The plaintiff was injured in an accident on 24 June 1965, involving vehicle No. CR 924 in respect of which there was a policy of insurance against third party risks by the defendant insurance company. In view of the injuries sustained by her, the plaintiff sued the owner of the vehicle, Kojo Arku and also the driver of the
vehicle at the material time of the accident, Braima Salaga, and the High Court sitting at Cape Coast awarded the plaintiff N¢10,000.00 damages with N¢200.00 costs against the owner and the driver of the vehicle.
The plaintiff thereafter insisted upon payment to her by the present defendants who were the insurers of the vehicle at the material time by virtue of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958). The defendants have refused to pay the judgment debt and costs on the ground that the third party insurance policy in force at the time of the accident restricted the driving of the vehicle No. CR 924 to KojoArku only, and no other person was permitted under the policy to drive the vehicle. In reply the plaintiff contended that there was no such restriction and even if there was, the restriction could not relieve the defendants of their obligation to satisfy the judgment debt.
The issues set down for the trial were as follows:
(1) Whether the policy in question restricted the driving of lorry No. CR 924 to KojoArku.
(2) Whether by the terms of the policy in question the defendants are entitled not to satisfy the judgment debt against their insured.
(3) Whether or not the defendants are liable to satisfy the judgment debt the subject-matter of this suit.
By consent and by agreement of both learned counsel for the parties, certain documents were tendered by the defendants through their representative, the defendants’ first witness, the only witness who gave oral evidence. I shall deal with the documents in some chronological order. Exhibit A is the original proposal form submitted by KojoArku on 28 October 1963 in respect of vehicle No. CR 924. It is obvious fromexhibit A that KojoArku was not the owner of the vehicle in view of the answer given to question (5) inthe proposal form. The answer to question (10) was that the vehicle would be driven by KojoArku theproposer and not by a paid driver. However, after the proposal form had been accepted by the defendants, an original insurance policy exhibit 1 was issued to KojoArku. In exhibit 1 the limitations as to the use are stated as follows: “Driver: Any of the following:
(a) The insured,
(b) Any other person provided he is in the insured’s employ and is driving on his order or with his permission.”
The insured in exhibit 1 was Kojo Arku and the period of insurance was from 28 October 1963 to 27 October 1964. There is no evidence that the insurance policy was renewed on 28 October 1964 but there
is evidence from exhibit E, the provisional cover note dated 4 November 1964, that the vehicle was givena temporary cover for 30 days from 8.30 a.m. on 4 November 1964. On 24 November 1964, KojoArkufiled in supplementary proposals as a driver in which the following particulars appear: “Name of present employer—Myself. Name and address of last employer—Myself.” Attached to these supplementary proposals was the agents’ warranty. Both documents were tendered and marked as exhibit C. By the same consent, the defendants tendered their copy of the original insurance policy as exhibit B. In their copy certain endorsements had been inserted, one of these endorsements is dated 29 December 1964 and it reads:
“Insured: Kojo Arku:
Notwithstanding anything contained herein to the contrary it is hereby declared and agreed that as from 4 November 1964, the driver clause referred to in the within schedule is amended to read as follows and not as heretofore:
(1) Holder of Driving Licence No. 36921—KojoArku. Provided that the above driver is permitted in accordance with the licensing or other laws or regulations to drive the motor vehicle or has been so permitted and is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving such motor vehicle.
Future annual premium as from 4 November 1964—£46 2s. 9d. Subject otherwise to the terms exceptions and conditions of this Policy.”
A further endorsement in exhibit B reads:
“Notwithstanding anything contained herein to the contrary it is hereby declared and agreed that cover under this policy is totally suspended for the period 28 October 1964 to 3 November 1964.
It is further declared and agreed that the policy shall fall due, for renewal on 4 November 1965 andannually thereafter . . .” It is obvious from these two endorsements that the insurance policy in force at the material time of the accident was for the period 4 November 1964 to 3 November 1965 and that for the purposes of the policy, driving of the vehicle CR 924 was restricted to the holder of driving licence No. 36921—KojoArku and no one else.
This accident happened on 24 June 1965 and on that day, vehicle No. CR 924 was being driven by BraimaSalaga and not KojoArku when the accident happened. It cannot therefore be disputed that at the material time, the vehicle was being driven by a person not covered by the insurance policy in force at the time.
