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I A J 32X 1 2 3 1 2 3 4 5 6 IN THE On Appeal to the Divisional Court. 10 BETWEEN GEORGE JAMES FINDLAY, JOHN HENRY DURHAM AND JOHN HENRY BRODIE, Plaintiffs, AND #^ PETER BIRRELL AND JOSEPH A. BOSCOWITZ, D,i)rENDANT$ CASE ON APPEAL 20 DRAKE, JACKSON & HELMCKEN, Solicitors for Plaintiffs. J. ROLAND HETT, Solicitor for Defendant Bosoowitz. 80 VICTORIA, " 0. MUNROE MILLER, PRINTER AND BOOK-BINDER, JOHNSON ST. 1887. Y INDEX. Page Statement 4 Statement of Claim 5 Statement of Defence of Defendant Boscowitz » & Statement of Reply g Order lor Judgment in favour of Defendant Boscowitz 9 Affidavit of Increase 10 Order for Review of Taxation n Affidavit of Defendant Boscowitz n Further Affidavit of Defendant Boscowitz 12 Affidavit of H. D. Helmcken 13 Order Dismissing Plaintiffs' Application for Review 15 Affidavit of J. R. Hett 16 Affidavit of H. M. Hett iq Reasons of the Chief Justice ig Notice of Appeal I7 199453 In the Stt|)i(pmp I uurt of Ijritljiii |olunil)la. »i J J il iJ On Appeal to the Divisional (^ourt. BUTWKKN 10 GEORGE JAMES FINDLAY, JOHN IIENUY DURHAM, AND JOHN HENRY BRODTE, I'LAINTIFPs, A Nit I'KTKR BIRRELL and JOSEPH A. liOSCO vVITZ, Dkfkndants. This is an appeal hy tlio PlaintiCs against a «leuirtioii ot tlio Hononraljle the (yhicf Justice given on the 13th day ot September, 1887, dismissing tho application of the ^^ Plaintitf tor an order that tho taxation of tlie Defondiint Boscowitz's costs of action be reviewed by disallowing the sum ofS524.00 allowed by the Registrar to the said Defend- aut tor his travelling expenses from London to Victoria to attend the trial of this action. STATEMENT. The dates of the commencement of this action, of the delivery ot the pleadings and of the various orders for trial thereof will be found in the affidavit of Harry Dallas 30 Ilelmckea, sworn the 1st day of September, 1887, printed on [lage 13. On the 6th day of July, 1887, the trial of this action took place before the Honourable the Chief Justice and a Special Jury and as regards the Defendant Boscowitz the Plaintiffs were non-suited before the case was given to the Special Jury, and judgment was given in his favour with costs to be taxed. On the 4th day of August, A. D. 1887, the Defendant brought in his bill of costs tor taxation which was taxed and allowed at the sum of $173.70. The Registrar, among other items, disallowed the said Defendant's travelling expenses. On the 9th day of August, 1887, the said Defendant applied to the Honourable the Chief Justice for an order for tho allowance of amongst other items $786.00 for travolling oxpensos. Tlie learned Chief Justice, on such application, referred the item back to the ttegintrar for further consideration. On the 25th day of August, 1887, the Registrar reviewed his taxation of the said bill and allowed the Defendant Boscowitz the sum of ^62 4 as and for his travelling expenses from London to Victoria. On the i:v.l. Ihj of September, 1887, the i'laintiffs applied to the learned Chief Justice to disallov/ il)e said sum of «o24 allowed for the said Defendant's travelling expenses which ; pplication was refused. The learned Chief .-aatico not requiring the matter to be ro-argued, the Phiintiffs, on the 18th day ot S.'ptember, 1S87, gave notice of appeal to the Divisional Court against the said decisii:!. The Plaintitts respectfully submit that their said application should have been granted. 10 PLEADINGS. 20 The following are the pleadings. In the Supreme Court of British Columbia. Bktwbkn GEORGE JAMES FINDLAY, JOHN HENRY DURHAxM AND JOHN HENRY BRODIE, Plaintiffs, AMD PETER BIRRELL AND JOSEPH A. BOSCOWITZ, Defendants. 80 WRIT ISSl'ED 11th JULY, A. D, 1886. STATEMENT OF CLAIM. 1. The Plaintiffs are merchants, carrying on business in co-partnership in th« 3'ty of Victoria. 