C. L. Cham.]

country, was brought either to try a right or was wilful and malicious. Perhaps in no case properly could the action be brought merely to try a right, for although a plaintiff, might wish to establish that the woman in question was his wife, it would scarcely be allowed that this form of action, although it would settle that right or question, should be made use of for such a purpose. A judge might, however, certify that such a cause of action was wilful and malicious, for it cannot be universally true in fact that every charge of this nature is wilful and malicious, although the presumption perhaps is that it is so. If, for instance, a married woman were to carry on an intrigue with a man under pretence of being an unmarried woman, and more particularly if she had led a somewhat free life before, or if her husband had been careless as to how she conducted herself, it might fairly be said that the defendant's conduct was not wilful and malicious. If so, then I think a judge could, within the language of this statute, certify under proper facts, even in such an action, that the trespass or grievance was wilful and malicious, in case the damages given were under the amount of eight dollars; for if there can be a negation of wilful and malicious conduct, there may be cases in which the contrary may be affirmed.

So in an action for seduction, a right might possibly be tried whether the defendant was or was not married to the woman in question, and the charge might also be or not be wilful and malicious, according to circumstances somewhat analogous to those which have been referred to with respect to the action for criminal conversation.

In cases of this kind, where more than eight dollars damages are not recovered, it is pretty strong proof that the action should not have been brought at all, and I am not inclined to except such actions out of the very large terms of this statute, "if the plaintiff in any action of trespass, or on the case recovers," &c., when I do not see that it is impossible for the judge to certify in these cases.

I am of opinion, therefore, that the plaintiff in this case was not, upon the verdict, according to the statute, entitled to "any costs whatever." But as the statute is confined to a verdict or assessment, I think the plaintiff is entitled to recover his full costs of the demurrer, because he became entitled to them by the separate judgment of the court, and not "in respect of such verdict."

The cases referred to by the plaintiff show this conclusion to have been arrived at, but those referred to by the defendant, though on a different statute, cast some doubt on them. The cases that were cited by the defendant, of Prew v. Squire, and Abley v. Dale, to which may be added Dunston v. Paterson, 5 C. B. N. S. 279, are not applicable here, for the 324th section of the C. L P. Act, refers only to costs in respect of the verdict, while the statutes on which these decisions were made deprived the plaintiff of all costs in the cause whatever.

I shall follow, of course, the decisions in our own Court of Queen's Bench, and if the defendant desire it he can re-open the matter there, as the cause is in that court. I shall make the

[C. L. Cham.

order that the costs be revised by the Master, and that on such revision the Master shall not allow to the plaintiff, in respect of his verdict, any costs whatever, but that he shall tax to the plaintiff his full costs in respect of the demurrer and the judgment thereon, and that the judgment roll and writ of fieri facias be amended according to the result of such taxation, and as the defendant has not altogether succeeded in his application the order will go without costs. Order accordingly.

NEIL V. MCMILLAN.

Entering judgment nunc pro tunc—Delay, when arising from act of Court-Excuse.

Verdict for plaintiff on 22nd March, 1866. In Easter Term following, rule nisi for new trial, enlarged till Trinity Term, and judgment given on 24th September. Plaintiff died 26th June. On 4th October taxation of costs, but not concluded, as Master refused to tax full costs without certificate. In November, application was made for certificate; not heard, however. till February, 1867, owing to the judge. who tried the case, refusing to hear it until he should sit in Chambers, and upon notice to opposite party. In April following, application was made for leave to enter judgment nunc pro tunc, but refused, as administration not taken out, which was done in August following, and on the 24th August the present application was made to enter judgment nunc pro tunc, and to enter a suggestion of plaintiff's death, and that one Cross (who became assignee of the verdict in April, 1866) had been appointed administrator. Held, that the application must be refused, as the delay had been too great.

[Chambers, Sept. 30, 1867.]