Learned counsel for the plaintiff in his address submitted that the endorsement No. 0.61003/2 dated 29 December 1964 was unilaterally made by the defendants and that the plaintiff was not aware of this endorsement. The insured driver, KojoArku, is an illiterate and when he completed the supplementary proposals form, exhibit C, the Bank of West Africa, Cape Coast, who were agents of the defendants warranted as follows:
“We warrant that the attached questions and declaration have been read over and explained to the proposer in the Fante language, that he has stated that he understands them, and that he is aware that the terms of his policy have not yet been confirmed by the Royal Exchange Assurance. We further warrant that he has been advised to request from us a full explanation of the terms and conditions of his policy document when this is received by him if he does not understand it.
Our signature and his signature and or acknowledgement of this.
Signature of representative of Royal
Signature/thumbprint of proposer . . .
Subsequently, a certificate of insurance No. 53041 under the Motor Vehicles (Third Party Insurance) Act, 1958, Ghana, was issued to the insured KojoArku. By consent, a copy of this certificate was tendered as exhibit D. It is clear also from this certificate that the persons or classes of persons entitled to drive were restricted to the driver, KojoArku, and no other person.
Learned counsel for the plaintiff permitted the copies of relevant documents in the custody of the defendants to be tendered without objection after having seen and inspected them before the hearing. KojoArku is alive and as learned counsel himself revealed to the court, this gentleman is resident at Yamoransa only five miles from Cape Coast. Learned counsel for the plaintiff had opportunity of interviewing this Kojo Arku and in fact got him to release the original insurance policy, that is, exhibit 1,for the purpose of this trial. If after this contact with Kojo Arku, learned counsel for the plaintiff becameconvinced that the further limitations, as to the persons permitted to drive the vehicle, were unilaterally made by the defendants without the prior knowledge and consent of Kojo Arku, the insured, it was open to the plaintiff to invite Kojo Arku
to come to the witness-box and say so. No such attempt was made. Kojo Arku is a judgment debtor in the sum of ¢10,200.00 and if he really maintains that the defendants revised or amended this limitation clause without his agreement, he would, I am sure, do everything legally in his power to compel the defendantsto satisfy the judgment debt. I have noted seriously the fact that all these documents were tendered byconsent of the parties through their learned counsel. These documents constitute evidence which has notbeen challenged and I therefore find that at the material time of the accident, the insurance policyrestricted the driving of the vehicle to the holder of driving licence No. 36921 whose name is Kojo Arku.
Learned counsel for the plaintiff has urged that notwithstanding this limitation the defendants are stillbound to satisfy the judgment debt by virtue of section 10 of the Motor Vehicles (Third Party Insurance)Act, 1958. That section reads:
“10. (1) If after a certificate of insurance has been delivered under the provisions of subsection (4) ofsection 6 to the person by whom a policy has been effected judgment in respect of any suchliability as is required to be covered by a policy issued under the provisions of paragraph (b) ofsubsection (1) of section 6, being a liability covered by the terms of the policy, is obtainedagainst any person insured by the policy then, notwithstanding that the insurer may be entitledto avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to theprovisions of this section, pay to the persons entitled to the benefit of such judgment any sumpayable thereunder in respect of the liability including any sum payable in respect of costs andany sums payable by virtue of any written law in respect of interest on that sum or judgment.”
I think the most important and operative words in section 10 are “liability covered by the terms of thepolicy.” This phrase is defined in section 10 (5) as follows:
“‘Liability covered by the terms of the policy’ means a liability which is covered by the policy or whichwould be so covered were it not that the insurer is entitled to avoid or cancel or has avoided or cancelled thepolicy.”
In the present case before me, the defendants have not attempted to avoid the policy or to cancel thepolicy. Their stand is simply that they contracted with Kojo Arku to indemnify Kojo Arku alone whenever he drove vehicle No. CR 924 and that they did not contract to indemnify any person who drovethat vehicle with or without Kojo Arku’s permission. It is very clear that Braima Salaga who
drove the vehicle immediately before the accident was not a person covered by the insurance policy. If KojoArku had driven the vehicle on that day when the accident happened then the obligation to indemnify Kojo Arku is crystal clear.
