The Attorney-General (Sir H. James, Q.C.) and R. S. Wright appeared for the appellant, and argued that the agreement amounted to a sale within the Act. H. Davey, Q.C. and Aspland, for the respondent, contended that the transaction did not amount to a sale out and out, but only to a conditional sale under which the respondent was in the position of an agent for the true owner. His power would have been been revoked by Ekstein's death. Taxing acts must be construed strictly. They referred to . Yorkshire Railway Wagon Company v. Maclure, Rein v. Lane, L. Rep. 2 Q. B. 144; 15 L. T. Rep. Cox v. Rabbits, 3 App. Cas. 473; 38 L. T. Rep. Watson v. King, 4 Camp. 272. The Attorney-General was not called on to reply. The judgment of their Lordships was delivered hy Sir ROBERT COLLIER.-This is a suit brought by Mr. Hutton, in his capacity as Treasurer-General of the Colony of the Cape of Good Hope, to recover from the defendant a sum of 360l., together with interest, which he declares to be due from the defendant under the provisions of Act 11 of 1863, of which provisions the following only are material:-Sect. 2: "For and in respect of every sale, whether private or public, made after this Act shall come into effect, of any freehold property or property held of Government upon quitrent or other leasehold tenure, or of any opstal of a loan place, there shall be chargeable upon and payable by the purchaser a duty of four per cent. upon the price or purchase money paid or to be paid for the said property." Sect. 3: "A duty as aforesaid shall be payable upon the value of any such property as aforesaid by every person becoming entitled to the same by way of exchange, donation, legacy, testamentary, or other inheri tance, or generally in any manner otherwise than through the medium or by the means of purchase and sale." The declaration in the action contained two counts respectively relying upon these two clauses of the Act; but with respect to the second count no question now arises. The question arises solely upon the first count, which relies upon the 2nd section of the Act; and the question is whether there was or was not a sale of a certain property from Ekstein to Lippert. The law of the Cape with respect to the contract of sale is thus stated by the Chief Justice: "Under our law, as under the Roman law, a sale may be defined as a contract in which one person promises to deliver a thing to another, who on his part promises to pay a certain price." In Van Leeuwen, c. 17, s. 1, is this passage: "The purchase is understood to be accomplished as soon as the price and the mutual condition has been fixed, although the money had not been paid, nor the delivery of the article made, unless a real misunderstanding had taken place in the articles sold." Blackburn, J. in his treatise on the contract of sale, at page 177, quotes Pothier thus: "In general a contract of sale is considered to have become perfect as soon as the parties are agreed upon the price for which the thing is to be sold. This rule has its operation when the sale is of an ascertained thing, and is pure and simple: 'Si id quod venierit appareat [PRIV. Co. quid quale quantum sit et pretium et pure venit perfecta est emptio.'" It may be observed that, even if our law governed the case, which it does not, the definition given by Blackburn, J. in his treatise on the contract of sale, which is quoted by the Chief Justice, would apply. Such being the law applicable, it remains to be seen what the real transaction between Ekstein and Lippert was. The Chief Justice quotes a passage from the Digest, "In emptis et venditis potius id quod actum quam id quod dictum sequendum est," a passage enunciating a principle which is probably common to the laws of all civilised countries. We have, therefore, to look to what was the real transaction between the parties, and not to what they have called it. That transaction is contained in three documents, and it appears to their Lordships enough for the determination of this case to deal with those documents apart from any oral evidence which has been given. The first is an agreement of the 21st Sept. 1880, which runs thus:-" For the consideration after mentioned, Wilhelm August Lippert hereby guarantees to the said Dirk Gysbert Ekstein the sale, in whole or by lots," of an estate (describing it), "for the sum of 90001, by or before the 31st Dec. 1881; Wilhelm August Lippert to have the sole control and management of the aforesaid property and of the said sale or sales, and for that purpose the said Dirk Gysbert Ekstein shall grant unto him an irrevocable power of attorney granting him the fullest power over the said property, so as to enable him to deal with it as he thinks fit, and Dirk Gysbert Ekstein shall be bound and obliged to pass the necessary transfer or transfers at the expense of the purchaser or purchasers. Wilhelm August Lippert also guarantees the payment of the interest at the rate of 6 per cent. per annum, to commence from the 1st Jan. 1881, on the said sum of 9000l., or so much thereof as shall remain from time to timə due and owing; and he further guarantees, agrees, and undertakes that if the said ground is not sold in lots entirely or by lots, or if any part thereof