On the 24th August last, a summons was obtained on behalf of James Fletcher Cross, administrator of the estate of the plaintiff, calling upon the defendant, his attorney or agent, to show cause why judgment herein should not be entered nunc pro tune, and why said Cross should not be at liberty to enter a suggestion of the death of the said James Neil, the plaintiff herein, and that the said James F. Cross is the administrator of his personal estate and effects, pursuant to the Common Law Procedure Act.

The verdict in this cause was rendered on the 22nd March, 1866. The defendant obtained a rule nisi in Easter Term, in May following, for a new trial or nonsuit. This rule was enlarged till Trinity Term following.

The plaintiff died on or about the 26th June. Judgment was given on the rule on the 24th September, as of Trinity Term.

On or about the 4th October, notice of taxation of costs was given to the defendant's attorney, on which he attended; and on the Master refusing to allow full costs without a certificate, the taxation stood over by consent till the certificate could be obtained.

After this, and before the first week in November, the plaintiff's attorney applied to the judge who tried the cause for a certificate for full costs; but he refused to entertain the application, until notice had been given to the defendant's attorney to attend before him, and until he was in Chambers.

The Chief Justice of the Common Pleas, who tried the cause, did not sit in Chambers till the end of January, 1867; and notice was given to the defendant's attorney to attend before the Chief Justice in Chambers, on or about the first week of February, and a certificate was given for full costs by the Chief Justice.

In April, 1867, an application was made in Chambers for leave to enter judgment nunc pro

C. L. Cham.]

tune, which was refused, because no administration had been taken out to the plaintiff's estate.

Measures were immediately taken for that purpose, and administration was granted to the plaintiff's attorney, Mr. Cross, in August, 1867.

Mr. Cross stated that he became the assignee of the verdict in April, 1866; the consideration for this, as stated in the copy of the assignment, being $5, paid to the plaintiff; and that he was the person solely entitled to the verdict, and to the costs of the action.

J. B. Read showed cause.

ADAM WILSON, J.-The judgment should have been entered within two terms after the verdict. When that time has elapsed, and the delay has arisen from the act of the court, leave will be given to enter judgment nunc pro tunc.

There is a good excuse for not proceeding till the defendant's rule nisi was disposed of on the 24th September.

I am not quite sure that the delay from that time till the Chief Justice gave his certificate in February afterwards, affords a sufficient excuse for not proceeding to enter judgment by applying for leave to enter it nunc pro tunc; but, giving the applicant the benefit of that period, there is the further period of delay, from February till April, when application was made for leave to enter judgment. This was refused, because no personal representative had been appointed to the plaintiff's estate.

The next application for leave to enter judgment was made on the 24th August last.

I fear there is too much delay from February till August, to justify me in making the order to enter judgment.

If the delay arose from the want of administration, that has been held to be no excuse, even although such delay was occasioned in part by the defendant filing a caveat. Freeman v. Tranah or Tranch, 12 C. B. 406; 21 L. J. C. P. 214.

I must discharge the summons, and leave the party to renew his motion in the next term. Summons discharged.

ENGLISH REPORTS.

CHANCERY.

(From the Weekly Reporter.)

SEAGRAM V. KNIGHT.

Timber-Tenant for life-Statute of Limitations. Where timber admittedly "ripe for felling," had been cut by a tenant for life,

Hell, that it could by no means be presumed that the timber was such as the Court would, if applied to, have ordered to be cut; that the cutting and selling the timber by the tenant for life was consequently a tortious act, and therefore that in respect of the moneys so realised the Statute of Limitations began to run immediately. Semble, the Court will not, on application. order timber to be cut merely because it may be ripe for felling;" but requires further, that the timber should be in such a state as to require cutting, or that it be shown that the felling will be a benefit to the remainderman. After the Statute of Limitations has begun to run its operation may be suspended.

A. committed a tortious act by felling and selling timber on land limited to him for life, with remainder to B. and his heirs. Before the Statute of Limitations had run out as against B., B. died, and A. took out administration to

his estate.

