1. The defendant in this case applied for fresh issues which were granted on terms of paying the costs incurred up-to-date. The defendant did not pay them, and the learned Judge, when the case was set down for final disposal, first struck out the additional issues on 23rd October 1914, and afterwards on 5th November 1914 set aside the written statement of the defendant under Rule 17 of the High Court Fee Rules 1902 for non-payment of the costs above referred to and decided the case ex parte on the plaintiffs' evidence. Under Rule 17 of the High Court Fee Rules 1902, when the costs of an interlocutory order are not paid, the other side may apply by summons in Chambers or on the hearing of any application by the party in default that all or any proceedings in the suit or matter may be stayed or set aside, or that any subsequent steps taken by the party ordered to pay such costs, may be set aside for irregularity, and the Court may thereupon make such order as it thinks fit.
2. On appeal, it was argued before us that assuming the learned Judge was empowered to strike out the additional issues and set aside the written statement for non-payment of the costs of an interlocutory order, according to the provisions of the rule such an order could only be made on a summons in Chambers or on the hearing of an application by the party in default and not at the final hearing. The provisions of this rule are highly penal, Twycroft v. Grant (1875) W.N. 201 Twycross v. Grant (1875) W.N. 229 and should, therefore, be strictly pursued. In In re Wickham, Marony v. Taylor (1887) 35 Ch. D. 272 : 56 L.J. Ch. 748 : 57 L.T. 468 : 465 W.R. 525 Cotton, L.J., observed that the practice was to make orders of this kind on application properly made but not at the hearing, and Lindley, L.J., agreed that Kekewich, J., was wrong in ordering a stay for non-payment of costs at the hearing. The same principle applies to orders against the defendant for nonpayment of costs and both are governed by the same rule. In these circumstances, we must set aside the decree and orders of the learned Judge and remand the case for disposal according to law. Costs of this appeal will abide the result.