Russell, J.:— As it occurred to me that the summons for the trial of the preliminary issues might have been applied for earlier than it was, and before certain costs had been incurred, I reserved the question of costs for further argument, and it was fully argued before me on the 23rd of January, 1900.

It appears to me that immediately upon the first defendant's written statement being filed on the 21st day of December 1898 it was open to the plaintiff to have had the question as to whether the plaint disclosed a cause of action and the question of jurisdiction set down for trial on a preliminary issue. The Advocate General, I think, was right in his contention that there was no obligation on the defendants to raise the preliminary issues at all, and it is not the practice in this Court to have the case set down for settlement of issues, although in this instance it will be very desirable to do so.

An interesting argument was raised as to the meaning of the words “Costs, costs in the cause,” and I am of opinion that these words do not mean that these costs will follow the event, but that those costs remain to be dealt with by the Court at the hearing. In the Court of Chancery, as is well known, costs have always been in the discretion of the Court, and as a general rule costs will follow the result: see Bartlett v. Wood; Ferguson v. Wilson. In Hodges v. Hodges, Jessel, M.R, says: “The dismissal of an action with costs ought to include all costs reserved. I will give instructions to the Registrar always to insert, without any special directions, in all orders made in this branch of the Court the words ‘inducing costs of all applications ordered to stand over until trial and all costs reserved to be disposal of at the trial,’ so that it will be for the other side to show why they should not be put in.”

But in British Natural &c. Provident association v. Bywater Byrne, J., says: “Where interlocutory applications have been ordered to stand to the trial and are not then mentioned to the Judge, the costs of such applications are to be treated as costs in the action and taxed accordingly, and need not be mentioned in the judgment. Where interlocutory applications have been disposed of, but the costs have been reserved, such costs are not to be mentioned in the judgment, or order, or allowed on taxation, without the special direction of the judge.”

The above expressions “so that it will be for the other side to show why they should not be put in” and “where interlocutory applications have been ordered to stand to the trial and are not then mentioned to the Judge” clearly show that the Judge at the trial has still power to deal with such costs. In Koosen v. Rose, which Mr. inveracity brought to my attention, it was held that where, on an application under order 14, the Judge in chambers has made an order as to costs, the Judge at the trial has no jurisdiction to interfere with these costs. But I think that this is a special case, because order 14 specially provides that the Judge in chambers shall deal with the costs. This being so, I have gone through the proceedings and I have came to the conclusion that the plaintiff must pay all the costs save and except the costs of and incidental to the summons taken out by the second defendant on the 26th June, 1899, calling upon the plaintiff to give security for the costs, which summons was not proceeded with; and also save and except the costs of and incidental to the similar summons taken out on the 9th January, 1900, by the first and third defendants. Save and except these two proceedings, the costs of all the others must follow the result of the case; and I do not think that the second defendant ought to pay the costs of and incidental to the substituted service upon him. The plaintiff opposed the summons to set down the case on preliminary issues and failed on the summons and also on one of the questions raised thereby, and I do not think that there should be any division of costs such as was suggested by Mr. Inverarity. The order for costs will therefore be drawn up in accordance with the above judgment.

The plaintiff appealed. The appeal was heard by Candy and Tyabji, JJ.

Raikes and Jardine for appellant (plaintiff).

Lang and Starling for respondents Nos. 1 and 6 (defendants Nos. 1 and 3).

Robertson and Young for respondent No. 2 (defendant No. 2).

Candy, J.:— It is unnecessary to recapitulate the introductory facts. The question for our decision may be formulated thug: On the facts recited in the plaint, can it be said that a part of the alleged cause of action arose in Bombay?

The plaintiff says (paragraph 31): “A material part, if not the whole, of the plaintiff's cause of action arose within the ordinary original jurisdiction of this Honourable Court, inasmuch as the conspiracy between the three defendants herein culminated in giving false and malicious evidence to the peril and prejudice of the plaintiff in his trial in Bombay in March, 1897.” And again (paragraph 36): “The plaintiff charges that every loss, injury and damage which he has sustained was caused by the conspiracy on the part of the three defendants herein and the evidence given by them in pursuance thereof.” The object of the conspiracy is thus stated (paragraph 30): “All the three defendants have, on the occasions hereinbefore referred to, given falsa evidence with a view of substantiating a false theory as to the cause of the death of the said Marion Edith Whittaker in order to mislead the respective tribunals and to secure the conviction of the plaintiff for complicity in the alleged abortion.”

Now it is admitted that no action will lie against the defendants in respect of the evidence which they gave either at Hyderabad or in the Sessions Court at Bombay. Prima facie, therefor there is no cause of action arising out of their acts in Bombay and thus it cannot be said that any part of the cause of action arose in Bombay.

But it is sought to avoid this difficulty by the allegation that the defendants are net sued simply for giving false evidence, but they are sued for the conspiracy by which they conspired together that each one should give false evidence, and as they did give false evidence in Bombay, it follows that they were conspiring in Bombay, and thus there was a cause of action partly arising in Bombay.

The fallacy of this argument lies in supposing that though no action will lie against the defendants for giving false evidence, yet it will lie against them if it be alleged that the false evidence was given in pursuance of a conspiracy. If this argument were good, then though no action would lie against A for giving false evidence, yet, if there were more witnesses than one who gave false evidence against the plaintiff, then an action will lie against A, B, C, &c; for it is difficult to suppose a case in which it would not-follow, as a matter of course, that the witnesses must have given false evidence in pursuance of a conspiracy.

