before the sheriff or Judge of an inferior Court, where the Judge shall refuse to make an order for such trial, the Judge may, if he shall think fit, direct at the time of such refusal on what scale the costs of each party shall be taxed, and in default of such direction, the costs of both parties shall be taxed on the higher scale." It is to be observed that these directions are not rules of Court, properly speaking, but only directions given by the Court to regulate the conduct of the Master in matters which the law has left to the discretion of the Court; costs of increase being those which, as has been already shown, are given by the Statute of Gloucester at the discretion of the Court (a). They do not therefore limit the discretion of the Court, but merely the discretion of the Masters or officers of the Courts, and do not take away any discretionary power even from the Masters, except in cases to which they apply in terms. It has been suggested as a reason why these were not made rules of Court, that in that case they might be considered as intended to operate as a repeal of the Acts of Parliament, giving costs to a successful party at the discretion of the Court; and unless such a power of repeal had been given by an Act of Parliament, a rule of Court could not have taken away the right of parties to have their costs so taxed (b). As by the terms of the directions they are confined to cases where a writ of trial can be issued, they only apply to actions "for any debt or demand in which the sum sought to be recovered, and indorsed on the writ of summons, shall not exceed 201. ;" and as by the Common Law Procedure Act, 1852, (15 & 16 Vict. c. 76, s. 8,) it is only "upon the writ and copy of any writ served for the payment of any debt" that the amount of the debt is required to be stated, the lower scale of taxation does not apply unless the whole debt or demand of the plaintiff is of such a nature as may be indorsed on the writ of summons (c). No action of tort is within (b) Per Maule, J., Richardson v. the operation of the lower Kensit, supra. (c) See Jacquot v. Boura, 5 M. & W. 155; 7 Dowl. 331, S. C. scale, being excluded not only by the express wording of the directions (which are confined to actions on contract), but as not being within the 8th section of the Common Law Procedure Act (a). Although in consequence of the power under the Common Law Procedure Act, to join various causes of action in one writ, some questions may arise in the application of these directions, unless provided for hereafter by rules, the following cases are still in point: : Wherever the claim is for unliquidated damages, the action, although founded on contract, is not triable before the sheriff. Thus where the amount claimed on the writ of summons in an action of assumpsit was 121. 198., but the first count of the declaration was in in indebitatus assumpsit for wages, and the second count for a wrongful dismissal, the damages being laid at 100%., and the particulars of demand claimed 77. 198. for wages, &c., "and also such further sum by way of damages as the jury might think proper to give for the wrongful dismissal of the plaintiff without notice," it was held that this was not a case triable before the sheriff, there being a claim for unliquidated damages (b); and for the same reason, an action of assumpsit for not returning goods let to hire by the plaintiff to the defendant, is not triable before the sheriff, although the damages laid in the declaration are under 20l. (c). So where, in assumpsit, the declaration stated, that in consideration that the defendant was tenant of a farm to the plaintiff, he promised to spend on the farm all the hay which should arise during the tenancy, and alleging a breach of that agreement; and in a second count the plaintiff claimed 187. 158. as the price of hay permitted by the plaintiff to be carried off the farm; it was held that this was not a case triable before the sheriff (d). And the same where in assumpsit (a) See Watson v. Abbott, 2 C. M. & R. 150; 2 Dowl. 215, S. C.; Smith v. Brown, 2 W. & W. 851. The principle of these cases, although decided under abolished rules and directions, is applicable to the new Procedure Act, and the directions of Hilary Term, 1853. (b) Jacquot v. Boura, supra; Lis more v. Beadle, 1 Dowl. (N. S.) 566. (c) Collis v. Groom, 3 M. & G. 850; 4 Scott, N. R. 574; 1 Dowl. (N. S.) 496, S. C. (d) Lawrence v. Wilcock, 11 Ad. & E. 941; 9 L. J. (N. S.), Q. B. 284, S. C. the declaration was for not using premises in a tenant-like manner, with counts for use and occupation, and on an account stated, although the writ of summons was indorsed for 17., and the particulars claimed 157. for rent and 21. for non-repair and improper use of the premises (a). So also where in the same form of action the declaration alleged that the plaintiff agreed to give up possession of a certain farm, the property of A., to the defendant, the latter promising to pay to A. the rent from a certain day, and alleging as a breach that the defendant did not pay 137. of that rent, by reason whereof a distress was made by A. on certain chattels of the plaintiff, whereby the plaintiff was not only put to great trouble and inconvenience, but was forced to pay the 137., and was otherwise greatly injured and damaged, with counts for money paid, and on an account stated, and the particulars of demand under the indebitatus count claimed 137. paid by the plaintiff under a distress for rent (b). But where the first count of a declaration in assumpsit stated that in consideration that the plaintiff would send a pony to the defendant, and would sell and deliver it to A., the defendant undertook that he was authorized by A. to purchase it on his behalf; that the plaintiff sent the pony to the defendant, and was willing to sell it to A., but that the defendant had no authority from A. to purchase it, with an indebitatus count for a pony sold and delivered, it was held that this was a record that might be tried before the sheriff, being in substance an action for the price of the pony (c). So where the declaration was in assumpsit on the warranty of a horse sold by the defendant to the plaintiff for 77. 