2. In the month of Jannarj, 1884, the defendant, Peter Birrell, entered into an agreement with the Plaintitts, to purchase from tiie Plaintiffs the land and [.roperty known as the Naas River Fishery, situate at Naaa River, British Columbia, known as the Croasdailc Cannery, with the plant, machinery, stenraboat, lands, and steam power sawmill thereto belonging, at and for tlie sum of $16,000, and the chattels and materials and trade goods then ou the premises, at the cost price in Victoria. 3. The terms of payment agreed upon between the Defendant Peter Birrell and the Plaintiffs were that part of the consideration money should be paid in cash, and the balance secured by mortgage of the property sold, and also upon all the property be- iq longing to Defendant Birrell, situate at Port Moody, the moneys so secured to bear interest at the rate of eight per cent, [ler annum. 4. And it was also a term of the sale and agreed between the Plaintiffs and the Defendant Birrell, that Defendant Birrell should carry on the said cannery, saw-mill and a general trading business on the said river, and should consign the products ot the same from time to time to the plaintiffs, who were to be allowed a commission of three and one-half | er cent, for selling the products, and the Plaintiff's were to furnish defendant Birrell with necessary (supplies on account current between them; and for facilitating the said agreement, the plaintiffs arranged with J. D, Warren, who carried on a similar business upon Naas River, not to oppose the said Birrell in business. The Defendant Birrell, in accordance with the said agreement, paid to the Plaintiffs the sum of $2.!87.72, 20 and in further parauance of the same, a mortgage for the purpase of securing the unpaid balance of the purchase money was prepared and submitted to the solicitor of the said Birrell, who approved of the same, but the Defendant Birrell left Victoria without exe- cuting the said mortgage. 6. Ill further pursuance of tlie saitl agi-eement, on the 9th May, 1884, the Defend- ant Birrell executed an irrevocable power of attorney to enable Thomas Earle to sell said defendant's property at Port Moody and apply the proceeds in payment of Plaintiffs' claim, but no portion of the Pert Moody property has been sold. 6. The Plaintiffs have urged the Defendant Birrell to carry out the said agreement and execute the said mortgage, but the Defendant Birrell has refused and still refuses to 30 carry out and perform the said agreement or any part thereof. 7. The defendant Birrell entered into possession of the said Naas River fishery and carried it on for the season of 1881, and was, at the commencement of this action, still in possession of the same. 8. On the 22d day of August, 1885, the Defendant Birrell, in fraud of the Plain- tiff's, sold and disposed of all the trade goods on the premises, together with the cannery building, for the price of $2150, and received therefor the sum of $624 76 in cash and two promissory notes, one for $1,000, at nine months, and one for $525 25, at eighteen months, drawn by Welch, Green i"; Gilbert, the purchasers. 9. Ou or about the 26th day of August, 1886. the defendant Birrell, in collusion I i i with the defendaut Boscowitz, who was aware of the relations existing between the Phiintiffd and Birrell, caused all of the plant and machinery of the fishery, and, togethe-r with the plant and machinery of the saw-mill, to be removed ihmi Naas River, and freighted by the steamer " Barbara Boscowitz," a vessel under the control of the De- fendant Boscowitz, to Rivers Inlet, without the knowledge or consent of the Plaintiffs, and the Defendant Boscowitz, in further collusion with the Defendant Birrell, and in fraud of the Plaintiffs, caused the said goods so lenioved as aforesaid, to be advertised for sale for alleged freigbt charges for their removal from Naas Kiver, amounting to ^4000, and thereupon Plaintiffs applied for an ijijunction, but the Defendant Boscowitz, upon security being given by Plaintift's, to abide by any order to be made in this suit, 10 abandoned such p-ale, but still retains possession of the said machinery and goods so fraudulently removed as aforesaid. 