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Full text of "A treatise on the law of costs in the Chancery division of High court of justice. Being the 2d ed. of Morgan and Davey's Costs in Chancery. With an appendix containing forms and precedents of bills of costs"

v;. 







UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 









THE LAW OF COSTS. 




A TKEATISE 



U^■ THE 



LAAV OF COSTS 

IN JUL 

Cljanccrri Dibisiou of tijc lt)jg!) Court 
of iiusticc. 

HKING 

niA' ^^LCUSD EDITION 

OF 

MORGAN AM) DAVEY'i^ COSTS IN CHANCERY. 
WITH AN APPENDIX 

FORMS AND PRECEDENTS OF BILLS OF GCSTS. 

IIV 

THE KH;iIT HONOURAIJLK 

GEOKC:]: OSBORNE MORGAN, Q.C., M.P, 

nut MAJI>TV 8 JCDr.r-ADXOCATE-OENERAL. 

EDWARD ALBERT WUR.TZBURG, 

.>f \ w i'\ •:'- IS-;. I VMM [ ri. \i.t kw 



I.O.NDON: 

STKVKNS AA'D S0^\^, \\\^, ClIANuERY LANE, 

,Viib ^lublishcrs uiib ^oohscllcrs. 



T 



umvtm : 



l! 



ruKFACK TO Tin: srrovii i:hiiiii\ 



The inttTval of wvoiitoon yi*an», which hai» c lap«<Hl 
since tho first nmM'amnoo of this work, hiw witiiwwtsl 
Bonicthin^ liko a revolution in th«' PpMiMlurt^ of what 
wa« once tht' High Court of Chancrry. An<l in no 
branch (»f the practice have the chanp\s intrmhiced 
by the Judicature Acts, ami The l{uh»H of Court, 
been more niarkc«l than in that wliirli fomis the 
subject of the pres^'ut Trcjitis*'. 

Under »uch circumstances a New I/lition of a work 
on the Ijiw of Costs must, of necensity, jKirtake, to a 
great extent, of the character of a new lM»ok. Kvery 
Kule of Cotirt, and ever}* decision of the High Court 
of Justice relating to Costs in the Chancer)* Division, 
will, it is Inlicveil, Iw found in this Volume. Hut, 
while n very largi* amount of entirely new matt«r has 
thus btMii adde<l to the present Ivlition, no effort has 
been spare*! to rentier it mon» complete luid useful by 
emlKHlying in it every n»porte<l case iK'nnng upon 
thos«' (Mtrtions of the original work which have be*Mi 
retainecl. The Pnve<lents of Hills of Co^tn in 

783331 



VI PREFACE. 

Appendix III. have been prepared by a gentleman of 
much experience in this branch of practice, to whom 
the Editors desire to express their thanks for his 
assistance. 

The whole Yolnme is offered to the Profession in 
the hope that it may be received with the same 
generous indulgence wliicli was so freely accorded to 

its predecessor. 

G. 0. M. 
E. A. W. 

Juhj, 1S82. 



TABLE OF CONTENTS. 



CHAPTER I. 



Costs Generally 



PAGE 
1 



CHAPTEPw 11. 



Secueity for Costs 



CHAPTER III. 

Costs op an Action Generally. 



SECT. 

I. 

II. 

III. 

IV. 
V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 



XII. 



Costs of Demurrers 

Costs of Amendments 

Costs occasioned by Scandalous and Embarrassii 

Costs and Expenses of Witnesses 

Costs of Motions and Petitions generally 



Where the Costs of the Action ai 

Application 
Costs of the Day . 
Costs of Special Cases . 
Costs of the Action 
Costs of Proccedincrs in Chambers 
Costs of Appeals . 

1. In the Court of Appeal 

2. In the House of Lords . 
Appeals for Costs . 



e disposed of on In 



•tier 



erlocutory 



2G 
32 
3G 
41 
4G 

73 

89 

91 

93 

137 

141 

Id. 

149 

157 



CHAPTER IV. 

Costs in Particular Actions. 

I. Actions for an Account 

II. Actions for Administration of Assets . 
III. Actions relating to Charities . . , . 



1C2 
165 

204 



vm 



tablp: of contents. 



BECT. 

IV. Actions for Discovery or Perpetuation of Testimony 

V. Actions for Dower 

VI. Interpleader Actions ..... 
VII. Actions relating to Mortgages 
VIII. Actions for Partition and to Settle Boundaries 
IX. Actions for Dissolution of Partnership 
X. Actions relating to Patents .... 
XI. Actions to set aside Sales, ikc, of Reversions 
XII. Actions for Specific Performance 



PAGE 
214 

217 
218 
221 
240 
244 
245 
248 
250 



CHAPTER V. 

Costs under Particular Acts of Parliamext. 

I. Costs under the Companies Acts 264 

II. Costs under Lands Clauses Consolidation Act . . . .281 

III. Costs under Trustee Relief Act 311 

IV. Costs under Trustee Acts, 1850-2 324 

V. Costs under other Acts 328 



CHAPTER YI. 

Costs affecting Particular Persons. 

I. Costs of Assignees, Incumbrancers, &c 333 

II. Costs of Attorney-General, Crown, ikc. . . . . . 336 

III. Costs of the Bank of England 339 

IV. Costs of Bankrupts . . .341 

V. Costs of Guardian ad litem . 343 

VI. Costs of Ileir-at-Law and Next-of-Kin 344 

VII. Costs of Infants and their next Friends 351 

VIII. Costs of Married "Woman and lier next Friend and as between 

Husband and Wife 3G1 

IX. Costs of Paupers 371 

X. Costs of Purchasers under Decree 377 

XI. Costs of Receivers 382 

XII. Costs of and relating to Solicitors 385 

XIIL Costs of Trustees, Executors and Administrators . . . 396 



CHAPTER VII 

Agreements between Solicitor and Client as to Cost? 



417 



TABLE OF CONTENTS. 



CHAPTER VIII. 

On the Delivery and Taxation of Bills of Costs. 

SECT. PACK 

I. Delivery of Bills of Costs 426 

II. Form of Bills of Costs .432 

III. Taxation under Orders of Course 435 

IV. Taxation on Special Applications 443 

(«) Before Payment Id. 

(h) After Payment 447 

V. Taxation by Third Party 458 

VI. Proceedings on Taxation generally 467 

VII. Proceedings on Taxation with reference to Particular ^Matters , 482 

VIII. Costs of Taxation 504 



CHAPTER IX. 



Modes of Enforcing the Payment of Costs. 

I. Where Costs are ordered to be paid by one Party to another 

personally 508 

1 and 2. Fieri Facias, Elrgit and Proceedings under Judgment 

Law Acts 514 

3. Sequestration 519 

4. Attachment of Debts 520 

5. Charging Order on Stocks and Shares .... 522 

6. Arrest and Imprisonment 523 

7. Staying a second Action by Persons in default for non- 

payment of Costs 536 

8. Interest on Costs 538 

9. Revivor for Costs 540 

II, Where Costs are payable out of a Fund or Estate . . . 541 

III. Recovery of Costs in the House of Lords 543 

IV. Recovery of Costs by Solicitor from his Client .... 547 

1. By Action Id, 

2. By Process of the Court . . . . . . .548 

3. Solicitor's Lien and Charge 551 

(a) Lien on his Client's papers Id. 

(Jj) Lien on Funds recovered in the Action . , . 561 
(c) Charge under 23 & 24 Vict. c. 127. s. 28 . . ,567 



TABLE OF CONTENTS. 



APPENDICES. 



APPENDIX I. 

ADDITIONAL EULES OF COURT TJXDEP. THE SUPREME COURT OF 

JrDiCATURK Act. 187/). 

PAGE 

Order VI. Scales of Costs '"^"^ 

Sclieduh: of Fi^es. to Solicitors referred to in tlic. Additional liiile.i of Court 
under the Supreme Court of Judicature Act, 187."). 

■\Vrits, Summonses, and "Warrants 579 

Services, Notices, and Demands 580 

Appearances . 581 

Instructions ^^• 

Drawing Pleadings and other Docuiucuts 582 

Copies 583 

Perusals 584 

Attendances 585 

Oaths and Exhibits 587 

Term Fees .Id. 

Paymaster-General Id. 

Costs of Proceedings in the Paymaster-General's office . . . .Id. 

Allowances to Witnesses 588 

Special Examiners' Fees and Charges. Id, 

Schedule referred to in the 13th Piulc of the Gener.al Order of 

February 5, 18G1 589 

Order as to Court Fees under the Supreme Court of Judicature' Act, 

1875 Id. 

Schedule as to Court Fees referred to in the Order of2Sth October. 1875. 

Summonses, Writs, Commissions, and Warrants ..... 5it2 

Appearances , Id. 

Copies Id. 

Attendances Id, 

Oaths. &:c 593 

Filing Id. 

Certificates Id. 

Searches and Inspections . . . , Id. 

Examination of Witnesse'i , Id. 

Hearing 594 

Judgments, Decrees, and Orders Id. 

Taking Accounts Id. 

Taxation of Costs 595 

Petitions 59G 

Register of Judgment^ and Z/.v7;r?;^7f«« Id. 

Miscellaneous Id. 



TABLE OF CONTENTS. XL 

APPENDIX IT. 

PAOE 

Foniis of Vrrits of Execution .>.... . . 598 



APPENDIX III. 

Table of Precedexts of Costs. 



Plaintiff's Costs of Action in which Issue is joined, including charges 
for examination and cross-examination of Witnesses on hearing 

of Action and Notices to Admit and Produce C,02 

The like Defendant's Costs Oil 

Plaintiff's Costs after Decree, Preliminarj^ Enquiries as to Next of Kin, 
Advertisements for Creditors, &c.. Certificate, and furtlier con- 
sideration 617 

The like Defendant's Costs 623 

Costs of Parties served with Notice of Decree 625 

Plaintiff's Costs of Sale under the Direction of the Judge . . . 626 

General Costs of Suit after Sales are completed 633 

Paymaster-General's Charges for Powers of Attorney .... 6.S7 
Defendant's Costs of Sale under Direction of Judge .... Id. 

Plaintiff's Costs of Motion for an Injunction 640 

Defendant's Costs of opposing Motion for Injunction .... 642 
Plaintiff's Costs of Motion for Appointment of Picceivcr . . . 644 
Defendant's Costs on Plaintiff's Motion for Appointment of a 

Receiver 647 

Receiver's Costs of Appointment and Passing his Accounts . . . 648 
Plaintiff's or Defendant's Costs of Passing Receiver's Accounts . . 650 

Receiver's Costs on Passing his final Account 651 

Receiver's Costs of Passing their first Account who were ap]). anted at 
the Hearing of the Action and who had not to give Security or 

receive any Commission ' 653 

Plaintiff's Costs of Summons for Discovery and his Costs of Defendant's 

Summons for Discovery 654 

Plaintiff's Costs of Interrogatories and Iiis costs of answering De- 
fendant's Interrogatories _ _ 655 

Plaintiff's Costs of Administration Order commenced hy ()iiginal 

Summons 

Defendant's Costs of Administration Order, commenced In- Original 
Summons ...... 



657 



• • 661 

Plaintiffs Costs of Action for appointment of Receiver and for an 
Injunction in which Statement of Claim and Demurrer to same were 
filed, and on the latter lieing disallowed the Court directed the 
Action to be heard as a short Action . , . . ^ 6r.^ 

Defendant's Costs of Demurrer (j- , 



Xll TABLE OF CONTENTS. 

PAOS 

Costs of Plaintiff's Creditors where no pleadings but the Writ of 
Summons, and ujwn Motion made for an appointment of a 
Eeceiver when order was made and also order for Administration 

of the Estate 672 

Costs, Charges and Expenses of the Defendant in an Action in which 
no Statement of Claim was delivered or any other pleadings 
bej'ond the Writ of Summons ........ 683 

Costs of Plaintiffs in an Action brought for the purpose of obtaining 
an order to authorise the Trustees of a Marriage Settlement to 
advance a part of the presumptive share to one of the Settlor's 
children in consequence of the Deed of Settlement not giving the 

Trustees the power to do so 722 

Costs, Charges and Expenses of the Defendants to invest £ . . 725 

Costs of Application to restrain Transfer, kc, of Stock or Payment of 

Dividends 728 

Plaintiff's Costs of Special Case 729 

Defendant's Costs of Special Case 732 

Costs of Infant Plaintiff on his coming of Age for Payment of his 
Share of the Funds in Court which had not been carried over to a 

separate Account 735 

Costs of the Defendants the Trustees 736 

Costs of a Mortgagee on his application that one-seventh share of 
Plaintiff in the sum of £ Stock might be sold to raise sufficient 
for payment of £ and Interest, and his Costs of the Applica- 

tion, and also his Costs of obtaining a Stop Order .... 739 
Costs of an Infant Plaintiff and his Guardian on an Application by the 

Infant to be articled to a Solicitor 740 

Costs of Plaintiff on the Defendants giving Notice to withdraw their 

disclaimer as to Materials and for leave to use Plant . . . 742 
Costs of appearing on application in Chambers for Stop Order . . 745 
Costs of an Infant on his coming of Age, for p.ayment of his Share out 

of Court which had been carried over to his separate Account . Id. 
Costs of Plaintiff on disallowing Defendant's Counterclaim . . . 747 
Costs of Plaintiff on Defendant's Application for the Taxing Master 

to review the Taxation of Defendant's Costs 74S 

Costs of a Defendant in an Action of and incidental to his obtaining 
an order for taking off of the file of the Court Affidavits filed on 
behalf of the Plaintiff in consequence of same being scandalous 

and impertinent 750 

Costs of Petitioner for Payment out of his Share of the fund in 

Court after the death of the Tenant for life 753 

Bill of Costs of Surviving Trustee 760 

Bill of Costs of the Trustees of Mr. and Mrs. "s Settlement, and 

of and his Wife 761 

Costs of Plaintiff of appeal to the Court of Appeal .... 762 
Costs of Eespondents on Appeal from order of the Judge on adjourned 

Summons 764 

Costs of Appellant on Appeal to the House of Lords, taxed previous to 

Appellate Jurisdiction Act. 1876 765 



TABLE OF CONTENTS. Xlll 

TAr.T. 
Costs of Respondents on Appeal to the House of Lords, taxed previous 

to Appellate Jurisdiction Act, 1870 770 

Appellnnfs Bill of Costs revised in conformity witli the Appellate 

Jurisdirtion Act, 187(i, and which is ai)plicable to all Apiicals. 

kc, presented to the House of Lords on and after the 7th day of 

August, 1877 ' . 778 

Kcspondenl's Bill of Costs revised in conformity with the Appellate 

Jurisdiction Act, 187tj 781 

Plaintiff's Costs of hearing of Motion for Judgment in consc(iuence of 

no defence being delivered 783 

Defendant's Costs of hearing of Motion for Judgment .... 784 
Plaintiff's Costs on Trial before an OfHcial Pieferee .... 785 
Defendant's Costs on Trial before an Official Referee .... 789 
Costs of obtaining Order of Course at the Piolls . . , ; . 793 

Costs of Amending Writ /</. 

Costs of Amendment of Statement of Claim 7;t4 

Costs of Application for Names of Partners 795 

Costs of proving a Claim of a Creditor when his Claim is opposed , Id. 
Costs of proving a Claim in an Action where time expired . . . 796 
Costs of Proceedings to dismiss Action for Want of Prosecution . . 797 
Costs of obtaining Order to tax Solicitor's Bill of Costs and Applicant's 

Costs of the Reference 798 

Costs of obtaining an Order for taxation of Solicitor's Bill of Costs 

which has been delivered twelve months or which has been j)aid . 799 
Solicitor's Bill for ajtpearing on an Original Summons to tax his Bill 

of Costs and the Costs of the Reference when a sixth has not been 

taxed off 800 

Costs of Motion to Commit for Non-delivery of Costs and Account in 

pursuance of Order 801 

Petitioner's Costs of Appointment of New Trustees .... 803 
Respondent's Costs of appearing on Petition for Appointment of New 

Trustees §08 

Costs of Payment in of Cash and Transfer of Stock into Court under 

the Trustee Relief Act 810 

Costs of Vendors under the Lands Clauses Act, 1.S45, for Payment out 

of part of the Cash and for Investment of the Balance . . .811 
Costs of obtaining Charging Orders Nisi and Absolute on Stock in a 

Company 81^ 

Costs of Petition of Trustees under V\'\l\ being Vendors upon a purchase 

made under Lands Clauses Consolidation Act, where money paid 

into Court thereunder and on Petition to get same out . . .817 
Applicant's Costs for Payment of Money out of Court paid in under 

the Trustee Relief Act 821 

Respondent's Costs for Payment of Money out of Court paid in under 

the Trustee Relief Act 826 

Costs of Notice to restrain Transfer of Stock and Payment of 

Dividends . . gos 

Petitioner's Costs of Winding-up a Company 829 

Respondent's Costs of Winding-up a Company . . , , . S8,^ 



XIV TABLE OF CONTEKTS. 

PAGE 

Costs of Official Liquidator ou liis ajjplicatiuu tuv liberty tu pay iu 

Unclaimed Dividends 833 

Costs of Executrix of a Shareholder ou her Apjilication to vary the 

Chief Clerk's Certificate , . ,836 

Costs of Liquidator ou the Applicaliuu of a Creditor of the Company 
for leave to prove his Claim notwithstanding the time had expired 

for Adjudication ou Claims 838 

Official Liquidator's Costs to be taxed as between Solicitor aud Client 
from the date of his Apiiointment as such Official Liquidator to 
the day of , 187 , in pursuance of the Order made on the 

day of ,187 843 

Official Liquidator's Costs to be taxed as between Solicitor and Client 
from the foot of the last Taxation to the complete Winding-up of 

the Company UI3 

Official Liquidator's Costs for Transfer uf Fund iu Court tu the credit 

of his Account at the Bauk of England i»19 

Ordinary Vendor's Solicitor's Charges on Agreement and Cunvej-ance . 921 
Ordinary Vendor's Solicitor's Charges on Sale l)y Auction . . . 922 
Ordinary Purchaser's Costs ou Agreement tu Purchase aud Convey- 
ance 923 

Ordinary Mortgagor's Solicitor's Charges 924 

Ordinary Mortgagee's Solicitor's Charges 925 

Charges for Lease and Counterpart 926 

Costs of Memorial of Deed registered Jd. 



INDEX OF MATTER 927 

INDEX OF APPENDICES .... . . 989 



TABLE OF CASES. 



A. 



' — V. Andrews, 216 

— V. Collinf,'e, 254 

— V. Trecothick, 2-30 
Abbot, lie, 42U, 452, 461 

— V. Sworder, 255, 257, 258 
Abbot's Trusts, Ik, 315 
Abbotson V. Gregg, 83, 341 
A'Beckett, Ex park, 274 
Abel, lie, 429 

Aberdeen v. Chitty, 222 

Abergavenny (Lord) r. Powell, 215 

Ablett r. Edwards, 115 

Abram v. AVard, 35, 120 

Abud V. Riches, 533 

Accidental Co. Be, E.e'partc Eascli, 269 

— V. Mercati, 16, 19 

Accidental Death Lisiirauce Co., He, 276 

Acker, Re, 303 

Ackerley v. Frodsham, 54 

Af.kland's Trusts, Be, 329 

Ackroyd v. Smithsou, 166 

Acres v. Little, 358 

Adair's Settled Estates, Be, 331 

— V. Shaw, 200 

— V. Young, 52, 54 
Adames v. Hallett, 397 

Adams, In re, Ex parte Griffin, 134 
Adams v. Adams, 177 

— V. Clifton, 406 
Adams' Estate, Ec, 292 
Adam's Trust, Be, 325 
Adamson, Be, 438 

— V. Hill, 83 
Addcrley v. Smith, 10 

Addie's Charity, Ex parte Feoffees of, 

309, 310 
Addison v. Cox, 236 
Adolph V. Dolman, 167 
Advocate (Lord) v. Lord Uunglas, 150, 

160 



African Steam Shiji Co. v. Swanzy, 

110 
Agabeg v, llartwell, 404 
Agar V. Fairfax, 240 
Agriculturist Cattle Insurance Co. Re, 

276 
Ainslie v. Sims, 9, 23 
Aislabie v. Rice, 251 
Aitchison v. Lohre, 157 
Aitken v. Dunbar, 67 
Albazette, Be, Ex parte Sndth, 499 
Albert Arbitration, 276 
Albert (Prince) v. Strange, 376 

— Life Assurance Co., Re, 268 
Albion Bank, 7?c, 266 
Alcock, Ex parte, 431 

— Be, Ex parte AVilkinson, 450, 454 

— V. Alcock, 13 

— V. Gill, 139 

Aldborough (Lord) v. Burton, 9 
Aldridge v. Westhrook, 125, 197 
Ali V. Forrester, 578 
Allan V. Houlden, 30 
Allen, Be, 72, 303 

— 's Trusts, Be, 319 

— V. Aldridge, 427 

— V. Bone, 87, 89 

— V. Currie, 263 

— V. Greenslade, 96 

— V. Jarvis, 389, 449, 404 

— V. Lloyd, 62 

— r. McPherson, 371 

— V. Spring, 36 

Alliance Contract Co., Be, 267 
Allison V. Herring, 548 
Alsager, ^r ^nr^t' Incumbent of, 310 
Alsop V. Lord Oxford, 480, 502 
Alston r. Parker, 226 
Altree v. Hordern, 537 
Amard r. Broadbourne, 5 
Ambroise v. Evelyn, 55. 56 
Amos i\ Cliudwick, 136 



XVI 



TABLE OF CASES. 



Anderson, Ex parte, 222 

— ?'. Anderson, 165 

— r. Boynton, 431 
—- 's Case, 279 

— V. Guichard, 79 

— V. INforice, 152 

— v. Welsby, 111 
Anderton r. Yates, 351, 355 
Andrew's Case, 278 
Andrewes v. Nelson, 17 

— V. "Walton, 535 

Andrews, Ex jmrk, lit re Fells, 57 

— — 455 

— AV, 432, 473 

— c. Cradock, 363 

— r. ^lorgan, 79 
Angell V. Baddele}', 517 

— I'. Brown, 345 

— V. Davis, 160 

— V. Haddon, 192 

Augerstein, Ex partp, Irl, 334, 396 
Angier ?'. Stannard, 412, 413, 414 
Anglo-Danubiau Steam Co. v. Eogerson, 
17 

— Egyptian Navigation Co., Ee, 266 

— Greek Steam Co. , AV, 266 

— Italian Bank r. Davics, 518 

— Jloravian Railway Co., Re, 270 

— Virginian Land Co., 268 
Annesley ;-. Mnggridge, 221, 263 

— r. Simeon, 18 
Anonymous (5 L. J. Cli. 71), 9 
~ (Mos. 175), 10 

— (12 Sim. 262), 18 

— (15 Ves. 174), 58 

— (4 Mad. 461), 80, 357 

— (4 Mad. 273), 94, 163 

— (2 Atk. 14), 99, 108 

— (2 S. & S. 424), 194 

— (3 L. J. Ch. 227), 194 

— (8 Ves. 69), 215 

— (Amb. 236, 2 Ves. 497), 218 

— (2 Mad. 281), 222 

— (Mos. 45), 237 

— (8 W. R. 333), 328 

— (3 Atk. 726), 369 

— (Mos. 66), 369, 376 

— (6 Ves. 287), 383 

— (6 Mad. 68, note), 537 

— (2 Dick. 802), 560 

— (12 Ve.s, 25), 561 

— (2 Ves. 25), 563 
Apperley's Estate, Re, 307 
Applin V. Cate.s, 221 
Apthorpe, Ac, 323 
Archbold v. Scully, 108 
Archdeacon v. Bowes, 229 
Archer v. Gardner, 370 
Archer v. Roleston, 120 



Aria v. Emanuel, 206 
Arkwright v. Newbold, 20 
Armitage v. Askham, 261, 263, 285 

— V. Coates, 92 
Armston's Trusts, AV, 313, 323 
Armstrong r. Armstrong, 189, 240, 

400 
-- V. Blake, lu7 

— r. Storer, 134, 196, 565 
Arrowsmith, Ex jmrtc, 426 
Arthur Average Association, Re, 274 
Ashburnham v. Thompson, 179, 181 
Ashby «. Sedgwick, 144 

Ashe V. Berrj', 97 
Ashley v. Taylor, 62 

— r. Waugh, 253 

Ashworth v. Outram, 58, 158, 497 

Askew V. Woodhead, 284 

Askham and Uppingham Grammar 

Schools (Governors of), Ex parte, 306 
Aspden r. Seddon, 121, 122, 476, 541 
AthenaMim Insurance Co. v. Bartlett, 

56 
Atherton v. British Nation Assurance 

Co., 53, 509 
Atkins V. Cook or Cooke, 18, 21 
Atkinson, AV, 438, 442 

— V. Abbott, 89 
Attwood V. Small, 217, 386 
Attorneys' Act, AV, 395, 419, 422 
Attornev-General v. Ashburnham, 204, 

337 

— ('. Atherstone School, 212 

— r. Berry, 111, 205 

— V. Bolton, 205 

— I'. Brewers' Co., 409 

— V. Brown, 26 

— V. Burch, 217 

— V. Cains College, 210, 211 

— r. Carrington, Lord, 58, 129, 4S0, 
4S3, 489 

— r. Carte, 206 

— V. Cashel, Corporation of, 208 

— r. Chester, Corporation of, 123, 
204 

— r. Chesterfield, Lord, 204, 337 

— V. Christ's Hospital, 407 

— r. Clack, 410 

— r. Cooper, 17 

— r. Cox, 154 

— V. Craven, Earl, 212 

— V. CuUum, 205 

— V. Cuming, 401, 402 

— V. Daugars, 209, 416 

— v. David's, St., Bishop of, 212 

— r. Dove, 205 

— V. Drapers' Co. 205, 407, 480, 493, 
499 

-- i: Drummond, 207, 209 



TA15LE OF CAISKS. 



XVll 



Atton)e3'-Geiu'nil r. Eastlake, 108 

— V. East Ketfonl, 210 

— V. Eilmuiids, 1(J4, 545 

— I'. Etheiid^m', 110 

— v. Fishiiiongei's' Co., 207 

— V. Fo.stur, IS,') 

— u. Gibbs, li;;5 

— V. Gleg, 205 

— V. Graiiigur, 211, 401 

— i: Greeiiliill, 213 

— r. Habeidashers' Co. , 186, 350, 351 

— V. Halifax, Corporation of, 52, 71, 
149, 208 

— V. Hanmer, 337 

— r. Harper, 213 

— /•. Harth'V, 205 

— V. Hollaiul, 111, 205 

— V. Hothaiii, Lord, 213 

— V. Hurst, 167 

— «'. Ironmongers' Co., 207 

— V. Kerr, 207, 210, 212, 350 

— V. Knight, 15 

— V. Lawes, 168, 169, 170 

— V. Leicester, Corporation of, 210 

— V. Lewis, 206 

— V. London, City of, 366 

— i\ Lonsdale, Earl of, 48 

— v. Jlausfield, Earl of, 208 

— V. Mercers' Co., 204, 209, 211 

— V. Middleton, 206 

— V. Munro, 491 

— V. Murdoch, 410 

— V. Nethercote, 538 

■ — V. Xewark, Corporation of, 330 

— V. Nevvark-upon-Trent, Mayor of, 
212 

— 1'. Newbury, Corporation of, 210 

— V. Norwich, Mayor of, 65, 399 

— V. Oglender, 206 

— r. Owen, 213 

— V. Rochester, Mayor of, 15, 304 

— V. Sittingbourne Ry. Co., 337 

— r. Skinners' Co., 1.5, 88, 207, 208, 
212, 395 

— V. Smart, 205 

— V. Stewart, 206, 333 

— V. Stroud, 209 

■ — I'. Swansea, &c. Co., 53 

— V. Thetford, Corporation of, 523 

— V. Tomline, 36 

— V. Tyler, 2o7, 208 

— V. Vigor, 208 

— r. Vivian, 2o6 

— r. Waril, 211 

— r. Webster, 209, 407 

— r. AVinchelsea, Lord, lo7 

— V. Winchester, Corporation of, 207 

— i: Windsor, Dean and Canona of, 
114, 152, 204, 337 



Attorney-General v. Wyville, 125 
Atwool r. Ferrier, 37 
Aubrey, /i'-', 296 

— /•. Aspinall, 392 

— V. Hoper, 470 
Audcnsliaw School, 7.V, 298 
Audley Hall Cotton Co., i.V, 267, 271 
Audsley r. Horn, 112 

Austin, Jir, El' jjarle Yaldcn, 556 
Au.stin V. Hank of England, 339 

— V. Jack.son, 93, 245 
Ayles r. Cox, 327 

Aylesford, Earl of, v. Morris, 249 
Avlct r. Dodd, 213 
Aylnier l\ Winterbothaui, 109, 183 
Aynsworth r. Bank of England, 339 



B. 



