was entitled to recover as special damage, the costs of preparing and entering into the agreement, of investigating the title, of endeavouring to procure a good title, and also of the grant of the lease; but that he was not entitled to recover as damages the expenses of raising the 3150l. and loss of interest; nor the expense of preparing the deed of settlement of the company; nor the money expended in forming the company and in registering it provisionally; nor the loss of profits from the granting of the lease and the establishment of the association; nor the profits he would have derived as an attorney in carrying out the objects of the association; nor the other advantages he would have derived from his time, trouble, &c., bestowed in the formation of the company (a).

5. There are some cases, also, in which the plaintiff in an action of tort may recover, as part of the damages, the costs of legal proceedings consequent upon the defendant's wrongful act, because the defendant is responsible for the necessary consequences of that act, and the necessary consequences have been said to be what a reasonable man would do under similar circumstances, where he had no other judgment but his own to resort to; and it may be one of them that he should incur costs (b). Each case of this kind must therefore stand on its own merits, and the question is often one of fact for the jury rather than of law.

In an action for running down a ship, it appeared that the plaintiff had been obliged, in consequence of the injury, to employ a steam tug, the owners of which demanded 150/. for salvage, and commenced a suit in the Court of Admiralty against the plaintiff, who paid 201. into Court; but the Court ultimately decreed 457. to the salvors; and it was held, upon these facts, that the plaintiff was not entitled to recover the amount of the costs incurred by him in that suit (c). The point in this case was not left to the jury, but the Court thought that if the plaintiff had requested it to be so left, the jury would probably have found that as the Court of

(a) Hanslip v. Padwick, 5 Exch. Rep. 615; 19 L. J. (N. S.), Exch. 372. (b) See, per Tarke, B., Tindall v.

Bell, 11 M. & W. 232.
(c) Tindall v. Bell, supra.

Admiralty, which had the means of forming the best judg ment upon the circumstances, thought 457. the proper sum to be paid to the salvors, the tender of a less sum was not the course that a reasonable man ought to have pursued.

In trespass for taking the plaintiff's goods in execution under a warrant of attorney and judgment, which were afterwards set aside as illegal, it was decided that the plaintiff could not recover as part of the damage, his costs incurred in vacating the warrant of attorney and judgment; the Court, in giving judgment, said that although the plaintiff might have recovered them in a proper form of proceeding, he could not sue the defendant for a trespass per quod he was put to expense in removing the cause of the trespass (a). In the argument for the defendant it was suggested that the Judge who set aside the warrant of attorney, judgment, and execution, might have set them aside with costs, and no doubt that is so; and probably the Court referred to this power of the Judge and the defendant's right to seek the exercise of it, when saying that the plaintiff might have recovered the costs in a proper form of proceeding; but as the question arose whether the costs might have been recovered if the action had been for maliciously doing the act, the words of the judgment leave it doubtful whether the Court meant by a proper form of proceeding, the application to the Judge to set aside with costs, or the action for proceeding maliciously or both. A similar question must sometimes arise when there is no opportunity of obtaining the costs of setting aside or vacating a proceeding which it is necessary to get rid of before bringing an action; for instance, an illegal conviction on which a party is or has been imprisoned in such a case the conviction must be quashed before the action is brought, but if the quashing of the conviction be necessary only for the purpose of taking it, so to speak, out of the way of the right of action, Holloway v. Turner (b) seems to be an authority that the costs of quashing the conviction cannot be recovered as damages in an action of trespass, but if the quashing of the conviction were necessary

:

(a) Holloway v. Turner, 6 Q. B.. Rep. 928; 14 L. J. (N. S.), Q. B.

143.
(b) Supra.

in order to obtain the plaintiff's discharge from imprisonment, it is apprehended the costs of quashing are legitimately recoverable as special damage in an action for that imprisonment.

In an action on the case against the Sheriff, for taking insufficient sureties on a replevin bond, it was held that the plaintiff was entitled to recover the costs of unproductive actions brought by him against the sureties, provided the amount was within the bond (a).

In all these cases, where the plaintiff is entitled to recover costs incurred by him, he is entitled to recover the amount for which he is actually liable, and therefore he may recover a sum equivalent to costs as between attorney and client (b), and he may recover such costs, although they have not been actually paid by him at the time of the commencement of the action, provided his liability over is ascertained by judgment recovered, and the declaration be framed accordingly (c); but the mere liability of the plaintiff to be called on by action to pay, does not, it seems, give him a right of action (d).

If one of two persons indicted, having a defence common to both, retains an attorney to defend them, and pays him the whole costs of defence, and they are acquitted; such person in an action for malicious prosecution, may recover the costs so paid as part of the damages, if the jury find that they have been fairly incurred, and that the defence of one was not readily separable from the defence of the other (e).

Extra costs, that is to say, costs ultra the costs awarded by the Court, are said not to be recognised by law as the subject of damages (f), but on this subject the practice has not been uniform (g); and it perhaps cannot be taken as fully settled

(a) Plumer v. Brisco, 11 Q. B. Rep. 46; see Stansfeld v. Hellawell, 7 Exch. Rep. 373; 21 L. J. (N. S.), Exch. 148.

(b) See Smith v. Compton, 3 B. & Adol. 407.

(c) Richardson v. Chasen, 10 Q. B. Rep. 756; Smith v. Howell, 20 L. J. (N. S.), Exch. 377; Warwick v. Richardson, 10 M. & W. 284; 11 L. J.

(N. S.), Exch. 351.

(d) Collinge v. Heywood, 9 A. & E. 633; 8 L. J. (N. S.), Q. B. 98.

(e) Rowlands v. Samuel, 11 Q. B. Rep. 39.

(f) Cotterell v. Jones, 11 C. B. Rep. 713; 21 L. J. (N. S.), C. P. 2; Sinclair v. Eldred, 4 Taunt. 7.

(g) See Sandback v. Thomas, 1 Stark. N. P. C. 306.

that under no circumstances can extra costs be recovered as damages.

NOTE.—As to the right of a claimant to the costs of an inquiry under s. 68 of the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, see the South Eastern Railway Company v. Richardson, in Error, 21 L. J. (N. S.), C. P. 122. As the costs of such an inquiry are not costs of proceedings in the superior Courts, it would be out of place in this work to do more than refer to the case.

APPENDIX.

No. I.

REGULÆ GENERALES.

HILARY TERM, 1853.

DIRECTIONS TO TAXING MASTERS, AND SCALE OF COSTS.

DIRECTIONS TO THE MASTERS OF THE COURT. (In lieu of Directions now in force.)

1. Between the 1st day of September and the 24th day of October in each year, one of the Masters of the Courts of Queen's Bench, Common Pleas, or Exchequer shall have authority to tax Bills of Costs, take references, and perform other necessary and immediate matters arising in or appertaining to any or either of the said Courts at the office of his own Court; and for such purpose one of the Masters shall attend on certain days in each week, as may be found necessary, and of which due notice shall be affixed in the Judge's chambers and in the respective offices of the Masters of each Court; and such Master shall be considered as the Vacation Master.

2. In order to diminish as much as possible the costs arising from the copying of documents to accompany the briefs of counsel, the Masters are to allow only the copying of such documents, or such parts of documents, as they may consider necessary for the instruction of counsel, or for use at the trial.

3. No fee to counsel to be allowed on writs of trial, except on trials before the Judge of the Sheriff's Court of London, or of other Courts of Record where attorneys are not allowed to practise, and then one guinea only.