It is impossible by a system of permutation and combination to render of no effect the rule of law, and to say that A is not sued for giving false evidence, but for conspiring with B and C that they should give false evidence, and B is sued, &c. The fact is that it is no cause of action that the defendants entered into a conspiracy. You must show that the results of that conspiracy have given a right of action to the plaintiff. This was forcibly put in the judgment of Lord Esher in Salaman v. Warner, and similarly reference may be made to the judgment of Palles, CB., in Kearney v. Lloyd, which is, as stated by Darling, J., in Hultky v. Simmons, to the effect that conspiracy to do certain acts gives a right of action only where the acts agreed to be done, and in fact done, would, had they been without preconcert have involved a civil injury to the plaintiff.

Now it is clear that the acts done in Bombay by the defendants involved no civil injury to the plaintiff. They involved injury no doubt, but not an injury for which compensation could be recovered in a civil action.

Then it was contended that a part of the cause of action was that part of the damage caused to the plaintiff in Bombay. Assuming that such damage is alleged in the plaint, it is in my opinion, clear that the fact that any damage was suffered in Bombay would not constitute a part of the cause of action. It may be necessary to prove the fact of injury in Bombay in order to ascertain a full measure of damages; but that fact would not constitute any part of the cause of action. If this argument were sound, actions on account of false evidence would always lie, because, although it cannot be denied that giving false evidence furnishes no cause of action, still there would in every case be the damage, which in reality must he taken to be the only and the whole cause of action.

This argument also fails; and as frankly admitted by Mr. Raikes, it is impossible to twist this case into one of malicious prosecution; it is simply one of conspiracy to give false evidence; and in my opinion the demurrer was rightly upheld by Mr. Justice Russell. The appeal must be dismissed with costs.

Tyabji, J.:— Two questions have been argued before us. The first is whether the plaint discloses a sufficient cause of action, and the second is whether this Court has jurisdiction to try this suit. These two questions were argued before Russell, J., as two preliminary issues. He found the first in the affirmative and for the plaintiff and the second in the negative and for the defendants.

The plaint was accepted under clause 12 of the Letters Patent, and the question of jurisdiction therefore depends upon the further question whether any material part of the cause of action accrued within the jurisdiction of the High Court. These two questions, though forming distinct issues, are so connected with, and have such a material bearing upon, each other, that the decision of the one will practically dispose of the other. 1 will however discuss them in the order in which they were treated by Mr. Justice Russell and were argued before us.

The first question, then, is, does the plaint disclose a sufficient cause of action? Now the plaint is an exceedingly lengthy and intricate document, giving the history of the case in great detail, but the draftsman does not appear to me to have very accurately formulated the exact propositions of fact and law on which he intended to base the plaintiff's right to relief. I think, however, the gist and substance of the allegations in the plaint may be shortly stated as a charge of conspiracy on the part of the defendants to obtain the conviction of the plaintiff of a criminal offence, and to give false evidence in furtherance of that conspiracy. The plaint also asserts that, as a matter of fact, the defendants did give false evidence. The conspiracy is alleged to have taken place at Hyderabad out of the jurisdiction, but the false evidence is stated to have been given in the High Court of Bombay within the jurisdiction. In considering whether these facts give the plaintiff a right to sue the defendants in a civil Court, it is to be remembered that this is not a suit for malicious prosecution. There is no allegation in the plaint that the defendants actually prosecuted the plaintiff. As a matter of fact, the prosecution of the plaintiff in Hyderabad is admitted to have been instituted by His Highness the Nizam's Government. The utmost that is alleged against the defendants is that they desired and furthered and aided the prosecution by conspiring among themselves to give false evidence. The substance of the plaint, then, is that the defendants merely conspired in Hyderabad to give false evidence in order to obtain the plaintiff's conviction—and not that they prosecuted him on a false charge.

Now I am of opinion that this of itself furnishes no cause of action. A mere conspiracy to injure a man without an overt act resulting in the injury does not furnish any cause of action—Kearney v. Lloyd; Huttley v. Simmons; Salaman v. Warner. If therefore the plaint had stopped at the mere allegation of the conspiracy, it is clear, on the above authorities, that it would not have disclosed any valid cause of action. Does, then, the fact that false evidence is actually asserted to have been given in pursuance of the conspiracy make any difference? I am clearly of opinion that it does not It has been held over and over again that the giving of false evidence, no matter how malicious and mala fide it may be, furnishes no right to sue in a Civil Court, the only remedy being a prosecution for perjury—Revts v. Smith; Henderson v. Broomhead; Baboo Gunnesh v. Mugneeram; and Dawkins v. Rokeby. The mere fact that the giving of the false evidence is alleged to be the result of a conspiracy does not, in my opinion, make any difference. I should therefore feel inclined to hold that the plaint does not disclose any cause of action, although there are certain other overt acts alleged—such as the giving (though not as the result of the conspiracy) on the part of the first and second defendants, respectively, a demonstration and lecture, the arranging of the post-mortem examination in a manner prejudicial to the plaintiff, the writing of letters to the presiding Magistrate—all of which acts were done out of the jurisdiction of this Court.

It follows from what I have said that, in my opinion, nothing is alleged in the plaint to have taken place in Bombay which could give a valid legal right to the plaintiff to sue the defendants in this Court, and that therefore this suit was rightly dismissed for want of jurisdiction. The vague allegations of counsel in argument that damages and mental anguish may have been caused in Bombay, though not specifically stated in the plaint, do not make any difference. I would dismiss the appeal with costs.

Appeal dismissed.

Attorneys — for plaintiff:— Messrs. Edgelow, Gulabchand and Wada.

Attorneys for respondents Nos. 1 and 3:— Messrs. Crawford, Brown & Co.

Attorneys for respondent No. 2:— Messrs. Roughton and Byame.