Backhouse o. Charlton, 198 

— r. Jliddleton, 369 
Laddeley v. Harding, 9 
Bagiiall r. Carlton, 3S5 
liagot, Jle, 285 

— r. Bagot, 

— V. Legge, 176 
Bagshawe, Jle, 444 

— V. Newton, 168 
Bahia, The, 44 

Baile v. Baile, 354, 568, 571, 573 
Bailey, Ej: parte, 438 

— lie, 430, 457 

— r. Birchall, 570 

— r. Gouhl, ISO 

— r. Gundry, 10, 20 

— and Leetham's case, 27 
Baily v. Lambert, 76 
Bainbrigge v. Blair, 388, 390 
Baines r. Bromley, 131 

— V. Wormsley, He Wormslev, 39, 484 
Baker, Re, 46 1" 

— V. Baker, 57, 533 

— V. Carter, 408 

— V. Henderson, 553 

— i: Lee, 152 

— V. Loader, 385 

— r. Oakes, 101 

— V. Wind, 227 

— v. AVood, 111 

Bake well v. Tagart, 186 
Balch V. Symes, 552, 560 
Baldwyu v. Johnson, 114 

— V. Malo, 536 

Balguy r. Broadhurst, 13, 365 
Ball, ke, 548 

— V. Etches, 534 

— V. Harris, 223 



XYIU 



TABLE OF CASES. 



Ball v. Kemp-Welch, 241, 244 

— r. Moiitf;oineiy, 371, 411 
Ballard r. Catling, 375 

Ballinvove Workhouse, lie, 303 , 

l^jalme v. Paver, 459 ' 

Bamlora r. Banifonl, 217 \ 

— V. Watts, til) I 
Banbury r. ■ — , 215 I 
Bank of Hindustan, FiC, Ex 2>arte i 

Smith, 503 j 

Baukart v. Tennant, 129 
Banks v. Goodi'elluw, 349 
_ V. Whittall, 228, 235 
Bannerman r. Clarke, 262 
Banque Franco-Egyptienne r. tirant, 

157 
Barber, Re, 459 

— 's Trusts, Ee, 313 
_ V. Barber, 30, 171 

— V. Kavanagh, 56 
Barclav, Ex imrtc, 222 
Barehara, In re, 284 
Barfield & Bush, Re, 530 
Barham v. Longman, 216 
Baring v. Nash, 240 
Barke'r v. Cox, 31 

— V. Hemming, 134 

— r. I'eile, 56, 320 

— v. Yenables, 261 

— V. Wardle, 203 
Barlee v. Barlee, 364, 366 
Barlow r. Gains, 229 
Barnaby i: Tassell, 92 
Barnard, Re, 127, 445, 446, 565 
Barnardiston r. Linwood, 248 
Barned's Banking Co., AV, 149 
Barnes, In re, 365 

— V. Addy, 386 

_ V. Eaester, 224, 225 
r>arnsley v. Powell, 561 
P>arnewell i'. Iremonger, 175, 177 
Barrett, Ex parte, 505 

— V. Hammond, 526 
_ V. Pearson, 259, 263 
Barron v. Lancetield, 238 
Barrow, Re, 454, 455, 461 
Barrs v. Fewkes, 53 

• Barry r. Cane, 370 

— V. Croskey, 30 

— r. Jenkins, 20 

— V. AVoodhain, 370 
_ V. Wrev, 235 

Barry's Representatives' Case, 277 
Barter r. Dubenx, 84, 342 
P)arlholomew, Re, 321 
Bartholomew's Hospital (Governors of) 

Ex jmrte, 301 
Bartle v. Wilkiu, 233, 234 
Bartlett v. Harton, 52 



Bartlett ;-. Snuth, 373 

— V. Wood, 95, 171,352 

Barton, Ex iiarte. Re Finch, 452, 454, 
455 

— V. Cooke, 16S 

— r. Downes, 380 

— r. Lautour, 66, 379 

— V. Bock, 79, 216 
Bartrum, Re, 441 
Barwell r. Barwell, 61 

— r. Brooks, Re Cattlin, 438, 439, 
456 

Basevi v. Serra, 187 

Basingstoke (Mayor of), v. Lord Bolton, 

28 
Batchelor i: Middleton, 223 
Bate V. Hooi)er, 408 
Bateman r. Margerison, 121 
Bath (iNLirquis of). Ex imrte, 309 

— V. Bell, 184 ^ 

— r. Conl}', 545 

Bathe c. Bank of England, 340 

Bathew v. Needham, 75 

Batley v. Kvuock, 42, 246, 488, 496 

Battell, Ry, 322 

Bauer v. Witford, 53, 510 

Baugh v. Price, 248 

Baum, 1)1 re. Ex parte Isaacs, 143 

— Ill re. Ex iMirtc Cooper, 144 
Bawtrej r. Watson, 248, 509, 563, 

564 
Bay ley. Re, 449 

— c. Bayly, 372 
Bazett, he, 306 

Beach r. Sleddon, 12, 139 

Beadles c. Burch, 385 

Beall 1-. Smith, 64 

Beamish's Trusts, Re, 500 

Beaney v. Elliott, 93 

Bear v. Smith, 195 

Bearblock v. Tyler, 100 

Beardsall v. Cheetham, 506 

Beariz Tin Co., In re, 280 

Beattie v. Lord Ebury, 53, 127, 509 

Beaty v. Curson, 314 

Beauchamp v. Marquis of Huntley, 194, 

195 
Beaufort (Duke of) r. AshbumLam 

(Lord), 486, 487 
Beaumont v. Oliveira, 167 
Beavan v. Carpenter, 79, 81, 216 
Becke, Re, 438, 459, 460 
Bective (Earl of) v. Hodgson, 153 
Beddoes, Ex -parte, 287 

— r. Pa<?h, 115 
Bedford Charity, Re, 208, 213 

— r. Kirkpatriek, 155 
Bedminster Charities, Re, 485 
Bedson, Re, 427, 505 



TABLE OF CASP:S. 



XIX 



Beer r. Tapp, 182 

Bcetlestone, Me, 499 

hegbie r. Fenwick ; Feuwick r. Begbie, 

130 
Behrens, Fu; 322 
Belaney v. Freiuh, 537 
Bell, Jie, 435 

— V. Aitkin, 502 

— V. Ik'll, 82 

— r. Taylor, 5/>3 

— V. Turner, 4<)8 

Bellamy v. BrickeniUui, 8n, 115 
BellclianiLtT v. Ciiaiii, (J7, 537 
Bellew V. Bellew, 189 
Bellot, Exj)arfr, 61 
Belinonte v. Aynanl, 19 

— V. Giitscliow, 19 
]5elton, Ex paric, 431 
Benbow /'. Davies, 402 
Bendyshe, Re, 316, 414 
Bennet v. Going, 181, 409 

— V. Vade, 385 
Bennett, Ik; 437, 450 

— V. Atkins, 179, 180 

— V. liaxter, 553 

— V. Biddies, 70 

— V. Fowlor, 253, 258 

— V. Harfoot, 360 

— V. Harrap, 56 

— V. Hill, 445 

— V. Partridge, 234 

— V. Wood, 186 
Benson v. Hadfield, 30 
Bensusan r. Neliemias, 111 
Beiitley, E.c parte, 271 

— V. Bentley, 192 
Beiiyon i\ Fiteh, 249 
Berndston v. Churchill, 76 
Bernev v. Eyre, 215, 344, 346, 348 
Berkeley's Will (Earl of), lie, 296 
Berrie v. Howitt, 568, 570 

Berry r. Exchange TiadingCo., 65 

— V. Hebblethwaite, 199, 227 

— V. Johnson, 380 
■ — V. Morse, 97 

Bertie v. Lord Abingdon, 383 
Besant i'. Wood, 111, 362 
Bethlem Hosjiital, In re, 287 
Belts V. Barton, 63, 75 

— V. Cleaver, 487, 492 

— v. Clilibrd, 48, 493 

— V. De Vitre, 247 
Bevan, He, 502 

Bevan & Giiling, Ee, 441 

— & Whitting, AV, 443, 557 
Bewley v. Sevmour, 89 
Bexley (Lord*^), Ee, 297 
Beynon r. Cook, 249 

— V. Goddeu, 145 



Hibliy r. Tiioniit.yoii, 562 

Bicknell r. l^iidviicil, 358 

Pdddlc, Re, 239, 326 

Bidulph V. i'.idulph, 215 

Bierderniann r. Seymour, 90 

iiiul's Estate, /// re, Gray v. Warnei', 

172 
Bignold, Ee, 438, 448, 460 
Bigsby r. Dickinson, 147, 493 
Bil'liiig e. Coppock, 427, 428 

— r. Webb, 37!t, 380 
iUnghani, Ee, 297 
jiinningtou v. Harwood, 229 
liiuns ('. Hay, 444 

Birch V. AVillianrs, 90, 393 
— 's Legacy, Ee, 320 

— Will, Ee, 69 

Birchall r. rugin, 569, 571 
Bird r. 15ird, 372 

— V. Heath, 557 

Birkett, Li re, 169, 317, 321 
r.irks V. Micklethwait, 181, 399 
Uirmiiighani, &e. Ky. Co., Ex I'.artc, 

311 
lUseoe V. Wilks, 110, 251 
Bishop, Ex parte, 121 
— , In re, Ex parte Langley, Ex 

parte Smith, 57 

— r. Bishop, 329 

— V. Willis, 38 
Bissett ('. Burgess, 202 
Bissicksr. Bath Colliery Co., 516 
lilackburu v. Jepson, 121 
Blackford v. Davis, 237 
Blackman i\ Cornish, 52 
Blackmore, Ee, 448, 4C3, 465 

— r. Ed\\ards, 34, 35 

— r. Smith, 81 
r.lagrave v. liouth, 457 
ISlaiklock r. Grindle, 174 
IJlain, Ex parte, Ee K^awers, 514 
Blair, Ex parte, 447 

Blake r. Albion Assurance Co., 37 

— V. Appleyard, 131 

— r. lilake, 64 

— r. Smith, 88 

— V. White, 522 
Blakeley, Re, 506 
Blakeney v. Dufaur, 8, 61) 
Blakesley, Re, 473 
Blanchet v. Foster, 371 
Bland v. Daniell, 189, 351 

— V. Lamb, 373 
Blann v. Bell, 166 
Blaushard r. Drew, 77 
Blayney's Trust, Ee, 319 
Blenkinsop r. Foster, 190, 201 
Blenkinsopp v. Bleidvinsopp, 123 
Blest c. Brown, 106 

h 2 



XK 



TABLE OF CASP]S. 



Blight, Pu; 404 
Bliukeliovn v. Feast, 349 
Blinkhorue v. Feast, 215, 345, 348 
Blinston v. Wavbuitoii, 91 
Bloomer v. Spittle, 109 
Blosse r. Loul Claiimonis, 380 
Blount V. Barrow, 403 
Bloves' Trusts, lie, 313 
Bluett V. Jessop, 203 
Blunden f . Desart, 551, 554 
Blunt's Trusts, Re, 319 

— V. Heslop, 428 
Blyth V. Green, 344 

— and Young, In re, 145 
Blyth's Trusfs, Re, 305 
Blytlie r. Granville, 335 
Boddington v. Woodley, 372 

Bolivia (Republic of) v. Bolivian Navi- 
gation Co., 62 
Bolton V. Bolton, 74 
Bonelli's Telegragh Co., In re, 274 
Bonser v. Bradshaw, 353, 568 
lionville v. Bonville, 245 
Bookless V. Cnuuniack, 193 
Booth V. Booth, 486 

— V. Creswicke, 235 
Boothby r. Boothby, 248 
Borehain v. Bignall, 97 
Boson V. Boson, 345 
Boston V. Fiichardson, 195 
Boswell r. Tucker, 36 
Bosworthon Mining Co., Re, 266 
Bothomley v. Squires, 28 
Boucicault v. Delafield, 98, 342 
Boultou V. Beard, 114, 183, 186, 415 
Bourke v. Alexandra Hotel Co., 131 
Bourne v. Buckton, 71 

Bouverie, Exyarte, 307 

Bovill r. Iladley, 247 

Bowden, In re, Ex jKific Sawyer, 147, 

499 
Bowen, Re, 427, 431 
Bower i\ Cooper, 114, 129 
Bowes' Estate, Re, 295 

— V. Bute, ]\Iarquis of, 241 

— V. Heaps, 248 

Bowey v. Bell, Brooks v. Israel, 101 
Bowles V. Stewart, 385 
Bowyer v. Griffin, 342, 399 

— V. Marshall, Re Marshall, 137 
Boxmoor, Ex parte Trustees of, 307 
Boycott V. Newman, 128, 186 
Boyd, Re, 319 

Boyle, Re, Ex. parte Turner, 448, 454, 

455, 456 
Boynton v. Boynton, 396 

— V. Richardson, 163 
Boys V. Bradly, 149, 152 
Bozon V. Bolland, 551, 55o, 561 



Brace v. Duchess of Marlborough, 199, 
224 

— V. Ormond, 187 
Bracey, Re, 460 
Brackenbury's Trust, Re, 324 
Bradbury c Sliawe, 368, 532 
Bradley V. Borlase, 117 
Bradlv v. Heath, 118 

— r. Munton, 327, 379 
-- V. Whitchurch, 411 
Bradshaw, Ex parte, 282 

— r. Bradshaw, 44, 398 

— r. Fane, 295 
Brady, Re, 448 
Brailey, Re, 294 
Braithwaite, Ex 'parte, 287 
Bramble, Ex imrte. In re Toleman and 

England, 558 
Brandon v. Brandon, 293 
— 's Estate, Re, 295, 307 
Brandreth's Trade Mark, In re, 94 
Branmer's Estate, Re, 304 
Brassington v. Brassington, 45, 551 
Braund^ Re, 495 
Bray v. Hine, 560 
— V. West, 402 
Braye, Re, 300 
Braye (Baroness of). Ex 2>arte, 291, 

294, 299 
Bremner v. Bremner, 565 
Brett's Case, 275 
Briant v. Lightfoot, 35 
Bridges v. Longman, 255 
Bright's Trusts, Re, IS7 
Brightens, Ex parte, 222 
Briscoe, Re, 293 
Bristed v. Wilkins, 339 
Bristol Free Grammar School, Re, 303 
Bristow r. Bristow, 200 
P)ristowe v. Needham, 383 
Briti-sh Alliance Assurance Corporation, 

In re, 17 
British Dynamite Co. v. Krebs, 70, 

135, 545 
British Mutual Society v. Cobbold, 

394 
British Nation Indemnity Claims, In 

re, 276 
Broadhurst v. Willey, 104 
Broadwood's Settled Estates, Re, 290 
Brocas i'. Lloyd, 42, 43 
Brocklebank r. King's Lvnn Steamshii) 

Co., 15, 21 
Brockles'oy, Re, 316 
Broder v. Saillard, 34, 109 
Brodie v. Bolton, 202 
— V. St. Faul, 109 
Broke's (Lord) Estates Re, 301 
Bromage i: Davies, 381, 392 



TABLE OF CASES. 



XXI 



Bromley v. Smith, 240 
Brook, /iV, IMlclicr ;•. Aidcii, 556, 5GS, 
569, 573 

— , lie, 297 

— V. Alcock, 377 

Brooke, Er parLe, Re Newman, 510 
Brooks r. ]5oekclt, 430 

— r. Israel, 13owe}' v. liell, 101 
]5roiigham (Lord) v. Lord AV. roulutl, 

172 
Bronghton v. Brougliton, 386, 388 

— r. Lashmere, 77 
Brown, lie, 464, 480 
— 's Case, 275 

— V. Brown, 358 

— x\ Dawson, 374 

— r. Douglas, 26 

— r. P'enwick, 295 

— V. Gellatly, 138 

— V. Lake, 360, 379 

— V. Robertson, 65 

— r. Sawyer, 54 

— r. Sewell, 229, 489, 493, 404, 501 

— r. Tibbits, 429 

— V. Trotman, 573 

— V. Weatlierliead, 353, 357 
Browne, lie, 294, 440, 454, 455 

— r. Groombridge, 172 

— r. Lockliart, 52, 233 

— I'. l>ye, 578 

— r. Smith, 137 

lirowning, Ex yarfr, Rr (.'raycroft, 517 

— V. Sabin, 520 

Bruce v. Bain bridge, 252 

— V. Kinloek, 60 

— ?'. Presbytery of Deer, 153 
Brutf r. Colibold, 38 

Bruin \\ Knott, 185 
Biiinsdon v. Allard, 562 
Bryant, Ex parte, 561, 563 

— In rr, 57 

— r. ]5u]l, 518, 520 

— r. Bush, 252 
Brymer v. Buchanan, 220 
Bryon v. Saloon Omnibus Co., 183 
Buchanan v. Green way, 116 
Buck, Ex parte, 288, 309, 310 
Bucks Railway Act, Re, 288 
Buckton r. Buekton, 352 

— r. Higgs, 103 
15udgc V. Budge, 536 
Buist V. Bridge, 529 

Bulkeley v. Earl of Eglinton, 325, 402 
Bull V. Jones ; Ecclcs v. Walker, 71 

— V. Faulkner, 553 

— V. "West London School Board, 124 
Bullass, Re, 313 

JUillen r. Over, 67 
Bullcy r. Bulfcy, 570 



Bunnctt v. Foster, 175 
ijiiiiiiing ;•. Bunning, 200 
BurcheU r. Giles, 36, 485 
]5urdcll )•. Hay, 538 
liurden ?•. Old'aker, 234 
lUirdick r. Garrick, 53, 510 
Bui lord (Corporation of j r. 



Lcnth 
.04 



11, 



Burge V. Brutton, 388, 301, 
Burgess r. Hatcly, 08, 135 

— r. Hills, 78 

— V. AVheate, 396 
Burgess's Case, 275 
Burgoine r. Taylor, 52, 90 
Burke r. Hutchinson, 14 

— V. Lidwell, 14 

— r. Smyth, 250 
Burkett v. S[iray, 542 
Biirkitt I'. Ransom, 202 
Burnell r. Brown, 257 

— r. Duke of Wellington, 84 

— 's Estate, Re, 204 
Burns v. Irying, 523 

Burrell, In re, Burrell i\ Smith, 202 

— V. Deleyante, 105 
Burrows r. Burrows, 524 

— V. Greenwood, 183, 413 

— V. Lock, 258 

Burry Port Co. v. Bowser, 372 
Bush, Re, 428, 429 

— 's Case, 272 

— V. Martin, 417 

— r. Trowbridge Co., 112 

— V. Windey, 194, 106 
Busk r. Beethani, 23 
Butler's Will, Re, 290 

— r. Gardener, 46, 372 
Butterfitld, Re, 285 

Butterworth, //; re, Ex parte Russell, 

307 
Buxton V. Lister, 258 
Byde v. Masteimau, 485 
Byrch, Re, 438, 443 
Byrne, Re, 533 

— I'. Korcott, 406 
Byrom, In re, 208, 305 

Byron's Settled Estates, i^e, 300, 301 



C. 



Caffrey v. Darby, 406 
Caldicott r. Baker, 365 
Caldwell r. Ernest, 271 
Caley v. Caley, 355, 356 
Callaghan r. C'allaghan, 544 
Callander v. Hawkins, 105 
Callow r. Howie, 367 



TABLE OF CASES. 



Calmady i: Calmaay, 240, 242 
Calverley v. "Williams, 261 
CaXvert, £x parte, Jure Messenger, 552, 
555, 557 

— V. Day, 11 

— V. Godfrey, 381 

— V. Rootli, 377 
Camac r. (hunt, 2-J 
Cambottie r. Inngate^ U 

Cambrian Steam Taeket Co., E:>: parlc, 

272 
Camden v. Benson, 378 
Cameron, Re, 322 

— 's Coal1)rook Co., He, 551 
Camille v. Donato, 61, 486 
Campbell, Re, 478, 539, 548 

— V. Bainbridge, 4(J8 

— V. Cam]ibell, 156, 356, 411 

— V. Holyland, 68 

— r. Home, 413 

— V. Joyce, 27, 36, 51 

— V. Solomans, 219 
Cane v. Allen, 108 

— V. Browurigg, 234 

— V. Martin, 558 
Canham r. Neale, 193 

Cannell, or Cannon v. Beeby, 177, 542 
Cannon r. Johnson, 241 
Cannot r. Morgan, 60 
Cant, Ex parte, 324 

— 's Estate, Re, 284 

Canterbr;ry (Dean and Chapter of), Ex 

parte, 287 
Cape Breton Co. v. Fenn, 83 
Capper r. Terrington, 234 
Carew, Re, 435, 460 
Carey v. White, 546 
Cargill V. Bo^yer, 34, 52, 400 
Carlisle (Mayor of), Ex parte, 305 

— and Silloth Ky. I'o., Re, 301 
Carmarthenshire Coal Co., Re, 267 
Carmichael v. "Wilson, 387 
Carnarvon Castle, The, 21 
Carnarvonshire Slate Co., Re, 266 
Carney, Re, 308 

Carpmael r. Broffitt, 285, 291 

Carr r. Henderson, 188, 199, 334 

Carrodus c. .Sharp, 255 

Carrow i\ Ferrior ; Dunn v. Ferrior, 57 

Carta Para Gold Mining Co., Re, 15 

Carter v. Barnard, 492 

— V. Carter, 539 

— V. Green, 206, 350 

— V. Palmer, 544 

■ — V. Sebright, 325 

— V. Wake, 198 
Carthew v. Barelay, 52 
Cartwright, Re, 444, 445 
Carven, Re, 432 



Cashin r. Cradock. 39 

Cast V. Peyser, 42, 46 

Castellani v. Blumenthal, 61 

Catcr's Trusts, Re, 313, 314 

Catlin, Re, 432, 456, 480, 481, 486, 495 

Catlow r. Catlow, 571, 572, .'573 

Cattlin, Rr, 54 

— , Re, Bai-well e. Brooks, 438, 439, 
456 

Cattell r. Simons, 133, 532. 563 
Cave, Ex parte, 285 
Cawdross (Lord), Ex parte, 426 
Cawley and "Whatley, Re, 448 
Cawthorne, Re, 321 
Cazueau's Legacy, Re, 319 
Challie v. Gwynne, 85 
Chambers, Re, 432 
Champ r. Stokes, 434 
Champernown ?•. Scott, 552 
Champion r. Formb)', 104 
Chaplin's Trusts, Re. 323 
Chapman v. Chapman, 394 

— V. ]\IidlandEy. Co., 577 

— V. Beal Property Trust, 60 
Chappcll r. Purday, 98, 160 
Cliarlesworth v. Gartsed, 67 
Charlton r. Charlton. 148 
Charras v. Pickering, 23 
Charter v. Charter, 153, 185 
Chase v. AVestmore, 560 
Chattield v. Sedgwick, 132 
Chatteris v. Young, 166 
Cheltenham "Wagon Co., In re, 57 
Chennell, //; re, Jones v. Chennell, 6, 

158, 171, 398, 409 
Cherry's Settled Estates, Re, 301, 302 
Chertsey Market Case. 212 
Chester r. iletropolitan lly. Co., 79, 

260 
Chesterfield Co. r. Black. 34 
Chesterfield v. Jansseu, 248 
Chichester v. Huntei-, 83 
Chick V. Nicholls, 562 
Child V. Stenning, 119 
Chilton r. Campbell. 51 
Chilwell r. Hocknell, 188 
Chissum i: Dewes, 178 
Cholmondeley v. Clinton, 559 

— r. Phelps, 578 
Chorltou v. Dickie, 136 
Christ Church, Expeirtc, 301 
Christ's Hospital .(Governors of), Ex. 

parte, 289, 300, 301 
Christian v. Adamson, 407 

— V, Chambers, 378 

— V. Field, 553 

— {'. Foster, 175 
Christie r. Christie, 37 
Christmas, Re, 54 



TABLE OF CASES. 



XXIU 



Chvistoiiliprs v. Wliitc, 387 

(Jliubb r. (liiilitlis, .'5(30 

Cliugg ('. Cliiigg, 4(iy 

Church r. Jlar.sh, ^75 

Chuicliill, Kr pnr/f, 69 

Churton r. l^'icwen, 487, 503 

City and County Iiive.stiDeiit Co., lie, 

277 
City Glass Co., 7?^ 2G6 
City of ]]erliii, The, 144 
Chick V. Carlo]), 387 
Chanricanle (iiOiil) r. IfeiiniiiL', 107, 

250, 38tJ 
Chirborough (Vicar of), E.r partr, 304 
Chire V. Wood, 226 

Clark, In re, Cnmberhind v. Clark, 194 
Clark, lie, 148, 505 

— Re, E)i 'parte Newland, 556 

— V. Fergusson, 9 

— r. Gill, 42, 43 

— r. Girdwood, 385 

— r. Malpas, 486, 494, 498, 502 

— V. Simpson, 69, 139 

— V. AVatkins, 51 
Clarke's Case, 275 
Clarke v. Cookson, 3 

— V. Croker, 7 

— V. Hart, 150 

— V. Jacques, 46 

— r. Tyke, 373 

— V. Kawlins, 116 

— i\ Roche, 141 

— V. Tipping, 84 

— V. Toleinan. 117 
Clarkson r. Parker, 437 
Clay, E:k parte, 326 
Claydou V. Finch, 519 

Claypole (Hector of), Ex purte, 286 
Clayton v. Clarke, 172, 354, 355 

— V. Meadows, 442 
Cleland, Ex parte, 133, 563 
— 's Case, 278 

Clements v. Clifford. 76 

— Re, 158 

Cleveland's (Duke of) Harte Estates, 

Re, 294, 331 
Cliff V. Wadsworth. 231 
Cliffe V. Wilkinson, 22 
Clifford r. Turrill. 557 
Clifton r. Orchard, 99, 215 
Clinch r. Financial Corporation, 106. 

125 
Clinton v. Clinton, 520 
Clough V. Cross, 535 
Clover V. Adams, 571, 573 
Clowes r. Beck, 108, 114 
Cluttou V. Pardon, 94, 551 
Cly lie's Trustees v. Clyne, 156 
Coates V, Coates, 187 



Coates' Case, 278 

— r. Ilawkyard, 127, 475 
Cobhuni r. Daltuii. 528 
Cochrane r. Fftaron, 18 

— V. 0'15ricn, 220 

— r. Willis. 31 
Cockayne v. Harrison, 560 
Cockburn v. Edwards, 5 

— V. Raphael, 338 
Cockcroft V. Sutclilfc, 413 

Cockell r. Taylor, 217, 232, 250, 3;:4 
Cockle V. Joyce, 52. 90, 136 

— V. Whiting, 391, 395 
Cocks V. Purday, 52 
Cockshott V. London Cab Co., 136 
Coc(i V. Hunasgeria Colfee Co., 60 
Codrington (Lady) r. England, 215 
Colburn r. Simnis, 102, 163 

Cole, Ex Y>artc, 525 

— Re, 507 

— I'. I>urgess, 193 

— V. Firth, 131 
Colebrook v. Joncg, 8 
Colegrave v. ]\Ianley, 558 
Coles ;;. Forrest, 233, 234, 235 
Collard v. Hare, 535 

— V. Roe, 253 

Collett V. Dickenson, 362 

— V. Preston, 563 
Collins, Ex. parte, 284 

— V. Carey, 387 

— V. Reece, 335, 412 

— r. Shirley, 115, 116 

— V. Welch, 101 
Collis V. Collis, 76 

— r. IJobins, 404 

Collyert'. Dudley, 163, 179, 403 

— V. Isaacs, 499 
Colman v. Sarell, 134 

— V. Sairel, 397 
Colmer r. Ede, 552 

Colquhoun, Re, 127, 344, 438, 476, 481 

— Re, Dunt r. Dunt, 455 
Colyer r. Colyer, 181, 192 
Commercial Discount Co. (Limited), Re, 

269 
Commerell v. Poynton, 558 
Commins i\ Scott, 30 
Comniomvealth Land Co., Re, 393, 516 
Condor, The, v. The Swansea, 144 
Congreve, Re, 430 
Conn r. (Jarland, 520 
Connell r. Hardie, 222 
Connolly v. Smyth, 51 
Consett V. Bell, 384 
Consols Insurance Co. v. Wood, 271 
Const i\ Ebcrs, 58 
Constautine, The, 142 
Conybeare v, Lewis, 75 



XXIV 



TABLE OF CASES. 