shall remain unsold by the said 31st Dec. 1881, that he shall be bound himself to take over the said ground for the said sum of 9000l., or any portion thereof remaining unsold at a proportionate value, so that the said Dirk Gysbert Ekstein shall receive the said sum of 9000l. in full, with interest due. In consideration whereof it is hereby agreed that the said Dirk Gysbert Ekstein shall pay, and the said Wilhelm August Lippert shall receive or be entitled to account for the moneys coming into his hands, whatever surplus and balance shall remain after payment to the said Dirk Gysbert Ekstein of the said sum of 90001. and interest, as his commission on and recompense for said guarantee." On the 28th of the same month "it was further agreed that the proceeds of the sale shall be handed over to Ekstein on passing transfer until the whole amount of 9000l. shall be paid." Then comes a power of attorney by which Ekstein nominates and appoints Lippert his lawful attorney to transfer all and singular the aforesaid estate, and so on, unto the various purchasers from time to time, and to give good and valid and effectual receipts, &c. It thus appears that the price which Ekstein was to receive was ascertained, viz., 9000l., and it was to be paid on the 31st Dec. 1881, unless (and this appears to their Lordships to make no real difference in the transaction) some portions of it had been paid before, which portions were, if Lippert sold, as he might have done, but was not bound to do, to be paid over to Ekstein. As far as Ekstein was concerned, it appears to their Lordships that he sold the property. Now did Lippert buy it? Lippert obtained the complete control of it, not only such control as would have been necessary for him if he acted as agent, or guarantor (as it is here called), to sell portions of the property to other people, but the full possession and control of it. There could not be wider words than these, "deal with it as he thinks fit." Lippert might sell or let any portion of it, or he might retain the whole in his own hands; he might cultivate it or let it run to waste; he might sell any portions of the woods and copse; in fact, he was, to all intents and purposes, the owner of it, and this in consideration of a fixed price to be paid on or before a fixed day. Under these circumstances, it appears to their Lordships that the Chief Justice was justified in saying that the effect of the transaction was to give Ekstein every right which a vendor could legally claim, and to confer upon the defendant every right which a purchaser could legally demand. Does it make any difference that the parties have called this transaction by the name of a guarantee? It appears to their Lordships that because the parties have used this term guarantee" in a sense which is unusual and not applicable to this case-for Lippert really guaranteed nothing-the nature of the transaction is not thereby changed; and because they have said that Lippert was to be entitled to whatever surplus or balance shall remain on the resale of portions of the property, if any were resold, 66 as commission and recompense for the said guarantee," this expression does not convert him from a purchaser into an agent. The object of the parties seems to have been to obtain all the benefits of a sale, without subjecting themselves to the duty on it, by giving a contract of sale the colour of a contract of guarranty or agency. Their Lordships agree with the Chief Justice that, notwithstanding these devices, the true character of the transaction sufficiently appears. They will humbly advise Her Majesty that the judgment of the Supreme Court of the Colony be reversed, and that the plaintiff do receive judgment for the amount which he claims. The plaintiff will have the costs in the court below and the costs of this appeal. Solicitors for the appellant, Watney, Tilleard, and Freeman. Solicitors for the respondent, Venning, Sons, and Munnings. [CT. OF APP. Supreme Court of Judicature. COURT OF APPEAL. Wednesday, Jan. 24. (Before JESSEL, M.R., LINDLEY and BowEN, L.JJ.) Re GOLD HILL MINES. (a) Company-Disputed debt-Petition by creditor to wind-up-Evidence of insolvency-Petition dismissed on motion. A dismissed servant of a company made a claim against it, which was disputed, for 151. as arrears of salary, and also for 951. as damages for wrongful dismissal, and presented a windingup petition alleging that the company was insolvent, and supported the petition by the usual statutory affidavit alone. The company moved to stay proceedings on the petition, and the secretary made an affidavit showing that the claim of the petitioner was bonâ fide disputed, and that the company was solvent. Bacon, V.C. ordered that on the company paying 110l. into court to abide the result of an action which the servant undertook to bring, all further proceedings under the petition should be stayed until after the trial of the action. The company paid the 1101. into court and appealed. Held, that the petition being brought to enforce payment of a small debt, which was bonâ fide disputed, and there being no evidence that the company was insolvent, was an abuse of the process of the court, and must be dismissed with costs, and the 