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A Question of Costs.

Mr llawson, R.M., gave a decision on a question of costs, in the case of Inston v, Dive, which is of importance, not so much that it lays down a new principle, as it shows the law to be different to what it is generally supposed to bo. The Resident Magistrate decided as follows : —“Defendant having paid money into Court, without the costs incurred by the plaintiff up to tho time of such payment, and the plaintiff having recovered no further sum in the action than tho sum so paid in, the question is: Can the Court order tho plaintiff to pay the defendant’s cost of action ? Section 44 of tho R.M. Act says ; The defendant may at any time before the hearing of the cause pay into Court such sum of money as he shall think a full satisfaction for the demand of the plaintiff, together with the costs incurred by plaintiff' up to the time of such payment, and the said sum of money and costs shall be paid to the plaintiff; but if he shall elect to proceed and shall recover no further sum in the action that shall have been so paid into Court, the plaintiff shall pay to such defendant the costs incurred by him in the said action after such payment, and the Court shall give judgment accordingly. It is contended that a tender having been pleaded it was not necessary to pay in the costs. To constitute a legal tender the tender must bo unconditional —must be tendered as payment of the whole sum due—not tendered as a compromise of the plaintiff’s claim, as_ in the present case. It could be nothing else in this case but an offer of a compromise. The amount that should be paid was evidently an uncertain sum based upon the estimates of experts. For instance, if the contract price sued for were LSO, and LlO were alleged to have been already paid, a tender of L4O would be a legal tender. Such would be an instance of a tender in payment, and not merely as a compromise; or, for instance, if part of a contract at fixed prices had been performed, a tender in full for the part performed. However, whether this was a legal tender or not I think is immaterial. There are no provisions or rules as to tender under the Resident Magistrate’s Act. To be entitled to tho provisions of section 44 of the Act, the plaintiff must, whether there has been a tender or not, strictly comply with them. The Magistrate’s powers are confined within the four corners of the Act. He has no discretion beyond. If the section has been complied with, ho must order the plaintiff to pay to tho defendant tho costs incurred by him. If the section has not been complied with, the costs are in the discretion of the Court, but tho Court cannot make the plaintiff, who has had judgment for a certain amount, pay tho defendant’s coats. I give judgment for the plaintiff for LIO 12s without costs.”

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Bibliographic details

A Question of Costs., Evening Star, Issue 7929, 10 June 1889

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A Question of Costs. Evening Star, Issue 7929, 10 June 1889