Held, in favour of B.'s heir, that the operation of the statute was thereby suspended until the death of A.

[Eng. Rep.

Where timber bas been felled by a tenant for life, and thet proceeds converted to his own use tortiously, the Courf will, after a long lapse of time, presume a settlement of accounts between him and the remainderman. [July 12, 13-15 W. R. 1152,]

This was an appeal from a decree of the Master of the Rolls; the bill prayed an account of the proceeds of timber felled and sold by a tenant for life.

Under a certain will William Frowd Seagram was tenant for life impeachable for waste of the land on which the timber grew, with remainder to his son in fee.

His eldest son, William Lye Seagram, came of age in 1834, and died in 1844, intestate, leaving the plaintiff, then an infant, his heir-at-law. William Frowd Seagram obtained letters of administration to William Lye Seagram's estate, and became his legal personal representative.

William Froyd Seagram died in 1864, having by his will appointed the defendant his sole executor. In 1831, while William Lye Seagram the then remainderman, was still an infant, William Froyd Seagram felled and sold timber to the value of £521 net, and treated the money as his own. In 1842 he felled and sold timber to the value of £127, and smaller cuttings took place in subsequent years.

The plaintiff came of age in 1865, and the bill in the suit was then filed, praying as against his grandfather's estate an account of the timber felled and sold by him.

It was alleged by the bill, and admitted by the defendant's answer, that the timber cut was "ripe for felling, and such as the Court, if applied to for that purpose, would have ordered to be cut." The defendant contended that the plaintiff's claim was barred by the Statute of Limitations.

The Master of the Rolls decreed an account of all cuttings subsequent to March, 1844, the date of the death of William Lye Seagram; but as to the prior cuttings, held that the plaintiff was not entitled to an account, and based this latter distinction, not upon the Statute of Limitations, but upon a presumption that the claim bad been settled between William Lye Seagram and William Frowd Seagram.

The plaintiff appealed.

Selwyn, Q. C., and Wickens, for the appellant. The cutting of the timber was under the circumstances an act which the Court of Chancery would have allowed, it is not therefore to be regarded as having been a tortious act, but as if it had been done under the direction of the Court. There was therefore a resulting trust in favour of the remainderman of the proceeds which were received by the tenant for life, and consequently the Statute of Limitations did not begin to run until the death of William Frowd Seagram in 1864; Harcourt v. White, 8 W. R. 715; 28 Beav. 303; Bagot v. Bagot, 12 W. R 36; 32 Beav. 509; Waldo v. Waldo, 12 Sim. 107. But even if this be assumed against us, and the case regarded as one in which the Statute of Limitations ran at once against the remainderman, even on that hypothesis, the operation of the statute was suspended after it had begun to [The LORD CHANCELLOR.-Can the operation of the statute be suspended after it has once begun to run?] It was suspended when William Frowd Seagram, the tenant for life, and the

run.

person who was liable to account to the remainderman for what he had done, became the legal personal representative of William Lye Seagram; the person to pay and the person to receive being thus the same, the money had got home, and therefore the statute stopped running. Moreover, the timber being rightly felled became part of the inheritance, and therefore in order to bar the plaintiff's remedy the statute would have to run twenty and not merely six years.

Southgate, Q. C., and W. W. Cooper, for the respondents, cited Ferrand v. Wilson, 4 Ha. 344, 381, but were stopped by the Court.