Cook ?'. Broomheacl, 39i 

— V. Gillard, 434 

— r. Hart, 197, 225, 226 

— r. Hathway, 121, 538 

— V. Earl of Kosslyii, 220 

— V. Sharmaii, 383 
Cooke, Fu; 303 

— V. lUown, 220 

— V. Fryer, 358, 363, 364 

— )'. Turner, 195, 490 
— 's Contract, Jir, 330 
Cooksou V. Bingliam, 92, 165, 200 
Cooper, Ex jwrtc. In re Ijamn, 144 

— Kx imrt€, 285, 293 

— V. Cooper, 53, 510 
■ — V. Ewart, 442 

— V. Hewson, 560 

— r. London, Chatham, and Dover l!y. 
Co., 264, 288 

— V. Pitcher, 133, 190 

— V. Earl of Powis, 27 

— r. Purton, 23 

— V. AYhittingliam, 98 
— 's Case, 269 

Cooth V. Jackson, 98 
Cope's Trust, In rr, 165 
Copley, Ex 2Mi'tc, 307 
Coppin V. , 369 

— V. Cojipin, 109 
Corbett v. Corbett, 374 
Corcoran v. Witt, 48 

Cork, Earl of, r. Kussell, 115, 117 

• — and Youghal Py. Co., iiV, 278 

Cormaek v. Bcisly, 127, 564 

Corner r. Irwin, 7 

Cornish r. Gest, 243 

Corpus Christi College, Oxford, Ex 
parte, 300 

Corry v. Cnrlewis, 56 

Corticene Floor Coveiing Co. v. Tull, 
577 

Cory r. Thames Ironworks and Ship- 
building Co., 485 

Cosmi Truppo's Estate, Ec, 303 

Costa Pica r. Erlanger, 7, 20, 21, 557 

— V. Strousberg, 236 
Costello'i'. O'Korke, 411 
Costerton v. Costerton, 196 
Cotterell v. Stratton, 160, 222, 228, 

232, 577 
Cotton, Ex parte, 497 

— V. Clark, 342 

— r. Clarke, 180, 191 

— V. Luttrell, 370 

— V. Penrose, 189 
Cottrell r. Finney, 222 
Coulsting r. Coulsting, 365 
County Life Assurance Co., Be, 560 
Courand r. Hanmcr, 384 



Course v. Humphrey, 125 
Court V. Robarts, 3 57 
Courtney v. Rumley, 399, 404 

— r. Stock, 393 
Courtoy r. Vincent, 523 

Courts of .Tu.stice Commissioners, Re, 

284 
Cousens v. Cousens, 492 
Coventry (Justices of), lie, 69, 320 

— V. ]5entley, 21 4 

— V. Coventrv, 415 
Covington's AVill, He, 313 

Coward and Adam's Purchase, Ee, 330 
Cowdell v. Neale, 426, 427 
Cowdray v. Cross, 535 
Cowdry v. Day, 2-?8 
Cowell V. Simpson, 560, 561 

— !'. Watts, 260 
Covvgill r. Rhodes, 349 
Cowley V. Wellcsley, 92 
Cowtan V. Williams, 219 
Cox ?'. Barker, 31 

— V. Chamberlain, 251, 253 

— 0. Cox, 242 

— V. Toole, 226 

Coyle ('. Cuming, 37, 368 

Coysgarne v. Jones, 195 

Cozens v. Graham, 434 

Crabtree, Ee, 324 

Crackeltr. Bethunc, 181 

Cracknall r. Janson, 37, 40, 131, 144, 

485 
Cradock v. Owen, 175 

— V. Piper, 388, 389 
Craig r. Bolton, 7 

— r. Watson, 386, 394 
Crane's Estate, Ee, 294 
Cranstown v. Johnson, 108 
Crause v. Cooper, 111 
Crawford i*. Fisher, 220 

— r. Hornsea Brick Co., 498 
Crawshay v. Thornton, 69 
Craycroft, Ee, Ex piartc Browning, 

517 
Credland v. Potter, 227 
Creech St. Michael (A'icar of), Ex parte, 

299 
Creen r. Wright, 102 
Cremetti v. Crom. 508, 521 
Cresswell v. Byron, 564 

— V. C'heslyn, 166 

— V. Haines, 261, 285 
Crew V. Jollift; 345 
Crispin v. Cumano, 520 
Croft V. Graham, 249 
Croome r. Lediard, 255 

Crosbie v. ]\Iayor of Liverpool, 167 
Cross r. Cross, 84 

— I'. Kennington, 201 



TABLE OF CASES. 



xxv: 



Crosses. General Reversionary Co., 199, 

224 
Crosskill v. IJowcr, 405 
Crossley r. Crowtlier, 88, 89 

— V. Elvvorthy, 397 

— V. Tarker, 502 
Crouch V. Waller, 36G, 373 
Crowder v. Slice, 428 
Crowe V. Ballard, 248 
Crowley's Case, 535 
Crowtlier v. Flood, 356 
Croxen v. Lever, 360 
Croyden's Trusts, AV, 313 
Cruikshank v. DiilHii, 250, 251 
Culliugwortli V. Lloyd, 106 
Cull's Trusts, Jte, 316, 413 
Cuniniiiis v. Broinfield, 403 
Curling, AV, 549 

— Vi Austen, 121 

Curnot and Tarkinson, J\r, 439 
Curre v. Bowyer, 194 
Currie, AV, 448, 452 

— V. Pye, 350 
Curteis v. Candler, 179 
Curtis V. Lloyd, 75 

— V. Robinson, 184 
Curweu's Settlement, AV, 287 
Cutfield V. llichards, 225 
Cuthbert, In re, 392 



D. 



Daintree r. Haynes, 374 
Daking v. AVliiniper, 397, 399 
Dakins i\ Garratt, 51, 70 
Dale's Case, 274 
Dallas V. Glyn, 529 
Daiuer v. Lord Portailington, 85 
Daniel v. Harding, 342 
Darke v. AVilliamson, 401 
Darley i'. Nieholsou, 62 
Dashwood, A'.*' 2"<>'fc, 282 
Daubuey v. Shuttlewortli, 61 
Davenport c. Davenport, 12, 13 
• — V. James, 233 

— V. Jepson, 100 

— I'. Powell, 442 

— V. Rylands, 246 

— V. Stattbrd, 496 
Davey v. Bennett, 17 

— V. Durrant, 41, 44 

— v. Plestow, 193, 194 

— r. AVietlisbacli, 242 
David, AV, 440 
Davidson v. Gray, 102, 131 
Davie, lie, Ex parte White, 454 
Davies, Ex parte, 324 



Davies v. Austen, 169 

— V. Busli, 564 

— V. Chatwood, 127, 476 
- V. Cooper, 248 

— V. Davies, 87 

— V. Marshall, 486, 489, 495, 502 

— V. "Whitehead, 364 

— V. Williams, 111 
— 's Case, 275, 279 
Davis V. Cripps, 485 

— V. Earl of Dysart, 432, 473, 490, 
495 

— V. Park, 63 

— V. Read, 30 

— V. Symonds, 258 

— V. AVhifHn, 63 

— V. Whitmore, 116 
Davison and Torreus, lit re, 464 
Davy V. Garrett, 39 

Daw r. Eley, 57 
Dawson, Re, 455, 463 

— ?'. Jay, 46 

— v. Shepherd, 119 
Day V. Croft, 69, 320 

— i\ Day, 565 

— V. Gudgen, 117 

— V. Whittaker, 469 
Deacon i\ Deacon, 118 
Dean v. Morris, 128, 173 
Deaiie v. Loid Waterford, 259 
Dearden, llr, 454, 480 ,. 
Dearsly v. ]\liddleweek, 122 
De Bay r. Griffin, 447, 561 

De Beauvoir's Settled Estates, AV, 286, 

289 
De Burgh r. Cliichester, 124 
Debenliain r. Lacej^ Smith v. "Which- 

cord, Evans v. Debenham, 60 

— V. Ox, 109 

De Combe v. De Combe, 119, 217, 340, 

534 
Deere, Re, 528 
De Feucheres v. Dawes, 441 
De Geneve i\ Hannam, 64 
De Hart r. Stevenson, 17 
De Hoghton r. ]\[onev. 264 
De la Warr (Earl) v. Aliles, 498 
De la Warr's Estates (Earl), Re, 332 
DelaAvney v. Delawney, 35 
Deller v. Simonds, 259 
De Montmorency v. Devereux, 107,386 
Dence r. Mason, 141 
Dendy, AV, 432 
Denny v. Hancock, 144 
Dent V. Basham, 432 

— V. Dent, 520 

— i: Warden, 35 
Derriman's Settlement, Re, 302 
Desprez v. ]\[itehell, 10 



XXVI 



TABLE OF CASES. 



Detillin r. Gale, 16i, 223, 227, 231 

Devenisli r. Browu, 31 

Devey r. Thornton, 414 

Uevonsher r. Kyall, 37 

Devon sliirc, J!e, 54 

Dew v. Clarke, 30, 216 

De^vdney, Ex parte, 429 

Dewes r. Bercsfortl, 535 

Diamond Fuel Co., In re, 142, 266, 270 

Dick I'. Munden, 11 

Dicken v. Hamer, 139 

Dickenson v. Lockyer, 109 

Dickenson r. Mavie, 124 

Dicks V. Brooks, 129 

— r. Yates, 98, 158 
Dickson, Re, 321, 456, 463 
Dighton r. Withers, 197, 199 
Dillon r. Aslnvin, 117 

— V. M'Carthy, 368 

— V. Cunningham, 525 
Dimes r. Wright, 434 
Dimson's Fire Clay Co., Rr, 2r2 
Dinning r. Henderson, 291 

Di Sora v. Phillips, 165 

Ditton, E.I- jxirte, In re Woods, 427 

Divers, Re, 282, 309 

Dixon V. Evans, 154 

— r. Jackson, 287 

— r. AVilkinson, 394 
Dobson V. Land. 234 

D'Oechsner r. Scott, 364, 366, 400, 523 
Docker, Ex parte, lie Heritage, 453, 

460 
Dodd, Re, 289 

— V. Holbrook, 59 

Doggett v. Eastern Counties Ry., 540 

Dolman, In re, 18 

Doncaster's Settled Estates, Re, 302 

Doody V. Higgins, 186 

Dorin r. Dorin, 154 

Douglas V. Archbutt, 51, 405 

— r. Cooper, 97 

Dowdeswell c. Dowdeswell, 34, 90 
Dowling's" Trusts, Re, 294 
Downing College Case, 208, 491 
Downcs, Re, 447, 457, 464, 466 
Dowson i\ Hardcastle. 218, 221 
Drake, Re, 448, 454. 460, 463, 464 

— r. Symes, 17 

Drennan v. Andrew, 371, 373 
Dresser r. Morton, 372 
Drever v. Maudesley, 18 
Drew, Re, 451 

— r. Clitlord, 434 

— V. Harman, 234 

Drinan v. Jlannix, 12, 23, 365 
Drummond's Case, 271 
Dryden e. Frost, 236, 237 
Du Boisou i\ Maxwell, 553 



Dublin Ey. Co. v. Slattery, 151, 152 
Duchess of Westminster Co., Re, 147, 

498 
Duckett V. Gover, 28, 51, 88 
Dufaur v. Sigel, 98 
Duftield, Re, Ex parte Peacock, 510 
Dugdale v. Dugdale, 168, 170, 186 

— V. Johnson, 65 
Duggan's Trusts, Re, 68 
Dulwich College, In re, 337 
Dnmmelow, Re, Ex petrtc Kuffle, 511 
Duncan i'. Varty, 99, 100 

— V. Vereker, 37 
Dundas r. Dutens, 87 

Dundee Harbour (Trustees of ) r. Dou- 

gall, 153 
Dungey i: Angove, 220. 392 
Dunkeld, The, 499 
Dimlop r. Hubbard, 221 
Dunn V. Dunn, 352, 357, 358, 552 

— r. Ferrior, Carrow v. Ferrior, 57 
Dinining r. Hards, 203 
Dunstiin v. Patterson, 121 

Dunt f. Dunt, Ti'cColquhoun, 455 

Durbaine v. Knight, 169 

Durham (Bishop of). Ex parte, 303 

Dutton V. Furness, 220 

Dylar's Estate, Rr, 299 

Dyson c. Lum, 408 



E. 



Eady i: Watson, 200 

East r. Ryal, 406 

East Holyford Mining Co., Re, 271 

East of England Bank, Re, 532 

East Kent Shipjiing Co., Re, 273 

East Norfolk Py. Co., Ex parte, 294 

Eastern Counties Ey. Co. v. Tutnell, 

261, 285 
East Llangynog Mining Co., In re, 7, 

18 
Eaves r. Hickson, 406 
Eccles V. Livcrjjool Borough Bank, 65, 

66 
Ecclesiastical Commissioners, Ex j'o.rte, 

287, 300, 303 
Edelsten r. Edelsten, 105 
Eden r. Kaish, 124 

— V. Thompson, 69, 284, 292, 295, 378 
Edenborough v. Archbishop of Canter- 
bury, 401, 402 
Edgcenmbe v. Carpenter, 400 
Edison Telephone Co. v. India Eubbcr 

Co., 247 
Ednieade, Re, 303 



TABLE OF CASES. 



xxvn 



Eamund.s, AV, 288, 431 

— V. Lord IJrougliain, 37 
Kuridge r. Julridge, 3J0 
J'Ahvanlcs v. liurke, 8 
Edwards, E.v parU; 56(J 

— V. Burt, 249, 250 

— V. Edwards, 72, 79 

— V. Harvey, 252, 396 

— V. Jones, 335 

— V. Lawless, 429 

— V. Smitl), 235 

Egliu i;. Hauudcrson, 179, 181 
Egmont V. Darell, 100 
Egrcmont (Lord) v. Thompson, 292 
Elbonie ?•. (!oodc, 1G6, 10 7 
Elborough (". Ayres, 510 
Eldridge, lie, 439 

— V. Burgess, 84, 136 
Elgar, Re, 314 

Elliot V. Kokeb}'. (Lord). 155 
— 's Trasts, Ec, 314 
Ellis, Ex parte, 438 

— V. Barker, 411 

— V. De Silva, 102 

— V. Ellis, 35(3 

— I'. Houston, 29 
• — r. King, 136 

— V. Walniesley, 67, 532 
Ellison's Estate, Ue, 3(i2 

— V. AVright, 236, 237 
Elmore's Will, Re, 328 
Elmslie, Re, 435, 450 
Elmslie & Co., Re, 437, 445 
Elsam V. Alcoek, 377 
Elsey V. Adams, 77, 79 

— V. Cox, 359, 396 

— V. Lutyens, 396, 397 
Elton V. Elton, 240 
Elwes, Re, 328 

Emden v. Carte, 570, 571, 573 

Emerson v. Dallison, 38 

Emma Silver Mining Co., Re, Re 

Turner, 553 
Enimerson's Case, 278 
Empire Assurance Corporation, Re, 269 
Engleheart v. ]\Ioore, 429, 434 
England v. Codrington, 227 

— V. Downs, 409 

— (Bank of) v. I'ar.sons, 340 
English, Re, 285 

Ennis v. Brad)', 333 

Ei|nitable Keveisionary Society v. 

EuUer, 328 
Ernest v. Govett, 82, 537 

— V. Partridge, 486, 495, 496, 537 
■ — V. "Weiss, 111 

Erskine's Trusts, Re, 313 
E. S., In re, 89 
Esdaile v. reacock, 122 



Esdaile v. Visser, 524, 527 

Estcourt V. JCstcourt Hop Essence Co., 

108 
Etlierington v. "Wilson, 159 
Eton College, E.c parte, 302, 305, 307 
European Jianking Co., Re, 266, 267, 

269 
European Life Assurance Society, AV, 

266 
Evans, Ex parte, 281, 447, 518 

— V. Bear, 528 

— V. Davis, 59, 114, 517 

— V. Debenham, Smith i'. AVliichcord, 
Debenham i'. Lacey, GO 

— V. Evans, 31 

— V. Lewis, 121 

— V, Kosser, 29 

— Trusts, Re, 322 

— v. Wills, 526 
Evelyn v. Chippendale, 8 

— r. Evelyn, 65 
Everett r. Backhouse, 109 
Everson v. Matthew, 372 
Exhall Coal Co., AV', 400 
Eyre, Re, 318, 440 

— r. JMcDowell, 154 

— V. Marsden, 160, 161, 166 
Ezart V. Lister, 392 



F. 



F , Re, 445 

Fagg, Re, 315 
Fairland v. Enever, 563 
Faithful!, lii re, 556 

— r. Ewen, 569 

Fallows c. Lord Dillon, 121 

Fane v. Fane, 409 

Fardon's Vinegar Co. , E.c parte. In re 

Jones, 146 
Farewell v. Coker, 560 
Farina v. Silverlock, 98 
Farington, Re, 439, 484 
Fanpiharson r. I'itchi'r, 'oQ 
Farr v. Sheriffe, 125 
Farrar v. Lord "Wiuterton, 262 
Farrell i\ Gleeson, 110 

— I'. AVale, 136 
Farrow v. Austin, 159 
— • V. liees, 486 
Fawkes v. Pratt, 393 
Fearne v. AVilson, 427 
Fearns v. Young, 5, 353 
Felkin v. Lewis, 66 
Fellowcs V. Deere, 17 
Fellows' Settlement, Re, 324 

— 1'. Barrett, 12 



XXVlU 



TABLE OF CASES. 



Fells, In re, Ex iiartc Andrews, 57 

Felthain, Re, 321 

Feiiiier r. Taylor, 190 

Fontoii, Re, Ex parte Litligow, 517 

— V. Brown, 260 

— V. Crickctt, 480 

— V. Queen's Ferry Co., 87 

— V. Wills, 166 
Fenwickr. Begbic, 492 

Fergus Navigation and Embankment 

Co. v. Kingdon, 88 
Ferguson i'. Gibson, 203 

— r. "Wilson, 95 
Fernandes, lie, 419 
Ferrao's Case, 271 
Fetherstone H. v. West, 406 
Fewster v. Turner, 260 

Fiddey, He, Heinrieh v. Sutton, 572 
Fiddey, Re, Jones v. Frost, 571, 572 
Field, Re, 441, 549 

— V. Churchill, 108 

— V. Great Northern By. Co., 102 

— V. Eobinson, 85 

Fielden v. Northern Ey. of Bnenos 

Ayres, 395 
Fielder v. Higginson, 254, 377 

— and Sumner, Re, 449 
Fife V. Clayton, 259 
Finch, Re, 294 

— Re, Ex imrie I'larton, 452, 454, 455 

— V. Jukes, 330 

— V. AVestrope, 35 
Finden v. Stephens, 29 
Findlay v. Lawrance, 56 

— V. Lawrence, 81 
Finley v. Jowle, 361 
Finney v. Hinde, 523 
Firkins v. Lowe, 214 
Firniin r. Fulhani, 183, 413 
Fisher, Re, 439, 456 

— V. Bunbury, 9 

— V. Brierly, 153 
_ V. Fisher, 84, 295 

— V. Owen, 37 

Fishmongers' L'o., Ex ;farte, 307 
Fitton x\ Macclesfield, 373 
Fitzgerald r. Bult, 214 

— r. Fitzgerald, 382 

— r. Pringlc, 409 
Flagstaff' Co. of Utah, Re, 268 
Flanagan r. Nolan, 179, 180, 412 
Flattery v. Anderson, 372 
Fleetwood v. Green, 257 
Fleming r. Arn\strong, 242, 364 
Flemon's Trusts, 7.V, 305 
Fletcher's Case, 278 
Flintoffr. Haynes, 191 

rlockton V. Feake, 493, 498, 523, 576 
j^lower, Ex parte, 286, 288, 438, 445 



Flower, Re, 352, 437 

— %\ Hartopp, 377 
Fludycr v. Cocker, 261 
Fluker, Re, 437, 440 
Foley, Ex. iHirte, 17 

— r. Smith, 457, 536 
Foligno's Mortgage, Rr, 314 
Foljambe, Re, 456, 457 
Forbes v. Taylor, 109 
Ford and Hill, Re, 330 

— r. Lord Chesterfield, 115, 116, 118, 

224 

— v. White, 116 

Forder, Ex parte. In re Sparks, 396 
Forester v. Read, 37, 96 
j Forshaw, In re, 559 

— '('. Hicginson, 415 
i — V. Weisby, 385 

Forster v. Abraham, 251 

— v. Davies, 4, 490 

' Forsyth, Re, 426, 458, 459, 461 
Fort r. Bank of England, 23 
Fortescue r. Hallett, 534 
Fortune's Trusts, Re, 313, 314 
Forward v. Duffield, 99 • 
Foster, lie, 365, 428, 434, 577 
— , Re, Ex parte Dickens, 502 
— , Re, E.r partr AVaikcr, 449, 451, 454 

— r. l)a\\l)er, 415 

— r. Edwards, 159 

— V. Ganigee, 104 

— V. Koberts, 249 
Fouldsw. Midgley, 216 
Fowler v. Davies, 372 

— V. Fowler, 551 

— r. !Monmonthshire Canal Co., 566 
Fox, Ex parte, 266 

— V. Blew. 20 

— V. Charlton, 539 

— V. Suwerkrop, 86, 354 
Foxen r. Foxen, 159 
Foxon I'. Gascoigne, 571, 572 
Foxwell V. Greatorex, 335 
Fozier r. Andrews, 409 
Fradella r. AVcller, 103, 135 
Frampton r. Webb, 344 
France v. Carver, 492 

■ — r. Cowper, 85 
■ — V. France, 242 
Francis v. Francis, 555 
Frnnk r. Main waring, 352 
Frankland r. Lucas, 394 
Franklin v. Bank of England, 340 
Eraser v. Palmer, 11, 386, 388 

— r. Thompson, 343, 344 

— V. Wood, 380 
Frazer i\ Gordon, 155 

— V. Jones, 222 

— r. Thonipscn, 127, 344 



TAB1J<] OF CASES. 



XXIX 



Fi'casou r. Loe, T)") 

Freeliokl Land, &c., Co. v. .S[iargo, 16, 

21 
Freer v. Hesse, 253, 254, 256 
Friend v. London, Chatham and Dov'cr 

Ry. Co., 139 

— V. Solly, 480, 490, 491, 496 

Fripp ('. Ikidgwater and Taunton Canal 

Co., 57, 384 
Friswell v. King, 552 
Fritz V. Hobson, 50 
Frizell v. Hodgens, 358 
Frowd V. Lawrence, 62 
Fry, Ex parte, 372, 373 

— V. Ernest, 537 

— V. Noble, 217 
Fulham, Ec, 324, 326 
Fuller, Ex 2)arte, lie Long, 555 

— V, Green, 203 

— V. Morgan, 225 
Fulton V. Andrew, 185, 404 
Furber o. Furber, 117 
Furlong v. Scallan, 244 
Furze v. Sharwood, 90 
Fussell v. Ehvin, 76, 91 
Futvoye i\ Kennard, 82 
Fyler v. Fyler, 106, 385 
Fyson, Re, 452, 461 



G. 



Gabriel v. Sturgis, 115 

Gaffney v. Hevey, 206, 350 

Gaitskell, Re, 438 

Galloway v, London (Corporation of), 

417 
Gammon D. Stone, 102, 230 
Gamston (Rector of). Ex parte, 287 
Gann v. Johnson, 547 
Ganteaume v. Labertouche, 22 
Garbutt, Ex parte, 222 
Gardiner's Case, 266 
• — r. Downes, 415 
Gardner v. Garrett, 195 

— V. Marshall, 50, 93 

— V. Parker, 168 
Garforth v. Bradley, 231 

Garey v. Whittingham, 69, 125, 370 
Garnett v. Bradley, 2, 154, 265 
Garth, Ex parte, 67 

— *'. Townsend, 97 
Gaskell, Ex parte, 300 
Gathercole r. Smith, 142 
Gaunt V. Taylor, 125, 200, 201 
Gay's Case. 274 

Geary v. Norton, 103 

Gedge v, Montrose (Duke of), 201 



Gedye, Re, 427, 428, 439, 443, 415 
Gee V. Mahood, 188 

— V. Pearse, 263 
Geils V. Ceils, 156 
General Estates Co., Re, 273 

— Exchange Bank, Jie, 267 

— International Agency Co., 267 

— Share Trust Co. v. Chapman, 55 1 
Georges v. Georges, 552 

Gerrard i\ Dawes, 562, 569 
Giacometti v. Prodgers, 12 
Gibbs V. Daniel, 509 

— V. Gibbs, 221, 577 
Gibson v. Cranley (Lord), 135 

— V. May, 552, 553 
Giddings r. Giddings, 23, 82 
Gilbert v. Cooper, 395 

— V. Golding, 229 

— V. Guignon, 481 

— V. Lee, 180 

Giles r. Hamer, Hamer v. Gile.s, 245, 

521, 569, 573 
Gillani r. Taylor, 167 
Gillctt, Ex 'parte, 3z9 
Gillow V. Rider, 439 
Girdlestono v. Creed, 119, ISO 
Gladstone v. Ottoman Bank, 29 
Glazbrook v. Gillatt, 18 
Glebe Lands of Great Yeldham, Re, 

288 
Glenham v. Stutwell. Re Glendenninc 

314 
Gloucester (Corporation of) r. Wood, 

338 

— Charities, Re, 209 
Glover v. Rogers, 117 
Glynn v. Locke, 219, 220 
Goate V. Fryer, 193 
Godfrey, Re, 438; 

— V. Tucker, 111 

— V. Watson, 236 
Godley, Re, 287 
Godson V. Hale, 155 
Goe, Re, 299, 306 
Gold, Re, 459, 461 

Golding V. Wharton Salt Works Co.. 

34 
Goldsmith v. Goldsmith, 373 

— V. Russell, 202, 359, 397 
Gomley v. Wood, 334, 386, 389 
Gonipertz v. Kensit, 403 
Gooch's Estate, In re, 282 
Goodday v. Sleigh, 77, 81 
Goodford V. Stouehouse Ry. Co., 264 
Goodwin v. Archer, 10 

Gordon v. Trail, 405 
— 's Trusts, Re, 323 
Gore Langton's Estates, Re, C8, 297 
306 



XXX 



TABLE OF CASES. 



Gorely r. Gorely, 6G 
Gough ('. Botevol, 315,^0^3 

— V. Davies, 338 

— r. Ettv, 406 
GoulJ, J!c, 303 

— r. Duminett, 503, 576 

— r. Twine, 8?, 532, 538 
Gover v. Stihvell, 70 
Governesses' Benevolent Institution r. 

Kusbridger, 169 
Gowau V. Broughtou, 166 
Gowers Case, 277 
Go wing v. Mowbray, 116 
Gowland v. De Faria, 248 
Gowrani r. Barnett, 9 
Grace v. Terrington, 189 
Graham i'. Campbell, 145, 153 

— V. Cole, 241 

— r. Graham, 139 
" — V. Horn, 227 

— V. Maxwell, 194, 195 

— V. Wickham, 182, 404, 481 
Grand Trunk, &c., Ky. Co. (Official 

Manager of) r. Brodie, 271 
Grandiu v. Haines, 578 
Grant v. Banque Franco-Egyptienne, 

52, 141, 142, 509, 510 

— V. Holland, 556 

— V. Ingram, 24 
— 's Trusts, lie, 325 

Gray r. Adamson, 115, 351 

— r. Campbell, 534 

— V. Forbes, 156 

— V. Gray, 381 

— V. Lewis, Parker v. Lewis, 107, 108 

— Be, Ex iMTtc Incorporated Law 
Society, 89 

— V. Warner, In re Biel's Estate, 172 
(Jreat Eastern Ky. Co. v. Norwich and 

Spalding l!y. Co., 501 
Great Norlhern Copper JMining Co., 

He, 268 
Great Northern Ey. Co., Ex parte, 

311 
Great Southern and Western Ry. Co., 

Ex parte, 284 
Great Western By. Co. r. I\Ietropo- 

litau By. Co., 31 
Greaves c. Fleming, 101 

— V. Keeue, 534 

Greedy r. Lavender, 124, 125, 187, 188 

Green c. Badley, 344 

_ V. Briggs, 335, 492, 494 

— V. l)usby, 175 

— V. Cliarnock, 8 

— V. Gascoyne, 167 
— - V. Mercer, 243 

— r, Otte, 341, 368 

— r. Sevin, 264 



Greening v. Greening, 504 
Greenwood r. Churchill, 480 

— V. Wakeford, 415 
Greg, In re, 392 
Gregg, He, 431 

— V. Slater, 102, 238 

— V. Taylor, 440 
— 's Case, 278 
tiregory r. Bessell, 341 
tJregson, Re, 552 

— 's Trusts, Ik, 308 

Gresham v. Price, 183 

Gretton r. Jlees, 104 

Greville v. Greville, 139 

Gridley v. Austen, 429, 434 

Griersou i: Astle, 183 

Griffin, Ex lyarte. In re Adams, 134 

— V. Allen, 67, 147 

— V. Brady, 135, 410 
Gritliths v. Griffiths, 556, 559 

— V. Bicketts, 10 
Grigby v. Cox, 370 
Grills r. Dillon, 106, 143 
Grimes v. Harrison, 577 
Grimsby r. Webster, 72 

Grimwade r. Mutual Society, /.V Mu- 
tual Society, 278 
Grove v. Bastard, 255 

— r. Sansom, 440 

— V. Young, 346, 347 
Grover r. Hugell, 259 

Grundy, Kershaw & Co., He, 460, 507 
Guilden Sutton (Incumbent of). Ex 

parte, 287 
Guilfoyle v. Hutchinson, 44 
Gunnell r. AVhitear, 320, 414 
Gunston v. East Gloucester.«hire By. 