10. The Defendant Birrell, before the sale, for $2150, in paragraph 3 mentioned, had, contrary to the terms of the said agreement, sold and exchanged large quantities of the trade goods on the premises of the said fishery, for furs, to parties other than the Plaintiffs, and has appropriated the proceeds to his own use. 11. The Plaintiffs have suppHed goods to the Defendant Birrell on open account amounting to the sum of $21,424 27, and statements of account have been rendered to the Defendant Birrell, showing that amount to be due and payable, and there now re- mains due to the Plaintiffs from the Defendant Birrell upon such open account and for 20 the balance of the purchase price of the said property, the sura of $35,110 31, besides $1,274 36 for interest moneys, and $167 75 for expense to which they were put in pre- paring to perform the said agreement on their part, and in endeavoring to procure the performance thereof by the Defendant Birrell. The Plaintiffs claim as against Defendant Birrell : 1. Judgment for $36,558 02. 2. Judgment for the execution of the mortgage, and tnat until the exe- cution of tne same, the property of the Naas River Fishery, agreed to be sold, may be deemed to be the property of the Plaintiffs. 80 8. An orde^that the Defendant Birrel do forthwith endorse the said promissory notes of Welch, Gilbert & Green to the Plaintiffs, and that lie be restrained from othfirwise negotiating them. 4. An order that until the Plaintiffs' claim has been satisfied, the Defend- ant Birrell may deliver possession to the Plaintiffs of all prop- erty, goods and effects comprised in the said agreed sale of the Naas River Fishery, and of the goods and property acquired iu the conversion of the same. 6. And as against tho Defendant Boscowitz the Plaintiffs claim : An order for the delivery of the said machinery 'and other goods so carried by the said steamer "Barbara Boscowitz," and an injunction 8 against his disposing of the same, and for the wrongs com- plained of, ?10,000 damages. And as against both Defendants, Plaintiffs claim : 1. Costs of this action. 2. Such other and further relief as the nature of the case may require. Delivered this 20th day of November, A. D. 1855, by ROBERT EDWIN JACKSON, Solicitor for Plaintiffs. To J. ROLAND HETT, Esq., Solicitor for Defendants. 10 STATEMENT OP DEFENCE OP THE DEPENDANT, JOSEPH BOSCOWITZ. 1. The Defendant Peter Birrell did not in collusion with the Defendant Joseph Boscowitz cause the plant and machinery of the cannery and the saw-mill plant to be re- moved from Naas River and freighted by the steamer Barbara Boscowitz. The steamer Barbara Boscowitz was not under the control of the Defendant Joseph Boscowitz but he had a mortgage thereon. The Defendant Joseph Boscowitz was not aware of the relations existing between the Plaintifts and the Defendant Peter Birrell. The Defendant Joseph Boscowitz did not in collusion with the defendant Peter Birrell and in fraud of the Plaintifis or otherwise cause the goods removed to be advertised for sale for freight charges but he was cognizant of the advertisement. The Defendant Joseph is not now and never was in possession of the goods removed. Delivered the 25th day of January, 1886, by To R. E. JACKSON, ESQ , Plaintiffs' Solicitor. 20 J. ROLAND HETT, 80 Solicitor for the Defendant Joseph Boaccwitz. ! I I- ! ! ! i STATEMENT OF REPLY. The Plaintifis join issue upon the Defendant's Joseph A. Boscowitz statement of defence herein. Dated July 28th, A. D. 1886. To J. ROLAND HETT, ESQ,, Solicitor for Defendant Joseph A. Boscowitz. ROBERT EDWIN JACKSON, Plaintiflfe' Solicitor. ^q On the 6th July, 1887, this action was tried before the Honorable the Chief Justice and a special jury. The following is a copy of the Order for Judgment pronounced at the trial: — (Style of cause.) 