The law in England is stated succinctly in Halsbury’s Laws of England (3rd ed.), Vol. 22, p. 358 at para. 735: “There is sometimes a provision limiting the driving of the vehicle to the assured himself; if so, hecannot, even in an emergency, allow someone else to drive without putting his insurers off risk.”
The facts in the case of Herbert v. Railway Passengers Assurance Co.  1 All E.R. 650 were brieflyas follows: A Mr. Wilkinson was insured with the defendant company against third party risks in respectof a side-car and the policy provided that the defendant company should not be liable in respect of anyaccident incurred while any motor cycle was being driven by or was for the purpose of being driven byhim in charge of any person other than the insured. While Mr. Wilkinson was driving, he fell ill andallowed a friend with him at the time of driving, to drive the vehicle. Mr. Wilkinson had forgotten that theinsurance policy did not cover the driving of the vehicle by his friend. There was an accident in which Mr. Wilkinson and his friend were injured while the friend was driving and as a result of the accident themother of the plaintiff died. The plaintiff obtained judgment against Mr. Wilkinson and thereafter soughtto recover the judgment debt from the defendants. It was held by Porter J. that upon a construction of thepolicy the exception against the insured applied and Mr. Wilkinson would not have been able to recoverthereunder, and, therefore, the plaintiff could not recover in the action under section 10 of Road TrafficAct, 1934 (24 & 25 Geo. 5, c. 50). Porter J. began his judgment at p. 650 as follows: “This is a case inwhich one feels considerable sympathy for the plaintiff, and Mr. Elkin has said everything that could besaid on her behalf. Nevertheless, I am afraid that the law is too strong to give effect to his contentions.”
Then he continued at p. 652:
“with regard to the question as to whether the company are protected because they only insured Mr.Wilkinson, their assured, while he was driving himself, I think that they have made a general exceptionwhich in sufficiently clear terms indicates that they will cover their assured only if he is driving himself.”
It was even suggested in that case that section 10 of the Act imposed a liability upon the insurers wherethe insured was liable and could not pay. Porter J.’s answer to that at p. 653 was that:
“sect. 10 does not, I think, impose any such liability in a case where the insurers have limited their liability by the wording of
the policy, but only in a case where there is an apparently valid policy covering the liability, which yet theycould have avoided or cancelled because of some misrepresentation or concealment on the part of theassured.”
Learned counsel for the plaintiff drew my attention to section 6 (3) of the Motor Vehicles (Third PartyInsurance) Act, 1958, and suggested that the defendants would have been liable to pay if that subsectionhad not been repealed by the Contracts Act, 1960 (Act 25) s. 18. I have considered this repealed sectionvery carefully but I do not seem to agree with learned counsel’s suggestion. The subsection now repealedreads:
“Notwithstanding anything in any written law contained a person issuing a policy of insurance under thissection shall be liable to indemnify the persons or classes of person specified in the policy in respect of anyliability which the policy purports to cover in the case of those persons or classes of person.”
It is obvious from the exhibits tendered in this case that the persons or classes of persons which the policypurports to cover are none other than Kojo Arku when he is driving the vehicle himself.
Section 18 of the Contracts Act, 1960 (Act 25), repealed section 6 (3) of the Motor Vehicles (Third PartyInsurance) Act, 1958, and I have therefore taken the extra trouble of consulting the Memorandum to theContracts Bill. Under the heading “Third Party Rights” the memorandum states as follows:
“Part II of the Act deals with third party rights. Section 5 (1) enables a third party to enforce a provision in acontract if it purports to confer a benefit on him whether as an individual or as a member of a class ofpersons. This subsection does not apply merely because a contract in fact confers a benefit on a third party.”
In explanation of the above, two illustrations are given in the bill:
A insures his life with an insurance company. The policy provides that the moneys are, on A’s death, to bepaid to A’s son, B. B can enforce the contract against the insurance company
A takes out an insurance policy under which the insurance company agrees to indemnify him against thirdparty risks. The
policy provides that it covers ‘any person driving A’s car with his consent.’ A lends his car to a friend B whoinjures X in an accident. If X recovers damages against B, B can enforce the insurance contract against thecompany.”
