a nullity, the plaintiff then gave credit to the defendant for 91. on a cross demand, and issued execution for 177. debt and 67. costs, it was held by the Court of Queen's Bench, Patteson, J., dissentiente, that the plaintiff was only entitled to costs on the lower scale (a).

This case was decided upon the directions of Hil. T. 4 Will. IV.; but, as regards this question, there is no distinction in the language of the present directions, except that if this case be law, the plaintiff under similar circumstances would be only entitled to the costs as on a writ of trial, he having claimed more than 20l., and recovered less.

Where a plaintiff claims more than 207., but obtains a verdict for a sum under 20., by reason of a tender of the remainder of the amount claimed before action brought, the costs must be taxed on the lower scale (b).

Although the directions to the taxing officers are, on their face, confined to the case of a plaintiff recovering either by verdict or otherwise some part of his demand, they have nevertheless been applied, in the discretion of the Masters, to the taxation of a defendant's costs, where he succeeds in defeating the plaintiff's claim altogether, and the Courts have refused to interfere (c). If, however, the Master taxes the defendant's costs in such a case on the ordinary scale, the Courts will not interfere (d); acting on the principle that those directions did not interfere with the previously existing discretion of the Court through its officers to allow a greater or less amount of costs to either party, and that there was nothing, therefore, to prevent the application of the spirit of their directions to the case of a successful defendant. In one of these cases (e) Mr. Justice Maule asks, "Is there anything in the cases cited inconsistent with the exercise of a discretionary power by the Master in taxing the defendant's costs?

In Williamson v. Heath the Master taxed the de

(a) Savage v. Lipscombe, 5 Dowl.385. (b) Dixon v. Walker, 7 M. & W. 214; 8 Dowl N. S. 887; 10 L. J. (N. S.), Exch. 43, S. C.

(c) Williamson v. Heath, 4 Q. B. 402; 3 G. & D. 474; 12 L. J. (N. S.),

Q. B. 168, S. C.

(d) Richardson v. Kensit, 1 D. & L. 748; 13 L. J. (N. S.), C. P. 17; Parsons v. Pitcher, 4 Bing. N, C. 306; 6 Scott, 298.

(e) Richardson v. Kensit, supra.

N

fendant's costs on the reduced scale, as he might have done long before these directions were issued. If that scale had never existed, he would have had full power to say what was a proper amount of costs to be paid to the defendant, and the Court might have adopted his decision. The Court of Queen's Bench thought that enough had been allowed to the defendant; and, as I understand the language of the Court, it amounts to this: there is nothing in the rule which takes away the discretion of the Master; and so far from having exercised that discretion improperly, the allowance which he has made to the defendant is quite in conformity to the spirit of the rule. Parsons v. Pitcher stands upon the same footing."

Although these observations were made, and the cases decided with reference to former directions of Hil. T. 4 Will. IV., they are applicable to those of Hil. T. 1853, as the latter do not in terms refer to defendant's costs, where the plaintiff succeeds entirely, or fails altogether, although they expressly provide that the defendant's costs (if any) shall be taxed on the higher scale in cases where the plaintiff having claimed a greater sum fails to recover more than 207. (a).

If the Master taxes the costs on the full scale, where in fact they ought to have been taxed on the lower scale, the Court will direct a reviewal of the taxation (b).

The certificate of the Judge at Nisi Prius, that the cause was proper to be tried before him to entitle the successful party to full costs, may be given at any time (c); and to enable

(a) The rules of Hilary Term, 1853, differ from the previous rules of Trinity Term, 7 Vict., which expressly directed the defendant's costs, as well as the plaintiff's, to be taxed on the reduced scale, where the sum claimed and recovered did not exceed 201. As the lower scale of costs under the present rule, however, includes defendant's costs, it is quite clear there will be no difference in the practical operation of the rules. In a case under the former rule, where the Master had taxed the defendant's costs on the higher scale,

although the defendant was in fact only entitled to costs on the reduced scale, the Court refused to order the taxation to be reviewed, on the ground that it did not appear that the plaintiff at the taxa. tion had called the Master's attention to the fact of the demand being under 201. Parsons v. Pitcher, 4 Bing. N.C. 306; 6 Scott, 298.

(b) Elleman v. Williams, 2 D. & L. 46; 13 L. J. (N. S.), Q. B. 219, S. C. (c) Ivey v. Young, 5 Dowl. 450; Broggref v. Hawke, 3 Bing. N. C. 888; 5 Scott, 148; 6 Dowl. 67, S. C.

the Judge to grant the certificate it is not necessary that he should hear the cause throughout. If the cause, after being called on, is referred to arbitration, the Judge may grant the certificate, and may do so after obtaining the opinion of the arbitrator on the point (a).

It is to be observed, that if a cause be referred to arbitration, and the arbitrator award less than 207., he cannot certify to give costs unless the same power of certifying is given to him as a Judge at Nisi Prius would have had (b).

Where cross actions, and all matters in difference were, referred to an arbitrator by a Judge's order, which directed that the costs of one of the actions and of the reference should abide the event, and that the costs of the other should be in the discretion of the arbitrator, but no power was given to enter up judgment, or to give any certificate; the arbitrator having awarded 177. 38. to the plaintiff in one of the actions, and that each party should bear his own costs of the other action, it was held that the Master ought to have taxed the costs on the reduced scale, although the unsuccessful party had resisted effectually a summons to try his action before the sheriff, on the ground that he claimed more than 207. (c).