2s. 6d., with a claim for unliquidated damages as expenses of the keep (but which were alleged at 57.), the declaration also containing money counts and laying the damages at 207., it was held to be triable before the sheriff (d). So where in assumpsit for arrears of salary due to the plaintiff as chorus-master at a theatre, and for salary as a performer, it appeared that the action was for arrears of salary at a fixed amount (from which the defendant claimed to make (a) Boffey v. Shoobridge, 9 Dowl. 957. (b) Jones v. Thomas, 11 L. J. (N.S.), Q. B. 154. (c) Price v. Morgan, 2 M. & W. 53. (d) Allen v. Pink, 4 M. & W. 140. deductions), and included a week's salary consequent on a dismissal without a week's notice, and also for certain performances as an actor in certain parts undertaken at a short notice, and respecting which there was no agreement as to the rate of remuneration, the particulars of demand claiming a sum of 197. 18s. 6d., made up of various items of the above description, but not containing any claim for unliquidated damages (in which respect it differed from the case of Jacquot v. Boura (a)), it was held to be a case triable before the sheriff (b). It will be seen by these cases that the fact of the particulars of the demand claiming less than 207. does not render the case triable before the sheriff, if the claim be in fact, although only in part, founded on unliquidated damages (c). With regard, also, to actions of covenant, it is to be observed that those only are within the statute 3 & 4 Will. IV. c. 42, s. 17, in which a specified sum under 207. is sought to be recovered, as for example, rent (d). And an action on a covenant to pay the costs of a demurrer in a suit in Chancery, and certain other costs, is not within the statute, and consequently not within the directions in question (e). It is no objection to the writ of trial, that the indorsement on the writ of summons claims interest on the sum demanded. Thus, where the indorsement was in the following form: "The plaintiff claims 197. 4s. 7d., and interest thereon," not stating from what period the interest was claimed, the Court refused to set aside the execution of the writ (f). Having now ascertained in what actions a writ of trial may be issued, we have next to consider under what circumstances the termination of the suit must take place to bring the parties within the operation of the directions, and disentitle them to costs on the full scale. It need scarcely be mentioned that if the proceedings are (a) Ante, p. 173. (b) Hatton v. Macready, 2 D. & L. (c) See Lismore v. Beadle, 1 Dowl. (N. S.) 566. (d) See per Patteson, J., Walther v. Mess, 7 Q. B. Rep. 191. (e) Croft v. Miller, 3 Bing., N. C. 975, 5 Scott, 142, S. C. (f) Fryer v. Smith, 6 Scott, N. R. 658; 1 D. & L. 75, S. C. stayed on payment of debt and costs, and the debt recovered does not exceed 207. (and the action is in other respects within the directions of Trinity Term, 7 Vict.), the costs must be taxed on the lower scale, although the action involves a question of difficulty and importance, rendering it a proper case to have been tried at the assizes, if not settled (a). And the same rule applies when the writ is indorsed for a sum under 207., and the defendant by leave withdraws his plea, and suffers judgment by default, after having resisted an application for a writ of trial (b). So also, if the case have been referred to arbitration, and a sum under 201. awarded (c). On the other hand, if it appears by the record that the plaintiff claimed damages necessarily unliquidated, then although the damages ultimately recovered, whether on trial or otherwise, do not exceed 201., the plaintiff is entitled to his costs on the higher scale (d). In an action of debt, in which the writ of summons was indorsed for 577., the defendant pleaded, as to all but 197., payment; and, as to the 197., payment into Court. At the trial he proved payment to the plaintiff of all the debt beyond the 197.; but it appeared that a sum of 137. was paid after action brought. The verdict was thereupon entered for 137, the plaintiff undertaking to sue out execution for the costs only. It was held that the plaintiff was entitled to costs on the scale applicable to the recovery of a sum above 201., for the sum really recovered was the 137. paid after the commencement of the action, and the 197. paid into Court. The plaintiff therefore recovered 321. (e). In a prior case, however, where the writ of summons was issued for 267., and the plaintiff obtained judgment for that amount owing to the defendant's delivering a plea which was (a) See Keppel v. Shilson, 4 Q. B. Rep. 914; 12 L. J. (N. S.), Q. B. 323; Cooke v. Hunt, 5 M. & W. 161; 8 L. J. (N. S.), Exch. 216. (b) Levy v. Magnay, 10 M. & W. 664; 2 Dowl. (N. S.), 512; 12 L. J. (N. S.), Exch. 345. (c) Wallen v. Smith, 3 M. & W. 138. (d) Walther v. Mess, 7 Q. B. Rep. 189; 2 D. & L. 961; 14 L. J. (N. S.), Q. B. 230; Croft v. Miller, 3 Bing. N. C. 975; 5 Scott, 142, S. C.; see contra, Horn v. Pocock, 2 Dowl. (N. S.) 948; 12 L. J. (N. S.), Q. B. 274. (e) Frewster v. Boggett, 9 M. & W. 20; 1 Dowl. (N. S.), 406; 11 L. J. (N. S.), Exch. 8, S. C. |