1101. returned to the company. THE Gold Hill Mines Company employed W. H. Bullock as mine agent, at a salary of 300%. a year, and on the 1st July 1882 gave him notice to determine the engagement in three months. A few days afterwards they gave him notice to leave forthwith. He alleged that this dismissal was wrongful. On the 5th Dec. 1882 Bullock presented a petition for the winding-up of the company. He alleged that 15l. was due to him for arrears of salary, 751. for three months' salary in lieu of notice, and other sums amounting to 201., which he claimed as damages for wrongful dismissal. He alleged that the company was insolvent and unable to pay its debts, and that it ought to be wound-up, and asked that an order for winding it up might be made. The only evidence as to the insolvency of the company was the statutory affidavit by Bullock in support of the petition, and an affidavit by him that the manager on discharging him said that he should have to discharge other servants of the company, the company having no further funds to spend on the mines. On the 6th Dec. the company gave notice of motion to restrain Bullock from advertising the petition, or taking any proceedings under it. Bullock had never made any statutory demand on the company for payment of the amount he alleged was due to him; nor had he furnished the company with particulars of his demand, though the secretary had asked for them by a letter of the 22nd Sept. 1882. The secretary made an affidavit in which he deposed that the company was (a) Reported by W. C. Biss, Esq., Barrister-at-Law. perfectly solvent, and ready and willing to pay any. thing that was justly due to the petitioner, but that the company denied that anything was due to him. On the 21st Dec. 1882 the motion was heard by Bacon, V.C. Marten, Q.C. and Grosvenor Woods, for the company, contended that the petition had been improperly presented, for the company had never been furnished with the particulars of the petitioner's demand except by the petition itself. Beddall, for the petitioner, contended that the court had no jurisdiction to retrain the issue of the advertisement. The Companies Act expressly directed that it should be issued by the petitioner. If the company was solvent, let them pay the amount claimed into court, and the petitioner would then offer to have the petition dismissed, and bring an action for the amount. But there was no sufficient evidence that the company solvent. was BACON, V.C.-The Act of Parliament has given a creditor who cannot get paid a right to present his petition against a company which not only refuses to pay him but is in a state of insolvency. That is all the Act does. It does not countenance applications to wind-up as a means of enforcing the payment of debts which the company dispute. Considering the amount of mischief which would be done to the company if solvent by a petition to wind it up by a creditor whose claim only amounts to 1101., as it is disputed, I have not the least doubt that I have full jurisdiction to restrain the proceedings. I will not do so, however, unless I can be sure that I am doing no injustice to the petitioner, and therefore, upon the company bringing the 1107. into court, I will restrain the advertisement of the petition and all proceedings under it until an action to be brought by the petitioner has been tried. Beddall asked that a further sum to cover costs might be directed to be brought in. BACON, V.C. refused to increase the amount. An order was made that, on the company paying 1101. into court to abide the result of an action which Bullock undertook to bring against the company to recover the amount claimed by him, all further proceedings should be stayed till after the trial of the action, and the costs were reserved. The company paid the 1107. into court and appealed, and on the 24th Jan. 1883 the appeal was heard. Marten, Q.C. and Grosvenor Woods for the company. This petition ought never to have been presented. Bullock ought to have brought an action for the money he claims. He has made no statutory demand for it, and has given no particulars of his claim. There is uncontradicted evidence that the company is solvent, and the petition ought to have been dismissed with costs. The question as to what is proper to be done in such cases was discussed before Hall, V.C. in 1882, in the case of The Quartz Hill Consolidated Gold Mining Company. It was there held that the court had jurisdiction to stay proceedings under a petition to wind-up. There the petitioner was the holder of a dishonoured bill of the company, and had a prima facie right to present a petition, and the proceedings were stayed on money being [CT. OF APP. brought into court, and the decision was affirmed by the Court of Appeal. - Beddall for Bullock. The allegations in the affidavit of the petitioner makes a prima facie case petition show that the company is insolvent; the in support of it. [JESSEL, M.R. That has been contradicted on affidavit, and the affidavits on behalf of the company are not met.] We cannot go into evidence in support of the petition, because the proceedings on the petition are stayed; but if it came on for hearing we should be entitled to cross-examine the secretary, and could ask him what the liabilities of the company were. [JESSEL, M.R.