Co., 259 
Gurney r. Jackson, 116 
Guy V. Guy, 80, 354, 358 
Gwynne v. Heatoji, 248 
Gwyther r. Allen, 165, 168 



H. 

H— , Fw, 558 

Haberdashers' Co. r. Attoniey-General, 

210 
Habergham v. Stansfeld, 244 
Haigh, Re, 505 

— V. Ousey, 434 
Hair, Rr, 438, 441, 506 

— r. Woodbridge, 36 
Haire v. Levitt, 293, 3u4 
Hakewill, Ex parte, 365, 373, 375 

— r. Webber, 137 
Haldenby v. Spofforth, 182, 407 



TABLE OF CASES. 



XXXI 



Hale r. Saloon Omnibus ( 'o. 221 
Hall aiul JJarker, Tlr, 444 

— r. Bennett, 88 

— v. Bushill, 262 

— V. Hall, 377 

— V. Hallet, 179, 408 

— ?'. Hoddesdon, 216 

— c. Laver, 89, 257, 391, 561, 564 

— V. Ley, lie Heiron's Estate, 59, 517 

— V. May, 251 
Hallett, Re, 463 
Halliley r. Henderson, 139 
Hallinan r. Price, 131 
Hallows V. Fernie, 491 
Halsall, 7.',-, 437 

Halstead United Charities, Re, 68, 297 

Ham's Trust, Re, 321 

Hamer v. Giles, Giles v. Hanici', 245, 

521, 569, 573 
Hameitou v. Rogers, 233 
Hamilton (Duke of) v. Incledon, 556 

— r. James, 125 

- — V. Littlejohn, 154, 156 
— 's Ironworks Co., Re, 274 
Hammond v. Messenger, 29 

— r. Neanie, 341 
Hampsliire v. Bradley, 413 

— Milk Co., Re, 277 
Hampson v. Brandwood, 95 
Handley v. Davies, 168, 183, 319 
Hankin r. Turner, 536 
Hanmer v. Mangles, 7 
Hannaford r. Hannat'ord, 559 
Hannani v. South London Waterworks 

Co., 81 
Hanslip x\ Kitton, 485 
Hanson v. Lake, 261 

— V. Keece, 564 
Harbin i'. Darby, 390 
Harborough (Earl of), Ex 2)arte, 287 
Hardey i'. Hawkshaw, 97 
Harding, Re, 456 

— V. Harding, 381 

— v. Tingey, 30 
Hardingham v. Thomas, 35 
Hardwick r. Hardwick, 176 

— V. Wright, 51 
Hardwieke, Ex parte, 289 
Hardy r. Eekersley, 107 
— 's Estate, Re, 307 

— r. Hull, 94, 130 
Harford r. Furrier, 254 
Hargreaves i: Scott, 489 
Harland v. Garbutt, 123 
Harle, Re, 445, 455 
Harlock v. Ashberrj', 142 
Harloe r. Harloe, 172 
Harmer v. Harris, 127, 190 

— V. Priestley, 105, 230 



Harnett v. Vise, 102 
Harper, J!e, 448, 457 

— i: Scrimgeour, 524 
Harpham v. Shaeklock, 145, 153 
Harries, Re, 448 
Harrington v. Long, 395 

Harris, £x parte. In /v James, 144 

— V. Aaron, 146, 157 

— V. Hamlyn, 343 

— V. Harris, 103, 217 

— V. Hilliard, 47, 50 

— V. Petherick, 96, 102 

— V. llich, 196 

— V. Start, 440 

Harrison, Re, 144, 451, 454, 455 
— 's Estate, Re, 303 

— V. Coppard, 264 

— V. Cormvall Minerals IJy. Co., 92, 
146 

— V. Harrison, 176, 188, 347 

— V. Leutner, 67, 75, 485 

— i\ Pennell, 116 

— ?'. Wearing, 493 

Hart r. Spencer, In re Spencer, 430, 

457 
Hartland v. Murrell, 550 
Hartmont r. Foster, 158 
Hartley, Re, 459, 460, 506 
Harvey v. Hall, 530 

— V. Harvey, 183 

— i\ Mayhew, 427 

— V. Mount, 385 

— V. Tebbutt, 227, 232 
Haslam v. O'Connor, 492, 496 
Hastings v. Jugges, 370 

— (Corporation of) v. I vail, 141 
Hatch L\ Searies, 192 
Hattield, iic, 297 

Hatton V. Haywood, 518 
Hawke v. Kemp, 71 
Hawkins v. Gardiner, 86 

— V. Parsons, 245 
Hawks V. Hawks, 540 
Hay V. Bowen, 168 
— ■ V. FaiT, 56 
Haycock's Policy, Re, 317 
Hayes v. Bailey, 253 
Hay how v. George, 410 
Hayne v. Cavell, 500 
Haynes v. Ball, 534 

— V. Barton, 291 

— V. Cooper, 562, 568 
Hays V. Trotter, 506 

Hay ton v. Kirby, Kirby v. Carter, 571 
Hayward's Estate, Re, 284 
Headington's Trust.s, Re, 316 
Heap V. Jones, 402 
Heard v. Cuthbert, 327 
Hearn v, AV'ells, 396 



XXXll 



TABLE OF CASES. 



Heather, R<; 432 
Heatly i\ Newton, 119 
Heinrich, The, 568 

— i: Sutton, 126 

— r. Sutton, Re Fiddev, r>7-2 
Heighington *•. Grant, 129, 130, ISl 
Heiron's Estate, Hi', Hall c. Lev, 59, 

517 

— V. Hobson, 563 
Heining i\ Leifcliil.l, 480 
—'s Trusts, He, 313, 314 
Hemming, Ej: parte, 456 

— V. Wilton, 427 
Henderson v. Atkins, 23 

— r. Dodds, 202 
Heneage r. Aikin, 69 
Hennet v. Luard, 77 
Henley v. Philips, 411 
Henniker v. Chafy, 291, 292, 294 
Henshall i'. Fereday, 385 
Hensnian v. Fryer, 176 
Hepworth v. Heslop, 199, 225 
Herbert i: Hedges, 243 

Held r. Lupton, 56 

Hereford (Bishop of) i\ Adams, 206 

— Waggon Co., Re, 268 

Heritage, Re, Ke iHirte Docker, 453, 
460 

Herman r. Dunbar, 382' 

Hermitage v. Kili)in, 526 

Heme Bay Waterworks Co., In re, 71 

Hertford (Borough of) r. Toor of Hert- 
ford, 210 

— Charities, Re, 69 
Heseltine r. Simmons, 252 
Heslop v. Jletcalfe, 558 
Heugh r. Scard, 180 
Hew-ett V. Foster, 182, 408 
Hewison r. Kenniir, 56 
Hewitson r. Sherwiu, 525, 527 
Heywood r. (hazebrook, 188 
Hibberson r. Cooke, 63 

— r. Fielding, 214, 342 
Hide r. Haywood, 182 
Higginbottom r. Aynsley, 55, 80 
Higgins V. Frankis, 116 

Higgs V. Schroder, 572 
Hill V. Evans, 246 

— V. Fullbrook, 242 
_ V. Gaunt, 83 

— v. Hibbit, 494 

— V. Magau, 396 

— r. Metropolitan Asylums Board, 
498 

— r. reel, 495, 503 

— V. Eatty, 169 

— r. Pieardon, 7 

Hill's Executors ?•. iManagers of Metro- 
politan Asylum District, 147 



Hilliard i\ Fulford, 171, 184 
Hilton r. Lord Granville, 10 

— V. AVoods, 395 
Hinckley v. Appleby, 124 

Hind V. Whitmore, 13, 47, 365, 537 

— Re, Ex parte Sharp, 526 
Hinde V. j\[orton, 57, 83 
Hinder v. Streeton, 262 
Hindle r. Taylor, 92 
Hinton, Re, 439, 440 
Hiorus I'. Holtom, 116, 228 
Hirst v. Procter, 40 
Hitchens v. Tate, 430 
Hitchman c. Stewart, 110 
Hobhouse v. Hollconibe, 384 
Hobson V. Neale, 338 

— I'. Shearwood, 561 
— 's Trusts, In re, 282 
Hoby V. Hitcheock, 8 
Hoddel r. Pugh, 263, 351 
Hodge, Ex 2»(rte, 304 

Hodges r. Croydon Canal Co., 231 

— V. Hodges, 28, 50, 93 

— V. Smith, 219 
Hodgson, Re, 321 

■ — V. Hodgson, 515, 532 

— V. Shaw, 379 

— V. Smithson, 149 
Hodson r. Carter, 261 

— c. Cash, 126 
Hogan, Re, 393 

— V. Morgan, 364 

Hoggart V. Cutts, 219, 220, 221 
Hoghton V. Hoghton, 120 
Holbrooke v. Cracrafr, 536 
Holcombe r. Trotter, S3 
Holden, Re, 290 
— 's Case, 273 ' 

— Estate, Re, 302 

— r. P.urnell, 186 

— V. Holden, 373 

— V. Kynaston, 85, 86 

— f. Waterlow, 48 
Holditch V. Carter, 453 
Holford r. Phipps, 413 
Holgate V. Haworth, 170, 180 
Holkirk r. Holkirk, 75 
Holland, Ex jnirlc, 321) 

— Re, 439, 440 

— V. Gwynne, 440 

— r. King, 377, 378 

i HoUoway r. York, 60 
Holman's Settlement, Re, 311 
Llolmes v. Magrath, 434 

I Holrovde and Smitli, Re, 432 

I Holt, 'in re, 64, 529 

I Hohvood r. Bailey, 256 

j Holworthy v. Jlortlock, 563 
Holywell (Rector of), Ex parte, 287, 308 



TABLE OF CASES. 



XXXlll 



. Home Assurance Association, In re, IS, 
21, 268 

— Investment Socidy, Er, 2r2, ill 
Honiball v. Jiloomer, 246 

Hood V. Oglander, 251 

— r. riiillips, 87 

— V. Wilson, 202 
Hoole v. Roberts, 72 
Hooper, Ex yartr, 28i 

— r. Hooper, 181 
Hope, Rr, 530, 566 

— V. Carnegie, 58, 158 

— V. Fox, 368 

— r. Lidtlell, 45, 551 
Hopewell r. Barnes, 522 
Hopkin V. Ollard, 29 • 
Hojikinson r. Ellis, 167 

— V. Roe, 405 

— r. Rolt, 151 

Horbury Bridge Coal Co., Re, 269 
Hordern, Ex parte, 298 
Hore V. Smith, 291 
Horlock V. Priestly, 396 

— I'. Smith, 237, 456, 502 
Hornby v. Card well, 120, 159 

— V. Matcham, 229 
Home, £x2K(rfe, 222 

— V. Home, 202 

— V. Shepherd, 178, 555 
Horner v. Oyler, 577 
Horrocks v. Ledsani, 233 
Horsley v. Cox, 492 
Horsnail r. Bruce, 526 
Hosking r. Nicholls, 112, 360 
Hoskin's Trusts, In re, 158, 315 
Hoskins v. Campbell, 195 
Hough V. Edwards, 521 

Househill Coal & Iron Co. r. Xeilson, 

154 
Houseman v. Houseman, 97, 185 
Hovey v. Blakeman, 405 
Howard, Re, 435 

— V. Bank of England, 339 

— r. Easton, 179 

— V. Queen's Trustees, 222 

— V. Rhodes, 415 
Howell V. Tyler, 502 
Howley r. Cook, 250 
Hubbard, Re, 452, 454, 480 

— V. Latham, 189 
Hubbart r. Phillips, 88 
Hudson V. Bennett, 102 

Hue, Ex peirte, Ex parte ^-aMovi, 278 

— Re, 313 

Hughes V. Birkenhead Commissioners, 
494 

— I'. Key, 124, 126, 403 

— V. Meyrick, 496, 503 

— V. Murray, 444, 447, 453 



Hughes V. Rogers, 561 

— r. Spittal, 42 

— r. Wynne, 379 
Huguenin v. Basclcv, 385 

Hull and County Bank, Re, 143, 267 
Hull and Sdby Ry. Co., Re, 286, 291 
Hull Drajieiy Co., Re, 270 
Humbcr Iron AVorksCo., Re, 266, 269 
Humphrey v. Grey, 99 

V. Morse, 200 

Humphrys r. ]\Ioore, 6 
Hungerford's Trusts, Re, 284, 297 
Hunt V. Fownes, 236 
Hunter r. Daniel, 541 

— v. Pring, 384 
~ V. Wortley, 540 
Huntingtower (Lord) r. Sherborn, 84 
Hurle's Settled Estate.?, Re, 331 
Hurst V. Hurst, 118 

— V. Pad wick, 10 
Hussey r. Home Payne, 144 
Hutchins and Romer, Ex paric, 142 
Hutchinson r. Freeman, 189 

— V. Swift, 11 

— 's Trusts, Re, 319 
Hutton r. Sealy, 226 
Hyatt !'. Hyatt, 174 
Hyde, Ex parte, 283 

— V. Dallaway, 255 

— I'. Warren ' 221 



I, 



Ilderton, Re, 438 
Illingworth v. Nelson, 196 
Imperial Assurance Society, Rr, 268 
Imjicrial P>ank of China r. Bank of 

Hindustan, 21 
Imperial Land Co. of Marseilles, Re, 

45 
Imiierial IMcrcantilc Credit Association, 

Re, 277 

— Liquidators of, v. Coleman, 386 
Incorporated Law Society, Ex parte. 

Re Gray, 89 
Ingle, 7.V, 417, 427, 439, 440, 448 

— V. Partridge, 56 

Inglis V. Mansfield, 152, 160 

Ipstone Park Co., Re, 139 

Irby r. Irl>y, 128, 173 

Ireland r. Eade, 382 

Irlam r. Irlam, 469 

Irving V. Viana, 565 

Irwin i'. Rogers, 39' 

Isaac, Re, 61 

Isaacs Ex parte, In re Baum, 143 

Ivimey v, Marks, 434, 435 

Ivory, In re, 143 



XXXIV 



TABLE OF CASES. 



Jackman r. ]\Iitcliell, 109 ' 

Jackson V. Davoiipoit, 10 

— V. Ivimey, 81 

— r. Leaf, 193, 196 

— V. Mawby, 57, 'iS, 533 

— r. Korth Eastern Ky. Co., S3 

— r. Pease, 177 

— v. Purnell, 81 

— V. AVoolley, 401 
Jacobs v. Hooper, 27 

James, Lt re, Kc pnrte Harris, 144 

— lie, 281, 447 
V. Crow, 136 

— V. Dore, 373 

— r. Harding, 235 

— V. James, 198, 350 
_ V. Riimsey, 229 
Jameson, Ex parte, 329 
Jamiesou v. Teague, 103 
Jarman, Er parte, 435, 443 

— r. Chattcrton, 15S 
^'s Trusts, In re, 201 
Jeaffreson, Ex parte, 278 
Jcir Davis, The, 562 
Jeflersou r. AVarrin;;tnn, 437 
Jefferys v. ^Marshall, 163, 410 
Jeffreys v. Evans, 430, 547 

Jetii-ycs v. Agra and Mastermau's Bank, 

114 
Jellicoe v. Price, 93, 164 
Jenkins v. Blake, 545 
_ V. Fereday, 391 
— r. Sandys, 536 
— 's Trusts, Br, 318 
Jenner v. Maiiis, 45, 70, 539 
Jennings r. Johnson, 419, 422 
Jenour v. Jenour, 160, 169 
Jerdein r. Bright, 62, 87 
Jessop, Re, 459, 461 
Jewitt, Ec, 443 
Jej'es V. Jeyes, 566 
Job V. Bannister, 110 
Johnson v. Clarke, 115 

— V. Gallagher, 367 ^ 

— r. Gardiner, 345, 348 

— r. Ogilby, 395 

— V. "Woods, 167 
Johnston r. Todd, 97, 175 
Johnstone r. Cox, 1_59, 160, 224 

— r. Hamilton, 167 

Joint Stock Coal Co., Re, 269 
Jolliffe, Ex parte, 305 

— Re, 285 

— V. East, 165 

— 's Estate, Re, 299 
Jones, Ex parte, 68, 297 



Jones, Re, 89, 239, 240, 289, 316, 321, 
326, 327, 395, 427, 432, 450, 451, 
461 

— , Ee, Jones r. Caless, 176 

— V. Batten, 50 

— c. Brain, 195 

— r. Chennell, Inrc Chenncll, 6, 158, 
171, 398, 409 

— V. Charlemont, Earl of, 64 

— V. Ccxeter, 124 

— r. Farrell, 99, 114, 128 

— r. Fawcett, 13 

— r. Frost, Re Fiddev, 571, 572 

— V. Gilham, 219 

— V. How, 97 

— r. James, 442* 

— r. Jones, 194 

— r. Lewis, 263, 307, 352, 413 

— V. IMitchell, 167 

— V. I'owell, 354 

— r. Khind, 116 

— V. Kicketts, 106, 250 

— V. Roberts, 427 

— r. liobinsou, 240 

— 's Settled Estates, Re, 286, 309, 497 

— r. Tinney, 85 

_ 's Trusts, R(, 298 

— V. Welch. 245 

— r. "Williams, 523 

Jop])s Case, Re Peninsular Bank, 53 
Joseph r. Goodc, 189, 202 

— Peace & Co. , Re, 272 
Joyce r. De Moleyns, 188 
Judd f. Green, 24, 143 

— r. Plum, 577 
Julia Fisher, The, 20 
Jupp V. Cooper, 517 
Justice, He, 432 



Kane r. Reynolds, 338 
Kanitz !'. Scarborough, 143 
Kathleen Mavourneen, Ee, 141 
Keane, Re, 367, 568, 572 
Keegan r. Keegan, 7 
Kcene v. Ward, 434 
Kelly V. P.yles, 147, 498 

— V. Hodge, 140 

— r. Hooper, 103, 135 
Keniball r. Walduck, 81 
Kemj. *•. Burn. 163, 183 
Kendal r. Baron, 535 
Kendall v. Marsters, 51 
Kenebel v. Scrafton, 224 
l^ennaway v. Tripp, 8 
Kennedy r. Edwards, 23 



TABLE OF CASES. 



XXXV 



Kcnrick r. "Wood, 364, 4. SI 
Kensington, Ijonl, v. ilelropolitan Ry. 

Co., 103 
Ker, iJf, 432 
Keruot r. Critclilcy, 35 
Kerr v. Duclicss of JMiinster, 7 

— V. frillcspie, 13 
Kettlewell r. IJarstow, 553 
Kevan v. Crawford, 96, 369 
Keynsham Co., 7iV, 273 

Kidstone v. Empire Insurance Co., 4S9 
Killing ?'. Killing, 533 
Killveiiny Ily. r. Feilden, 7 
Kilmin.ster r. Noel, 70 
King, Ec, 341 

— V. Bryant, 203 

— '.s College, E.r parte, 305 

— V. Corke, 34 

— V. Hammett, 203 

— of Hanover v. Bank of England, 339 

— r. King, 61, 121, 148, 194, 258, 413, 
414 

— V. Sandeman, 52, 90 

— V. Savery, 468, 481 

— V. Smith, 239, 326 

— V. Taylor, 169 
Kingsman v. Kingsnian, 14, 361 
Kinneir, Ilr, 451 

Kinsman v. Jack.son, 51 
Kintrea, Et pnrfr, 279 
Kirby ;•. Carter, Hayton r. Kirliv, 571 

— r. Mash, 414 
Kirkham v. Smith, 228 
Kirknian v. ]>ooth, 405 
Kirkwood r. Welistcr, 491,. 497 
Kitchener r. Kitchener, ISS, 33S 
Kitto V. Lnke, 174 

Kitten, Jir, 438 

Knapman's Estate, T/i re, Knapman v. 

Wreford, 170 
Knight V. Cory, 10, 11 

— V. Martin, 183, 412 

— r. Pursell, 130 

— 's Trusts, Me, 313, 315, 323 
Knockers, Re, 461 

Knott V. Cottoe, 128, 408 
Knox r. ]5rown, 18, 77 

— V. Knox, 547 
Krehl r. Park, 9-; 476 
Kyna-ston v. Mackinder, 101 



L. 



L., falsely called H., v. H., 545, 547 
Laclilan v. Reynolds, 381 
Lafitte & Co., 7?) re Chas., 42, 487, 492 
La Grange r, McAndrew, 24, 81, 82 



Laing v. Zeden, 219 
Laird v. Tobin, 333 
Lake r. 'Eastern Counties Fy. Co., 280, 

310 
Lake Megantic, The, 15 
Lainl) V. EaniPS, 52 
Lambe v. Fottrell, 11 
Lambert i'. Buckmaster, 557 

— V. Fisher, 100 

— r. Hill, 65 

— r. Peyton, 156 
Lambeth Charities, Ee, 212 
Lampert r. Larapert, 368 
Lancashire i\ Lancashire, 70, 351, 414 
Lancashire & Yorkshire Ry. Co. v. 

Evans, 77, 80, 110 

— V. Gidlow, 547 
Lancaster, E; 14, 365 
Lancetield ?'. Iggulden, 192 

Land Credit Co. r. Lord Fennoy, 509, 

515 
Land's Trusts. Ee, 303 
Landars v. Allen, 58, 63 
Landed Estates Co. v. Weeding, 135 
Laudell v. Baker, 240 
Lander ;-. Inger.soU, 359, 392 

— V. Parr. 8, 13 
Lane v. Glenny, 430 

— V. Sterne, 57, 384 

— 's Trusts, Ee, 317 
Langdale v. Langdale, 75 
Langford, Ec, 329 

— V. ]\[ay, 45 

Langham r. (ireat Northern Ry. Co., 78 

— Skating Rink Co., Ee, 268" 
Langley, Rr parte, Ex petrtc Smith, hi 

re Bishop, 57 

— V. Fisher, 31, 106 
Langridge v. Campbell, 104 
Lann v. Church, 561 
Larkins v. Paxton, 203 
Latham v. Hyde, 427 
Lathropp's Charity, Ee, 287 
Latta, Ee, 7, 17, 21 
Laugharne Ry. Co., Ec, 329 
Lauretta, The, 146 
Laurie v. AVilson, 494 

Lautour v. Holcombe, 22, 23, 82, 536, 

537 
Laver v. Fielder, 108 
Law, Ee, 440 

— I'. Rigby, 195 
Lawes i'. Gibson, 107 
Lawley v. Hooper, 227 
Lawrence i'. Bowie, 182, 406 

— r. Fletcher, 565 
Lawson, Ex parte, 282 

— V. Dickenson, 554 
Lawton r, Lawton, 193 

C 2 



XXXTl 



TABLE OF CASES. 



Lawton r. Price, 42, 149 

Lazarus, Re, 319 

Leach v. Westall, 211 ' 

Leadbittcr, Re. 463 ! 

Leader, The, 5(32, 569 

Leah, i.V. 551 

Leake's Trusts, Rv, 313, 318 

Leather Cloth Co. v. Araericau Leather 

Chjth Co., 99, 108 
■ — V. Bressey, 35 
Lechiiiere v. Brasier, 381 

— r. Brazier, 203 
Lecky r. jMiuray, 216 

Lecocq v. South Eastern By. Co., 495 
Lee, E.r iKirtc, 558 

— r. Brown, 107 

— Conservancy Board v. Button, 498 

— V. Delane, 97 

— V. Hamraerton, 31 

— %\ Nuttall, 144 
_ V. Bain, 134 

— 's Trusts, Re, 328 
Leeilham r. Chawner, 400 
Leeds Banking Co., Re, 515 

— V. Lewis, 139 
Lees, Re, 427^_459 

— V. Lees, 177 
Lef?g V. Mackrell, 402 
Legqe's Estate, Re, 294 
Leigh, Re, 294, 305 

— 's Estate, Re, 300 
Leighton k Bennett, In re, 45 

— V. Leighton, 97 
Leman v. Alie, 349 
Leonard r. Attwell, 58 
Leslie's Trusts, Re, 328 
Lester ?•. Lazarus, 429 

Le Texier v. Maigravine of Anspach, 385 

Lett, Re, 438, 453, 481 

Levett r. Letteney, 59 

Levi V. Heritage, 81 

Levick, Exiwrte, 272 

Lewes, Re, 239, 324, 327 

— Earl of, i-. Barnett, 528 
Lewiu, liV, 438 

— V. Guest, 254 

Lewisite, i^.^; ^^r^e Munro, 418 

— V. AUenby, 350 

— V. Armstrong, 66 

— V. Boetefeur, 167 

— r. John, 227, 237 

— V. Lewis, 380 

— r. Loxham, 98, 253 

— r. Mattliews, 189 

— r. Primrose, 434 

— V. Smith, 49 

— V. Webber, 230 

Leyland v. lllingworth, 260, 378 
Liberia (Republic of ) r. Koye, 63 



Lietch and Kewuey, Re, 310 

Life Association of Eughind, /a, 273 

Lill V. Pvobinson, 103 

Lilley %: Medlicott, 412 

— 's Trusts, Re, 304, 485 
Lillie V. Legh, 108 

— r. Lillie, 9 
Lincoln r. AVindsor, 388 

Lind r. Isle of Wight Ferry Co., Ill 

Lindsay, Re, 398 

Lindsey r. Tyrrell, 359 

Liuford r. Gudgeon, 578 

Lippard v. Kic-ketts, 539 

List's Case, 59 

Lister r. Bell, 140 

— r. Leather, 77, 246 
Litchlield v. Brown, 254 
Lithgow, Ex- parte. Re Fentoii, 517 
Littlehales v. Gascoyne, 406 
Littlewood r. Collins, 71 

Liverpool Improvement Act, Re, 285, 

310, 327 
-- kc. By. Co., AV, 305 
Livingstone v. Cooke, 534 
Llanover r. Homfray, Phillips r. Llan- 

over, 158 
Lloyd r. Cocker, 92 

— V. Dimmack, 83 

— r. Jones, 571 

• — V. ]\Iackworth, 122 

— I'. Makcani, 17 

— r. Mason, 564, 565 

— V. Solicitors & General Life Assur- 
ance Co., 63 

— r. Spillet, 411 
Lock r. Bronrley, 342 

— r. Lonias, 116 
Lockett V. Carv, 45, 551 

, Lockhart r. Hardv, 178, 438 

— V. Eeilly, 407 

I Lodge r. Pntchard, 398, 412 
Loftus T. Swift, 223, 227, 230 
Lomax, Re, 305 

Lombard Deposit Bank, Re The, 273 
London Assurance Co. r. Hankey, 215 

— &c. Co. r. Elworthy, 56 

— & Australian Agency Co., Re, 269 

— Bank of Australia r. Lempriere, 
106 

— Bishop of, E-x parte, 161, 289, 299, 
300 

— & Birmingham By. Co., Re, 498, 
499 

— Birmingham, .'ic Bucks By. Act, Re, 
481 

London & Blackwall Bv. Co. v. Limehouse 
Board of Works, 65, 70 

— & Brighton By. Co. v. The Shrop- 
shire Rv. Co., 300 



'I'ABI.K OF CASES. 