20 Wednesday the 6th day of July, 1887. This action having this day come on for trial before the Honorable Chief Justice Sir Matthew Baillie Begbie, Knight, and a special jury, upon motion for judgment this day made unto this Court by Mr. Hett of Counsel for the Defendant Joseph Boscowitz and upon hearing Mr. T. Davie, Q. C, of Counsel for the Plaintiflfe. This Court doth order that the Plaintifis do recover nothing against the said Defendant Joseph Boscowitz and that judgment be entered for him accordingly together with his 30 costs of suit to be taxed. By the Court, (Signed) JAMES C. PREVOST, rar. The following is a copy of the affidavit of increase of the said Defendant Joseph Boscowitz: — liUi ll) ii ii 10 (Style of Cause.) 10 I Joseph BoBcowitz of London Enejland Merchant make oath and say as follows:— 1. I am one of the above named Defendants and I reside in London, England. 2. This action was commenced on the 11th day of July, 1885. 8. My statement of defence was delivered or. the 25th day of January, 1886. 4. The Plaiiitifl's joined issue upon my statement of defence on the 28th day of July, 1880. ^ 6. From the time of the commencement of this action up to the 25th day of October, 1886 I was visiting and temporarily resident at Victoria. 6. On the said 25th day of October, 1886, 1 left Victoria for London. 7. No application was made on behalf of the Plaintiffs to appoint a day for the trial of this action until the 26th day of January, 1887, when Mr. Johnston, the Plaintiffs' manager, well knew that I was absent from the Province. 8. The trial of this action took place at Victoria on the Gth day of July 1887 ^^ before a Judge and a special jury. * 9. I was a necessary and material witness in this action on my own behalf. 10. I was also subpoenaed as a witness on behalf of the Plaintiffs. 11. I left London on the 11th day of June, 1887, in order to attend the trial of '^ ^^^ ^^i^ this action and to be a w itness on my own behalf and tor no other purpose. ^y^^«^>e^ . /i-#^ 12. I had some intention of visiting Victoria in the month of August next but in /^^^*^ ''-^^^ / consequence of the trial of this action being appointed to take place in July I was ' obliged to leave London in June at great personal inconvenience to myself. gO 18. With the utmost dispatch in coming from London to Victoria attending the the tnal and returning from Victoria to London I should necessarily be absent from London for 42 days. 14. My travelling expenses in coming from London to Victoria were »850.00 and my return expenses will equal that amount. (Signed) JOSEPH BOSCOWITZ. Sworn at the City of Victoria on the 28th day of July, 1887, before me, (Signed) J. P. WALLLS, A Commissioner to administer oaths in the Supreme Court of British Columbia. I M,- 11 BosJiuz!^'^''*'"*'' °" '*''"*'°° di««"o^ed the travelling expenses of the Defendant revie?rcrtaVaHnf h ^ n'"*?""* 'P^"'^ ^^ ^"™"^°"« *° **^« '^'^''^^^ Chief Justice to ZIl- f .V, r ^ """"""^^ "'"''°«'* ^**^«'" ^*«"'« *he witness fee and travelling expenses of the applicant amounting together to «786.00. iruvemng The follomng is a copy of the Order made on such application:- (Style of Cause.) 10 Tuesday, the 9th day of August, A. D. 1887. affiH.^rA''""f ^"' '^- ^ ^'"' «f tk)"»«el for Defendant Boscowitz upon reading the affidavit of Joseph Buscomtz sworn the 28th day of July, 1887, and filed herein and upon hearing Mr Helmcken for Plaintiffs I DO ORDER that so much of the summoas as refers to the aUowance of the Special Jury amounting altogether to «70 00 be dismissed. I DO FURTHER ORDER that items numbered 2 fnd 3 respectively in the summons be referred back to the Registrar for further consideration ''P'°*'''''^ '° 20 f Stamps 1 1 60 c. / (Signed) MATT. B. BEGBIE, C. J. fh« ^7.7"^°^« °f *h« said Order the Registrar on the 4th day of August. A. D. 1887, ^eRegietmr reviewed his taxation of the said Bill of Costs and allowed the sum of «624 as travelling