Then at the end of these two illustrations, we read as follows: “This explains why section 6 (3) of the Motor Vehicles (Third Party Insurance) Act, 1958 is repealed by section 18.” Now the relevant section asenacted is section 5 of the Contracts Act, 1960, which reads:
“5. (1) Any provision in a contract made after the commencement of this Act which purports to confera benefit on a person who is not a party to the contract, whether as a designated person or as amember of a class of persons, may, subject to the provisions of this Part, be enforced or reliedupon by that person as though he were a party to the contract.
(2) Subsection (1) does not apply to—
(a) A provision in a contract designed for the purpose of resale price maintenance that is tosay, a provision whereby a party agrees to pay money or otherwise render somevaluable consideration to a person who is not a party to the contract in the event of thefirst-mentioned party selling or otherwise disposing of any goods, the subject-matter ofthe contract, at prices lower than those determined by or under the contract; or
(b) a provision in a contract purporting to exclude or restrict any liability of a person who is not a party thereto.”
I have quoted this section to show that Braima Salaga the driver of the vehicle at the time of the accidentcannot take advantage of the section because he was not a party to the insurance policy in the case beforeme and the terms of the policy did not purport to confer any benefit on him. Indeed, the insurance policyrestricted the driving to Kojo Arku and expressly excluded any liability incurred by persons in the class of Braima Salaga. I think endorsement No. 0.61003/2 on 29 December 1964 made it quite clear that thecompany shall not be liable in respect of any claim arising whilst the motor vehicle is being driven by oris for the purpose of being driven by him in charge of any person other than the holder of driving licenceNo. 36921, Kojo Arku.
When the policy was first issued on 4 December 1963, the policy permitted any other person to drive thevehicle provided he was in the insured’s employment and was driving on his order or with his
permission. This privilege lapsed on 27 October 1964, when the policy expired. The renewal commencedon 4 November 1964 after the short period from 28 October 1964 to 3 November 1964 was declared andagreed to be totally suspended. When the renewed policy came into force on 4 November 1964, the policycontained renewed terms and I think learned counsel for the defendants was right when he submitted that“upon the payment of the premium for each year, an entirely new contract arises for that year only. Counsel cited the case of Stokell v. Heywood  1 Ch. 459 and quoted Kekewich J. at p. 464 assaying:
“A consideration of this policy seems to me to shew, that though, in one sense, it is a continuing policy – andthere is, as I have said, no doubt that the office paid under this very policy—yet a new contract was madefrom time to time, from year to year.”
In the present case the renewed policy at the time of the accident was a completely new contract whichexcluded liability incurred by any person other than Kojo Arku, when driving the vehicle.
Learned counsel for the plaintiff has strongly urged that even if the restriction as to the persons permitted to drive the vehicle is valid, yet the insurance company must satisfy the judgment debt. There is no doubtthat the Motor Vehicles (Third Party Insurance) Act, 1958, was passed as a matter of a public policy tocompensate third parties who become victims of accidents by suffering bodily injury or death. But I havefailed to find any statutory provision in the Act which provides that an insurance company shallindemnify any person who drives the vehicle whether he is a thief, a trespasser or a person not covered bythe policy. If that were the law, all insurance companies will cease to carry on business because theycannot undertake risks of all kinds. In the first place, KojoArku who was a party to the contract cannotrecover from the defendants because he was not driving at the material time. In the second place, BraimaSalaga the driver at the material time cannot recover from the defendants because he was not a party to itand moreover the contract of insurance did not purport to confer any benefit on him.
English law on rights of third parties is yet to be settled. In Dunlop Pneumatic Tyre Co., Ltd. v. Selfridge& Co., Ltd.  A.C. 847 at p. 853, H.L. Viscount Haldane L.C. said:
“My Lords, in the law of England certain principles are fundamental. One is that only a person who is a partyto a contract can sue on it. Our law knows nothing of a jus quaesitumtertio arising by way of contract. Sucha right may be conferred by way of property as, for example, under a trust, but it cannot
be conferred on a stranger to a contract as a right to enforce the contract in personam. A second principle isthat if a person with whom a contract not under seal has been made is to be able to enforce it considerationmust have been given by him to the promissor or to some other person at the promissor’s request. The twoprinciples are not recognized in the same fashion by the jurisprudence of certain Continental countries or ofScotland, but here they are well established. A third proposition is that a principal not named in the contractmay sue upon it if the promisee really contracted as his agent. But again, in order to entitle him so to sue, hemust have given consideration either personally or through the promisee, acting as his agent in giving it.”
