Judgment of the Court
J.-After judgment in this case, allowing defendant's appeal with costs in this court and in the courts of the Yukon Territory, the respondent moved to vary the judgment by directing that the respondent should be allowed to set off, pro tanto, against the costs of the appellant, his costs of the issues raised by the 2nd, 3rd, 4th, 5th and 6th paragraphs of the statement of defence, and that the respondent should recover the costs properly incurred by him in the Yukon Territorial Court after the entering of the appeal to this court.
The action was upon a judgment recovered in the State of Washington, and the defences referred to are: No. 2, that the defendant was at no time subject to the jurisdiction of the courts of that state; No. 3, that he had never been summoned in the action; No. payment; No. 5, that the Washington Court had no jurisdiction over him; and No. that he was only one of several debtors under the said judgment, and so only liable for a proportion of the debt.
At the trial the defence was rested upon the
Statute of Limitations of the Territory, and that is the defence upon which the defendant has ultimately succeeded.
No witnesses were examined at the trial, but the defendant had been examined for discovery, and evidence appears to have been taken on two commissions, one in the State of Washington, and the other in the
State of Minnesota, both at the instance of the plaintiffs.
We have no means of knowing what if any evidence or other proceedings were taken by reason of the several defences referred to, nor how far the taking of such evidence or proceedings was reasonable or necessary.
We therefore refer it to the learned trial judge to direct what disposition should be made of the costs of such evidence and proceedings.
There will be no costs on this motion.
Motion allowed without costs.