Terrell JA:

The facts and arguments sufficiently appear from the judgment.

This is a summons to review a taxation by the Registrar who disallowed an item of $8 for perusing a summons in chambers.

It was sought to charge this fee under item 131 of Sch. C which provides a fee for perusal.

Of statement of claim, defence, reply, joinder of issue or other pleading, not being a petition in a pending cause or matter, or a summons other than originating summons, by the solicitor of the party to whom the same are delivered.

The only question is whether between the words "or" and "a summons", the word "of" should be implied, or the words "not being.

The history of the item is beyond doubt. It was originally taken from what is now item 122 of Appendix N to the Rules of the Supreme Court of England, where it reads as follows:

Of statement of claim, defence, reply, joinder of issue, and other pleading (not being a petition in a pending cause or matter, or summons other than an originating summons) by the solicitor of the party to whom the same are delivered.

This item was reproduced as item 110 in Sch C of the Civil Procedure Code, 1907, which reads as follows:

Of statement of claim, defence, reply, joinder of issue or other pleading, not being a petition in a pending cause or matter, or a summons other than originating summons, by the solicitor of the party to whom the same are delivered.

It will be seen that the brackets have been omitted but the comma after 'pending cause or matter' has also been omitted. I feel no doubt that the effect of the item in the Civil Procedure Code is exactly the same as that of the item in Appendix N, and that no fee is chargeable for perusing a summons in chambers under either provision. Then the Civil Procedure Code was repealed, and the present orders and rules substituted. The item is faithfully reproduced except that the comma after 'pending cause or matters' is restored.

It may be that it is not permissible to interpret the local item by assuming that it means the same thing as in the English rules, notwithstanding the omission of the brackets. On the contrary the Court may come to the conclusion that the difference is due not to a difference in drafting, but is a deliberate variation (see Alcock Ashdown & Co. v. Chief Revenue Authority, Bombay 50 IA 238). But the comparison must not be between the present item and the item in Appendix N, but between the present item and item 110 of Sch C of the Civil Procedure Code, 1907. The present item re-enacted the item in the 1907 Schedule with the addition of a comma. I think it is a justifiable assumption that if it had been intended to alter the whole effect of the item in the Civil Procedure Code, the alteration would have been effected in clear and unequivocal language. The inference therefore is that the addition of the comma was a difference in drafting, and was not intended to alter the original sense.

The matter can also be approached by construing the item as it stands without reference to its previous history. After the word 'pleading' there is a reference to a petition and to a summons. The two are not described in exactly similar language, but the description in each case amounts to the same thing. The petition referred to is not an originating petition and the summons is not an originating summons. The item might well read "not being a petition other than an originating petition, or a summons other than originating summons." If it were worded this way there could be no possible doubt that both petition and summons were excluded. Is the item to be given a different meaning because the petition is described as a "petition in a pending cause or matter" instead of "a petition other than originating petition"?

The schedule must also be construed as a whole. It is impossible to believe that it was intended that the fee for drawing a summons in chambers (item 15) should be $2, while the fee for perusing the same summons should be $4;