Shanghai, January, 22nd, Before Sir Eparoxw Horny, Chief Judge. Motion to Review the Tazation of Costs in re the Collision between the Brig" St.
Francois" and the steame " Cawdor Castle."
Mr. Rostssos, in moving, said this was an
of the costs in the above action, and it was application to the Judge to review the taxation based upon two points, 'The' first was, whether the plaintiff was entitled to the costs of a material witness, even though it should prove that his evidence was needless; the second point was, what is meant by costs of reference? Those were the two points on which he was going to ask the opinion of the Court. No issue was joined at the time the witness was examined, though they knew perfectly well what the issue was going to be. 'The plaintiffs maintained, and the defendant denied, that the vessel' should be tre: as a total loss. If he failed in contention that she was a total loss beau she was sunk, he was bound to be provided with evidence in support of his second ion, and the witness in qu was one on the point that she at any rate so damage as to amount toa total loss, officially appointed by the French Consul, 'It was felt sure that con lo ight would be attached to his evidence on point as to whether the vessel was 0 damaged as to be a total loss. 'The Registrar and Merchants decided' that, as she was sunk, she was entitled to be treated asa total loss, and it was not necessary to the witness on the second point in But he (Mr. Robitison) would guilty of great negligence if he bad prepared with that evidence, supposing the Registrar and Merchants had come ton different view. Therefore, it was upon that possibility that he was entitled to have the witness's evidence, and he waa very much dat its being as being not taken, Independent of any merits whatever, it was a question of principle in the Courts that the plaintiff was bound to be provided with any evidence that might be required, and if he succeeded that he was entitled to the ex) of providing such evidence. On this point, Mr. Robinson referred the Court to Chitty's Archbold, on read Boge 512, under the head of cost, which be His Lonpsuir said that referred simply to the expenses of witnesses—what was paid to witnesses at so much per day.
Mr. Roptxsow felt bound to differ from that ie his opinion it also included ti f the prey tion of a witness's be instructed in his brief to at might be called. There was a case argument—the case Lavw Journal; Admiralty; page 24 a case of damage, and the material was whether the vessel injured had patent furling appliances to her topsails, That was the question for the Board to decide. Th defendants were prepared with two witness to prove that fact, but the fact was clearly admitted in the course of the evidence for the other side and cousequoutly the two witness were nob examined, and the Registrar disallowed their costs. But the Judge bef whom the appeal was heard, said thei evidence was material to the case, and that it was the defendant's duty to be provided with it, and that the. Registrar should first consider whether a witness was necessary before disallowing his costs. In the case quoted it was considered necessary, and the Judge therefore referred it back to the Registrar to allow He (Mr. Robinson) proceeded to say that in the St. Francois case lo had provided a material witness, that he was bound to provide such evidence as he could give, and therefore he was entitled to reasonable costs on'this account.
His Lorpsuir said he could not see how the question of total loss could arise as it was put, on the second issue.
Text read from the printed page and cleaned; old type leaves the occasional error.