expenses of the said Defendant. The following are copies of the affidavits of the said Defendant used before the Kegistrar on such review: — 80 (Style of Cause.) n«J^''T^*',^*'''7'^''^ ^°°*^°° ^"«''*°^ Merchant one of the above named Defendants make oath and say as follows:— 1. I necessarily paid {inter alia) the following sums in travelling from London to Victoria to attend as a witness in this cause. I I! I 12 Railway fare from London to Liverpool 9 9 26 Cab hire in London and Liverpool 2 00 Paasage from Liverpool to New York 126 00 Cab hire in New York 8 60 Railway fare from New York to Victoria, Pullman Cars 97 50 Cab hire in Victoria 8 00 8240 26 2. I also paid several other sums for my hotel bills and other expenses which would amount to over 8100. ^^ 8. I arrived in Victoria on the 2'Jth June last, 4. I intend to return to London shortly and the expenses ot my return trip will necessarily equal the amount of my expenses in coming Irom London to Victoria. (Signed) JOSEPH BOSCOWITZ. Sworn at the City ot Victoria the 16th day of August, 1887, before me, (Signed) W. POLLARD, 20 A commissioner to administer oaths in the Supreme Court. (Style ot Cause.) I, Joseph Boscowitz, of London, England, merchant, one of tue above named defendants, make oath and say as follows : 1. I lefl London, England, in order to attend the trial of this action, on the 10th on day of June laet, by the midnight express, for Liverpool, England, where I arrived in the morning of the 11th day of June last. 2, In the evening of the same day, namely the 11th day of June, I sailed in the steamship Etruria, of the Cunard Une, from Liverpool for New York, where I arrived on the 18th June last. 8. At New York I stayed at the Brunswick Hotel, and lefl New York on the 22nd day of June last by the Delaware and Hudson Railway for Victoria, where I arrived on the 29th day of June last. 4. The expenses I necessarily paid in travelling from London to Victoria were as follows, namely : 18 Railway rare, London to Liverpool 8 9 25 Hotel expenses, Liverpool * i rn Cab hire, London and Liverpool ],, 2 00 Passage, Liverpool to New York 126 00 Cab hire, New York 3 00 Hotel expenses. New York 40 qq Railway fare, New York to Victoria, including Pullman cars..... 97 50 M'-als during journey from Now York to Victoria 15 75 Cab hire, Victoria [ 3 qq mi 00 6. The trial of this action took place on the 6th day of July last, and the earliest possible time I could have left Victoria for London would have been the m-^rninff of the 7th day of July last. * 6. I intend to return to London shortly, and the expenses of my return journey will necessarily equal the amount of my expenses in coming from London to Victoria. (Signed) JOSEPH BOSCOWITZ. Sworn at the City of Victoria, the 23rd day oi August, 1887, before me (Signed) J. P. WALLS, A Commissioner to administer oaths in the Supreme Court of British Columbia. 10 20 The Plaintitfd applied by summons for an order that the said taxation be reviewed by disallowing the sum of ^624.00, so allowed to the said defendant for his travelling ex- penses. The affidavit of H. D. Helmcken was used in support of the said application The following is a copy thereof: 80 (Style of Cause.) say: I, Harry Dallas Helmcken, of the City of Victoria, barrister-at-law, make oath and 1. This action was commenced on the 11th day of July, 1885. On the 16th of October, 1885, the writ was amended by adding Joseph Boscowltz as a defendant. 2. Statement of Claim was delivered on the 20th November, 1885. 8. Separate statements of defence were delivered on the 25th January, 1886. "^™- -"mr^y*' ■ ^^i b 14 4. Bj- consent of solicitors for all parties, on the 27th February, 18^6, the time for the delivery of the statement of reply was extended for two weeks. 5. Ou the Ist of March, 1886, interrogatories were exhibited for the examination of defendant Birrell. 6. The defendant Birrell tiled his answer thereto on the 26th day of March, 1886. 