Q.B. Div.] GRUMBRECHT AND OTHERS v. PARRY. stranger meets stranger, and the usual course of business is for the person in possession of the horse, and appearing to be the owner, to have all the powers of an owner in respect of the sale. The authority may, under such circumstances as are last referred to, be implied, though the circumstances of the present case do not create the same inference."] I submit that the present case is within the principles of the decision in Brady v. Todd. He also cited Seckens v. Irving, 7 C. B. N. S. 165; Howard v. Sheward, L. Rep. 2 C. P. 148. Lord COLERIDGE, C.J.—I think the verdict in this case was right. Whether a servant has authority to bind his master by a warranty must depend upon the circumstances of each case. In the case of Brady v. Todd, which is relied upon to support the contention that the servant had no authority, the court expressly reserved and excluded from their judgment a case where the circumstances were the same as those in the present case; that is to say, where stranger meets stranger at a fair. Whether the apparent seller has authority to make a perfect sale and give a warranty when it is a transaction between strangers at a fair, was expressly excluded from the judgment. The County Court judge has found that there was a warranty, and a breach of warranty, and I see no reason to disturb the verdict. STEPHEN, J.-I feel bound by the case of Brady v. Todd, but I do not feel inclined to extend the principle of that decision, and the judgment expressly excepts a case like this, as was pointed out by my Lord. I think that the County Court judge was justified in finding that under the circumstances the servant had an implied authority to warrant the horse. MATHEW, J.-I am of the same opinion, for the reason given by my Lord. Solicitors for the plaintiff, Cunliffe and Co., agents for Churton, Chester. Solicitor for the defendant, E. R. Robinson, Manchester. In an action by the shipper of goods against the shipowner to recover damages for non-delivery the defendant admitted that the goods were not delivered, and alleged that he was prevented from delivering them by the perils and casualties excepted in the bill of lading. The plaintiff's delivered interrogatories for the purpose of showing that the ship was unseaworthy when she left the port, and sank soon afterwards in consequence of a pipe or cock having been left open. The defendant applied, under Order XXXI., r. 7, to strike out the interrogatories on the ground that they were unnecessary, prolix, and oppres sive. Held, that the interrogatories could not be allowed; they were not based upon facts which must inevitably occur in the ordinary course of the (a) Keported by H. D. BONSEY, Esq., Barrister-at-Law. [Q.B. DIV. voyage, and there was nothing to show they were not purely hypothetical; they were also objec tionable upon the ground that the plaintiffs' case was complete on the admission by the defendant of non-delivery, and they were put for the purpose of finding out and anticipating what the dejendant's case was. Bolckow, Vaughan, and Co. v. Fisher (47 L. T. Rep. N. S. 725; 10 Q. B. Div. 161) distinguished. THIS was an action to recover damages for the nondelivery of certain goods shipped by the plaintiffs on the defendant's ship William Hartmann, to be carried from Glasgow to Lisbon. The statement of claim alleged that in the month of Dec. 1882 the plaintiffs delivered to the defendant certain goods to be carried from Glasgow to Lisbon upon the terms of a bill of lading, by which the goods were to be delivered at Lisbon in the like good order and condition in which they were shipped, certain perils and casualties excepted; that the goods were not delivered and the defendants were not prevented from delivering them by any of the excepted perils and casualties. The plaintiffs further alleged that at the time the vessel sailed she was not seaworthy, and not reasonably fit to carry the goods to their destination. The defendant admitted in the statement of defence that the goods were not delivered at Lisbon, but denied that the vessel was unseaworthy or not reasonably fit for the voyage, and further alleged that amongst the perils and casualties excepted by the bill of lading were accidents from machinery, boilers, steam, and any other accidents of the seas, rivers, and steam navigation of whatever nature and kind soever; and the defendant was prevented from conveying the said goods in the said voyage and delivering them at Lisbon by reason of such excepted perils and casualties, and not otherwise. The plaintiffs delivered twelve interrogatories to the defendant for the purpose of showing that the vessel sank in consequence of some pipe or cock having been left open when the vessel left the port. The defendant took out a summons under Order XXXI., r. 7 (a), calling upon the plaintiffs to show cause why nine of the interrogatories should not be struck out. The learned judge at chambers refused to strike them out, affirming the refusal of the master, and thereupon the defendant appealed to the Divisional Court. The interrogatories objected to were as follows: 3. Did not the William Hartmann leave Glasgow and depart on the voyage in the said bill of lading mentioned between 7 and 8 p.m. of the 20th Dec. 1882, or at some other and what time? 4. Did not the master shortly after, and whether or not at about 9 p.m., discover that the vessel had taken a list to port, and did he not about five minutes later, or at some other and what time, find that there was water over the stoke-hole plates, and that the port side of the engine-room platform was flooded? Were not the fires shortly after washed out by the water? Was not the vessel some distance above Dowling when the list was discovered? 