LORD CHELMSFORD, C., after stating the facts. It is contended, on the part of the plaintiff, that the tenant for life having merely done what the Court upon application would have sanctioned, the case must be considered as if every thing had been done under the authority of the Court, and as if the money produced by the sale of the timber had been invested, and the interest received by the tenant for life, the right of the reversioner to the principal not accruing till the death of the tenant for life. There can be no doubt, as the counsel for the plaintiff said, that what a trustee would be ordered by the Court to do is valid if done by him without the previous authority of the Court; but I do not see how that rule of a court of equity can apply to a case where the act when done was wrongful, and where the tenant for life had no right to assume when he did it that the Court, if applied to, would have sanctioned it. I am strongly of opinion that if an application had been made to the Court, it would not under the circumstances have allowed the timber to be cut. It is said, indeed, that "it was ripe for felling when so cut," but not that it was necessary to be cut, either on account of decay or because of overcrowding; and the remainderman in fee being at the time of the first cutting under age, I do not think that the Court would have been justified in ordering the timber to be cut upon the application of the tenant for life, merely because it was ripe for cutting. In Hussey v. Hussey, 5 Mad. 44, it was said by Sir John Leach that where there is a tenant for life impeachable for waste, the Court can only authorise the cutting of such timber as is decaying or which it is beneficial to cut by reason that it injures the growth of other trees. This was Lord Hardwicke's opinion in Bewick v. Whitfield, 3 P. Wms. 267, where he sald, "With regard to timber plainly decaying, it is for the benefit of the inheritance that it should be cut down, otherwise it would become of no value." If the tenant for life in this case had applied to the Court for leave to cut the timber, he must have shown that it would be for the benefit of the person in remainder that the timber should be cut, and therefore it is incorrect to assume, as is done both in the bill and answer, that nothing more being stated than that the timber was ripe for felling, the Court, if applied to for that purpose, would have ordered it to be cut. It is said that where there is a tenant for life impeachable for waste, he is entitled for his life to the interest of the money produced from the sale of timber cut down and sold under the authority of the Court, in the same manner as a tenant for life without impeachment of waste, and the. Vice

[Eng. Rep.

Chancellor Wood, in Gent v. Harrison, 8 W. R. 57, Johns. 517, expressed this opinion in a case where the timber was rightfully cut. The case of Waldo v. Waldo, 8 Sim. 261, hardly reaches to the full extent of the proposition, because there the tenant for life had an interest in the timber, beyond her right in it while standing, being entitled to cut it down for repair. Of this right she was deprived, although it appeared that there remained standing on the estate many more trees than were sufficient for future repairs. But whatever may be the course adopted by the Court, where a tenant for life impeachable for waste obtains its leave to cut down timber, I entertain no doubt that if he takes upon himself to cut and sell the timber without the authority of the Court, he does it at his peril, and he never can be permitted to derive any advantage from his wrongful act. There is abundant authority for this, but I need only mention the case of Williams. The Duke of Bolton, 1 Cox, 72, and Lushington v. Boldero, 15 Benv. 1. The act of the tenant for life being therefore a tortious act, the remainderman might either have brought an action of trover for the trees, which became his property from the moment they were felted, or an action for the money had and received for the produce of the sale. He might also have executed a suit in equity, for, as Lord Hardwicke said in Whitfield v. Bewick (ubi. sup.), it may be very necessary for the party who has the inheritance to bring his bill in this Court, because it may be impossible for him to discover the value of the timber, it being in the possession of, and cut down by, the tenant for life. But if the Statute of Limitations had run against his remedy at law, it would be too late to iustitute a suit in equity for an account of moneys received in respect of the timber that was cut and sold.

At the time of the first cutting in 1831, William Lye Seagram was under age, but he attained his majority in 1834; from that time the statute began to run, and in respect of the first cutting the remedy of William Lye Seagram was barred at his death in 1844. The next cutting which took place during the life of William Lye Seagram was in 1842. Of course, as in the former instance, the act being wrongful, the statute began to run immediately, but, upon the leath of William Lye Seagram, his father, the tenant for life, took out letters of administration and became the person entitled to receive as well as liable to pay for the wrong done to the remainderman. It occurred to me, at this part of the case, to express a doubt whether the Statute of Limitations, if it ever did run, could ever be stopped; but, upon an examination of the authorities, I am disposed to think my suggestion was not well founded. It appears from Needham's case, 8 Coke, 135, and Wankford v. Wankford, 1 Salk. 299, that where administration of the goods of a creditor is committed to a debtor, this is not an extinction of the debt, but a suspension of the remedy. As, therefore, during the life of William Frowd Seagram, there could be no action brought, the running of the statute was stopped until his death in 1864; the bill was filed upon the 26th of March, 1866.