7. On the 27th and 29th days of March, 1886, summonses were issued for a farther and better answer. 8. Ou the 10th of May, 1886, the Chief Justice made an order inter alia extending the time for delivery of reply lor thirty days. 9. The defendant Birrell delivered his amended answer ou the 28th day of June, A. D , 1886. 10. Statement of reply to the statement of defence of defendant Boscowitz was delivered on the 28th day of July, 1886. 11. T»>at between the last mentioned date and the month of January, 1887, at- tempts were made between the solicitors for the Plaintiffs and Mr. Hett, solicitor for 20 Defendants to have this matter settled by arbitration which resulted without any agree- ment being arrived at. 12. In consequence thereof the Plaintifts applied for a day to be fixed for the trial of this action, and on the 4th day of February, A. D., 1887, an order was made for the trial of this action ou the 18th of April, 1887, sufficient time being allowed for the de- fendant Boscowitz solicitor, if so advised, to issue a commission for the purpose of ex- amining the defendant Boscowitz. 13. On the 16th day of April, 1887, the defendants applied to have the date of the trial postponed, which application was granted on terms. 14. On the 6th of May, 1887, the trial of this action was ordered to take place on the 16th day of June, 18»7, sufficient time again being allowed Defendant Boscowitz's solicitor to have the said Defendant Boscowitz examined on commission. 15. On the 3rd of June, 1887, the defendant Boscowitz applied for and obtained a postponement of the trial of this action, from the 15th June, 1887 to the 6th July, 1887. 16. I am informed and believe that the defendant Boscowitz has important seal- ing and fishing interests in this place, and has been since the trial, and is now in this city, at the time of swearing this my affidavit. 17. That on the 25th August, 188", the Registrar taxed and allowed the bill of coats of the above named Defendant Boscowitz at the sum of $701.70. I attended on 80 I 16 such taxation on behalf of above named Plaintiffs, and I objected on such taxation to any allowance whatever by the said Registrar to the said Defendant Boscowitz for his travelling expenses. (Signed) H. DALLAS HELMCKEN. Sworn before me at Victoria this, 1st day of September, A. D., 1887. (Signed) S. PERRY MILLS. A commissioner for taking affidavits in tho Supreme Court of British Columbia. 10 On the 18th day of September, 18b7, the application to review was heard by the Honorable the Chief Justice, who made the following order thereon : (Style ot Cause.) [STAMP 60 cents.] Upon the application of the Plaintiffs for an order to review the taxation of the OQ costs of the Defendant, Joseph Boscowitz, by disallowing the sum of $524 allowed to him for his expenses, and upon hearing Mr. Theodore Davie, Q. C, of counsel on behalf of the Plaintiffs and Mr. Walls of Counsel on behalf of the Defendant, Joseph Bos- cowitz, and upon reading the affidavit of Henry Metcalfe Hett, sworn the Sad day of Jane, 1887, and two several affidavits of Joseph Boscowitz, sworn the 28th day of July, 1887 and the 23rd day of August, 1887, which said affidavits are filed herein. I do order that the said application be dismissed with costs to be taxed and paid by the Plaintifis to the defendant Joseph Boscowitz. (Signed) Tuesday, the 13th day of of September, 1887. MATT. B. BEGBIE, C. J. 80 The affidavits of J. R. Hett and H. M. Hett, sworn the 16th day of April, 1887 and the 2nd day of June, 1887, respectively, were also read. Copies of which are as follows : — (Style of Cause). I, John Roland Hett of the city of Victoria, solicitor, make oath and say as follows: 1. I am the solicitor for the above named Defendants. 