5. Was not a tug engaged by the master, and did not the tug tow the William Hartmann as far as Carlsdyke (a) Order XXXI., r. 7: Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories. Bay, near Greenock, and did not the vessel there sink at about midnight, or at some other and what time and place? 6. Did not the master on the following day engage a diver, and did not the diver go down into the engineroom, and did he not close the injection cock, or some other and what cock or aperture, and whether or not which he found open? 7. State exactly what the diver did, and what steps were taken by him with a view to stopping the entrance of water and enabling the ship to be floated? 8. Was not the ship then pumped out and floated, and taken to the Albert Quay, Greenock? Did she make any, and what water after the cock or aperture found by the diver had been closed by him, and if so state to the best of your knowledge, information, and belief, the cause of the leak which remained. 9. Describe exactly to the best of your knowledge, information, and belief, the aperture through which the water which caused the vessel to sink entered, and explain how the water had entered the vessel by means of such aperture. If the water did not enter the vessel directly from the aperture, state through what pipes, tnbes, cocks, or other apparatus the water passed before it could escape into the bilges of the vessel. 10. Give the diameter or size of the aperture and also the diameter or size of the smallest pipe, tube, or cock through which the water would have to pass before it could escape into the bilges of the vessel. 11. Was the vessel surveyed at Greenock and elsewhere to ascertain the cause of her sinking? State to the best of your knowledge, information, and belief, how the aperture by which the water had entered the vessel came to be open, and state on what facts or appearances you base your opinion. 12. If you are unable to answer the above interrogatories from your personal knowledge, you are required to make full inquiry of the master, officers, and crew of the steamer, or such other of your servants as may be cognisant of the matters inquired after, and to make answer from the information so obtained from them. Fox for the defendant.-The plaintiffs' case is complete upon the pleadings, and the burden of proof is upon the defendant to show that the cause of the loss was within the excepted perils. Interrogatories are admissible on two groundsto obtain information, and to facilitate proof; but the plaintiffs cannot bring these interrogatories within either of those rules. They have all the information as appears from the interrogatories, and they do not want to prove anything, because the defendant admits that the goods were shipped at Glasgow, aud not delivered at Lisbon. The plaintiffs will rely on Bolckow, Vaughan, and Co. v. Fisher (47 L. T. Rep. N.S. 725; 10 Q. B. Div. 161), but in that case the interrogatories had been answered, and the only question was the sufficiency of the answer. Here we are applying to strike out the plaintiffs' interrogatories, and refuse to answer them at all. Under the old rules we should have had to take the objection in answer, but the new rule is much wider. I submit they are unnecessary, prolix, and oppressive within the meaning of Order XXXI., r. 7. [Q.B. DIV. If the defendant can bring his case within the excepted perils the burden of proof is shifted back on to the plaintiffs, and the interrogatories are necessary for the purpose of rebutting the proof that the vessel was seaworthy. A party may interrogate in order to meet a case which he anticipates will be the case of the defendant. [HAWKINS, J.-The owners have no knowledge of these facts, and if they merely say that they have been told that certain circumstances existed, and that they believe it to be true, could you put that in evidence in support of your case ?] Yes, every person who is interrogated is bound to answer to the best of his belief, and if he states that he believes a certain thing to be true it is an admission. The case of Bolckow, Vaughan, and Co. v. Fisher (ubi sup.) is directly in point. He also cited Eade v. Jacobs, 37 L. T. Rep. N.S. 621; 3 Ex. Div Attorney General v. Corporation of London, 2 Phillips v. Routh, 26 L. T. Rep. N.S. 845; L. Rep. Attorney-General v. Gaskill, 47 L. T. Rep. N.S. 566; 20 Ch. Div. 519. GROVE, J.