These pronouncements no doubt stem from the old case of Tweddle v. Atkinson (1861) 1 B. & S. 393.
But it seems that in a subsequent string of cases decided by Lord Denning M.R. and culminating in,Beswick v. Beswick  Ch. 538, C.A. and after reviewing the rule at common law, in equity and bystatute the learned Master of Rolls concluded as follows at p. 557:
“The general rule undoubtedly is that no third person can sue, or be sued, on a contract to which he is not aparty’: but at bottom that is only a rule of procedure. It goes to the form of remedy, not to the underlyingright. Where a contract is made for the benefit of a third person who has a legitimate interest to enforce it, itcan be enforced by the third person in the name of the contracting party or jointly with him or, if he refusesto join, by adding him as a defendant. In that sense, and it is a very real sense, the third person has a rightarising by way of contract. He has an interest which will be protected by law. The observations to thecontrary in In re Miller’s Agreement ( Ch. 615, 622) and Green v. Russell ( 2 Q.B. 226) are inmy opinion erroneous. It is different when a third person has no legitimate interest, as when he is seeking toenforce the maintenance of prices to the public disadvantage, as in Dunlop Pneumatic Tyre Co. Ltd. v.Selfridge & Co. Ltd. ( A.C. 847): or when he is seeking to rely, not on any right given to him by thecontract, but on an exemption clause seeking to exempt himself from his just liability. He cannot set up anexemption clause in a contract to which he was not a party: see Midland Silicones Ltd. v. Scruttons Ltd.( A.C. 446).”
In Beswick v. Beswick, Danckwerts and Salmon L.JJ., expressed similar views in the Court of Appeal.
Danckwerts L.J. put his view in this classic expression at p. 562:
“It is true that in Midland Silicones Ltd. v. Scruttons Ltd. Lord Simonds invited their Lordships to say thatthe observations of Denning L.J. in Smith and Snipes Hall Farm Ltd. v. River Douglas Catchment Board( 2 K.B. 500, 514–515) and in White v. John Warwick & Co. ( 1 W.L.R. 1285, C.A.) must berejected, and added: ‘If the principle of jus quaesitumtertio is to be introduced into our law, it must be doneby Parliament after a due consideration of its merits and demerits. I should not be prepared to give it mysupport without a greater knowledge than I at present possess of its operation in other Systems of law.”
Then Danckwerts L.J. continues at p. 563:
“The effect of section 56 of the Law of Property Act, 1925, was not discussed by the House of Lords in thatcase, and I respectfully suggest that by section 56 Parliament has carried out what Lord Simonds said was itsfunction. It may be that the change in the law was not done with a fanfare of trumpets, but the words of thesection, in my opinion, are clear and cannot be ignored. If the views of Lord Denning M.R. and myself arecorrect, as I think they are, Tweddle v. Atkinson has received the mortal wound which it well deserved.”
Notwithstanding the prevailing conflict between the views of the House of Lords and the Court of Appealin England on the rights of third parties, I have referred to the law of England in this judgment to find outwhether even the English law can assist the plaintiff so far as BraimaSalaga is concerned but I think theresult so far is not favourable to the plaintiff because BraimaSalaga, the driver at the material time cannotcome within the principle of jus quaesitumtertio. If BraimaSalaga cannot sue on the insurance policythen it follows that the plaintiff cannot claim anything from the insurance company who are under noobligation to indemnify BraimaSalaga.
Here in Ghana, the Contracts Act, 1960 (Act 25), has changed the law with a fanfare of trumpets and hasmade it clear that third parties not parties to a contract can sue but if and only if and when the contractpurports to confer a benefit on that third person. I was informed during the hearing that similar cases werepending in other courts. I have pondered seriously to find a way to assist the plaintiff, to recover thejudgment debt from the defendants according to law. But it seems the law is at the present moment soossified and petrified that only the legislative hammer can break it. There is no doubt that the purpose ofthe Motor Vehicles (Third Party Insurance) Act, 1958 has been defeated in the present case. An Actwhich was passed to make provision for the protection of third Page 409
parties against risks arising out of the use of motor vehicles, according to its preamble, has left loop-holeswhich no court of law can close. With the greatest regret therefore I am unable to help the plaintiff; and inthis connection I would readily agree with Viscount Simonds in Scruttons Ltd. v. Midland Silicones Ltd. A.C. 446 at pp. 467–468, H.L. where he said.