XXXYU 



I.oiidoii vi;: |jrit,'Iiton, ki\, Wv. ''<i., A'/', 
287, :}00, :]iir) 

— Chatham, it Dover Ry. Co., A'r 
parte, ;3] 1 

— (Corporation of), Ec pttrte, .'JOl 

— Miuiiie liisiiraiKie Association, Re, 
274 

— Peniiauoiit i>eiii'lill')uihlii)g Society. 
Rr, -2(5 (J 

— k Provincial IJank c. liogle, ."JOG 

— & St. Katlu'riiic's Docks Co. v. 
Metropolitan lly. Co., 40 

— k South Western Rv. Co., Rr ]h'rl\ 
295 

— & Southwestern liy.Co. 's Act, /^^ 239 

— & South Western ky. Co. v. Bridger, 
262, 285 

— & South Westi-ru Ry. Co. v. James, 
110 

— & Suburban Bank, Re, 26(i, 2fj9 
Lonergan v. Itokeby, 8 

Loug V. Collier, 256 

— V. Crossley, 34 

— V. Storie, 537 

Long's Estate, Re, 288, 291, 294 
Longinotto v. M(jrss, 261 
Longman v. Harliam, 79 
Loiiguet V. Hockley, 200, 323 
Longworth's Estate, Re, 284 
Lonsdale v. IJerchthold, 168 
Loomes v. Stotherd, 178 
Lord V. Kellett, 89 

— r. Loi'd, 108, 169 

— ('. Wormleightou, 557 
Lorimer, Re, 321 

— r. Lorinier, 537 
Loughborough, Re, 427, 455, 456 
Loughton, Ex parte Hector of, 307 
Lovat v. Duke of Leeds, 331 

— V. Fraser, 173 

Loveband's Settled Estates, Re, 304 
Lovell V. Galloway, 215 

— V. Yates, 54 
Low V. Carter, 179 
Lowe's Case, 279 
Lowndes v. Davies, 563 

— V. Koliiuson, 22 
Lowry's AVill, Re, 286 
Lows, E.e parte, 136, 147 
Lowson ('. Copeland, 414 
Lucau (Lord) v. Latouche, 9 
Lucas V. Calcraft, 217 

— r. Peacock, 491, 492, 495, 561 

— V. Roberts, 433 

— V. Siggers, 60 

Luckcratt c. Pridham, 16 J, 167, 176 
Lumley y. Hughes, 10 
Luscoinbe v. Callaglian, 219 
Lutsclier, In re, Ea parte Waddell, 45 



Lu.xton e. Stephens, 349 

l-Vall r. Weldhen, 59 

Lvdall r. iMartinson, 34, 90 

Ly.Idon c. Moss, 430, 550 

Lye's Estates, Re, 289, 29!t 

Lyle V Lord Yarborough, 255, 256, 260 

— V. Scarth, 230 

Lyiie e. l^yne, 242 

Lynn i\ Peaver, 97 

Lyon r. Haluu-, 387 

iivse c. Kingdon, 183, 414 



M. 



M. In re, 533 
ALicarthy v. ]\Iacarthy, 168 
JIacartney v. Graham, 94, 110 
Macdonald's Will, Re, 307 
Macgregorr. Keily, 429 

— V. Shaw, 19 
Mackay v. Douglas, 397 
Mackenzie v. Taylor, 171, 354, 355 
Maekersy v. Ramsay s, 154 
Mackinlay, Re, 199 

Mackley r. Chillingworth, 488 
Mackrellv. Hunt,\>16, 264, 381 
Maclean, Re, 316 
Macneal v. Eiggart, 15 
Macrae v. Ellerton, 197, 225 
Macyntiro i'. Council, 26 
McAndrew v. Passett, 103, 106 
McAulay v. xVdani, 160 
McCarthy v. (lould, 520 
McHenry v. Davies, 362 
Mclver's Claim, 280 
McKewau c. Sanderson, 62 
McLaren v. Home, 487, 503 
]McMahon v. Purchell, 155 

— V. Leonard, 156 

! McNaughtan i\ llasker, 78 

I McNichol V. Kav, 256 

I McQueen i\ Farquhar, 114, 251, 25/ 
McVeagh, Re, 328 
Maddison v. Chapman, 175 

— V. Pyp, 176 

Madrid Bank v. Pelly, 272 
Magennis v. Fallon, 381 
Major V. Aruott, 13 

— V. Major, 69, 178 

Malcolm i'. O'Callaghan, 382, 383 

— r. Scott, 120 
Maiden v. Fyson, 253 
Maling r. Hill, 114, 251 
Malins v. Greenway, 87, 401, 541 

— r. Price, 99, 498 
Mallorie's Case, 278 
Man V. Rieketts, 347, 545 



•XXXYlll 



TABLE OF CASES. 



Manchester (Dean and Canons of), Ex 

parte, 289, 299 
Manchester Burial Beard, Kc parte, 299 
Manchester & Leeds Ry. Co., lie, 485 

— k Sonthpovt Ey. Co., lie, 286 
Mandeno r. Maudeno, 177 
Mander, He, 437, Hi 

Mann v. Harbord, 488 

— V. King, 40 

— V. Perry, 529 
Manning r. Glyn, 429 
Manson r. Baillie, 3S8 

— V. Burton, 84, 342 
Mant V. Smith, 429 
Manton r. Roe, 75, 85 
Maplcson v. Masini, 19 

Marbella Iron Co. v. Allen, 157, 396, 

545 
Marcus v. General Steam Navigation 

Co., 499 
Mare v. Lewis, "394 
Margravine of Anspacli r. Noel, 257 
^Laries v. Alaiies, 87 
Marino Investment Co., 7?c, 277 

— Mansions Co., Jie, 274 
Mark's Trusts, Jlc, 289 
Markwick v. Pawson, 48 
Marlborough Club Co., He, 266, 267, 

268 
Marner's Trusts, He, 322, 331 
Marriott i: Marriott, 38, 61, 348 
Marris v. Ingram, 526 
Marron Paper Co., Ee, 269 
Marrow, He, 239, 326 
Marryatt v. Bank of England, 339 
Marsack v. Reeves, 49, 248 
^tarsden v. Lancashire & Yorkshire Ry. 

Co., 101 
Marsh v. Dunlop, 119 

— 's Case, 275 
Marshall, ^i'i^rt We, 286, 290 

— , He, Bowyer v. Marshall, 137 

— V. Berridge, 145 

— V. Bremner, 171 

— V. Grime, 92. 177 

— r. Holloway, 390 

— V. Sladden, 386, 410, 415 

— v. Smith, 218 

Martnuo r. Mann, 14, 20, 361 
Jilartin. Ex xxirte, 329 

— V. Maugham, 190 

— V. Persse, 402 

— V. Pvcroft, 45 

— l: Whitmore, 372 
Martindale v. Falkner, 434 

— V. Lawsou, 87 
Martineau i'. Rogers, 169 
Marwick, Ex parte. Re Story, 464 
^laiyLdione Imjirovement Act, He, 283 
Maryport k Carlisle Ry. Co.. Hi', 300 



Mash, He, 451, 454 
Mason v. Bogg, 198 

— V. Brentini, 131, 492 

— r. Franklin, 91 

— c. Hamilton, 219 

— and Taylor, In re, 555 

— 's Trusts, He, 322 

— 's Trust Estate, He, 289 
Massev, Re, 270, 271, 457, 461 

— i: Allen, 21 

— l: ilassey. 181 

— r. Moss, "188 
Masters, Exjmrte, 144 
Mathew r. Mathew, 194 
]\Iathews v. Chichester, 10 
Matthew r. Northern Assurance Co., 317 
Matthison r. Clarke, 387, 405 
Mavor r. Dry, 35 

Maw V. Marsden, 54 

— V. Pearson, 479 
Maxwell r. ]\laxsvell, 153 

— r. AVightwick, 117 
May, He, 431, 442 

— V. Armstrong, 410 

— r. Biggenden, 162, 506 

— 's Case, 272 
Mayd r. Field, 173 

ilaVhew, In re, Rowles v. Mayhew, 178 

— He, 555 

JIayne v. Hawkey, 558 
Iilcacham r. Cooper, 54 
Meader v. McCready, 94 
Meiklam v. Elmore, 84 
Meldrum v. Hayes, 125 
Melling v. Bird," 291, 293 

— r. Melling, 359 
Mellish r. Brooks, 90 
Melward's Devisees, Ex parte, 288 
Memorandum (10 Ch. 540), 492 

— (1 Ch. D. 411, 144 

— (W. N. (1880), 7), 437 
Menteath v. Campbell, 173 
Menzies v. Connor, 160, 194, 196 
Mercer r. Graves, 133, 564 

— V. Lawrence, 513 

— 's Company, Ex parte, 2, 265, 304 
Merceron, Re] 303, 304 

Merchant Banking Co., v. ^laud, 493 

— Tailors' Co.. i^V, 307 
Meredytli v. Hughes, 121, 122, 476 
^Merlin v. Blagravo, 97 
Merrewetlier r. Melli.sh, 557 
Merriuian v. Bonney, 236, 237, 238 
Merrv r. Nickalls, 53, 54, 505 
Merton College ,He, 161, 300 
Messenger, Inr\ Ex parte C-A\KC\-i, 552, 

5p5, 557 
Metcalfe, i.V, 315 505 

— V. Ikckwith ?4 4 
Mctford, He, 30 



TABLE OF CAIsES. 



XXXIX 



Metropolitan Asyliiiu District v. Hill, 

160 
^Metropolitan Ry. Co., Kj- parte, 29-t, 403 

— Ky. Co. V. Jackson, 15-t 

— Ry. Co. r. Sliarpe, 96 

— Ry. Co. and JIaire, In ir, 299, 306 
Metzlcr ?'. Wood, 129 

ileux c. Bell, 218 

Meymott v. Aleyniott, 488, 497 

Meyrick r. James, 61 

— V. Wliishaw, 99 
Michel V. IkiUeu, 122 
Mickeltliwaite r. Fletcher, 533 
Jliddle Level Drainage and Navigatiun 

Commissioners, Ri', 298 
]\[iddleton v. Middleton, 348 
Midland Counties Rj'. Co. r. (,'aldeeott, 

285 

— r. Westcomb, 261, 285 
Midland Ry. Co., lie, 298 

— V. Brown, 492 

Midleton (Loid) v. Eliot, 228, 238 

— Re, Thompson v. Harris, 175 
Mildnmy v. Quicke, 72, 125, 241, 573 
Miles V. Harrison, 172 

Military Tailoring Co., Re, 267 
Millard v. Biuroughes, 492, 501 

— V. Magor, 236, 238 
Miller v. Hales, 22 

— V. Marriott, 241 

— r. Jliller, 362, 520 

— V. Priddin, 523 
Millington v. Fox, 95, 105 
Mills V. Barlow, 369 

— r. Dudgeon, 83 

— V. Farmer, 206, 337 
Milne r. Milne, 362 
Milnes, Re, 293 
printer, Ue, 54 
^[irehouse v. Herbert, 184 
Mitchell, Rv, 139 

— r. Cobb, 313 

— r. Condy, 146 

— r. Newell, 303 
Mobbs, Ef parte, 438 
Mocatta v. Mirgatroyd, 223 
Moet V. Coustou, 103 

— V. Pickering, 118, 123 
Moggridge r. Tliackwell, 206, 337 
ilohuu i'. j\Iohun, 399 

Moir I'. Mudie, 558 
Molesworth r. Robbins, 551, 554 
Moloney r. vSmith, 7 
:Molyncux, Ex park, 302, 303 

— //( re, Piml)le)'' v. Molyueux, 194 
Monck V. Earl of Tankerville, 35 
Money, Re, 373 

Monk's (Bishop) Horfield Trust, E.e 
parte Trustees of, 303 



]\Ionro r. Taylor, 255 
Monteitli r. Taylor, 81 
Montelhmo (Duke of ) r. Christin, 10 
Montgomerie c. Calland, 230 
Montgomeiy, Re, 383 
Monyiienny c. j\lonypenuy, 151 
Moone c. Rose, 534 
Moore, E.f parte, 368 

— V. Clench, 210 

— V. Dixon, 178 

— v. Frowd, 386, 389 

— V. Moore, 59, 3G4, 535 

— r. Smith, 484 
Morduc V. Palmei-, 96 
Morgan c. Bruen, 109 

— r. Croiwpton, 352^ 357 

— V. Klford, 53, 509 

— V. Elstob, 192 

— V. Evans, 154, 157 

— V. Great Eastern Ry. Co., 78, 135 

— r. Higgins, 430 

— V. Jlorgan, 343 

— r. Ruddock, 430 

IMorison v. Morison, 53, 178, 382, 400 
iMorley v. liridges, 230, 238 
Mornington v. Wellesley, 562, 565 
Morony c. O'Dea, 232 
Morrell v. Cowan, 362 

— V. Fisher, 172 
Morris, Re, 460 

— Ex parte, 288 

— 's Case, 275 

• — V. Debenham. 251 

— V. Francis, 572 

— c. Freeman, 265, 361, 362 

— V. Simmons, 129 

— V. Smith. 531 

— 's Settled Estates, Re, 297 

— V. Timmins, 241 
^iorrisun. Ex parte, 562 
Morshead v. Reynolds, 273 
ilortimer. Re, 480, 503 

— V. Eraser, 26 

— V. Hartley, 31 

— V. Orchard, 259 

— r. Pictou, 403 

— V. West, 356 
Mortimore v. Cragg, 516 

— r. Alortimore, 92 
M.ortlock V. Mortlock, 89 

JIoscow Gas Co. v. International 

Financial Society, 16, 19 
Moseley v. Virgin, 109 
Mosely, Re, 450, 554 
Mosley r. Ward, 181 
Moss, Re, 439, 440, 557 
— , Ex parte, 222 
]\Iostyn r. Emanuel, 399 
Motion V, King, 84 



xl 



TABLE OF CA8ES. 



Jlotiou r. Moojin, 28 
Motteiix i: ilackreth, 17 
Mounspy ?•. Burnhani, 35, 113 
— 1'. Earl of Lonsdale, 48, f.l 
^loiintaiii V. Young, 319 
Mousley r. Carr, 409 
Move V. Sparrow, 123 
JVlozley V. Cowie, 90. 163 
Mullings V. Triniler, 252 
]\Iullins i: Hussey, 380 
IVIundy v. Miindy, 217 
Miinro, Ex2}a/rtc, Re Lewis, 418 
I\Iuutou's Trnsts, lie, 322 
]\Iurdin r. Patey, 262 
Murphy v. Conway, 156 

— V. Nolan, 488, 501 

— V. Osborne, 337 

— V. O'Shea, 402 
Murray v. Barlee, 367, 437 

— V. Bush, 152 
Mnrrell v. Claphain, 12 

— V. Goodyear, 255 
Musgrave, Ex 2>nrte, 490 

— , Be, 303 

— and Hart's Case, 277, 279 
Musson r. Hackett, 188 
JVIutlowv. Mutlow, 173, 321 
JIutual Society, lie, Grimwade v. 

Mutual Society, 278 
Myers r. Defries, Siddons i\ Lawrence, 

101, 102 
Myun V. Hart, 18 



N. 



Naersnoss Shipping v. Royal Mail Co., 

141 
Nalder v. Hawkins, 12 
Nalty V. Aylett, He Thompson, 533 
Nash, Mr, 297 

— V. Dickenson, 516 

— V. Dillon, 401 

— 1!. Howell, 406 
Nash's Estate, Me, 286 

Nathan, In re, Ex parte Stapleton, 

144 
National Bank of Australasia o^. United, 

&c., Co., 227 

— I'olivian Navigation Co. v. Wilson, 
153 

— Insurance Co. v. Prudential As- 
surance Co., 114 

— Savings Bank Association, He, 270 
Nation's Case, 278 

Neachell's Trusts, He, 302 
Neale i'.. Clarke, 131 
Ncate, Ite, 451, 454 



Neath & Brecon Ry. Co., lie, 286, 311 
Needhani v. Neodhani. 534 

— V. Oxley, 246 
Neera, The, 494 
Neihson r. Betts, 153, 155 
Nelson (Earl) v. Lord Bridport, 114 
Nene Valley Commissioners v. Dunkley, 

255, 258 
Nesbitt, Ex parte, b'.>l 

— V. Berridge, 28, 105 
Nevill V. Snelling, 250 
New V. Jones, 386 
Newall v. Smith, 255 
Newbegin v. Bell, 200, 201 
Newbiggin-by-the-Sea Gas Co. r. Ann- 

strong, 86 
Newbury v. Marten, 343 
New Brunswick, &c., Co. v. Conybcaro, 

106 

— Gas Co., Re, 266 

Newington Local Board v, Eldridge, 

552 557 
Newman, Re, 417, 448, 449, 450, 451, 

461 

— Re, Ex parte Brooke, 510 

— V. Hatch, 201, 202 
Newton, Ex parte, 305 

— r. Ben net, 181 

— V. Cliorlton, 60 

— r. Earl of Eguiont, 27 

— i7. Hunt, 248 

— V. Lucas, 349 

— V. Kicketts, 54, 56, 321, 437, 532 

— V. Taylor, 245 

— and Wife v. Boodle, 362, 480 
Nicholas Brooking's Devisees, Re, 290 
Nicholl, Ex parte, 548 

Nicholls V. ELford, 78 

— 's Trust Estates, Re, 306 
Nichols i\ Haslam, 491, 494 
Nicholson, Re, 445, 446, 477 

— V. Falkiner, 401 

— V. Jeyes, 497 

— V. Norton, 190, 563, 564 
Nicloson V. Wordsworth, 253 
NicoU's Estates, Re, 401 
Noble V. Brett, 182 

— V. Garland, 215 

— r. Meymott, 179, 180 

— r. Stow, 69, 379 
Nock V. Nock, 296 
Noel v. Noel, 14, 361 
Nokcs V. Gibbon, 42, 43, 46 

— V. Warton, 451, 452, 456 
Norcop's Will, Re, 290 
Norcutt I.'. Dodd, 397 

Norfolk (Duke of) v. Arbuthnot, 577 
Norfolk's Estates (Duke of), Re, 285 
Norman, In re, 18, 22 



TABLE OF CASES. 



xli 



Norman /'. Johnson, 96 

Norris r. Loni'vo, 244 

North r. (It. Nortliorn l!y. Co., 78 

— i\ Gnrney, 122 

N. E. Uy. Co. r. Jackson, 492 
Nortliiunpton Coal Co, r. JliJluml 

Waf^gon Co., 16 
Northtleet Uric.k Co., Jic, 269 
Norton v. Cooper, 87, 160, 164, 223 

— Iron Co., lie, 269 

— V. L. & N. W. Ey. Co., r>2, 148 

— V. llussell, 245 

— V. White, 84 
Norvall, lie, 549 

Norway r. Norway, 325, 402 

— V. liowe, 485 

Norwich l>iiil(ling Society, lir, 63 
Notley r. Pahner, 290 
Nottidge V. Pricliard, 150 
Nourse v. Finch, 165 
Nowell V. Wliitaker, 374 
Nunn V. D'Albuqnerque, 247 

— V. Fabian, 259 
Nurse o. Durnford, 86 
Nye V. Maule, 124 



0. 



Oakesand Peake, Ej- parte, 278, 280 

Oakes v. Tnnpiand, 47 

Oakwell Collieries, Jn re, 147 

Oats V. Chapman, 31 

O'Brien v. Lewis, 430, 457, 564 

O'Callaghan v. Cooper, 406 

O'Conner r. Sierra Nevada Co., 8, 10, 

24 
O'Deav. O'Dea, 557 
Official Li(iuidators of Southampton, 

&c., V. Kawlings, 16 
— — , &c., V. Pinnock, 17 
Ogborne v. Bartlett, 22 
Ogle V. Story, 554 
Ohrly r. Jenkins, 115 
Olaf, The St., 74 

01dale^•.Whitcher or Whitehead, 10, 11 
Oldfield V. Cobbett, 372, 534, 537 
Oldham's Estate, Re, 296 
Olivant v. Wright, 144 
Oliver, Re., 427 
O'Malley v. Please, 403 
Omnianev, Ex parte, 239, 326 
O'Neill r!" Innes, 229 
Onge V. Truolock, 537 
Orange v. Pick ford, 368 
Orford (Earl of ), v. Churchill, 3G0 
Orgill's Ca.se, 272 
Orient, The, Yeo v. Tatem, 160 



Oriental Commercial Bank, lie, 266 

— Hotels Co., Re, 274 
O'Riordan c. Riordan, 393 
Orn)sl)v, Re, 383 
O'Rorke r. Pcdingliroke, 154 
Orr ('. Diaper, 214 

— Ewing k Co.'s Trade Marks, /.*.■, 69 

— I'lwiiig 7'. Ciiliinhoiin, 154 

— ('. Johnston c't Co., 499 
Orrell r. lUisch, 59 

— Colliery Co., Re, 536 
Osbaldiston, Ex parte., 304 
Osborn r. Osborn, 241, 378 
Osborne, Re, 427 

— 's Estate^, Re, 298 

— V. Denne, 207, 353 

— V. Harvey, 91 

— to Rowlett, 251, 330 
Ottaway v. Hamilton, 368 
Ottley -y. (Jllby, 204 
Otto V. Lindford, 510 
Owen V. Grifhth, 160, 223 

— V. Henshaw, 572 

— V. L. & N. W. Ry. Co., 479 

— V. Pritchard, 529 
Owens i'. Emmens, 40 
Owen's Wheel Co., 269 



Paciii(>. Steam Co. r. Giblts, 17 
Packman and Moss, Re, 330 
Packwood v. Maddison, 195, 196 
Paddon v. Winch, 480 
Paddon s Trusts, Re, 307 
Page, Ex. parte, 382 

— Re, 442, 497 

— V. Page, 14, 365 

Paice V. Archbishop of Canterbury, 16/ 
Paine and Layton, Ex 2iartc, Re South 

Essex Co., 558 
Painter, Ex parte, 324 
Palairet v. Carew, 410 
Palmer, Ex parte, 284 

— V. Jones, 174, 353 

— V. Perry, 121 

— V. Walesby, 87, 160, 354 
Palmerston (Lord), Ex parte, 304 
Pannellt'. Hurley, 112, 118, 341 
Panton i\ Labertouclie, 22 
Papa de Rossie, The, 394 
Paradice v. Sheppard, 372 
Parby, Re, 324 

Parker v. Dunn, 382 
— 's Estate, J!e, 289 

— r. Gerard, 244 

— V. Lewis, Gray v. Lewis, 107, 108 



xlii 



TABLE OF CASES. 



Parker v. McKt'ini;i, I117 

— r. Morrell, lOD 

— r. Simpson, 536 

— v. Watkiiis, 236, 237 
Parkes v. Stevens, 247 

Parkinson v. Chambers, 365, 372, 375 

— r. Haubury, 76, 374, 37j), 489 
Parr r. Lovcgrove, 109, 257 
Parrott i'. Randall, 369 

Parry, llr, 320 

— r. Juxon, 369 

Parsons v. Spooner, 400, 414 

— (.•. Tiuling, 2 
Part's Case, 278 
Partington r. Baillie, 56 

— V. Peynolds, 18, 338 

— 's Trusts, i.V, 287 
Pashler v. Vim-ent, 529 
Pasitliea, The, 111 
Pasmore, In re, 18, 21 
Patch V. "Ward, 95 
Patching i'. Barnett, 172, 175 
Patent Cocoa Fibre Co., Re, 268 
Patersou v. Paterson, 293 

— V. Provost, &c., of St. Andrews, 153 
Patterson v. Wooler, 46, 55, 410 
Pattisou's Estate, lie, 295, 306 
Pattison v. Graham, 334 

PauU r. Mortimer, 184 
Paxton 1-. P>ell, 20 

— r. Douglas, 193 
Payne r. Dicker, 28 

— V. Evens, 164, 409 

— V. Little, 13, 404 

— r. Parker, 408 
Paynter r. Carew, 85, 102 
Peace (Joseph), & Co., lie, 272 
Peach, lie, 444 

Peacock v. Evans, 248 

— Ee parte, lie Duffield, 510 
Pearce c. Lindsay, 491 

— V. Kewlyn, 107 

— V. Pearce, 76, 354 

— V. Eadclyffe, In re Radclytfe, 181 

— r. "Watkius, 118 

— r. AVatts, 112 
Pearse, E.C2>cirte, 324 

— r. Cole, 61, 391 

— V. Green, 163 

— V. Pearse, 37, 368 

Pearson i: Bank of England, 339 

— r. Belcher, 76, 375 

— r. Pearson, 165 

• Peasnall r. Coultart, 54 
Peatiield v. P>arlow, 560 

— V. Benn, 410 
Peck r. Ijeechcy, 124 
Peers, Ee, 507 

— c. Ccelev, 2J7 



Peers v. Sneyd, 2k5, 378 
Peile, lie. Shea v. Boschetti, 507 
IVlly r. Wathen, 228, 552, 554, 559 
Pemberton. Ex parte, 457. 551 

— r. McGill, 362 

— ?'. Topham, 85 
Penfold V. liouoh, 414 

Pender, Be, 428, 434, 438, 443, 496 
Peninsular Banking Co., lie, 273 

— ]5ank. Re, Jopp's Case, 53 
Penu V. Bibby, 247 
Pennell v. Boy, 54, 57 
Pennington r. Alvin, 12, 365 

— V. Buckley, 169 
Penny v. Beavau, 85 

— V. Penny, 172 
Perceval v. Perceval, 187 
Percy Nickel Co., In re, 19 
Perishal v. Stpiire, 124 
Perkin v. Stafford, 115 
Perkins, Re, 438 

— r. Bradley, 227, 337 

— c. Ede, 380 

— r. Hanioud, 360 

Perpetual, &c., Soeietv r. Gillespie, 

112 
Perrot v. Xovelli, 9 
Perry r. ]Meddo\vcroft, 179 

— V. Shipwa}-, 113 

— V. Walker, 372, 373, 374 
Peter r. Nicolls, 257 
Pettifs Estate, Re, 334 
Phelp V. Amcotts, 385 
Philanthropic Society c. Hobson, 168 
Philby r. Hazle, 434 

Philipps v. Philipps, 476 
Phillips, E;e parte, 297 
— , //( re, 239 
Philli[iine, The, 572 
Phillipson c. Gibbon, 254, 256 
Pliilp, Re, 439 

Philpott c. St. George's Hospital, 165 
Philpotts, li', 450 
Phipps V. Daubney, 428 
Phcenix Life Assurance Co., Re, 280, 
391, 555 

Phospho-Guano Co. v. Guild, 63 

Phosphate Sewage Co. r. llaitmont, 
143, 385, 528^ 

Picard V. Iline, 13 

— r. Mitchell, 292 

Pick, lie, 299 

Pickett r. Loggon, 536 

Pickford r. Brown, 175 

Picton's Estate, lie, 291 

Piers V. Cawse, 370 

Piety v. Stace, 406 

Pigot V. Cadman, 435 

Pike r. Fitzgibbon, 367 



TABLE OF CASES. 



xliii 



Pilehcr v. Ai'il^'ii, AV Hiook, iijtj, otJ8, 

561), !>7-i 
rilgiim ('. IliisuhfelJ, i-ii 
riuoe V. liuattie, 390 
Piuchard v. Fellows, 197 
I'iulbld i\ riiitbld, 70, 81 
I'iiikertou c. Eastoii, 57'2 
V'nuicv V. Knights, 87 
Pipur c. Piper, 529 
Pitt r. lioiiuer, 122 

— 1'. Pitt, 305 

Pitts V. Kiiigsbmlge Iligliway Buaid, 
103 

— 1'. La Fontaine, 390 
Plating Co. v. Fan^uliarson, 58 
Player r. Anderson, 1 1 
Playlbrd v. lloare, 252 
Pledge V. Huss, 30, 107, 114 
Plestow f. Johnson, 22 
Plunkett ('. Williams, 41 
Pocock r. Keddington, 181, 408 
Poliui V. Gray, iSturla c. Freeeia, 21, 

143, 510 
Pollard V. Doyle, 387 
Pousardin r. Peto, 123 

— V. Stear, 57 
Ponstbrd v. Widnell, 397 
Pontifex's Case, 279 
Poole Firebrick Co, lie, 272 
Poole V. Francis, 470 

— V. Franks, 121, 335 

— V. Pass, 413 
Pooley V. Driver, 577 

Poplar & Ijlackwall Free School, In /■<•, 

212, 410 
Popple ('. Henson, 203 
Portarlington (Earl of) r. Damci', 194 
Porter v. Lopes, 241 

— V. Watts, 415 

— c. West, 570, 572 
Portlock r. Gardner, 407 
Portuiore (Lord) t: Taylor, 248 
Postgate V. Barnes, 30 
Pothecary v. Pothecary, 109 
Potter, III re, 304 

— i: Chambers, 131 

— f. Cotton, 142 

— V. Duffield, 258 

— V. Jackson, 245 

— V. Rankin, 44, 488, 502 
Powell V. Cockerell, 40 

— V. Elliot, 93, 201 

— V. Martyr, Z'SO, 201 

— I'. Powell, 84, 380 

— i: Trotter, 230 

— i: Williams, 49 
Power, lie, 301 

Powlett (Karl) c. Herbert, 405 
Praed v. Hull, 85 



Pratt c. Walker, 40 

Prebble r. P>ogluirst, 127, 475 

Prebend of St. Margaret, Leicester, R', 

294 
Preece and Evans' Case, 274 
— ■ c. Scale, 114 
Prendergast r. Prendergivst, 150, 153, 

157, 4U5 
Prescott ('. Wood, 290 
Press and Inskiji, Jie, 401 
Prevost ('. Benett, 99 
Price, lie, 502 

— V. Berrington, 83, 90 

— V. Greshani, 104 

— V. Loaden, 183 

— V. McBeth, 390, 500 
Pride v. Fooks, 181, 408 
Prideaux, E-c jjarte, 429 

— V. Lonsdale, 397 
Primrose, lie, 325 
Prince v. Hine, 120 

— c. Howard, 135 

Pringle v. Gloag, 4, 94, 133, 408, 477, 

503 
Priug's Trusts, Jic, 71, 325 
Pritchard v. Roberts, 353, 501, 508, 

572 
Proctor c. Robinson, 385 
■Professional Life Assurance Co., lie, 276 
Prosser v. Bank of England, 341 
Prothero -v. Thomas, 427 
Proud V. Bates, 129 
Provident Clerks' Association, Re, 320 
Prowse V. Loxdale, 537 
Prudential Assurance Co. r. Edmonds, 

152 
Pryce v. Bury, 198, 223, 226 

— V. Monmoutlisliire Canal k Ry. Cos. , 
151 

Pryor's Settlement, Re, 299, 306 
Prytharch v. Havard, 201 
Pugh, Re; 367, 437, 449, 450, 454 
Pulbrook, E.e ixnie, Re Union Cement 

Co., 556 
Purcell r. lilennerhassett, 108 

— ('. Woodley, 352, 509 
Purdey's Case, 278 

Purser v. Darby, 262, 285, 327 
Puxley V. Puxley, 175, 177 



Q. 