—In this case certain interrogatories are objected to by the defendant, who asks that they may be struck out under Order XXXI., r. 7, which provides that interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous. I am of opinion that these interrogatories have been exhibited unreasonably, and that they are vexatious, and to some extent oppressive. They throw upon the defendant an unreasonable burden, and on these grounds I think that on the whole they should be struck out. I do not say that some parts of them may not be admissible, but, if I was to go through them for the purpose of dissecting them and say what particular part was good and what bad, I should be taking upon myself the burden of settling the interrogatories, and that is not any part of the business of this court. We must deal with them as a whole, and on a question of principle. There are twelve interrogatories, and ten of them are objected to. I need not go through them all, but I will read those which are most objectionable. [The learned Judge read most of the interrogatories.] Now are these reasonable ? They do not ask whether certain things happened or were done which might be expected in the ordinary course of navigation, but they assume that a cock was left open, and that a diver went down to examine it without giving in the slightest degree the source of their information. plaintiff might have obtained the information upon which he bases these interrogatories from a newspaper. It is said that, if this is so, and the facts are not true, the defendant has only to deny them; but is it to be deemed a part of our system that a man may ask his opponent anything which he chooses even from his imagination, and not only ask him, but compel him to make inquiry from other persons ? It appears to me that would be carrying interrogatories to a most unreasonable and oppressive extent, and would add to the expense and defeat the object of interrogatories altogether. I do not feel myself bound by the case of Bolckow, Vaughan, and Co. v. Fisher (ubi sup.), because I think it may The be distinguished on two grounds. The main distinction is, that in that case they had answered, but insufficiently, and it was shown by their answers that, although they had no personal knowledge of the facts, they did know by their servants; then again, in that case there was no application to set aside the interrogatories, and therefore the party interrogated had undertaken to answer them, and the objection was taken by the other side that the answers were insufficient. The interrogatories in that case were not based upon a mere hypothetical state of facts as in the present case, but were directed to those circumstances which must occur in the ordinary course of navigation, and to the inevitable events which must have happened in the ordinary course of the voyage. That is entirely different from the present case, where there is no reason to believe that the facts were not invented by the plaintiff, except perhaps that a person would not be likely to put a series of interrogatories without some foundation. For these reasons I do not consider myself bound by the case of Bolckow, Vaughan, and Co. v. Fisher (ubi sup.), and I am of opinion that this appeal should be allowed. HUDDLESTON, B.-I have some difficulty in arriving at a conclusion in this case, in consequence of the decision of the Court of Appeal to which my brother Grove has referred. I think in all these cases it is a matter of discretion of the judge, and he must be guided by the information he is able to obtain as to the facts, and whether the interrogatories will facilitate proof. The real object of these interrogatories appears to be to anticipate the defendant's case, or to meet the case which the plaintiff anticipates the defendant will set up. The plaintiff's case is complete on the proof of shipment and non-delivery which is admitted by the defendant. Then the defendant relies upon the exception in the bill of lading, and in order to meet that, and for the purpose of finding out what the defendant's case will be, these questions are asked by the plaintiff. I do not think that is allowable, and I therefore am of opinion that these interrogatories cannot be allowed. Now comes the difficulty to which I referred, namely, the case of Bolckow v. Fisher (ubi sup.) which was decided by the Court of Appeal, and which seems to embrace all the points in this case, and I own I do not see clearly the distinction between that and the present case, which my brother Grove has pointed out. I have no doubt that these interrogatories ought not to be allowed, and although I feel pressed by the case of Bolckow v. Fisher, I think there may be a distinction, and I do not, therefore, dissent from the judgment of my brother Grove, and I am of opinion that the interrogatories should be struck out. HAWKINS, J.