As far as the case rests upon the statute, I think that the plaintiff is entitled to an account

Eng. Rep.]

of the timber cut in 1842, and in the following years during the lifetime of William Lye Seagram, as well as that which was cut after the 1st of April, 1844.

If it had been necessary to consider the case apart from the statute, it might in my opinion be fairly presumed from length of time that the parties had either settled accounts or that the plaintiff's father had waived his claim in respect of the timber cut in 1831. But I do not see my way clearly to such a presumption as to the cuttings in 1842, 1843, and March, 1844.

The plaintiff's right to an account of the timber cut during these periods not being barred by the Statute of Limitations, and there being no sufficient grounds to raise the presumption of a settlement of his claim, I think that under the circumstances, so far as the decree of the Master of the Rolls refuses an account of the timber which was cut prior to the 1st of April, 1844, it must be varied in that respect, and that the account should be carried back so as to embrace the timber which was cut in 1842, 1843, and March, 1844, and that in all other respects it must be affirmed. In fact the account must be carried back six years from the death of William Lye Seagram.

Southgate, QC.-In Rhodes v. Smethurst, 4 M. & W. 42, 6 ib. 351, there are some observations by Lord Abinger which militate against your Lordship's view respecting the suspension of the statute. [The case was then handed up to the Lord Chancellor, who perused the passage.]

LORD CHELMSFORD, C.-It was not the question in that case. I can only say that looking to those old cases which I have already mentioned, it appears to me that if the remedy is suspended, the statute cannot possibly run during that period. I still entertain that opinion.* Perhaps it is not so strong after the obiter dictum of Lord Abinger in this case; at the same time I feel it very strongly.

W. W. Cooper, with Southgate, Q. C., then cited Tallit v. Tullit, 1 Amb. 370, 1 Dick, 322, and contended that the heir and not the administrator would be entitled to the money arising from the timber, and therefore the question about the suspension of the statute did not arise.

LORD CHELMSFORD, C.-Could the remainderman have maintained trover?

W. W. Cooper.-No doubt.

LORD CHELMSFORD.-Would not that be the test. I am not at present shaken in my opinion.

RE NEWMAN.

Solicitor's bill of costs-Taxation after payment-Payment by party not chargeable-6 & 7 Vic, c. 33, s. 38. There is no general rule as to how much pressure will entitle a party to have a solicitor's bill taxed after payment. But if reasonable facilities for taxation have been refused at the last moment, when it has become imperative to the party to obtain immediately the papers to which the solicitor's lien applied, and the bar ty has consequently paid the bill, that is a special circumtance which, coupled with items of apparent overcharge, will justify the Court in directing taxation after payment.

It is no argument against taxation in such a case that the effect produced upon the party by the pressure arises out of his own conduct or private affairs.

* This opinion of the Lord Chancellor has met with strong remonstrances from the profession in England-EDS U.C.LJ. † See Dyer v. Dyer, 13 W. R. 732.-ED. W. R.

[Eng. Rep.

Where one party is chargeable with a solicitor's bill, and another party, for reasons of his own, pays the bill, the party paying the bill has, under section 38, of 6 & 7 Vic., c. 33, the same,right to taxation which the party originally chargeable would otherwise have had; and this right of taxation is not limited to any transaction which may have occured in the premises between himself and the solicitor; but the bill which he has paid is the bill which he has a right to have taxed. [15 W. R., 1189. July 30.]

This was an appeal from a decision of the Master of the Rolls upon an adjourned summons for taxation of a bill of costs of Messrs. Newman, solicitors, of Barnsley. The Master of the Rolls ordered the bill of costs to be taxed, the costs of the application to be paid by the solicitors. The Messrs. Newman appealed.