-You ought to have been prepared with evidence of insolvency.] It is only necessary for the petitioner to show a primâ facie case, and if the statutory affidavit is not contradicted by credible witnesses, then the court will consider that the company is insolvent. No evidence is given by the company as to the state of their assets, and they ought to have done so when their solvency is disputed. [JESSEL, M.R.-They are not bound to give you evidence of their solvency.] The affidavit of the secretary contains inconsistent allegations as to the cause of the petitioner's dismissal, which shows that the evidence of the secretary cannot be relied on. JESSEL, M.R.-I am of opinion that this petition can only be correctly described as a scandalous abuse of the process of the court. The peti tioner is a discharged servant of the company. He alleges that there is due to him a sum of 151. for arrears of wages, which is disputed on the part of the company. That is the only alleged debt. He also claims a sum for damages for wrongful dismissal, which is not a debt, and in respect of which he cannot present a winding-up petition. The damages for wrongful dismissal which he claims amount to 951. So that we have a petition presented by an alleged creditor for 15l. He does not pretend that he has served the statutory notice. In fact, he could not serve it, for it is limited to creditors of 50l. or upwards. He does not pretend that he does not know that both his debt and his claim for damages are disputed. Under those circumstances he presents a petition to wind-up the company, alleging, to prevent what one might call a demurrer to the petition, that the company is unable to pay its debts. There is not a particle of evidence in support of this allegation. He cannot allege a single circumstance to show insolvency, but he relies on the general allegation of insolvency contained in his own affidavit in support of the petition. He is met by an affidavit of the secretary, who deposes that the company is quite solvent. There is no evidence to rebut this, and then the petitioner through his counsel tries to discredit the secretary, because there are in his affidavit some allegations as to the belief of the secretary with reference to the cause of the dismissal of the petitioner, which the petitioner is pleased to say are inconsistent with each other, but the inconsistency of which is certainly not manifest to my mind. It is out of the question that we should on such grounds treat the secretary as being unworthy of belief. It appears to me there is not a shadow of pretence for keeping this petition on the file, and that it ought to have been dismissed with costs, and with not less emphasis than I am using now. That is the order we propose to make, and the petitioner must pay the costs of the appeal, and the costs of the motion in the court below. The money deposited by the company will be returned. LINDLEY, L.J.-I am of opinion that the order which the Master of the Rolls has just pronounced is the right one. The petition is presented by a person who alleges that he is a creditor of the company, and in support of the petition there is the ordinary statutory affidavit, the object of prescribing which is to prevent the abuse of putting upon the file long affidavits in support of the petition which may turn out to be unnecessary. The statutory affidavit strictly is no proof of any. thing. It is hearsay as to almost everything alleged in it, but it is sufficient to require an answer. The company at once applied, not in terms to take the petition off the file or to dismiss it, but that the petitioner might be restrained from advertising the petition or taking proceedings under it; and their application is supported by the affidavit of the secretary that the company is perfectly solvent. The ViceChancellor considered that there was a case to try, and that the debt of the petitioner was not only disputed, but bona fide disputed, and the course he has taken is this-he has directed the company to pay into court a sum of 110l., and has directed an action to be brought, and has restrained the advertising of the petition and all proceedings under it until the action has been tried. From that order the company appeal, and the substantial question we have to deal with is, whether this petition should be allowed to remain on the file or not. Now it ought to be understood that winding-up proceedings are not to be had recourse to for the purpose of recovering a disputed debt, especially when, as here, the There is no company appears to be solvent. evidence of insolvency but the statutory affidavit. It is met by an affidavit which displaces it, and leads me to believe that the company is perfectly solvent. In fact we have no evidence of insolvency. The petitioner's debt is disputed, both as to the liquidated amount, the 15l, and as to the unliquidated claim. It appears to me that the petitioner's right course was to bring an action and not to present a petition, and I agree in thinking that the process of the court has been abused, and that the petition ought to be got rid of as summarily as possible. BOWEN, L.J.