-I am of the same opinion, and I think these interrogatories should be struck out, on the ground that they are prolix, unnecessary, and vexations under Order XXXI., r. 7. Long before these rules the law on this subject was laid down by James, L.J. in the case of Saull v. Browne (30 L. T. Rep. N.S. 697; L. Rep. 9 Ch. App. 346) in the following terms: "The rule is quite clear that a person answering is obliged to answer fully, unless he can make out an exceptional case, viz., that the discovery is sought vexatiously or oppressively, or is discovery which it will be burdensome or injurious to the defendant to give, and which [CR. CAS. RES. probably may never be used at all. The court in such a case, as was said in Elmer v. Creary (29 L. T. Rep. N.S. 129 & 632; L. Rep. 9 Ch. App. 73), may be trusted to exercise a proper control over any attempt on the plaintiff's part to press for any such minuteness of discovery as would be either vexatious or unreasonable, as indeed it can do in every case in which it is satisfied that any kind of discovery is required vexatiously or oppressively." I am of opinion, therefore, that the interrogatories should be struck Appeal allowed. out. Solicitors for the plaintiff, Waltons, Bubb, and Walton. Solicitors for the defendant, Parker, Garrett, and Parker. CROWN CASES RESERVED. ROWN Saturday, Nov. 24, 1883. (Before Lord COLERIDGE, C.J., DENMAN, HAWKINS, WILLIAMS, and MATHEW, JJ.) REG. v. HOLLIS. (a) Larceny-Ringing the changes-Money obtained by a trick. The prisoner and another person went to an inn. The prisoner asked the barmaid for whisky. He put down half a sovereign, and received 9s. 6d. in silver in change. He then asked for the halfsovereign back, saying he thought he had change. She gave it back. His companion then asked for a cigar. She served him with it. The prisoner then put down 10s. in silver and a half-sovereign, asking the barmaid to give him a sovereign for it, which she did. His companion kept on engaging the barmaid's attention. The prisoner never returned the 9s. 6d. which the barmaid gave him in the first instance. The barmaid never intended to part with her master's money except for full consideration. The prisoner having been convicted on an indict ment for larceny of the money, the Court sustained the conviction. CASE stated for the opinion of this Court by the Chairman of the Worcestershire Quarter Sessions. At the last Worcestershire quarter sessions Thomas Hollis was tried before me on a charge of larceny of money, to the amount of ten shillings, the property of Charles Parkes. He was indicted jointly with William Wicks, who pleaded guilty. The money the subject of the indictment was obtained by the trick commonly known as “ring. ing the changes.' The prisoner Hollis and Wicks went to an inn kept by the prosecutor: Wicks asked the barmaid for sixpennyworth of whisky; he put down a halfSovereign; the barmaid gave him 9s. 6d. change. Wicks then said, "Did I give you a half-sovereign? I wish you would give it me back. I think I have change." The barmaid gave him the halfSovereign, but he did not return the 9s. 6d. At that moment the other prisoner, Hollis, asked for a cigar, which the barmaid gave him. He handed her a shilling in payment, and she returned him the change. Wicks then gave the barmaid 108. in silver (98. 6d. of which was the change she had previously given him) and a half-sovereign, and (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. asked her to give him a sovereign for it. She took the money to her master, and received from him a sovereign, which she gave to Wicks. Wicks then asked her to fasten his glove, upon which Hollis remarked, "Isn't he fussy?" The two prisoners then left, and in a few minutes afterwards the barmaid discovered the fraud. The barmaid stated in her evidence that she did not intend to part with the sovereign, except for full change of the prisoner's money; and her master also stated in his evidence that she had no authority to part with it except for full consideration. It was contended by counsel for the prisoner that the barmaid had general authority to act for her master in such a matter as giving change, and that the transaction was complete before she discovered the fraud; therefore that the property in the money had passed, and that the prisoner could not be convicted of stealing it. After referring to Reg. v. McKale (L. Rep. 1 C. C. R. 125; 11 Cox C. C. 32; 18 L. T. Rep. N. S. 335) and Reg. v. Middleton (L. Rep. 2 C. C. R. 38; 12 Cox C. C. 417; 28 L. T. Rep. N. S. 777), I overruled the objection; and the jury found the prisoner guilty, and, in reply to questions put by me, also found specially that the barmaid had no intention to part with the property in the sovereign except for full change of the prisoner's money, and that her master had given her no authority to part with it for other than full consideration. The question reserved for the consideration of the Court is, whether, under the circumstances above set forth, the prisoner was properly convieted of larceny. G. W. HASTINGS, Chairman of the above Court of No counsel appeared for the prisoner to argue the case. Godson, for the prosecution, relied upon the authority of Reg. v. Middleton and Reg. v. McKale (ubi sup.). Lord COLERIDGE, C.J.-I cannot see the diffi. culty in the case. HAWKINS, J.-Suppose you were counsel for the prisoner, how would you put his case? Godson.