The facts are more fully stated at p. 630 of the Weekly Reportar.

Solicitor-General (Selwyn, Q.C.), and C. T Simpson, for the appellants, cited Re Fyson, 9 Beav. 117; Re Massey, 13 W. R. 797, 34 Beav. 463; Re Forsyth, 13 W. R. 307, 932, 34 Beav. 140, 2 D. J. & S. 509; Wakefield v. Newbon, 6 Q. B. 276, and contended as follows:-All cases of "pressure have been cases in which there has been something to raise a presumption that the bill had been kept back. The order should have made no reference to the agreement of the 31st of May, 1865, because this amounts to referring it to the taxing-master to decide, and to decide in the absence of the other party, what is the true construction of that agreement: Re Barton, 4 D. M. & G. 108. We submit (1) that the bill should not be taxed at all. (2) That if taxed all reference to the agreement of the 31st of May, 1865, should be omitted, and that it should be taxed as between the solicitors and their own clients. (3) That the solicitors should not be ordered to pay the costs.

ROLT, L.J., called upon the respondent's counsel with reference to the two latter contentions only.

Jessel, QC, and Ince, for the respondents.-Although a slight overcharge alone might not be an adequate ground for taxation, yet slight overcharge, combined with slight pressure is enough: vide Morgan & Davies's costs In Chancery, 323-8. The rule is-tax the bill I am liable to pay, as between solicitor and client, as if I myself had been the client. We need cite no authority to show that the lien of a solicitor cannot be higher than that of his client. [ROLT, L J.,-Still I should like to hear some applicable to this case.] This is not asking the taxing-master to construe the agreement of the 31st May, 1865, in the absence of Messrs. Gray & Tabart, otherwise than he may legitimately may: Re Lett. 11 W. R. 15, 31 Beav. 488. In Ex parte Wilkinson, 2 Coll. 92; Re Brown, 1 D. M. & G. 322, and Re Strother, 3 K. & J. 527, 5 W. R. 795, pressure only was shown. The first case in which overcharge seems to have been required to be shown is Edwards v. Grove, 2 D F. & J. 217. In Re Pugh, 11 W. R. 762; 32 Beav. 173, there is nothing about pressure.

C. T. Simpson, in reply, cited Re Massey, (ubi sup); Re Harrison, 10 Beav. 57. The argument that slight pressure plus slight overcharge is sufficient is answered by Re Elmslie, 12 Beav. 538. It is a great hardship to Messrs. Grey & Tabart to have, under pain of costs, to construe this agreement, to which they are not parties. The

solicitors should not be saddled with costs of this application; Re Abbot, 18 Beav. 393.

ROLT, L.J.-I entirely agree with the Master of the Rolls on the main point determined in the case, namely, that Colonel West is entitled to have Messrs. Newman's bill of costs taxed. But before I give my reasons for that, I will examine one or two other points on which I somewhat differ from the conclusion at which he has arrived.

