Charles Sargent, C.J.
1. I think this is a case which properly falls under Section 622 of the Civil Procedure Code; for, I think, it has been shown that a material irregularity was committed by the Full Court on the hearing of the rule taken out in this case.
2. It is plain that the ground the Full Court went on in disposing of the rule was that the equitable plea raised by the defendant, as to want of notice of the refusal to deliver on the part of Messrs. Lang. Moir & Co. was a good one. The only question, therefore, before us is, in so dealing with the matter, under the circumstances of the case, did the Court, or did it not, commit a material irregularity
3. Now the circumstances of the case were shortly these. It is clear that, at the trial, Mr. Hart was of opinion that the defendant had committed a breach of his contract on the 185th April, and that that was the date which must be looked to settle the question of damages. That being that learned Judge's view, Mr. Craigle for the plaintiff, naturally enough, intimated that it was of no use his proceeding any further, as he was prepared to admit that, if that was the late to be taken as the material one in assessing damages, he could not show that the plaintiffs had suffered any damage. Mr. Hart, accordingly, having found breach of the agreement on the part of the defendant, passed judgment for the plaintiffs and awarded nominal damages. Now, under these circumstances, it appears to us that it was not competent to the Full Court, when the matter came before it on the rule for a new trial, to deal with the rule on the ground on which they did, unless it was then clearly admitted that there were, no other facts that could bear on the point remaining to be proved. As regards this, it does not even appear that Mr. Craigie was ever asked by the Court whether he was prepared to admit that that was so; and on the contrary Mr. Craigie states that he distinctly objected to any such question being gone into by the Court, on the ground that the materials necessary for its decision were not before the Court. The action of the Court was, therefore, distinctly irregular, and, moreover, irregular, to a material degree.
4. We must, therefore, reverse the decision come to by the Full Court on the rule, and remit the case to the Small Cause Court for the Full Court to dispose of the rule according to law. Costs to be costs in the cause.
5. Inverarity said the Small Cause Court had frequently intimated that there was no machinery by which it could assess costs incurred in the High Court, and asked for some order as to the scale on which these costs were to be allowed.
6. The costs will be taxed by the Registrar of the High Court on the Appellate Side, according to the usual scale of allowance observed on that side of this Court.