-I am of the same opinion. I think that this petition is an abuse of the process of the court, and that it ought to be stayed or dismissed, and I believe the court has power to do either with a petition of this kind. I have nothing to add to what has been said by the Master of the Rolls and Lindley, L.J., except that I wish, in the most emphatic manner, to express my entire concurrence in the remarks that have been made as to the argument that has been addressed to us as to the credibility of the secretary's evidence. I know nothing about the secretary, but I say that on the materials presented to this court there is not a shadow of a foundation for the suggestion that he is unworthy of credit. Solicitors for petitioner, Beall and Co. Solicitors for company, Snell, Son, and Greenip. Friday, April 13. [CT. OF APP. (Before BAGGALLAY, COTTON, and FRY, L.JJ.) Re BROWN; WARD v. MORSE. (a) Practice-Claim and counter-claim both successful -Costs-Apportionment. Where the plaintiff's claim and the defendant's counter-claim have both been successful, the defendant, in the absence of any special direction as to costs, pays to the plaintiff the general costs of the action, though the amount recovered by the defendant in the counter-claim is larger than the amount recovered by the plaintiff on his claim. Such costs as would have been duplicated had the counter-claim been an independent action will not be apportioned, but the plaintiff will not recover as costs of the action any costs attributable to the counter-claim. Decision of Chitty, J. affirmed. Saner v. Bilton (40 L. T. Rep. N. S. 314; 11 Ch. Div. 416), and Mason v. Brentini (43 L. T. Rep. N. S. 557; 15 Ch. Div. 287) followed. THIS was an appeal from a decision of Chitty, J., refusing to review the master's taxation. John Brown was a contractor engaged in the construction of the Severn Bridge Railway, and Morse was a sub-contractor under him, engaged to do certain masonry work. Brown afterwards determined his contract with the company. Morse being indebted to Brown, the latter com. menced an action of Brown v. Morse to recover the amount, and took out a summons for judgment under Order XIV. This summons was opposed by Morse, who obtained leave to set up a counterclaim for damages for breach of the subcontract caused by the determination by Brown of the contract with the railway company. Before the action was heard Brown died. The usual order was afterwards obtained for the administration of his estate, and the action was continued by his executors, and it was transferred under the new title of Ward v. Morse from the Exchequer to the Chancery Division. Judgment was afterwards given in that action for 238l. 68. 8d., the amount claimed by Brown, less a small sum claimed in the defence by way of set-off for goods sold and delivered by Morse to Brown. Judgment for damages was also given on the counter-claim, and it was referred back to chambers by Jessel, M.R. with certain directions as to the basis upon which those damages were to be assessed. Ultimately the damages were assessed at 5911. 128. 11d. On the 19th April 1882 an order was made by North, J. in chambers, referring it to the taxing master to tax, first the costs of the present plaintiff and of the original plaintiff, John Brown, in the action of Ward v. Morse, including the costs of the transfer thereof to the Chancery Division, and to tax, secondly, the costs of the defendant Morse of his counter-claim in the said action, and of his claim against the estate of the testator, Brown, including therein the costs reserved by a par ticular order mentioned, and it was ordered "that the amount of the first-mentioned costs be set off against the amount of the second-mentioned costs, and the balance added to or deducted from the amount found to be due to the defendant as a creditor of the testator." (a) Reported by W. C. BISS, Esq, Barrister-at-Law. The costs were then taxed in pursuance with this order, and the whole of the costs of the action of Ward v. Morse were allowed to the plaintiffs, and to the defendant only the costs of the counterclaim, and of a claim in chambers in the administration of Brown's estate; and the taxing master's certificate assessed the costs of the executors and of J. Brown in the action at 921. 178. 6d., and the costs of the defendant at 891. 188. 3d. Morse took objections in the taxation to allowances in Brown's and the plaintiff's bill of costs in the action, and to disallowances in his own bill of costs, as follows: 1. As to the bill of costs of the plaintiffs: (a.) Objection to the allowance in that bill of the whole of the several items common to the action and counter-claim, and insists that the same ought to be apportioned, on the ground that neither the action nor the counter-claim was dismissed, and that the plaintiffs should be allowed only such part thereof as is fairly attributable to the action : (b.) To the allowance in that bill of costs or increase of costs occasioned by the counter-claim, viz., the application for judgment under Order XIV., rule 1, and similar charges, and says that the plaintiff should be disallowed all such costs, as he failed on the counter-claim. 