I will take first the question as to the form of the order for taxation and the reference which the order contains to the agreement entered into between Messrs. Gray & Tabart and Colonel West as to the costs which, as between them, Colonel West was to pay. They are referred to and made the rule for the order which the taxingmaster is to act upon in the order of reference for taxation. Now the 88th section of the Act appears to me to be very clear. [His Lordship reads the section.] If a person who is not chargeable with the bill thinks fit to pay the bill, it is open to him to do so, and if he does so he shall be entitled to have that bill, which he was not bound to pay, but which he thought right for reasons of his own to pay, taxed as the party chargeable himself might. That appears to govern this case. Colonel West thought fit to pay this bill, and it is said by the counsel for Colonel West that Messrs. Newman could have no lien upon the lease and counterpart, other than that which Messrs. Gray & Tabart could have had, and that therefore you have only to ascertain what lies Messrs. Gray & Tabart could have had upon the lease and counterpart, and upon that being examined, Messrs. Gray & Tabart would have had a right to payment before the lease and counterpart were delivered over, and Messrs. Newman could have no more. pears to me that Mr. Simpson's answer to that is complete. The answer is this:-Not only was there, in Messrs. Gray & Tabart, no lien upon those title-deeds as against Colonel West, except according to the terms of the agreement, but there was no privity whatever between Colonel West and Messrs. Newman. Colonel West thought it right for purposes of his own, to pay the bill of costs due from Messrs Gray & Tabart to Messrs. Newman, and then the Act steps in and says Under these circumstances you, though not chargeable, have thought fiit to pay, and shall have the right of taxation which the person who was chargeable would have had; you must, therefore, ascertain what is the bill to be taxed," and this is the bill which he paid. I think the construction of the 38th section would not justify the Court in limiting the bill which Colonel West is to have taxed to that which would be the proper bill, as between Messrs. Gray & Tabart and Colonel West, but that it is the bill which he paid. He chose to pay it, he has paid it, and that is the measure of the rights between the parties.

It ap

The summons was also referred to in support of the same argument. I do not think that can successfully relied on; and I place no stress at all upon because the terms of the summons are these: It is a summons, "to shew cause why the bill of costs of the said Charles Newman and Thomas James Newman, against the lessors of the said John Temple West, and payable and paid by"

West.

[Eng. Rep.

Therefore the summons taken out was a summons for that which payable to Colonel West. As he has thought fit to pay this bill in particular, his right is to have this bill taxed,and on the same terms, as Messrs. Gray & Tabart could have had it tuxed.

I am not sure that it would have made any great difference, even if I had made the terms of the agreement the standard by which the taxing master was to tax the blil, for the words of the agreement are not introduced into the order for taxation. The terms of the agreement will be found to be these-" the costs of Messrs. Gray & Tabart of this agreement and incidental thereto"-that is, incidental alike to the agreement and the lease and counterpart; and on that construction I think it by no means clear that there will be anything thrown out from this bill. But I do not decide upon that. If I had felt bound by that I should have felt it necessary to alter the words. I think it clear, however, that the bill to be taxed is the bill which Colonel West paid.

We come Lext to the reasons which induce me to think that the Master of the Rolls was entirely right in directing that this bill shall be taxed.

It is clear that the statute does not point out the special circumstances which shall in any case authorize the Court to direct taxation after payment; they are to be special circumstances which shall satisfy the Court as being sufficient to the purpose. I do not think that any of the decisions have laid down, and it is scarcely possible to lay down a general rule that great pressure or slight pressure will do. It is impossible to deal with special circumstances, and, by reference to authorities, to lay down a rule for other cases. My view of it is 'this:-If at the last moment reasonable facility for taxation is refused after an opportunity for taxation is asked, and if when you look at the bill there appears to be a substantial ground for taxation-something that appears to reasonably require taxation; if there are those circumstances combined, I think the taxation after payment ought to be allowed.

In this case it is contended by the appellants, that even taking that to be the rule, it hardly applies in the present case, because before the Master of the Rolls it was said that the pressure upon Colonel West to pay was caused by bis own conduct. A singular sort of argument, for which I think there is no foundation. There was a great deal of courtesy shown before the 31st of December by Messrs. Newman and their London agents to Colonel West, and during that time the delay was no doubt the delay of Colonel West, and not of Messss. Newman or Gray & Tabart The question is, what took place after the 31st of December? You cannot set off, if I may use the expression, the courtesies and facilities of expediting the matter which might have existed before the close of the transaction, against the conduct at the close of the transaction. It does appear to me that at that time there was a reasonable request that an opportunity of taxing should be given. I think, the communications in these cases between solicitors of respectability, as these are, and their clients, should be of such a nature as the earlier communications between these parties evidently were; that as soon as one solicitor is told, "I should like your bill to be