Quarrell v. Beckford, 94, 476 
Quartz Hill Co., Li re, 208 
Queen Average Association, Re, 274 
— Camel (Vicar of ), lie, 280, 287 
Queen (Tiie) c. Chambers, 222 



xliv 



TABLE OF GASES. 



Queen's College Case, 213 

— College, Cambridge, Ei' parte, 320 



K. 



IJ. V. Eastwood, 5CG 

— V. Pratt, 525 

— V. Sankey, 552 
IJabljits (•. Woodward, 519 
RadcimV, Ik, 235 

Eadclj-H'e, In re, Pearee v. Eadelyffe, 

181 
Eadford V. AVillis, 256 
Pailston, Ex' jxirte, 282 
liailway Finance Co., He, 268 
Panisdeu r. Langley, 2:J6 
Ranee, Re, 450, 451 
Pandill V. Randall, 119 
Raiidfield V. Randtield, 175 
Ransom, Ee, 439 
Raphael r. Boelini, 181 
Raseh, Ex parte, Ec Accidental Co., 

269 
Rashleigh r. Mount, 61 
Rashley r. ]\Iasters, 349, 396 
Rattray v. George, 38 
Raven, la re, 419 
Rawlings v. Lambert, 30 
Rawlins v. "Wickliani, 106 
Rawlinson v. JMoss, 486, 559 
Payment v. Dimbleby, 492 . 
Raymond f. Lakeman, 417 
Reade v. Ijentlev, 577 

— r. Sparkes, 125, 126 
Reading v. Hamilton, 305 

Real and Personal Advance Co. r. 

McCarthy, 74, 75, 139 
Rede r. Oakes, 263 
Redfearn v. Sowerb}', 552, 557 
Redondo v. Chaytor, 9 
Reece v. Cox, 430, 547 
Recce's Estate, In re, Gould r. Dum- 

mett, 576 
Reecli V. Kennegal, 412 
Reed v. O'Brien, 30 
Rees, iiV, 457 

— r. Metro])olitan Board of Works, 

238 

— V. Williams, 420 

Rees Jones r. Pickslay, 194 

Reeves' Trusts, In re, 166, 186 

Reeves v. Baker, 84 

Regent's Canal Co. v. Ware, 263 

Regent's Canal Ironworks Co , //( re, 

Ex parte Grissell, 274 
Remnant, 7.V, 427, 474, 505 

— c. Hood, 105, 125, 187 • 



Renuie v. Massie, 396 
Reynolds, Ee, 63, 290, 548 

— r. Blake, 380 

— r. Caswell, 429 

— V. Howell, 86 
Rhode r. Spear, 81 
Rhodes, Ex parte, 343, 562 
— , Ee, 310, J40 

— V. Hayne, 79, 214 
Rice V. Gordon, 94 

— V. Orgies, 201 
Richards, Ex parte, 239, 326 

— V. Attorney-General ot" Jamaica, 411 

— V. Dadley, 64 

— V. Kitchen, 529 

— V. Platel, 557 

Richardson v. Bank of England, 54 

— r. Grubli, 325, 415 

— r. Jenkins, 203 

— V. Richardson, 202 

— V. Rusbridger, 170 

— V. Ward, 382 
Richmond v. White, 173 
Rickards r. Attorney-General, 150 
Ricketts, Ee, 321 

— V. Lewis, 156 

Rider v. Jones, 232, 335, 554 
Ridgwaj' r. Edwards, 371 

— r. Kynnersley, 115 
Ridley r. Meek, 45 

— V. Sutton, 486 

Rigby V. Great Western Ry. Co., 99 

Riley v. Croydon, 77, 224, 233 

Rio Grande Do Sul Steamship Co., In 

re, 159, 223, 236, 237 
Riplej' r. Moysey, 175 
Ritso's Case, 277 
Rivers' (Lord) Estate, Ec, 332 
Robb e. Connor, 51, 492 
Robarts r. Buee, 133, 134, 503 
Roberts, In re, 25 

— V. Ball, 320, 509 
• — V. Evans, 363 

— v. Hughes, 117 

— V. Iverslake, 316 

— V. Lucas, 429 

— r. Roberts, 135 

— V. Scoones, 347 

— 's Trusts, Ee, 314, 318 

— V. Walker, 166 

— V. Williams, 230 
Robertson, Ee, 303 

— V. Southgate, 540 
— 's Trusts, Ee, l21 
Robey v. Whitewood, 344 
Robins v. Goldinghani, 558, 559 

— r. Mills, 435 
Robinson, Jie, 444 
— 's Case, 272 



TABLE OF CASES. 



xlv 



Ilohinson v. Aston, 343 

— V. Chadwick, 136 

— V. Elliott, 204 

— I'. Roshcr, 77, 110 

— V. Wood, 380 
liobsoii r. Dodds, 87 

— V. Earl of Devon, 81 

— r. Kobsoii, l:jf) 
]{ooh r. Callcu, KiS 
llodidalu Canal Co. r. King, 49 
Kochester (Cniporation of ) r. Lcc, 98, 

99, 100, ItiO 
Dochfort r. BattersLy, 15G 
llockc V. Hart, 181 
Ivoddajii r. Hctlicrinriton, 35- 
h'odick ;•. Oandcll, iio'd 
Koc V. llaminomi, 516 
Ivogers ?'. Gooro, 136 

— V. Hooper, 372 

— V. Jones, 577 

— I'. Rogers, 5'J6 
Romilly r. Crint, 373, 371 
Komney, 7.V, 294 

Rose i: Callaiul, 252 

Kose & Co. r. CJardden Lodge Coal Co., 

273 
Kosicr's Trusts, Jlr, 318 
lioss's Trusts, He, 183 

— IJr, 321 

— r. Lauglitoii, 557, 558 

— v. Wood, 393 
l^ossiter r. Miller, 154 
liotherani r. Battson, 335, 341, 368 
h'ourke v. White Moss Colliery Co., 142 
Row, Jlr, 290 

— ('. Row, 175 
Rowcliffe r. Leigh, 159 
Rowlands v. Evans, 245 

— i: Tucker, 203 

Rowles r. Mayliew, In re Slayhew, 

178 
Rowley, Be, 239 

— V. Adams, 69 
Rowley's Legacy, Jl/', 326 
Rowsell v. Morris, 90 

Royal Naval Society's Indeninitv Case, 

277 
Royils r. Royds, 180, 409 
Royle, Ex parte, 335, 382, 396 
Rubery v. Grant, 37 
Rudd r. Rowe, 85 
Ruilow V. Great Britain Assurance 

Society, 124 
Rudyerd's Trusts, He, 287 
Kuffle, Ex parte. Me Dunimclow, 511 
Rumbold r. Forteatli, 50 
Kunisey v. Runisey, 489 
Rundle V. Rundle, 357 
Rush, Jk, 530 



Rushwortli '•. Waldon, 329 
Russel V. I'.uclianan, 442 
Russell, E.r parte, In re Buttcrwortli, 
397 

— i\ Dickson, 110 

— c. London, Chatham and Duver I!v. 

Co., 60 

— V. Nicholls, 125 

Ruthin (Burgesses of) v. Adams, 88, 

391 
Ryalls t\ Reg., 428 
Ryan, He, 529 

— V. Dolan, 43 

— V. Nesbitt, 399 



S. 



Sal)in r. Heapc, 92 

Sadd, He, 555 

Sadleir v. Greene, 384 

Saffron AValden Charities, Hr, 212 

St. Albyn r. Harding, 249, 250 

St. Bartholomew's Hospital (Trustees 

of). He, 307 
St. Catherine's Dock Co., He, 307 
St. Dunstan's Cliaiity Schools, He, 30 J 
St. Katherine's Dock Co., Re, 302 
St. Katliarine, Ho.'ipital of, E.c parte 

287, 304, .307 
St. Sepulchre's (Vicar of). Ex parte, 

301 
St. Tliomas'.s Hospital, He, 287 

— (Governors of), He, 301 
St. Victor V. Devereux, 372 
Sale V. Lambert, 258 

— r. Sale, 86, 354 
Salkeld c. -lohnston, 99 
Salop V. Attorney-General, 210 
Salt I'. Cooper, 518 

Saltash (Corporation of) v. Goodman 

142 
Salter ?'. Bradshaw, 249 

— V. TiMesley, 59, 194 
Sambrook v. Hayes, 90 
Sammes v. Rickman, 409 
Samuel r. Jones, 191, 342 
Sandback Charity Trustees v. North 

Staffordshire }xy. Co., 479 
Sanders r. Miller, 175, 177 
Sanderson, In re, 576 

— V. Chadwick, 262 

— r. Stoddart, 20(i 
-- V. Walker, 408 
Sandon r. Hooper, 237 
Sandys v. Long, 10 

— i: Watson, 412 
— r, Whateley, 11 



xlvi 



TABLE OF CASES. 



Saner v. Biltoii, 131 

— V. Deavan, 83 
SaiifoKl, Kvparfr, 329 
Saiigar v. Gardiner, 509 
Sansoni r. vSansom, 520 
Sargent, Ex parte, 279 

— r. Gannon, 484 
Saunders, 7.V, 303 

— V. Gray, 381 

— V. Saunders, 340, 402 
Savage, i?r, 86 

— f. James, 561 
Savery, He, 442 

— ('. King, 153, 155 

Sawers, Be, Ex parte Blain, 514 
Sawston (Vicar of), Ex jwrte, 289 
Sawyer, Ec 2wrte, In re Bowdcn, 147, 
499 

— r. Birclimore, 31 

— V. Mills, 85 

Sayer r. Bradley, 150, 152, 153 

— V. Wagstaff, 448, 456 
Sayers, lie, 321 

— \>. Corrie, 59 
Scaife v. Scaife, 348 
Scarliorougli v. Burton, 93 
Schjott r. Sdijott, 12, 363, 364 
Schneider v. Lizardi, 28 
Seliolefield v. Lockwood, 567, 571 
Scliroedcr v. Clcugli, 540 
Sclater r. Cottam; 390_ 
Scoonos V. jMoncU, 255 
Scorfield v. Jones, 480 
Scott r. Cumberland, 166, 176 

— r. Diinbar, 106, 114, 411 

— V. Fleming, 559 

— r. Scott, 261, 285, 327 
Scotto V. Heritage, 578 

Scottish Union Insurance Co. r. Steele, 

485 
Scrivener i\ Smith, 200, 323 
Sculthorpe r. Tipper, 181 
Scurrah r. Scurrah, 192 
Seal V. Bownton, 348 
Sealey v. Gaston, 364 
Secretary of State for India r. Kelson, 

219 
Seers r. Hind, 179, 181 
Seidler, Ex parte, 18 
Seilaz v. Hanson, 9 
Selby V. Selby, 235 
Sellar v. Griffin, 163 
Sentance r. Porter, 94, 231 
Seton V. Slade, 254 
Sevier r. Greenway, 227 
Sewart's Estate, lie, 305 
Shackell, E.r parte. Re Amines, 449 
Sliacklcton v. Sliackk-ton, 333 
Shakespeare Walk School, Ee, 298, 299 



Shales v. Barrington, 109 
Shannon r. Casey, 228, 550 
Shapland, Ee, 520 
Sharp, Ex2'>e(rte, Re Hind, 526 

— r. Ashley, 491 

— r. Lush, 137, 138, 172, 179, 404 

— r. AVright, 138, 500 
Sharpe, Re, 321 

— V. Hulett, 84 
Sharpies v. Adams. 222, 223 
Sharrodv. Winfield, 195 
Shaw, Ex imrte, 279, 553 

— Re, 506 

— V. Dempsej', 9, 11 

— r. Forrest, 70 

— V, Johnson, 125 

— V. Lawless, 155 

— V. Neale, 548, 561, 567 

— V. Thompson, 411 

Shea r. l>oschetti, Re Peile, 507 
Sheard, Ex parte, In re Pooler, 149 
Sheffield (Corporation of), Ix'partr, 289 

— ?'. Eden, 552 

— r. Sheffield, 57 

— (Town Trustees), Ex parte, 289 

— (Waterworks Act), Re, 479 
Shehnardine c. Harrop, 228 
Shepheard r. Becthnm, 167 

— ?■. Bathurst, Simpson v. Bathurst. 
411 '. 

Sheplicrd r. Towgood, 196 
Sheppard r. lUirbagc, 197 

— r. Sheppard, 174 

— r. Smith, 412 
Sherbui'ue v. Middleton, 156 
Sherrattr. Bent ley, 402 
Sherwell, Re, Ex parte Snow, 502 
Sherwin v. Shakspcare, 261 
Sherwood, Re, 386, 389, 391 

— V. Beveridgc, 381 
Ship V. Crosskill, 106 

— 's Case, 267, 272, 278 • 
Shippey v. Grey, 521, 569 
Shipton (Pector of). Ex parte, 286 
Shittler r. Shiftier, 200, 351 
Shore r. Shore, 382 

— r. Wilson, 209 
Short v. Pidge, 360 
Shortley v. Sdby, 203 
Shrewsbury (Earl of) r. Tra]ipes, 53, 

497 

— School, Re, 70 

Shuttleworth r. Howarth, 165, 166, 186 

— r. Lowther, 230 
Shuttleworth's Estate, Re, 302 
Sibbering v. Earl of Balcarras, 11, 250 
Sichell's Case, 272, 278 

Siddons r. LaAvrcnce, JIvers v. Defries, 
10], 102 



TARLK OF CASES. 



xlvii 



Sidcbotham r. Unriu^'ton, 25o 
Sidney v. Wilmer, 294 
Siffken v. Davis, 226 
Sinimonds I'. Lonl Fvinnaird, 214 

— V. (Jreat Eastein Ivy. Co., 55-J, 557, 
558 

Simmons ?'. Stoicr, ITC, 478 

— r. ]\[cAdam, 578 
Sim])son, Er pcnir, US 

— lie, 430 

— c. Fiatlmvst, Shepherd r. IJathiU'st. 

411 

— 17. Uurton, 10 

— v. Malherbc, 96 

— V. Kitcliift, 241 

— r. Westminster I'ahtec Hotel Co. , 

151 
Sinclair r. Great Eastern l!y. Co., 490 
Singer v. Audsley, 48 

— I\Iacliine Ahuiufacturcrs v. Wil.son, 
154 

Singleton r. Hopkins, 242, 243 

— )'. Schvyn, 31 

— p. Tomlinson, 153, 187, 350 
Singleton's Estate, /.V, 284 
Siree v. Kirwan, 155 

SivcU V. Abraham, 77 

Skidmorc, 7iV, 484 

Skipp r. Wyatt, 232 

Skirrow r. Skinow, 175 

Skrine 7'. Powell, 21') 

Skrymshire r. Xortlicote, 166, 341 

Slack r. ]\Iidlnn<l Rv. Co., 94 

Sladden. 7lr, 4')0, 451 

Slade r. Hulme, 519 

Slater r. Mayor of Sunderland, 563 

— , E.r partr, 290, 303 

Slator r. Nolan, 385 

Slipper !". Gougli, 117 

Sloggett V. Collins, 17 

— V. Viant, 19 
Smallwood r. Kutter, 356 
Smith, El- parte, 272, 297 

— A. H., Erimrtc, 545, 546 

— Er parte. In re Albazette, 499 

— E.e parte. Re Bank oC Hindustan, 563 

— Ejc parte, E.e parte Langley, //( re 

Bishop, 57 
— , Re, 6.5, 320, 434, 442, 544,546, 550 

— i\ Andrews, 118, 185 

— ?■. Baker, 495 

— V. ?)olden, 413 

— r. BuUer, 480, 483, 487, 492, 494, 

495, 496, 502 

— r. Ciianibers, 182 

— V. Chichester, 234, 554 

— v. Corntbot, 11 

— i\ Cowell, 518 

— X. Cremer, 181 



Smith V. Dale, 191 

— V. Daniell, 489, 494 

— i;. Day, 474 

— V. Dearmcr, 346 

— V. Dimes, 427 

— V. I)res.ser, 397 

— V. Earl of EfHngliani, 491, 494, 495, 

498 

— V. Etches, 8, 13, 365 

— '0. Fry, 342 

— V. Green, 102, 231 

— v. Hammond, 18 

— r. Lystcr, 358 

— ('. Nelson, 380 

— V. I'awson, 375, 376 
— - V. riunimer, 334 

— r. Smith, 3.'), 232, 517 

— 's Trusts, Re, 322 

• — V. Whichcord, Evana r. Debenham, 
Debenham v. Lacv, 60 

— r. White, 141 

— V. Winter, 561, 572 

Smith's (William) Estate, Re, 305 
Smyth, Ex parte, 290 
Sna'gg V. Frizell, 230 
Snearvv. Abd}^, 517 
Snell,''7i'-, 502, 555 

— I'. Skinner, 36 

Snow, E.e parte, Re Sherwell, 502 

— V. Bolton, 520 

— ('. Hole, 397 
Sobey v. Sobey, 52 
Solicitor, A'e a, 529 
Solicitor-General v. Coriioration of r>ath, 

211 

— for Iieland r. Lord J\rayor and Cor- 
poration of Dublin, 211 

Solley V. Wood, 89 

Solly c. Grcathead, 59 

South Lkstern l!y. Co., Re, 290 

South Essex Co., 7&, E.e pctrte Paine and 
Layton, 558 

South Essex Co. r. Submarine Teleffrai.h 
Co., 79, 215 ° 

South i\rolton (Jfaj'or of) v. Attorney- 
General, 114, 155 

South Wales liy. Co., Jle, 285, 310, 327 

Southampton, kc, Co. (Olhcial Liciui- 
da tors of) c. llawlings, 62 

Southwill ('. ^Martin, 4i3 

Sowry I'. Sowry, 290 

Sparks, Re, 239, 325, 327 

-— , Li re, E.e parte Forder, 396 

Sparrow v. Hill, 131 

Spencer, 7.''', 393 

— Iti re, Spencer v. Hart, 430, 457 

— v. Allen, 515 

— V. Bryant, 371 

— V. Ward, 170 



xlviii 



TABLE OF CASES. 



Spensley's Estate, In re, Speusley v. 

Harrison, 197, 200 
Spier r. Bernard, 429 
Spiller, He, 328 

■ — r. Paris Skating Kink Co., 45 
Spitalfields Sclioofs, Rr, 303 
Spittle r. Walton, (52 
Spooner's Estate, lie, 284, 308, 309, 

311 
Springett v. Dasliwood, 163 
Springfield v. Ollett, 98 
Spires (•. Sewell, 537 
Stacey v. Spratlev, 347 
Stafford Charities, Re, 212 
Stagg r. Knowles, 80 
Stahlsclinndt v. Lett, 468 

— r. Walford, 74 
Staines v. Morris, 95, 251 
Stamford (Earl of) v. Dawson, 577 
Standen v. Edwards, 538 

Stanes v. Parker, 389, 457 

Stanger Leathes r. Stanger Leathes, 488 

Stanhope Co., Re, 521 

Stanilandr. "Willott, 106 

Stanley v. Bond, 72, 107, 522 

Stanley of Alderley's Estate (Lord) Re, 

303 
Stanton v. Baring, 489, 493, 494 

— r. Hatfield, 202 
Staples, Kepart; 294 

Stapleton, E.r parte. In re Nathan, 144 
Star and Garter Hotel Co., In re, 71, 

112, 267 
Starten v. Bartholomew, 356 
State Fire Insurance Co., Re, 276 
Stead r. Hardakcr, 176 
Steam Stoker Co., In re, 112 
Stebbing r. Atlee, 45 
Stedman v. AVt'bb, 551 
Steedman r. Poole, 60 
Steel, Re, 329 
Steele, Ej- parte, 429, 560 

— Re, 448 

— V. Hntchings, 57.. 58 

— V. Scott, 559 

Stephen, Re, 438, 448, 451, 456 
Stephens r. 15rett, 103 

— V. Trneman, 349 

— V. Workman, 63 
Stephenson v. Binev, 62 

— V. Mackay, 81 
Sterling, E.e parte, 551 
Stevens, E.>- parte, 70, 307, 311 

— r. Keating, 4S 

— v. Newborough (Lord), 404, 486, 

490, 496 
_ V. Pillen, 191 
^ r. Praed, 99 

— X. "Williams, 12 



Stevenson r. Abington, 126, 189 

— r. Blakelook, 551, 560 
Steward i'. Nurse, 576 

Stewart v. jManpii.s of Donegal, 128, 
186 

— V. Menzics, 150 

— r. Stewart, 8, 9, 35, 113 
Stihvell V. Mellersh, 382 
Stimpson v. Jepson, 486 
Stirke, Re, 454 

Stock V. Hooper's Telegm[>h "Works, 

141 
Stocken v. Pattrick, 368 
Stokes V. Heron, 154 

— r. Trumper, 394, 444 
Stokoe V. Robson, 228 
Stooke r. Taylor, 132 
Stormont r. Wickens, 218 

Storr r. Corporation of Maidstone, 135 
Story, Re, E-r parte, Mar\vick,464 

— V. Ofhcial Manager of the National 

Insurance Co., 532 
Strachen's Estate, Re, 303 
Straford, Re, 460, 463 
Strafford v. Warren, 355 
Straker v. Ewing, 106 
Stratford r. Bosworth, 250 
Strathmore Estates, Re, 296 

— V. Strathmore, 31 
Street, Re, 444, 448 

— V. Hojie, 526 
Streeten v. Wliitmore, 515 
Streeter, Er parte. In re Morris, 218 
Strickland r. Strickland, 35 
Stringer v. Harper, 175 

— 's Case, 272 

Strother, Re, 427, 443, 444, 445 
Stuart, Re, 240, 326, 328 

— r. Greenall, 486 
Stubbs V. Marsh, 384 

— 's Estate, Hanson r. Stubbs, 193 
Studliolmc r. Hodgson, 165, 168 
Sturch V. Young, 70 

Sturge r. Dimsdale, 481, 490 

Sturla V. Freccia, Polini v. Graj^, 21, 

143, 510, 544 
Styan, Ex parte, 285 
Styles V. Shipton, 76 
Sugden r. Hull, 535 
Sullivan v. Bevan, 204 

— V. Sullivan, 356 
Sumner r. Ridgway, 127 
Sutton r. Doggett, 202 

— r. Huggins, 56 

— V. Winstanlev, 200, 201 

— 's Trusts, Re] 317, 318 

Sutton Harbour Co. r. Hichens, 77, 110 
Swaby v, Dickon, 383 
Swale V. Milner, 201 



TAIiLE OF CASES. 



xlix 



Swan's Settlumeut, lie, 318 

Swaiiii i\ Swaiiii, 36-1 

Hwanzy v. Swauzy, 9 

Sweeper's Trusts, Jlr, 313 

Swetauuoir, Jlr, 328 

Swift r. Swift, 350 

Swindell v. IJirniingliam Syndicate, 51 

Swiufeii r. Swinfen, 3i8, 3-19 

Sykes v. lirook, 409 

— V. Dyson, 530 

Symes r. Mngnay, 219 

Synipson r. rrotliero, 561, 562 



T , In re, 328 

Tabbernor v. Tabbernor, 87 
Tabor v. Cunningham, 106 
Talbot V. Kemshead, 116, 117 

— V. Marshtield, 139, 412 

— V. Staniforth, 249 

— r. Talbot, 38, 357" 
Tanijiier v. Ingle, 46, 54 
Taner v. Ivie, 222, 232, 352 

Tann, In re, Gravutt v. Tanu, 184, 243 
Tanner, Re, 323 
-- v. Daucey, 200 

— V. Dean, 64 

— i\ Heard, 129, 226 
Tanquerav v. Bowles, 397 
Taprell v'. Taylor, 372 
Tarbuek v. Woodcock, 87 
Tardrew v. Howell, 200, 351, 568 
Tarleton v. Dyer, 36 

Tasker v. Small, 263 
Tate V. Kitchens, 429 
Tatham r. Wright, 348 
Tayleur, In re, 124 
Taylor, Re, 293, 427, 459, 461 

— V. Brown, 258 

— V. Cook, 563 

— ?'. Dowlen, 158 

— V. Glan villa, 412 

— V. Gorman, 373 

— V. Haygarth, 97, 171, 185 

— V. Hodgson, 429, 433 

— r. Lin ley, 167 

— V. jMogg, 167 

— V. Oldham, 350, 359 

— V. Popluim, 160, 563 

— V. Salmon, 410 

■ — r. Scrivens, 542 

— V. Southgate, 160, 161, 19G 

— r. Tabrnm, 181 

— r. Taylor, 536 

— 's Estate, Daiibncy r. Leake, 1S9 
Teague, Re, 443 



Tebbs r. Carpenter, ISO, 181, 406, 408 
Tebbntt v. I'otter, 76 
Tees Bottle Co., Re, 141 
Tempest i\ Tempest, 167 
Temple v. Bank of England, 340 

— Church Lands, Bristol, Re, 289 
Templeman, Jle, 473 

— V. Warrington, 69 
Tenipler v. Swete, 69 
Tenant & Co. v. Ellis k Co., 2 
Tench r. Cheese, 485 
Tetley, E.e iiarlc, 304 
Thakeham Monies, Re, 315 
Thellusson v. Kendlesham, 153 
Therry v. Henderson, 195 
Thomas, Re, 239, 297, 326 

— V. Buxton, 379 

— V. Cooper, 230 

— V. Cross, 428, 430, 547 

— V. Dering, 253 

— 1-. Ellis, 375 

— V. Elsom, 354 

— V. Fin lay son, 87 

— v. Jones, 168, 201, 202 

— v. Parry, 42, 43 

— V. Townseud, 251 

— V. Walker, 111, 328 
Thomason r. Closes, 96, 97 
Thompson, Em parte, 568 
— , R<.c, 454, 455 ', 

— and Debenham, Re, 549 

— Re, Nalty v. Aylett, 533 
— • v. Clive, 163 

— V. Cooper, 203 

— V. Hudson, 117 
' — V. Kendall, 116 

— V. Milligan, 398 

— V. Richardson, 241 

— V. Sheppard, 171 

— 's Trusts, Re, 328 
Thomson v. Eastwood, 106 
Thorby v. Yeats, 414 

Thorley's Cattle Food Co, v. Massam, 

498 
Thorner's Charity, iZc, 287 
Thornhill v. Evans, 232 
Thoroton, Ex 'parte, 290 
Thorp r. Thorp, 190 
Thorpe, Eximrie, 38 

— v. Freer, 251, 378 
Threlfall v. Harrison, 199 
Throckmorton i'. Crowley, 134, 563 
Thurgood, Re, 439, 440 
Tibbitts, In re, 441 

Tichborue v. Mostyn, 57 
Tickner r. Smith, 'l81 
Tidwell V. Ariel, 98 
Tildesley v. Harper, 34 

— I'. Lodge, 222 

d 



TABLE OF CASES. 