2. As to his own bill: (c.) Objection to disallowance of the whole of the items common to both action and counter-claim, and says that such items should be apportioned, and that he should be allowed such part thereof as is fairly attributable to the counter-claim. (d.) Objection to the disallowance of items relating in effect wholly to his counter-claim, viz., those on obtaining leave to defend on the application under Order XIV., rule 1, and similar charges. The taxing master disallowed the objections, holding that the case could not be distinguished in principle from Saner v. Bilton (40 L. T. Rep. N. S. 314; 11 Ch. Div. 416); and Mason v. Brentini (43 L. T. Rep. N. S. 557; 15 Ch. Div. 287). The defendant then applied by summons in chambers that it might be referred back to the taxing master to review the taxation in respect of his objections. On the 14th Nov. 1882 Chitty, J. dismissed the summons. CHITTY, J.-In this case North, J. has ordered that it be referred to the taxing master to tax first the costs of (what I will call for shortness) the plaintiffs and of the above-named John Brown, of the action of Ward v. Morse, including the costs of the transfer thereof to this division; and secondly, to tax the costs of Stephen Morse of his counter-claim in the said action, and of his claim against the estate of the above-named testator, including therein the costs reserved by a particular order. And the order went on to direct a set-off as between the costs to be paid on one side and on the other. The point raised is this: The taxing master has given to the plaintiffs the whole costs of the action without apportionment, and the substance of the argument on the part of the defendant is, that it is a miscarriage on his part, and that the costs onght to be apportioned; that is to say, the [CT. OF APP. common charges in the action, such as term fees, attendances in court and the like, ought to be apportioned as between the costs of the action on the one side, and the costs of the counter claim on the other. I will state very shortly what the nature of the litigation was. The action was commenced by a Mr. Brown against the defendant for a debt, and the defendant put in a defence setting up a set-off to a certain extent which did not exhaust the whole demand of the plaintiff, and a counter-claim for damages. In the action the plaintiff succeeded in recovering the whole amount of the debt, but the defendant succeeded in his set-off to the extent the set-off was pleaded, and the defendant recovered damages on his counter-claim, and the balance on the two accounts is in the defendant's favour. In these circumstances the order I have read was made, and all I have now to do is to say whether the taxing. master has correctly interpreted the order and given effect to the directions contained in it. Whether the order is right or not is not a matter for my consideration. Now the point came before Fry, J. in Saner v. Bilton (40 L. T. Rep. N. S. 314; 11 Ch. Div. 416), and in that case the plaintiff who had commenced an action against the defendant failed, and the defendant, who set up a The counter-claim, failed, and both the action and counter-claim were dismissed with costs. Fry, J. obtained the opinion of Mr. Bloxam, in which other taxing masters of great experience concurred, and upon that opinion he acted, and he says (40 L. T. Rep. N. S. 314; 11 Ch. Div. 419): "The principal reason which leads me to that conclusion is this, that the plaintiff in the original action is the person who first commences litigation. plaintiff in the action first lets out the waters of litigation, and it is impossible to say how far the counter-claim ever would have been agitated if he had not begun that litigation. That appears to me to furnish a reason why, as a general rule, the action should be treated as if it stood by itself, and the counter-claim should only bear the amount by which the costs of the proceedings are increased by it." In Mason v. Brentini (43 L. T. Rep. N. S. 557; 15 Ch. Div. 287) the same point came before the Court of Appeal, and the Master of the Rolls said (43 L. T. Rep. N. S. 558; 15 Ch. Div. 289) : "I entirely agree with the decision of Fry, J., in Saner v. Bilton, and for the reasons which he has given; and am of opinion that this judgment is to be considered as expressing the rule of the court." The taxing master, having these decisions before him, has stated in his answer to the objections brought in that he considers the case is disposed of by two authorities which I have mentioned. He says," Finding nothing in the objections to distinguish the case before me from these two authorities I disallow the objections." That is the question I have to consider, stated in its narrowest form. Now if the principle is that where the plaintiff who commences the litigation is wrong there is to be no apportionment of costs, it seems to me that, by analogy, where the plaintiff is right and the defendant is also right, as the taxing master says, the same rule must be applied. In my opinion, if the plaintiff who commences the litigation is right, the same rule ought to be applied to him, but inversely of course, as to the plaintiff who commences his litigation being wrong. The effect of the new procedure under the Judicature Act appears to |