16 hnJ'A^ ;enlj believe that the Defendant, James Boscowitz, is reaiding in the nei<.h. lr^:Ll''j^2^^^^^^ wil. not be able to .turn to this ProfincJliut witness Ijth^^^fTJ^^' l^" '"'\ '^r^^ ^°«^°^'^^ '« * °««^«««'y ""d material atence. " °"' ""' *''' ^^ ^^""°* «^^^'^ r"-«''««d to trial in his (Signed) J ROLAND HETT Sworn at the City of Victoria, the 16th day of April, 1887. before me. jo (Signed) J. p. WALLS. A Commissioner to administer oaths in the Supreme Court of British Columbia. (Style of cause.) foUow.f-!°" *'"""' '''"•"" '"'•'"^"f ^'"'o""- »°'-""-. "»k.oa,h .„ds.y, as „„ anf t). \^^ ''''^•''' .'^- ^°^*"^ ^'"' °^*^" ^^**y °f Victoria, solicitor for the Defend ant, Joseph Boscowitz m this action, and now have the conduct of this action 3. I very believe the Defendant Boscowitz is residing in London Vr.^}.r.A i (Signed) H. METCALFE HETT. Sworn at the City of Victoria, the 2nd day of June. 1887, before me. (Signed) W.J.TAYLOR. A Commissioner to administer oaths in the Supreme Court of British Columbia. The following are the reasons of the Honorable the Chief Justice : Cur.-mether a man is a material witness depends, of course, mainly on the amount of hia knowledge and his connection with the alleged grounds of action or of K> V i 17 defence. But much depends iileo on the nature of the action. Here tho plaintitta sought relief against the defendant Boscowitz upon grounds which would have exposed him to be indicted by a Grand Jury. They accused him of an underhand conspiracy with Birreli to enable the latter to cheat them (the plaintifts) out of some property which they had imprudently trusted him with. I do not rely too much on the circum- stance that having made these charges, they never attempted to bring them to trial while Boscowitz was here; but that they became very pressing to goto trial shortly after he left, and more pressing when ho alleged the extreme inconvenience of his leaving London — for it is true that as Mr. Theodore Davie observes, the defendant himself might have probably forced a trial in that year of inactivity. But the very frame and 10 substance of the action rendered Boscowitz's presence absolutely ne^^essary. Even if he had been advised that the plaintiits would not proceed against him for damages, they had made it necessary tor what was far more important to him than resisting damages, viz: for tho entire rebuttal of their charges, that he should be here ready for cross-exam, iuation. They did in fact subpoena him but did not venture to call him. But it is ray opinion that when a party by his pleading raises a charge of fraud and especially of an indictable fraud against another party to the action he does most emphatically declare and constitute the accused party a necessary witness at the hearing. Suitors, it they bandy about these wild accusations, must take the consequences if they fail to support them, and the mildest of these consequences is that they have to pay the costs of the accused party attending as an ordinary witness. 20 Here Boscowitz's aflidavit is clear that he left England solely by reason of this action and for no other purpose. I thijik he is as much entitled to his costs oi attend- ance as it he had been subpcenaed in London (supposing a subpoena would run there) the quantum is a matter ot detail with which I do not interfere. NOTICE OF APPEAL. (Style of Cause.) 80 Take notice that the Plaintifts intend to appeal against the decision of the Honor- able the Chief Justice, given on Tuesday, the 13th instant, refusing to order that the taxation of the Defendant Boscowitz's costs be reviewed by disallowing the sum of 9524.00 allowed to the said defendant for his expenses. And further take notice that the Divisional Court will be moved on Monday, the 19th instant, at the hour of 12 o'clock noon, or so soon thereafter as counsel can be heard by Mr. Davie, Q. C, of counsel for PlaintiS, for an order on their behalf that the taxation of the Defendant Boscowitz' costs be reviewed by disallowing the sum of $524.00 allowed to the said Boscowitz for his expenses, and that the said Defendant do ^ssasmmass^smssm^iSS^XiMSSS, wmmmm