“For to me heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by thename of reform. Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignoreour first duty, which is to administer justice according to law, the law which is established for us by Act ofParliament or the binding authority of precedent. The law is developed by the application of old principles tonew circumstances. Therein lies its genius. Its reform by the abrogation of those principles is the task not ofthe courts of law but of Parliament.”
I therefore find that at the date of the accident, the insurance policy in force restricted the driving of thevehicle No. CR 924 to holder of driving licence No. 36921 that, is Kojo Arku. Secondly that by the termsof the policy, the defendants expressly excluded liability in respect of any claim arising while the saidvehicle was being driven by any person other than Kojo Arku. Thirdly, as the accident happened while a person other than Kojo Arku was driving any liability incurred by Kojo Arku as a result of the accidentwas not covered by the terms of the policy and the defendants were under no statutory obligation to indemnify Kojo Arku. Fourthly, as Kojo Arku could not claim an indemnity from the defendants, it follows that the defendants are under no obligation by virtue of section 10 of the Motor Vehicles (ThirdParty Insurance) Act, 1958, to satisfy the judgment debt due from Kojo Arku to the plaintiff. Fifthly, Braima Salaga, the driver was not a party to the contract of insurance and as the policy did not purport toconfer any benefit on him, he is a third party who cannot even claim from the defendants any indemnityby virtue of section 5 of the Contracts Act, 1960 (Act 25). The plaintiff cannot therefore claim satisfactionof the judgment debt from the defendants who are not liable to pay by the terms of the insurance policy. The plaintiff’s action is therefore dismissed with a great load of sorrow in my heart and conscience.
Finally, I wish to remark that this is a case where both Kojo Arku and Braima Salaga should beprosecuted and dealt with severely because at the time the vehicle was being driven by Braima Salaga the vehicle did not have a valid certificate of insurance in that the person driving the vehicle was not coveredby the terms of
the policy. These loop-holes became obvious after the passing of the English Road Traffic Acts 1930 and1934, and by an agreement with the Minister of Transport made on 17 June 1946, the Motor Insurers Bureau Agreement was concluded. This agreement enables all the insurers transacting compulsory motorinsurance business in Great Britain to provide funds to meet cases of injury or death caused by uninsuredmotor cars. It is sensible machinery which has alleviated the distress of unfortunate victims. It is myconsidered view that such a machinery should be introduced in Ghana to cater for such hard cases. TheGhana Bar Association should take the initiative in this respect and approach the Government to persuade the insurance companies operating in this country that in this matter what is good for Great Britain is alsogood for Ghana.
There is no doubt that, that at the material time the vehicle was being driven by Braima Salaga, the vehicle was not insured at the time of the accident because there was no valid policy covering Braima Salaga. Kojo Arku was therefore in breach of his statutory duty to insure the vehicle and the plaintiff is at liberty to sue Kojo Arku for damages for breach of this statutory duty: see Monk v. Warbey  1 K.B. 75, C.A., Richards v. Port of Manchester Insurance Co. Ltd., and Brain  All E.R. Rep. 458, C.A.and Corfield v. Groves  1 All E.R. 488. In all these cases, no claim was laid against the insurancecompanies concerned. The plaintiff has already sued in negligence and obtained judgment against Kojo Arku and Braima Salaga. Her remedy now is to enforce the judgment against the two persons and notagainst the present defendants.
This case makes it more urgent that whenever police officers stop vehicles on the high road or in towns,to inspect driving licences, motor vehicle licences and certificate of insurance against third party risks, thepolice officers should be meticulous and censorious about these certificates of insurance. They should satisfy themselves at the time of inspection that the person driving is covered by the insurance policy. Ifthe driver is not covered by the policy, then the vehicle in question is uninsured at the time and thoseresponsible should be prosecuted.
My task is done and now I have to consider the question of costs. The only sensible order I wish to makenow is that the defendants’ costs in this action should be taxed. I am very confident that if the defendantshave a conscience, they will hesitate before submitting their bill of costs for taxation.