-I should contend that the barmaid bad parted with the possession of the money to the prisoner. Lord COLERIDGE, C.J.-She was induced to do so momentarily by a trick, and did not intend to part with it but for an equivalent. DENMAN, J.-The jury did not find that the prisoner from the first intended the fraud, but it may be inferred from the evidence that he did so intend. Lord COLERIDGE, C.J.-I have no doubt in this case. If a man imposes upon another person by saying what the prisoner said to the barmaid, who had no authority to part with the money, and who did not intend to part with the money except for full consideration, and obtains money from that person, it is a stealing of money. Here the prisoner got the money by a deliberate trick, and I should be very sorry that there should be any doubt that to obtain money so is larceny. The rest of the Court concurred. Vol. XLIX., N. S., 1261. Conviction affirmed. [CT. OF APP. Supreme Court of Judicature. COURT OF APPEAL. Monday, July 9, 1883. (Before BRETT, M.R., COTTON and BowEN, L.JJ.) BUTCHER V. POOLER. (a) Practice-Partnership action-Costs of unsuccessful claim-Appeal for costs-Judicature Act 1873, 8. 49-Rules of Court 1875, Order LV., r. 1. By the articles of partnership between three partners it was declared that on the death of any partner the survivors should be entitled to his share at a valuation. The executrix of a deceased partner commenced an action against the surviving partners and obtained a decree for taking the accounts of the partnership. The plaintiff alleged that certain leaseholds, part of the assets, were of great value, but the chief clerk found that they were of no value. The plaintiff then took out a summons to vary the chief clerk's certificate in this respect, which was adjourned into court and dismissed. The whole of the costs of the action, including the costs of the inquiry as to the value of the leaseholds and the summons to vary, were ordered to be paid out of the partnership assets. The defendants appealed against the order as to the costs of the inquiry and the summons to vary. Held, that the costs were in the discretion of the court below, and that no appeal would lie. Foster v. Great Western Railway Company (46 L. T. Rep. N. S. 74; 8 Q. B. Div. 515) distinguished. IN July 1875 Charles Butcher, who carried on business in partnership with the defendants, Pooler and Jones, died, and by his will appointed the plaintiff, his wife, his executrix. In 1876 the plaintiff commenced this action to have it declared that the goodwill of the business was an asset of the partnership, and to have the accounts taken, and the value of her husband's share ascertained. Under the articles of partnership the partners were entitled to the net profits in equal shares, and, on the death of a partner, the survivors were entitled to take his share at a valuation. On the 23rd Nov. 1876 a decree was made by which is was declared that the goodwill ought to be treated as a part of the assets of the partnership, and it directed the usual accounts to be taken, including an account of all dealings and transactions, and an account of the credits, property, and effects of the partnership at the death of the said C. Butcher, and of what the same consisted at the date of the judgment, and what was the value thereof including the goodwill of the business, and further consideration was adjourned. By his certificate dated the 4th May 1882, the chief clerk valued the goodwill at 36611. 48., and set down two leasehold premises occupied by the partnership as being of no value. The plaintiff took out a summons to vary the certificate by increasing the value of the goodwill to 46571. 108., and fixing the value of the leaseholds at 32477. and 66961. respectively. These (a) Reported by W. C. Biss, Esq., Barrister-at-Law. values had been placed on them by certain eminent surveyors employed by the plaintiff. This summons was adjourned into court, and on the 7th July it came before Bacon, V.C. who declined to vary the certificate, but ordered the costs of both parties in chambers and in court to be paid out of the partnership estate. On the 3rd Nov. 1882 the action came on for further consideration, and the question as to these costs was again raised. Millar Q.C. and P. R. Abraham for the plaintiff. Horton Smith, Q.C. and Northmore Lawrence or the defendants. BACON, V.C.-There is no question that the general rule in taking partnership accounts is that the costs of ascertaining the true state of the accounts are to be borne by the partnership estate. No doubt in an ordinary case a man who makes an unfounded claim and fails to establish it must pay the costs, but I cannot conceive that this has any application to partnership accounts. In ascertaining the value of the assets the view taken by one party may turn ont to be unfounded, but the matter has to be investigated, and it does not follow that the bringing forward such a view was unreasonable. The leasehold property in question was part of the partnership estate. It was alleged by the plaintiff to be of considerable value. On the other hand, the defendants said it was worth nothing. The