OF AUSTRALIA. 443 jose to allow these facts to be put before a jury would H.C. or A. to a very large extent, to deprive the appellants of the 19% _ortunity of ever at any time setting up what appears to have — tyssour if the appellants are right in their facts,a palpable fraud on B88, & Co. ino. tof their agent and collusion on the part of the respondent. Faux. iuestion whether the amendment should have been allowed the amendment becomes unnecessary. Appeal allowed. Order appealed from dis- charged. Respondent to pay the costs of the motion for a rule nisi and of the appeal. Costs of the first trial to be costs in the cause. Money paid into Court by the uppellants as security for verdict and costs of the first trial to be repaid to appellants. Sblicitor for appellants, H. C. E. Rich. Solicitors for respondent, Shipway «& Berne. CA. W. (HIGH COURT OF AUSTRALIA.) GHT' BROS. & CO. LTD. 7 ' APPELLANTS ; AND ALK ResponveEnt (No. 2). ON APPEAL FROM THE SUPR: NEW SOUTH WALI payment of costs* of appeal—New trial—High Court Procedure _ Aet1903 (No. 7 of 1903), sec. 26 (b)—Rules of the High Court 1903, Part I., | Onder XXXV., v1, COURT OF Anorder for payment of the costs of an appeal is an order for the payment. _ Alinmey to some person within the meaning of Mules ofthe High Court 1903, Ge Pat L, Order XXXV., x. 1. i O'Connor JJ. 444 HIGH COURT H.C. 'Therefore, an order of the High Court for payment of the cots of yap from the Supreme Court of a State will not be enforced by attachment, Nor will the payment of the costs of an appeal in which a new tri 'de made « condition precedent to the new trial, Morioy for attachment. The appellants were si pene Rite "High Cottrt;*end the appeal yates costs, ante p. 421. The respondent, without paying the ods the appeal, set down the action for trial, and gave the appe notice of trial for 7th June, 1905. This was a motion by the appellants to the High Court writ of attachment against the costs should be made a condition precedent to the being allowed to proceed to trial. J. L. Campbell, for the appellants. Sec. 26 (b) of th enforcing it against the property or person against whom given as are allowed by the laws of the State in which such is resident to persons in whose favour a judgment of the Sup Court of that State is given in like eases. It has been the p tice in New South Wales to issue writs of attachafent ia All litigants are liable to the risk of having proceedings tai against them by impecunious persons.} r 'The right of a successful party to a writ of attachm non-payment of costs in interlocutory proceedings is by r. 270 of the Supreme Court Rules: Rolin and Innes Sup © (1) (1904) 4 S.R. (N.S.W.), 665. OF AUSTRALIA. ,p. 412. An order of the Court of Appeal cannot be of less sight than that of a single Judge. [He referred to Merritt v. with (1); Stockdule v. Hicks (2); Snow, Burney and Stringer, inn, Prac., 1901, p. 608.] (quem CJ. referred to Rule 1, Order XXXV., of the High Procedure Rules.] "The Statutes relating to the abolition of imprisonment for debt no bearing upon attachment for non-payment of costs: v. Bear (3); Rolin amd Innes, Sup. Ct. Prac.,p. 287. 'The is similar to that Grrr CJ. As to the first branch of this application reliance plueed by the appellants upon see, 26 of the High Court Pro- wilure Act 1903, which is in these words : " Every person in whose 'favour a judgment of the High Court is given shall be entitled tothe same remedies for enforcing it by execution or otherwise— '{a) Against the property of the person against whom it is given; nd (b) Subject to limitations which may be prescribed by any ks of Court, against the person against whom it is given, as re allowed, by the laws of the State in which such property is 'situated or such person is resident, as the case may be, to persons 'inwhose favour a judgment of the Supreme Court of the State given in like cases." The Rules of Court made under that mare contained in Order XXXV. of Part I. Rule 1 deals ith the question of attachment. It provides that "a judgment monler for the payment of money into Court or for the perform- nce of a judgment, order, or writ, by which any person is required t0do any act other than the payment of money to some person, WIOS.CR, (N.S. W.), 250, (3) L.R. 10 Ch.» 76, BONS.W. WAN, (sich bh (3) 35 Ch, D., 272. H. ©, oF A, 1905. —— Lysagur Bros, & Co, La, (No. 2). . may be enforeed by writ of attachment." 'That is a plain ' by the rule. It cannot be disputed that the order now in ques HIGH COURT ment that orders for the payment of money to a person ean be enforced by writ of attachment. It is a limitation pres is an order for the payment of money to some person, The p case did not clearly fall within the limitation, I for my part like to see an instance in which an order has been made payment of the costs of a new trial motion by the unsuccesfi party should be a condition precedent to his being allowed to proceed to trial, It is said that it is the usual practice todo soin New South Wales. I should like to see some distinet author for that practice if it exists, We think, therefore, that the motion must be dismissed wil costs. Campbell asked to be allowed to set off these costs agains th costs due from the respondent to the appellants, 'There is 1 set-off allowed unless an order is made to that effect. GriverrH CJ. I doubt the necessity for the order; but the should be a set-off. Motion dismissed with costs. Set-off allowel. Solicitor, for the appellants, H. C. E. Rich. F Solicitors, for the respondent, Shipway d Berne. CAW. (1) 14P.D., 17,