It may be here observed, that the sheriff, or other Judge of an inferior Court to whom a cause is sent by writ of trial under the 3 & 4 Will. IV. c. 42, s. 17, has no power to certify to deprive the plaintiff of costs under the statute 43 Eliz. c. 6, where the damages are under 40s. (d); neither has the superior Court in which the action is brought any power, either under that statute or otherwise, to certify after the trial before the sheriff; nor will the Court interfere to stay the proceedings in such a case on payment of the debt without the costs (e). It was suggested, however, in one of these cases, that if the

(a) Nokes v. Frazer, 3 Dowl. 339. (b) Wallen v. Smith, 5 M. & W. 159; 7 Dowl. 394; Astley v. Joy, 9 A. & E. 702; see Webber v. Lee, 1 D. & L. 584.

(c) Elleman v. Williams, 13 L. J. (N. S.), Q. B. 219; 2 D. & L. 46, S. C. (d) Wardroper v. Richardson, 1 A.

& E. 75; 3 N. & M. 839; Jones v. Barnes, 2 M. & W. 313; 5 Dowl. 455, S. C.; Elstey v. Kirby, 1 Dowl. N. S. 946; 9 M. & W. 536, S. C.

(e) Jones v. Barnes, supra; Story v. Hodgson, 5 Dowl. 558; Batchelor v. Dudley, 2 M. & G. 333.

action was brought for less than 40s., the fact might be alleged before the Judge, on the application to have the cause tried before the sheriff, as cause for not granting the writ of trial; but the provisions of the County Court Acts, 9 & 10 Vict. c. 95, and 13 & 14 Vict. c. 61, and 15 & 16 Vict. c. 54, would operate in most cases to prevent a plaintiff obtaining a writ of trial as a subterfuge to avoid the deprivation of costs; for it must be borne in mind that neither these directions as to costs, nor the fact of the case being tried before the sheriff, interferes in any way with the effect of the Small Debts Act, (9 & 10 Vict. c. 95,) and a defendant, by consenting to a cause being tried before the sheriff, was held not to be precluded from entering a suggestion under that statute to deprive the plaintiff of costs, although, at the time he consented to the trial before the sheriff, he knew that the plaintiff ought to have proceeded in the County Court (a). And now, by the 13 & 14 Vict. c. 61, the sheriff has power to certify, under the 12th section of that Act, to give the plaintiff costs, and, in the absence of such certificate, he would not be entitled to them (b).

It follows that, in order to entitle a plaintiff recovering a verdict for a sum not exceeding 201. to full costs, he must obtain a certificate as well under the Small Debts Act as under the above directions. It may be observed that a Judge who certifies, under the former provisions, that there was a sufficient reason for bringing the action in the superior Court, would in general not refuse to certify under the directions; but there would be no inconsistency in withholding the latter certificate where the plaintiff is entitled to a certificate under the Small Debts Acts, merely on the ground that the superior Court had concurrent jurisdiction.

Upon writs of inquiry before the sheriff, where the damages are under 201., it is the practice to tax the costs on the same scale as upon trials before the sheriff, and although the directions appear rather to entitle the plaintiff in such a case to

(a) See Shaw v. Oates, 4 Dowl. 720; Bond v. Bailey, 2 C. M. & R. 246; 3 Dowl, 808, S. C.; Capes v. Jones, 3

D. & L. 779.

(b) See ante, p. 159.

costs on the lower scale (which are above the costs on a writ of trial), yet the Courts will not interfere with this practice (a).

CHAPTER XIII.

DOUBLE AND TREBLE COSTS, AND COSTS AS BETWEEN

ATTORNEY AND CLIENT.

BESIDES those statutes which deprive a plaintiff in certain cases of all costs, or restrain the amount to which he is entitled, there are others which, either by express terms or by their legal effect, give either to plaintiffs or defendants an amount of costs beyond that to which they would be otherwise entitled under the Statute of Gloucester or the Statute of James. The object of the Legislature in depriving a party of his costs of suit, or granting him additional costs, is in general the same; namely, to discourage the bringing of frivolous actions altogether; to confine actions below a certain amount to cheap tribunals; and also to prevent the commission of acts of a fraudulent or vexatious nature.

The statutes that in express terms gave additional costs were those that granted double costs, or treble costs, or costs as between attorney and client.

The statutes whose legal effect is to give additional costs are those that are silent with respect to costs, but give double or treble damages; for where an Act of Parliament gives double or treble damages for a cause of action, for which at common law a party would only be entitled to single damages, double or treble costs follow as of course (b). In ordinary cases the party recovers damages; those damages consisting of so much for the damages by him sustained, and so much for his costs; the costs therefore are part of the damages (c), and consequently an Act of Parliament, by giving double or treble damages, impliedly gives double or treble costs (d).

(a) See Hoopell v. Leigh, 5 Dowl.

40; 5 L. J. (N. S.), C. P. 268.

(b) Bylotav. Pointel, Dyer, 1596.

(c) See ante, p. 3.

(d) Deacon v. Morris, 2 B. & Ald. 393.