it an express terra, of tho . order granting leave at so late a stage to the defendant to, withdraw his pleas, that if the plaintiff should take out of Court the-sum paid iu in satisfaction of his claim, the defendants should paylo the plaintiff’ such costs of the action up to the time of payment into Court as they would have had to pay if the action had been one winch could not have been brought in the Magistrates Court. This would, of course, leave untouched the question of the costs of the first trial and of the rule for a new trial.

As ta the question of the order becoming abandoned by delsy, I agree with what Ims been already said by the Chief Justice. With respect to the charges of fraud rimt were made, at tho hearing, 1 can only say that there is not tho slightest evidence before the Court to support them.