plaintiff took out a summons to vary the finding that this item of property was worth nothing, and failed. I am then asked to apply what is undoubtedly the rule in an ordinary suit and make her pay the costs of that contention in which she has failed. But it cannot be separated from the partnership account. The court has to ascertain what was the value of the assets at a particular time, and the costs are costs of administering the estate. If there had been a dispute whether an outstanding debt was good or irrecoverable that would require a separate investigation, but the expenses of that investigation would be part of the expenses of taking the partnership accounts. The value of the leaseholds was an open item in the partnership accounts until this investigation had taken place, and the costs of it must be borne by the partnership estate. The defendants now appealed from the direction of the 7th July 1882 as to costs, and from so much of the order on further consideration as gave effect to it, and asked that it might be discharged, and that in lieu thereof such costs might be taxed and paid out of the plaintiff's share of the partnership assets or by the plaintiff personally, and also that so much of the order on further consideration as directed that the costs of the action might be taxed and paid by the defendants out of the partnership assets might be varied, by directing that the costs of the claim of the plaintiff in respect of the value of the leaseholds might be taxed and paid out of the plaintiff's share of the partnership assets or by her personally. Horton Smith, Q.C. and Northmore Lawrence for the appellants.-The case comes within Johnstone v. Cox (45 L. T. Rep. N. S. 657; 19 Ch. Div. 17). A successful party ought not to pay costs. no order as to the costs of the hearing (Hawkins v. Parsons, 8 Jur. N. S. 452; Seton on The old rule was to make [CT. OF APP. Decrees, 4th edit., p. 1206); and the only case against that is Hamer v. Giles (41 L. T. Rep. N. S. 270; 11 Ch. Div. 942). These costs are not within the discretion of the judge within sect. 49 of the Judicature Act 1873, and Order LV., r. 1, as there is a settled rule as to costs in a partnership action, and the defendants are entitled to appeal : Jones v. Chennell, 38 L. T. Rep. N. S. 494, 496; Rio Grande Do Sul Steamship Company, 36 L. T. Farrow v. Austin, 45 L. T. Rep. N. S. 227; 18 Ch. Turner v. Hancock, 46 L. T. Rep. N. S. 750; 20 Ch. Re Silver Valley Mines, 47 L. T. Rep. N. S. 597; 21 Cooper v. Vesey, 47 L. T. Rep. N. S. 89; 20 Ch. Div. 611. [BOWEN, L.J. referred to Foster v. Great Western Railway Company (46 L. T. Rep. N. S. 74; 8 Q. B. Div. 515.) The result of the order is that the appellants will pay two-thirds of the costs, and when costs are ordered to be paid out of a fund which belongs to other parties, that can be appealed from. COTTON, LJ.-Is not a partnership action in the nature of an administration action in which the costs ought to come out of the fund apart from questions as to misconduct?] Millar, Q.C.and P. B. Abraham for the plaintiff.The appellants will not pay two-thirds of the costs, as the fund does not belong to them. The accounts must be taken, and the partnership assets ascer tained, and the debts paid before the interest of any partner can be ascertained. There was a question as to these leaseholds to be settled. They were valued at 10,0001. by an eminent firm of surveyors. Our contention that they were valuable was therefore bonâ fide and reasonable, and the costs must be paid out of the assets as a part of the necessary costs of administration: Hamer v. Giles, 41 L. T. Rep. N. S. 270; 11 Ch. Div. 942. BRETT, M.R.-In this case, on the death of a partner, an action in the Chancery Division was instituted in which a decree was made to administer the partnership estate. In the course of the administration a dispute as to facts arose, which was first dealt with by the chief clerk and then adjourned into court, and the decision was adverse to the plaintiff. The Vice-Chancellor decided against her, but ordered the costs of the inquiry to come out of the estate. The appeal is from that order as to the costs. The question is, whether we have jurisdiction to hear the appeal, or whether it was a discretionary order as to costs from which an appeal will not lie. It is contended for the respondent that the general rule is that the costs of such a suit should be paid out of the estate, unless there is a case of miscon duct; but even if there were misconduct, I think the court clearly would have a discretion to say that it was not sufficient to lead the court to refuse to order the costs to be paid out of the estate. Now, under the Judicature Act, when costs are in the discretion of the court, there cannot be any appeal. Can this case be brought within any of the excep tions from that rule? The case which appears most favourable to the appellant is Foster v. Great Western Railway Company (46 L. T. Rep. N. S. 74; 8 Q. B. Div. 515.) The Court of Appeal there held that, where the plaintiff in an action wholly failed, an order that the defendant should pay the |