Tilleard, lie, 473, 506 

Tillett V. Stracey, 495 

Tillotson r. Hargreaves, 124 

Tiluey v. Stansfold, 392, 529, 530, 533 

Times Life Assurance Co., Re, 267, 

268 
Times v. Negus, 370 
Timras, In re, 60 
Tipping t'. Power, 115, 178, 197 
Tijiton Green Co. v. Tipton ]\Ioat Co. , 

238 
Titley, Ex ixirle, 556 
Tiverton Market Co. (No. 2), Re, 303 
Tod V. Tod, 161 
Todd V. Studholme, 386, 392, 394 

— V. Wilson, 389, 457 
Tofts, Re, 303 

Toghill V. Grant, 505, 507 

Toleman and England, In re. Ex x>(trte 

Bramble, 558 
Tomkins v. Coltliurst, 176 
Toniliiison v. Gregg, 228 
Tompson ;•. Knights, 78 
Toner v. Thompson, 410 
Tookey s Estate, Re, 284 
Tootal V. Spicer, 202 
Topham V. Duke of Portland, 53, 120, 

333 
Torrance v. Bolton, 109 
Torre v. Brown, 155 
Tottenham r. Barry, 63 

— V. Emmet, 250 

— V. Green, 250, 334 
Towle, Re, 452, 455 
Towuseud, Re, 239, 326, 327 

— V. Champernowne, 254 

— V. Westacott, 397 

Townsheud (Marq^uis), v. Stangroom, 

259 • 

Tratford, Ex parte, 289 
Traile v. Bull, 64 
Travers v. Townshend, 179, 180 
Travis v. lUingworth, 399 
Tredwell v. Byrch, 14 
Tretheway v. Helyar, 166 
Trew, Ex parte, 222 
Trick, Re, 321 

Trimleston (Lord) v. Hamili, 229 
Trinity House (Corporation of), Ex 

parte, 287 

— V. Ryall, 98 
TroUope v. Rontledge, 178 
Trotter v. Maclean, 102 
Troward v. Attwood, 77, 78, 80 
Trower and Lawson's Case, 42 
Trowers' Trusts, Re, 319 
Trueman's Estate, Re, 270, 277 
Tryon, Re, 379, 402, 405, 450 
Tucker r. Hernaman, 140 



Tucker i\ Sanger, 345 
Tuckley v. Thompson, 198, 226, 227 
Tunis Railways Co., 281 
Tunstall v. Freeney, 373 

— 's AVill, In re, 331 
Turnbull v. Jauson, 487, 488 
Turner, Ex parte, 269 

~ Ex parte, Re Boyle, 448, 454, 455, 
456 

— Re, Re Emma Silver Mining Co., 
553 

— V. Collins, 96, 396, 401, 402 

— V. Gowdon or Sowdon, 187 

— V. Hand, 457 

— V. Heyland, 101 

— r. Letts, 367, 555 

— V. MuUineux, 325, 342, 343, 399 

— V. Turner, 43, 65, 357, 480, 481 
Turner's Estate, Re, 283 
Turnley, Re, 323 

Turquand v. Knight, 397 

— V. Marshall, 107 
~ V. Pticketts, 347 
Turwin v. Gibson, 562 
Tuthill V. Scott, 345, 348 
Twinberrow v. Braid, 122, 498 
Twisleton v. Griffith, 248 
Twort V. Dayrell, 557 
Twyford Abbey Estates, Re, 332 
Twynam v. Porter, 539, 568, 571 
Tylden, Re, 290 

Tyler r. Yates, 249 
Tyler's Estate, Re, 290 
Tyne Alkali Co. v. Lawson, 101 
Tynte r. Hodge, 19, 22 



n. 



Umfreville r. Johnson, 131 
Underwood, Ex parte, 557 

— V. Trower, 412 

— V. Secretary of State in Council, 
494, 500 

Union Cement Co., Re, Ex pxrte Pull- 
brook, 556 

Union Cement Co., Re, 271, 562 

United Kingdom Assurance Co., Re 
323 

United Kingdom Electric Telegraph 
Co., Re, 536 

United Ports Co. v. Hill, 16 

Universal Lisurance Co., Re, 267 

Upmann v. Elkan, 123, 146 

Upperton v. Harrison, 224 

— V. Nickolsou, 256 
Usil V. Brearley, 142 



TABLE OF CASES. 



li 



TT.sticke v. Peters, 92 
Uvedale r. Uvcdale, 200 



V , Rr, 530 

Yale V. ]\Iereditli, 115 

— V. Ofiert, 8, 22 

— V. Oppert, 143, 553 
Valentine v. Dickinson, 259 
Vallance r. Birniingliam, &c., Corpora- 
tion, 52 

Vancouver v. Bliss, 95, 251, 252, 257, 

258 
Vansittart v. Vansittart, 28, 367, 368 
Vardy, Be, 462 

Vandrey's Trusts, ^.<-^j(rr/'c, 290, 308 
Vauglian v. Fitzgerald, 216 

— V. Vanderstegen, 367, 552, 559 
Veitcli V. Irving, 22 

Ventilation and Sanitary Improvement 
Co. r. Edelsten, 78 

Verity v. Wylde, 561, 562 

Verlander v. EddoUs, 566 

Vernon v. Vestry of St. James, West- 
minster, 498 

Vcstris V. Hooper, 84 

Viall, Re, Hawkins v. Terry, 240, 326 

Vickersi'. Bell, 149 

— V. Vickers, 107 
Victoria, The, 143 
Vincent v. Hunter, 19 

— V. Venner, 459 

Vines, He, ExjJCirfeShiickcW, 449 
Viney's Trusts, Rr, 569 
Viney r. Cliajdin, 50 
Von Bolton r. Cruden, 67 
Vyse V. Foster, 560 
Vyvyan v, Vyvyau, 221 



W 



Waddell, Ex imrtc, In re Lutscher, 45, 
159 

— V. Blockey, 65, 141 
Waddell's Contract, Re, 330 
AVaddilove r. Taylor, 72 
Wade V. Stanley, 87 

— r. Ward, 226, 227 
Wagner v. Hears, 374 
AVaimvright, Ex 'parte, 109, 159 

— V. Sewell, 85 
Waite V. Barnes, 351 
Wakefield v. Brown, 493 
• — V. Newbon, 554 



Waldo V. Caylcy, 53 
Waldron v. Francis, 201 
Wales (Princess of) r. Earl nf Liver- 
pool, 82 
Walford v. Walford, 53 
AValker, Re, 293, 440 

— 's Case, 278 

— , Ex paiie, Re Foster, 449, 45], 
454 

— V. Daniel], 51 

— I'. Easterby, 7 

— V. Else, 355 

— V. French, 160 

— V. Molloy, 334 

— V. Moore, 381 
Wallace v. Patton, 153, 155 
Waller i'. Lacy, 434 

— ?'. Holmes, 560 

Wallis V. Bastard, 93, 109, 139, 259 

— V. Wallis, 78, 79 

— V. Withani, 186 

Walrond v. Walrond, 28, 181, 367 
Walsh, Re, 455 

— c. Walsh, 384 

— i\ Wason, 72 
AValsham v. Stainton, 31 
Walter v. Beauclerk, 68 

— V. Patey, 105, 183 

— V. Stanton, 197 
Walters, Re, 432, 473 

— V. Pynam, 252 

— V. A\'eblj, 29 

— V. Woodbridge, 126, 352, 401, 404 
Walton, Re, 426 

— Ex2)arte, Ex jmrte Hue, 278 
Warburton v. Edge, 553 
Ward V. Barton, 236, 238 

— V. Eyre, 418, 550 

— V. Hepple, 560 • 

— V. Lawson, 440 

— V. Mackinlay, 224 

— V. Shakeshaft, 116, 117 

— p. Sittingbourne & Sheeruess Ivy. 
Co., 26 

— V. Woodcock, 376 

— V. Yates, 187 

Ware v. Cuniberlege, 167 
Waring, Re, 315 

— V. Manchester, Sheffield & Lincoln- 
shire Ry. Co., 49 

— V, Williams, 442 
Warner v. Armstrong, 66 

— V. Mosses, 483, 496, 500 
--V. Murdoch, 3 

Wan-en v. Postletliwaite, 178 
Warrick v. Queen's College, Oxford, 

62 
Warrin v. Thomas, 107 
Warry, Ej'jj'c.rtc, 222 



lii 



TABLE OF CASES. 



AVarwick Tearsou's Trusts, Be, 315 
AVashoe ]\Iiiiiiig Co. v. Ferguson, 16, 

19 
AVastell v. Leslie, 491 
"Waterlow or "Waterton v. Burt, 191 
Waters r. Ta3'lor, 456 

— r. AYaters, 346 
AVatkius r. Atcliisou, 216 
AYatson, lie, 290 

— V. Gt. AYesteru Ey. Co., 499 

— V. Lyon, 552, 560 

— V. Kodwell, 37, 444, 457 

— V. Eow, 191 

AVatts V. Hammond, 220 

— V. Jefferj'es, 522 

— r. Kell}^ 11 

— V. ]\Ianning, 35 
AYaugh, Re, 438, 477 

— V. AYaddell, 428, 437, 547 
AA'avell, He, 440, 441 
AYeatlierlev r. Eoss, 100 
AYebb v. Claverden, 346, 348 

— r. England, 111 

— V. Fitzgerald, 138 

— v. Grace, 435 

— V. Mausel, 65, 148 

— ^'. AYebb, 12o 

— r. AYhiffin, 275, 277 

— 's Estate, Re, 490 

— 's Eolicy, Re, 318, 323 
AVebster v. Le Hunt, 406, 558 

— V. lilanbv, 49, 479 
AYeddall v. "Nixon, 254 
AYedderbume r. Llewellyn, Q(!> 
AYedgwood v. Adams, 97 
AYegmann r. Corcoran, 492, 493, 495, 

499 
AYeise r. A\\ardle, 386 
AA^elchman, Re, 451, 454 
AYeller r. Fitz Hugli, 320 
AYelleslev v. Mornington, 13, 72, 365 

— V. AYellesley, 366 

AA'ells, Re, 432, 450, 452, 459, 460, 461 

— V. Gibbs, 522 

— V. Malbon, 111, 320 

— V. Mitcham Gas Co., 497 
AVelply V. Buh], 25 

AYentwortli r. Lloyd, 46, 487, 489, 491, 

545 
AVescomb's Case, 271 
AA^'est r. Downman, 62 
AYcst r. Jones, 106, 233 

— V. Smith, 65 

— V. Swinburne, 193 

AYest of England Banking Co. v. 

Batclielor, 551 
AYestbourue Grove Drapery Co., Re, 

280 
AYestby V. AYestby, 515, 532 



AYestcott r. Culliford, 97 

AYestern r. Perrin, 252 

AYestern of Canada Oil Co. v. AYalker, 

16 
AYestley v. AYilliamson, 396 
AYestou V. Clowes, 201, 202 

— r. Cohen, 52 
AYestover v. Chapman, 112 
AYestropp v. Healev, 83, 369 
AYetenhail v. Dennis, 200, 201, 202 
Wetlierell v. Collins, 233 
AYhalley Ik, 473, 477, 481 

— V. Eamage, 50, 93, 133 

— V. Lord SirfReld, 135 

— v. AYhalley, 152 

— V. AYilliamson, 507 
AYharton v. May, 248, 250 
AYheatley v. Bastow, 113 
AVheatoii v. Graham, 227 
AA^heeler, Re, 239, 326 

— V. Tootel, 331 
AYhicber, Re, 449 
AYhiclicote v. Lawrence, 408 
AYhicker v. Hume, 350 
AYhistler t). Newman, 405 
~ V. Eawlinson, 186 
AYliitcomb v. ]\Iincliin, 121, 335 
AVhitcombe, Re, 417, 439 
AVhite, Re, 530 

— E.r iHirte, Re Davie, 454 

— r. Beck, 262 

— V. Bromige, 34, 82, 538 

— V. Carroll, 7 

— V. Foljanibe, 252 

— r. Gardner, 404 

— r. Greathead, 8 

— V. Gudgeon, 199 

— V. Hillaere, 393 

— r. Jackson, 164 

— V. Leatherdale, 193, 194 

— v. Lisle, 100 

— V. Pearce, 561, 562 

— r. Peterliorougli (Bishop of), 224 

— r. AYilson, 346, 347 
AYhiteman v. Hawkins, 394 
AYhitficld (Licunibeut of). Re, 286, 299 

— V. Eoberts, 539 
AYhitley v. Martin, 120 
AYhitmarsh v. Eobcrtsou, 413 
AA^hitmore v. Oxborrow, 84 
AYhituey v. Smith, 390 
AYhittaker -!'. Marlar, 354 
AVhitton's Trusts, Re, 322 
AA'^ickeiiden I', iiayson, 199 
AA'ickliam v. ]\Larquis of Bath, 350 
AVicks I'. Scrivens, 228 
\Yidgery v. Tepper, 523 
AYiggins v. Peppin, 89, 442 
AVigginton r. Pateman, 76 



TABLE OF CASES. 



liii 



Wild r. ]li)l>soii, 4", 377 

— r. Lockhart, •221 

— r. iMiura\-, 19 
AVildo r. Wilde, 78 
"Wildiiiff )'. Laudor, 181 
AVilcs V. Cooper, 125 
"Wilkes V, Saiuiion, 238 
"WilkiiLsoii, /;.« j^rt/-|{c, Jic Alcock, 450, 

454 

— Re, 305 

— V. JJarber, 206, 350 

— v. Belsher, 371, 375 

— V. Castle, 241 

— V. Hartley, 255, 256 

— i". Jobenis, 241 

— V. Smart, 434 
AVillcock V. Terrell, 520 
Willcox V. IJellaers, 252 
AYiiliams, Jic, 313, 395, 444, 445, 559 

— V. Brisco, 136 

— v. Curmartlien IJy. Co., 51, 53 

— V. Edwards, 260, 263 

— V. Gleiiton, 261, 262 

— V. Kershaw, 167 

— V. Longfellow, 118 

— V. Metropolitan l>y. Co., 103 

— V. Nixon, 335 

— V. Page, 119 

— V. Sorrell, 230 

— V. Thomas, 105, 106, 120 

— r. Williams, 119, 186, 217, 243, 
348 

Williams' Estate, Be, 303 

— Trusts, ]le, 316, 415 
Williamson u. London & North 

Western Ry. Co., 39 
AVillis r. lliseox, 413 

— v. Kihhle, 405 

— L-. liadford, 31 
AN'illmott V. Jjarber, 5 

AVills' Trusts, lie, 71, 325, 368, 485 
Wilson, He, 284 

— V. Allen, 254 

— V. Bates, 532 

— V. Broughton, 42 

— V. Brownsmith, 165 

-- v. Church, 141, 509, 510 

— V. Clapham, 254 

— V. Cluer, 229, 239 

— r. Emmet, 558 

— r. Foster, 294, 295 

— V. Heaton, 173 

— V. Hood, 571, 573 

— V. Maddison, 403 

— V. Metcalfe, 99, 520 

— T. Kound, 571 

— V. Smith, 141 

— r. Squire, 169 

— V. Thomson, 122, 260, 407 



Wilson r. We.st Hartlepool Ry.. 53 

— t'. Williams, 254 

— V. Wilson, 87, 152, 411 
Wilton V. Hill, 12, 366 
Wiltshire i: Marshall, 43 

— V. Smith, 231 

Wimbledon and Dorking Railway Act 

Jir, 311 o J 

Winch r. Winchester, 259 
Winchester (Bishop of) v. Paine, 251 

— r. Mid Hants Ry. Co., 264 
AVinder, Br parte, 305 
Windham r. Graham, 97 

Windsor, Staines, & South Western 

liailway Act, Jic, 282 
AVing V. Angrave, 150 
Winter, Er parte, 340 
Winterhottom, Re, 439, 440, 458 
AVincertield v. Bra.lnum, 19, 132 
AVinthrop v. Murray, 56, 75, 88 

— V. Royal Exchange Assurance Co., 7 
AVisdeu v. AVisden, 97, 177 

AVise V. AVise, 109, 222 

AVise's Trusts, Re, 315 

Wiseman's Trusts, Re, 325 

AVitham r. Vane, 120 

A\^ithey v. Haigh, 67 

AA'itt V. Corcoran, 58, 158 

AVitts V. Campbell, 13 

AVolIam v. Hearn, 259 

AVollaston r. AVoUaston, 170 

AYolley v. Brownhill, 122 

AVombell v. Corporation of Barnsley 

461 
AVonham v. Machin, 224, 225 
AVontner v. AYright, 225, 228 
AYood V. Abrey, 248 

— V. Barker, 109 

— V. Boucher, 68 

— V. Scarth, 253 

— r. AVeightman, 407 
AVoodard, Re, 448, 457 

— r. Eastern Counties Rj-. Co., 120 
AA^oodburn's Trust, Re, 283, 310 

— 's AVill, Jic, 313, 314, 325 
Woodcock V. King, 79, 214 

— V. Oxford, AVolverhampton, and 
Worcester Ry. Co., 66 

AVoodhead z'. Marriott, 179 

AVoodmau v. Higgins, 229 

AVood's Case, 279 

— 's Settled Estates, Re, 290 

— 's Trusts, Jic, 323 

AVoods, In re, Ee jw.rtc Dittou, 4'>7 

— V. AYoods, 485 
AVoodward v. ]\liller, 255 

Woolf r. Pemberton, 355, 357, 359 
WooUey, Er yarfp, 307 
— 's E.^tate, Roj 308 



liv 



TABLE OF CASES. 



Woolletf-, Re, 473 

AVoolmer, E.r jiartc, 274 

AVootton V. "Woottoii, 05 

Worgaii r. Eyder, 217 

AVormall v. Willianison, 60 

AVormsley, Re, Dailies v. Woniisley, 30, 

484 
AVorrall v. Haifoul, 367 

— r. Joliiison, 551 

— r. White, 14 
Worth, //( re, 204, 437 
Worthaui, Re, 71 

— r. Lord Dacre, 262 
Wragg v. Morley, 189 
Wreuch v. Wynne, 72 
Wright V. Castle, 87, 89 

— V. Chard, 133, 369 

— V. Clitibrd, 52, 90 ' 

— V. Howard, 107, 114, 258 

— V. Hunter, 99 

— V. KiH)y, 197, 224 

— V. Larniuth, 192 

— V. Mudie, 134, 563 

— V. Swindon Ry. Co., 83, 341 

— V. Tathain, 79, 216 

— V. Wilkin, 31 

— V. Wright, 345 
Wroe V. Seed, 181 
Wroughton r. Colquhoiin, 201, 202 
AVyatt V. Cook, 238, 250 
Wyche, In re, 389, 456 
AVykham v. Wykhani, 96 
Wylani r. Clarke, 108 

Wylly's Trusts, Re, 315, 316 
Wyinan r. Bockett, 495, 501 
Wynier v. Dodds, 35, 80, 540 
Wynn r. Slorgan, 254 



Y. 



Yalden, Ex -parte, 7?e Austin, 556 
Yates, Ex parte, 285 

— V. Conipton, 349 

— V. Farebrother, 221, 263 
Yearsley v. Yearsley, 61, 70, 490 
Yeates, Re, 289, 297 
Yeatinan v. Eead, 55 

Yeo V. Tateni, The Orient, 160 
Yeoiuans r. Haynes, 192 
Yetts, Re, 438, 439 

— V. Biles, 66 

— r. Hilton, 386 

Yglesias v. Eoyal Exchange Corjiora- 

tion, 488 
Yockney v. Hansard, 98 
York %-. Brown, 389 

— & North ilidland Ey. Co. v. 
Hudson, 67 

York Union Banking Co. v. Artley, 

198 
Yorke v. M'Laughlin, 7 
Yorkshire Waggon Co. v. Newport 

Coal Co., 119 
Youde r. Cloud, 407, 409 
Young, Re, Young r. Dolman, 172 

— V. English, 554 

— r. Everest, 200, 203 

— V. Fernie, 100 

— V. JIartin, 173 

— r. Sutton, 244 

— X. Young, 242 




ADDENDA ET COERIGENDA. 



Pago. Lino. 

U 13. Add " In Browa v. North (C. A.), W. N. (1882), 56 ; 30 W. R. 531, the 
general rule was .stated to be, tluit where a married woman lias no visible 
means of payment, she ought not to be allowed to sue alone without giving 
security for costs, but that the rule did not apply where she had sueh 
means." 

68 37. Add, " See Li re Satfon, W. N. (1882), 68 ; 30 W. 11. 657.". _ 

102 16. Add, "As to the costs where the plaintitf succeeds on .some Issues and is 

nonsuited on others, see Abhutt v. Andrews, 8 (J. B. D. 6i8. 
15 11. He Carta Para OiM Mining Co., is now reported 19 Ch. D. 457. 
08 19. Add references to Re Foster v. Ut. jrcstcrn llij. Co., 8 Q. 1j. D, 515 ; and 

Witt V. Corcoran, 2 Ch. D. 69. 

103 5. Add a reference to HcatknY. Newton, 19 CIi. D. 326. 

107 30. Add a reference to In re Cooper, Cooper v. Vesey, W. N. (1882), 55 ; 30 W. 
II. 648. 

117 36. Add a reference to Broufjhton v. Keij, W. N. (1882), 3. 

120 10. Hornhy v. Cardwcll is now reported 8 Q. B. D. 329 ; and add references to 
WUiiams V. South Eastern Rij. Co., 26 W. R. 352 ; and PiUer v. Roberts, 
W. N. (1882), 78 ; 30 W. R. 595. 

131 2. Sparrow v. Hill was reversed on appeal, 8 (). B. D. 479. 

143 16. Add, "Where an appellant is ordered to give security for costs within a 
certain time, and fails to do so, his right of appeal is utterly extinguished, 
and liis appeal will be dismissed with costs {Harris v. Fleini/aj, 30 W. R. 
555)." 

158 7. Add, " A defendant to an action which has been dismissed without costs, if 
howi.shesto ol)tain leave from the Court to appeal on the question of costs, 
should Ttpply at the time when the action is so dismissed ; and such leave 
will not be given on an application b}' the defendant for that purpose 
after the plaintiff has given notice of, and set down, an ajtpeal from the 
dismissal of the action\Maij v. Thompson (2), W. N. (1882), 53)." 

158 27. Add, "The authority of these cases, however, seems to be .somewhat shaken 

by the recent case of Turner v. Hancock (C. A.), W. N. (1882), 47. It 
would appear that any order directing a trustee to pay costs, or depriving 
him of costs, may now be appealed against." 

159 32. Hornby v. Cardwcll is now reported, 8 Q. 15. D. 329. 

191 7. Add, "In Lewis v. Trask, W. N. (1882) 68, however, the tru.stee in bank- 
ruptcy of the defendant, a defaulting trustee, was only held entitled to the 
defendant's costs of the action incurred subsequently to the bankru[itcy, 
provided the defendant first i)aid into eoiirt the amount in which he was 
in default ; but see Clare v. Clare, \V. N. (1882), 72." 

205 30. For 59 Geo. III., c. 91, read 52 Geo. III., c. 101. 

212 32. For 59 Geo. III., c. 91, read 52 Geo. III., c. 101. 

223 27. Add, " So where mortgagees were wrongly ordered to pay costs (//( re Cooper, 
Cooper V. Vesey, 30 W. R. 648 ; W. N. (1882) 55)." 

232 17. Add a reference to Twrner v. Haneoek, W. N. (1882), 47. 

269 37. Add " A bond fide creditor who presents a petition in ignorance of a jirior 
petition, is entitled to his costs up to the time when lie has notice of the 
prior petition, and if he has good reason to suppose that the other is not 
a bona, fide one, he may proceed with his own, and will be allowed his 
costs (/ii re General Financial Bank, 30 AV. R. 417).'' 



Ivi 



ADDENDA ET CORIUGENDA. 



Page. 
320 



382 
3S5 



579. 
605. 



Lino, 
36. 



33. 

26. 



343 2. 



3G1 


18. 


b70 


20. 


431 


17. 


499 


3. 


533 


37. 



Add "Trustees wlio are made resiiondeiits and have aeeepted 42s. for tlieir 
costs under 1!. S. C. (Costs), Sclied. r. 17, will not be allowed their costs 
of appearing on the petition, nnless they come for some irseful purpose 
{la re Snfton, 30 AV. E. 657 ; AV. N. (1882) 68)." 

Add "A receiver cannot he brought before the Court except in cases of 
personal misconduct, nor unless in such a case can costs be asked against 
him {In rr Wrflru Brick Co., 30 AV. U. 445 ; i^er Jessel, M. E.)." 

Add, " The right of the solicitor to a trustee in bankruptcy to be paid his 
costs out of the estate is only the right of his client the trustee ; he has 
no independent right ; and if either the trustee or the solicitor has been 
guilty of misconduct, the Court can refuse to allow the solicitor's costs to 
be paid out of the estate, and this notwithstanding the costs have beea 
taxed, and an allocatur made by the Taxing Master (Ex ixirtc Harper, 
In re FooUy (C. A.) AV. N. (1882), 70 ; 30 W. E. 650.)" 

Add references to Lewis v. Trask, AV, N. (1882), 68 ; and Clave v. Clare 
id:, p. 72. 

Add, "And see Brcnrn v. North, W. K (1882), 56." 

Add a reference to Price v. iMayo, AV. N. (1873), 81 ; 21 AV. K. 539. 

Add, "But see Thomas v. PaJin, ^Y. K (1882), 81." 

Add a reference to Smith v. Chadicick, 20 Ch. i). 81. 

Add, "It is now the practice to append to a writ of attachment issued in 
cases falling under s. 4 of the Debtor's Act, 1869, a note in the following 
terms: — 'Xote: This writ does not authorise an imprisonment for any 
longer period than one year.' And where this has been done, it is un- 
necessary to obtain any order for the discharge of the jirisoner at the 
expiration of his year of im])risonment. (In re Eduxirds, Brooke y. 
Edwards, 30 AV. E. 656 ; AV. N. (1882), 73)." 

For "Of notice to the .sheriff marked as a seal of renewal," read "Or 
notice to the sheriff marked with a seal of renewal." 

and 38. For "Administrations," read "Admissions." 



TABLE OF CASES IN ADDENDA. 
— ♦ — 



Abbott r. Andrews. 

Erookfi V. Edwards, la re Edwards, 
liroughton v. Ke}'. 
Brown v. North. 

Carta Para Gold ]\Iining Co., He. 

Clare v. Clare. 

Cooper, la re, Cooper r. Vesey. 

Edwards, la re, Brooke r. Edwards. 
Foster r. Great AVestern Ey. Co., Be 

General Financial llank, La re. 

Harper, E.r. •parte, la re Pooley. 
Harris v. Fleming. 
Heatley r. Newton. 
Hornby v. Cardwell. 



I Lewis r. Trask. 

! 

May r. Thompson, 

Filler r. Eoberts. 

Pooley, In re, E.v 2>arte Harper. 

Price V. Mayo. 

Smith r. Chadwick. 
Sparrow v. Hill. 
Sutton, III re. 

Thomas v. Palin. 
Turner i: Hancock. 

AVetley Brick Co., la re. 
AVilliams v. South Eastern Ey. Co. 
AVitt V. Corcoran. 



COSTS 



CHANCEPtY DIVISION. 



CHAPTER I. 

COSTS GENERALLY. 



Prior to the passing of the Judicature Acts different Former 
rules prevailed as to costs in Courts of Equity and Courts l^ll^^^ ^° 
of Common Law. In the former, costs were always in the 
discretion of the Court ; in the latter, the general rule was 
that the costs followed the event and were given to the 
party who was successful. The Statute of Gloucester, 
passed in the 6th Ed. I., was the foundation of the 
Common Law jurisdiction as to costs. This statute gave 
to the plaintiff in an action the right to recover his costs 
if he succeeded in obtaining any damages, which right was 
modified and regulated by a variety of statutes passed in 
later times ; and subsequently a right to costs was con- 
ferred upon successful defendants. All these statutes, 
however, proceeded upon the same principle, that of 
making the party who was worsted bear the expense 
occasioned by the litigation ; and the general rule, there- 
fore, was that in a Court of Common Law the successful 
litigant, whether plaintiff or defendant, was entitled to 
recover his costs. To this general rule, however, many ex- 
ceptions were from time to time created by various Acts 
of Parliament, until the rules as to costs at Common Law 
became extremely complicated. The enactments on the 

1r, 



2 COSTS GENERALLY. 

subject were very numerous, but the whole of them with 
one exception have now been repealed by the Judicature 
Act, 1875 : see Garuett v. Bradley, 3 App. Cas. 944; 26 
W. R. G98 ; Parsons v. Tinting, 2 C. P. D. 119 ; Ex 
parte Mercers' Company, 10 Ch. D. 481 ; 27 W. R. 424 ; 
Tenant & Co. v. Ellis d Co. 6 Q. B. D. 46. The one ex- 

Couuty ception is the County Courts Act, 1867, 30 & 31 Vict. c. 

ise;'' ' 142, s. 5, which provides that if in any action in a superior 
court the plaintiff recovers a sum not exceeding £20 in an 
action of contract, or £10 in an action of tort he shall not 
be entitled to any costs unless (1) the judge certify for 
costs, or (2) the Court or a judge at chambers shall allow 
them. This Act was held to apply to all actions without 
distinction, but is now by s. 67 of the Judicature Act, 
1873, limited to such actions as can be brought in a County 
Court. 

R. S. c. It is now provided (R. S. C. Ord. LV., r. 1) that 

r. i! subject to the provisions of the Judicature Act, the costs 

of and incident to all proceedings in the High Court 
shall be in the discretion of the Court, but nothing con- 
tained in this rule is to deprive a trustee, mortgagee, or 
other person of any right to costs out of a particular estate 
or fund to which he would be entitled according to the 
rules hitherto acted upon in Courts of Equity : provided 
that where any action or issue is tried by a jury, the costs 
shall follow the event, unless upon application made at the 
trial for good cause shown the judge before whom such 
action or issue is tried or the couil shall otherwise order. 
The Judicature Act, 1875, s. 33, provides that, "From 
and after the commencement of this Act there shall be 
repealed " certain specified Acts, and also " any other 
enactment inconsistent with this Act or the principal Act." 
The only provision in the Judicature Acts in connection 
with the subject of costs to which Ord. LV. appears to be 
subject is s. 67 of the Act of 1873, which makes the pro- 
visions contained in the fifth, seventh, eighth, and tenth 
sections of the County Courts Act, 1867, applicable to all 



t'()8TS GENKltALLV. B 

actions in tlie High Court of Justice, in which an}^ relief 
is sought which can be given in a County Court. 

The result therefore is that in the Queen's Bench Costs ia 
Division : £«;«"'' 

I. If the trial be before a judge alone, the costs are Division, 
absolutely in his discretion. 

II. If the trial be by judge and jury, the costs follow the 
event : 

(i.) Unless upon application made at the trial and 
for good cause shown, the judge or the Court 
otherwise order ; 
or, (ii.) Unless the action be one which could be tried in 
a County Court, and the result of the trial show 
that it ought to have been. If the jury find 
for a sum not exceeding ;£20 in an action of 
contract, or not exceeding ^£10 in an action of 
tort, the plaintiff will be punished for not suing in 
the County Court by being deprived of his costs, 
unless the judge will certify that the action 
was one fit to be tried in the Superior Court. 
In the Chancery Division, however, the costs are always Costs 
in the discretion of the Court, as they were in the old *(?jj*^cei7 
Court of Chancery, subject only to the provisions of the Division. 
County Courts Act, 1867, s. 5 (R. S. C. Ord. LV., r. 1. ; 
Jud. Act, 1873, s. 67) ; for a judge of the Chancery 
Division cannot try a case with a jury {Clarl-e v. Cookson, 
2 Ch. D. 746 ; Warner v. Murdoch, 4 Ch. D. 750). 

There are three ways in which costs awarded by any Three ways 
judgment, decree, or order of the Chancery Division may °osts!^^°^ 
be taxed : 

I. As between party and party ; 
II. As between solicitor and client ; 
III. As between solicitor and client, but with the addi- 
tion of other charges and expenses properly incurred but 
not strictly costs of suit. 

By R. S. C. (Costs) Sched. r. 28, the rules, orders, and 
practice as to costs and the taxation of costs existing prior 



4 COSTS GENERALLY. 

to 1875, except where altered by the new rules or by the 
Act itself, are to remain in force in the Chancery Division 
{Pringle v. Gloag, 10 Ch. D. 676). 
First, as I. When costs are directed to be taxed simply, without 

^art ^and ^"^ farther direction, they will be taxed as between party 
party. and party ; and this, although the party to whom the costs 
are awarded would according to the ordinary practice of 
the Court be entitled to his costs as between solicitor and 
client, or to his costs, charges, and expenses. If therefore 
the costs are intended to be taxed as between solicitor and 
client, or any costs, charges, and expenses not strictly costs 
of suit are to be allowed, or the taxation is in any respect 
to vary from taxation as between party and party, 
this should be expressed in the judgment decree or order 
(Seton, p. 124). 

As to what costs will be allowed on taxation as between 
party and party, seeposf, ch. YIII. The general principle 
of such a taxation is that the successful party shall receive 
only such costs as were necessary to enable him to conduct 
the litigation. 
Secondly, u When, on the other hand, costs are directed to be 
solicitor taxed "as between solicitor and client," a much more 
and client, liberal allowance Avill be made. The party in whose 
favour such an order is made is entitled to receive all 
such costs as a solicitor would reasonably incur in the 
ordinary conduct of his client's case. Thus in a case of 
more than ordinary difhculty the Court allowed the costs 
of a consultation with a Queen's Counsel to settle the 
draft bill, though of course no such allowance would have 
made " as between party and party " {Forster v. Davies, 
32 Beav. 624 ; 11 W. R. 813). But it is not every charge 
to which the solicitor would be entitled as against his own 
client, which will be allowed by the taxing-master. Extra- 
ordinary costs will be disallowed, as for instance where by 
the client's own instructions an unusual number of counsel 
were employed, or where the costs were incurred through 
the party's own default in incurring a contempt. The 



COSTS GENERALLY. 



particular actions in which, and the particular persons to 
whom, costs as between solicitor and client are ordinarily 
awarded, will be discussed in subsequent chapters. 

A distinction is made by the taxing-master, without 
special directions, first, wdiere the costs are to be paid by 
another party personally or out of a fund belonging wholly 
to other parties ; secondly, where they are to be paid out 
of a fund in which the party receiving costs has a common 
interest with other parties ; thirdly, where the fund out of 
which they are to be paid belongs wholly to the party him- 
self (Seton, p. 124 ; 1 Smith's Ch. Pr. 1081). When 
costs are given out of a fund they are ordered to be paid 
to the solicitors of the parties ; in all other cases to the 
parties themselves. 

Costs as between solicitor and client are also occasion- Costs as 
ally awarded by the Court in cases of scandal or miscon- ^^^^^ses- 
duct, by way of marking its disapproval. But the 
difference between solicitor and client costs and party 
and party costs in an action cannot be given by way of 
damages in the same action, the latter being all that the 
successful party is entitled to {Cockburn v. Echvards, 
(C. A.)18 Ch. D. 449). The judge has no discretion to 
impose costs by way of penalty, beyond the costs of the suit 
{Willmott V. Barber, W. N. (1881) 107). 

III. Trustees, executors, and administrators are usually Thirdly, 

allowed their costs of suit as between solicitor and client T*'^' 

!• 1 r 1 charges, 

out ot the trust funds or the general estate ; and, in and ex- 
addition to costs of suit, all other costs, charges, and ex- p^"'*^'*- 
penses properly incurred by them in the execution of the 
trust or the administration of the estate. 

It should be stated to the Court that such additional 
costs, charges, and expenses have actually been incurred, 
and the order will then provide for their taxation and 
payment ; but this is not absolutely necessary, for though 
not mentioned, they will be allowed by implication as 
"just allowances," under Cons. Ord. XXIII, r. 3 6 {Fectrns 
v. Young, 10 Ves. 184 ; Artmrd v. Broadbourne, 2 Ch. 



6 COSTS GENERALLY. 

Ca. 138). In an old case (Humphrys v. Moore, 2 Atk. 
108), it was held that executors were not entitled to their 
charges and expenses on taxation without an express 
direction, on the ground that they were presumed to 
retain them. 

The charges and expenses of trustees are not " costs 
incident to proceedings in the High Court," and therefore 
are not within the provisions of R S. C. Ord. LV., r. 1, 
and consequent]}^ not " in the discretion of the Court " in 
the ordinary sense of the term. Of course the Court may 
deprive a trustee of his charges and expenses, but to do 
this has been called a " violent " exercise of the Court's 
discretion, and such an order is only made in very special 
circumstances, and when the tnistee has been guilty of 
gross misconduct {In re Chennell ; Jones v. Chennell, 
8 Ch. D. 492 ; 47 L. J. Ch. 583 ; 20 W. R. 595 ; 38 L. 
T. 494). 
Mort- A mortgagee will also be allowed, in addition to his 

gagees. costs of a foreclosure or redemption action, all costs, 
charges, and expenses propei'ly incurred in relation to his 
security ; see post, ch. IV. s. VII. 



CHAPTER II. 



SECURITY FOR COSTS. 



When the sole plaintiff is resident or (if there be By whom to 
more than one) all the plaintiffs are resident out of the i_ AVhea 
jurisdiction, and whether such plaintiff is a Sovereign, a*!|!r^'""^' 
Sovereign State, a corporation, or an individual (Rejjuhlic of the 
of Costa Rica v. Erlanger, 3 Ch. D. G2 ; 24 W. R. 955 ; ^^y^f'""- 
35 L. T. 19), any defendant may require the plaintiff or 
plaintiffs to give security for costs. But the possession 
of real estate within the jurisdiction is a good answer to 
an application for security {Kilkenny Railway v. Feilden, 
G Ex. 81). The rule formerly applied to residents in 
Scotland (Kerr v. Duchess of Manster, Bunb. 35 ; Kx 
parte Latta, 3 De G. & S. 186; In re Fast Llangynog 
Mining Co., 23 W. R. 587 ; W. N. (1875), 81) ; and Ire- 
land {Hill v. Reardon, G Mad. 4G ; Moloney v. Smith, 
1 M'Clel. & Y. 213 ; Craig v. Bolton, 2 Bro. C. C. G09 ; 
White v. Carroll, Ir. R. 8 C. L. 29G ; Clarhe v. Crolcer, 
ibid., 318; Corner v. Irwin, ihid., 504; Yorke v. 
M'Laughlin, ibid., 547) ; the Judgments Extension Act, 
1868, 31 & 32 Vict. c. 54, being held to apply only to 
actions at law. But now it is submitted that that Act 
is extended to all proceedings in any Division of the High 
Court, by the Judicature Act, 1873, s. 76 ; and that there- 
fore residents in Scotland or Ireland are now exempted 
from giving security ; and see Keegan v. Keegan, 7 L. R. 
Ir. 101. No order will be made on a plaintiff residing 
abroad to give security for costs, if there are co-plaintiffs 
residing in England {Wintliorp v. Royal Exchange As- 
surance Co., 1 Dick. 282 ; Walker v. Easterby, G Ves. 612 ; 
see, however, Hanmer v. Mangles, 12 M. & W. 813) ; 
sed qucere, where all the plaintiffs are out of the juris- 



SECURITY FOR COSTS. 



diction, but one of them sues by a next friend in this 
country {Lander v. Parr, 16 L. J. Ch. 269; and see 
Smith V. Etches, 1 H. & M. 558). The defendant is 
equally entitled to security whether the plaintiff is de- 
scribed as resident out of the jurisdiction, or has gone 
abroad at any time after the institution of the suit (Xo- 
nergan v. Rokehy, 2 Dick. 799 ; ^Veel•s\. Cole, 14 Ves. 518; 
Vale V. Offert, 22 W. R 629 ; 30 L. T. 457) ; or was in fact 
resident abroad at the time when the suit was instituted, 
though not so described. But the plaintiff must be resi- 
dent abroad and not merely there on a visit or for a 
temporary purpose, without abandoning his residence in 
this country {Green v. Charnock, 1 Ves. jun. 396 ; 2 Cox, 
284 ; Hoby v. Hitchcock, 5 Ves. 699 ; Blakency v. Dufaur, 
2 De G. M. & G. 771 ; Edivardes v. Burke, 9 L. T. 406). 
In O'Conner v. Sierra Nevada Co., 23 Beav. 608, 
24 Beav. 435, security seems to have been required from 
a plaintiff who had gone abroad, after bill filed, merely on 
matters connected with the suit — a case difficult to reconcile 
with the earlier decisions ; see particularly Wh ite v. Great- 
head, 15 Ves. 2, and Green v. Charnock, 1 Ves. jun. 396. 
In Blakeney v. Dufaur, 2 DeG. M.& G. 771, the plaintiff 
was in embarrassed circumstances and had gone to Jersey 
to avoid his creditors, and the Court held that he was 
" resident abroad," and must give security. In the same 
way security was required from a plaintiff who had given 
up his house in England since the filing of the bill and 
gone to reside abroad, as he stated, for a temporary abode, 
but who left it uncertain whether and when he intended 
to return {Kennaway v. Tripp, 11 Beav. 588 ; and see 
Stewart v. Steiuart, 20 Beav. 322). The plaintiff will not 
be required to give security if he is abroad in some official 
capacity on the public service: as in Colehrook v. Jones, 
1 Dick. 154, where the plaintiff was a consul abroad; 
Evelyn v. Chippendcde 9 Sim. 497, where the plaintiff 
was a half-pay officer who had resided sixteen years in 
Barbadoes, where he held the offices of harbour-master 
and captain of the port; and see Fisher v. Bunhury^ 



SECURITY FOll COSTS. 9 

Sau. & Sc. 625. But it must distinctly appear that the 
plaintiff is abroad on the public service. In Lillie v. 
Lillie, 2 My. & K. 404, the plaintiff was described in the 
bill as ' a lieutenant in Her Majesty's 58th regiment, 
resident at Ceylon in the East Indies ; ' and it was held 
that he must give security, though it appeared that the 
regiment was in Ceylon. In Clark v. Fergusson, 1 Giff. 
184, the plaintiff was described as 'a lieutenant in her 
Majesty's ship Gladiator, now on service,' and he was 
exempted from giving security. There seems to be no 
exemption in favour of a seafaring man {Stewart v. 
Stetvart. 20 Beav. 322), though the contrary was held in 
Goivran v. Barnett, Sau. & Sc. G51. A peer, if resident 
abroad, must give security {Lord Aldhorough v. Burton, 
2 My. & K. 401), even though he possesses large estates 
in this country {Lord Lucan v. Latouche, 1 Hog. 
448 ; but see Kilkenny By. v. Fielden, 6 Ex. 81). 
Security will not be required merely because the 
plaintiff intends to go abroad. In Baddeley v. Harding, 
G Mad. 214, where the plaintiff had been convicted of 
a misdemeanour and sentenced to be transported for 
seven years, but was then in prison in this country, a 
motion that he should give security was refused ; and 
aee Seilaz v. Hanson, 5 Ves. 2G1. Again, a foreigner, 
usually residing abroad, but temporarily resident here, 
will not be required to give security, though it is not 
denied that he intends to return to his own country 
{(kimhottie v. Inngate, 1 W. R. 533 ; Bedondo v. 
Chaytor, 4 Q. B. D. 453 ; 27 W. R. 701 ; 40 L. T. 797, 
Aviicre the cases are discussed in an elaborate judgment 
by Thesiger, L. J. ; Ainslic v. Sims, 17 Beav. 57, must be 
taken to be overruled ; and see Anon, 5 L. J. Ch. (Old S.) 
71); but secus, if he cannot be found at the address in 
this country given by him {Perrot v. Novelli, 9 Jur. 770 ; 
and see Svxinzy v. Sivanzy, 4 K. & J. 237 ; 27 L. J. Ch. 
419). Executors and administrators, if out of the juris- 
diction, must give security {SJunu v. Dempsey, Sau. & Sc. 
628) ; and even where, on the death of a plaintiff from 



10 SECURITY FOR COSTS. 

whom security might have been, but was not, required, 
they obtained the common order for revivor {Jackson v. 
Davenport, 29 Beav. 212; 7 Jur. N. S. 1224). In 
Desprez v. Mitchell, 5 Mad. 87, a defendant obtained, on 
motion in the Court of Chancery, security for the costs of 
an action at law which, at the hearing, the phiintiff, who 
was out of the jurisdiction, had obtained leave to bring ; 
but see Hilton v. Lord Granville, 5 Beav. 263. When 
the plaintiff comes within the jurisdiction the. order will 
be discharged {Matheivs v. CJiichester, 30 Beav. 135 
O'Conner v. Sierra Xevada Company, 24 Beav. 435). 

2. An A.n ambassador's servant, being a person privileged 
ambassa- ^jj^der 7 Ann. c. 12, must give security for costs (Goodivin 

(lor s scr- " "^ 7 • 1 

vant, but v. Avchev, 2 p. Wms. 452 ; Adderly v. Smith, 1 Dick. 

bassadJir '^^'^ > ^'^<^>'i'> ^los. 175) ; but, sernhle, not an ambassador 

himself {Duhe de Montellano v. Christ in, 5 M. t<c S. 503). 

3. Where The mere fact of tlie plaintiff not describing, or in- 
the i)iaiu- siif^cientlv dcscribinof his residence, is not of itself 

tin mis- -^ o ... 

desciibes sufficient to entitle the defendant to require him to give 
lieuceforis security {Hwrst v. Padwicl; 12 Jur. 21), though the con- 
keeping trary seems to have been held in Sandys v. Long, 2 My. 
^vay. & K. 487 ; see this case commented on by Lord Cottenham, 

C, in Hurst v. PadvAch. There must be a fraudulent 
intention to keep out of the way {Hurst v. Padwicl- ; 
Lumley v. Hughes, 2 W, K. 112 ; Simpson v. Burton, 
1 Beav. 556 ; Griffiths v. liicketts, 5 Ha. 105 ; Knight v. 
Cory, 1 N. R. 229). If the plaintiff cannot be found at 
the place of which he is described, and no information 
can be obtained from his solicitors, he must give se- 
curity : see Bailey v. Gundry, 1 Keen, 53 ; Manhy v. 
Beiuicke, 8 De G. M. & G. 468; 2 Jur. N. S. 671, 
overruling S. C. 3 W. R 646; 1 Jur. N. S. 1015. 
In the latter case the decision of Wood, V.C. below, 
went on the grounds that the plaintiff had paid the 
costs of a demurrer allowed, wliich fact outweighed 
the evidence of his not being found ; but this circum- 
stance does not seem to have been adverted to by the 
Lords Justices. In Oldale v. Whitcher, 5 Jur. N. S. 84, 



SECURITY FOR COSTS. 11 

S. C. mh nam. Oldale v. Whitehead, 7 W. R. 157, the 
plaintiff's affidavit, in answer to evidence that inquiry- 
had been made for him, but he could not be found at the 
place of which he was described, stated that ' he occupied 
and rented apartments there, and his wife and family 
resided there,' and he was ordered to give security. In 
Sandys v. Whateley, 2 Jur. 1058, it was held that the 
plaintiff was sufficiently described as rector of a certain 
parish, although it appeared he was travelling about the 
country. In Kiiight v. Cory, 1 N. R. 229, Wood, V. C. 
held that where the plaintiff could not be found at the 
place of which he was described, the defendant ought to 
communicate with the plaintiff's solicitors ; and he made 
the defendant pay the costs of the motion because he had 
omitted to do so. It seems, however, to have been other- 
wise held in Ireland {Sliaiu v. Dempsey, Sau. & Sc. 628). 
In Smith v. Cornfoot, 1 De G. & S. 684, the misdescrip- 
tion having been innocently inserted, and the defendants 
admitting that they knew the plaintiff's real address, the 
Court refused the motion, but gave the defendant his 
costs on his not putting the plaintiff to amend his bill ; 
see also Lamb v. Fottrell, Ir. Rep. 8 Eq. 69. As to an 
insufficient description, see Sihbering v. Umi of Bal- 
carras, 1 De G. & S. 683, where the motion was ordered 
to stand over for the plaintiff to amend his description of 
himself. In Player v. Anderson, 15 Sim. 104, the 
plaintiff, whose residence was correctly described when 
the bill was filed, was ordered to give security because he 
had since frequently changed his abode ; see Hutchinson 
V. Swift, 13 W. R. 532 ; Calvert v. Day, 2 Yo. & Coll. 
217 ; Fraser v. Palmer, 3 Yo. & Coll. 279 ; and Dick v. 
Munden, 13 W. R. 1013, where the plaintiff was allowed 
to amend instead of giving security. Security will not be 
required on account of an error in the plaintiff's descrip- 
tion ; see Watts v. Kelly, 6 W. R. 206, where the 
plaintiff, a letter-carrier, was described as a ''clerk." 

Security for costs on the ground of poverty may be 4. By the 
T n 1 .p-ic -1 lii le.xt friend 

requu-ed from the next friend of a married woman, \n\i not 



12 SE(JL'IUTY F01{ COfc^TS. 

of a mar- froiu the next friend of an infant. A distinction between 
!.!f,r,o„ tlie next friend of a married woman and the next friend of 
but not of an infant, appears to have been first drawn in Penninfjton 
on account V. Alviii (cor. Sir J. Leach, V. C), 1 S. & S. 264; and it 
of poverty, jg ^qw settled, 1st, that any person may bring an action 
in the name of an infant, and that security for costs will 
not be required from an infant's next friend (either original 
or substituted) on account of his poverty [Davenimrt v. 
Davenport, 1 S. & S. 101 ; Penninfjton v. Alv'm ; Felloivs 
V. Barrett, 1 Keen, 119 ; Murrellv. Claioham, 8 Sim. 74 ; 
Nalder v. HavMns, 2 My. c^- K. 243) ; and 2ndly, tliat 
the next friend of a married woman must be a person of 
substance, and the Court will on the defendant's applica- 
tion, and evidence of the next friend's poverty, order the 
next friend to be changed or security for costs to be given 
{Pennington v. Alvin, 1 S. & S. 264 ; Diinan v. Mannix, 
3 Dr. & W. 154 ; Stevens v. Williams, 1 Sim. N. S. 545 ; 
Wilton v. Hill, 2 Be G. M. & G. 807 ; Hind v. Whitmore, 
2 K. cl- J. 458 ; 4 \V. R. 379 ; Elliot v. Ince, 7 De G. M. 
& G. 475 ; Macann v. Borradaile, 16 W. R 175 ; W. N. 
(1867), 283, following Wilton v. Hill). But the onus is 
on a defendant, who seeks to have a next friend removed 
on the ground of insolvency to make out a clear case 
(Giacometti v. Prodgers, 21 W. R. 282) ; and there must 
be a distinct allegation that he is believed to be insolvent 
or unable to answer the costs of the suit, a mere state- 
ment of belief that he is poor not being sufficient (Beach 
v. Sleddon,'39 L. J. Oh. 123). 

Where the next friend could not produce any authority 
from the wife, but deposed that he was a man of substance, 
V. C. Bacon refused to dismiss the action or order security 
for costs to be given ; but the Court of Appeal dismissed 
the action with costs, to be paid by the solicitors of the 
next friend (Schjott v. Schjott, 19 Ch. D. 94). 

If a married woman and infants sue by the same next 
friend, security may be obtained (Pennington v. Alvin, 1 
S. & S. 264 ; Brinan v. Mannix, 3 Dr. & W. 154). And 
the circumstance that there are other plaintiffs on the 



SKCUrUTY Fdll COASTS. 13 

record, will not in every case prevent the next friend of a 
married woman Laving to give security for costs : see 
Smith V. Etches, 1 H. & M. 558; 9 Jur. N. S. 1228; 10 
Jur. N. S. 124, where a husband who had become bank- 
rupt and his wife by her next friend being co-plaintiffs 
in a suit for the redemption of the wife's estate, Wood, 
V. C, made the wife's next friend give security for costs : 
see also Plcard v. Him, 5 Ch. 27-i ; 18 W. R. 75. And 
in Balguy v. Broadhurst, 2 W. R. (380, a female adult 
co-plaintiff, on being appointed next friend for her mother 
and brothers 'and sisters, had to give security. In Jones 
V. Fmvcett, 2 Ph. 278, overruling S. C. 11 Jur. 687, the 
Court even refused, on the application of a plaintiff, a 
married woman, to remove her next friend, and to appoint 
another, where it was evident that the defendant's security 
for costs would be thereb}' prejudiced. 

If the next friend, whether of an infant or a married Where next 
woman, is changed in the cour.-je of the suit, he must give pl^an^ed. 
security for the costs already incurred, and proceedings 
will be stayed in the meantime (Witts v. Campbell, 12 
Yes. 493 ; Davenport v. Davenport, 1 S. & S. 101 ; Payne 
V. Little, 14 Beav. 647) ; and semhle, the proper security 
is a bond of the former next friend, and a responsible 
surety in a sufficient amount (Payne v. Little, 16 Beav. 
563). A next friend is, of course, in other respects in the 
same position as an ordinary plaintiff, and must give 
security for costs, if resident out of the jurisdiction (Alcoch 
V. Alcoch, 5 De G. & S. 671), or if insufficiently described 
(Major V. Arnott, 2 Jur. N. S. 80 ; 4 W. R. 229). But it is 
immaterial that an infant plaintiff is resident out of the juris- 
diction if the next friend is amenable (Kerr v. Gillespie, 7 
Beav. 269) ; and semhle, also in the case of a married woman 
■plaintiff (Lander v. Parr, 16 L. J. Ch. 269). A married 
woman may, by special leave, sue in forma pauperis 
without a next friend (Hind v. Whitm,ore, 2 K. & J. 458, 
and cases there cited), and such leave can be obtained 
ex parte (Wellesley \. Mornimjtov, 2 W. R. 514; In re 



]4 .sEt ri;ITY Ftili COSTS. 

Lancaster, 2 W. R. 337; 18 Jur. 22!», overruling Paiff' v. 
Page, 1 W. R. 202). 

Now by R. S. C. Ord. XVI., r. 8, married women 
are empowered t<i sue as plaintiffs by their next friends in 
the manner practised in the Court of Chancery before the 
passing of the Judicature Act ; and may also, by the leave 
of the Court or a judge, sue or defend without their 
Ini.sbands and without a next friend, on giving such 
security (if any) for costs as the Court or a judge may 
re(|uire. Where a married woman (defending) was in receipt 
of a separate income of £1 ,')00 a year, .slie was not required 
to give security (Xoe? v. Noel, 13 Ch. D. 510 ; 28 W. R. 
720 ; 42 L. T. 3.")2) ; and the judge has complete and un- 
fettered judicial discretion under the present practice to allow 
a married woman to sue either alone or by a next friend, and 
either with or without giving security for costs (Murtaiio 
V. Mann (C. A.), 14 Ch. D. 410 ; 40 L. J. Ch. 510 ; 42 
L. T. 800 ; Khig^rmni v. Kimfsmnn, G Q. B. D. 122)J^f^^^ 

The general rule is perfectly clear that the Court will 
not require sec\irity for costs from any plaintiff merely on 
account of his poverty. But in Burhe v. Lklu'ell, 1 Jo. & 
Lilt. 703, S. C. sob noiit. Burlc v. Hntcliivaon, 7 Ir. Eq. 
Rep. 508, where the plaintiff was a pauper to whom an old 
judgment had been assigned in trust for a solicitor, the 
beneficial owner, for the purpose of instituting the suit to 
enforce it, Sir E. Sugden, L. C, ordered the plaintiff to 
give security for costs. This case, however, which the 
Court considered one of gross fraud, depended on the 
special circumstances, and would probably not be generally 
followed. See the comments upon it by Sir E. Sugden 
himself in Worrall v. ^yh^te, 3 Jo. & Lat. 513. There is 
also a case in the Exchequer {TredweU v. Byrch, 1 Yo. &: 
Coll. Ex. 47G), in which a plaintiff, who filed a bill on behalf 
of himself and all other the rated inhabitants of a parish 
against certain commissioners, alleging a breach of trust, 
was ordered to find security for costs on account of his in- 
solvency. And in a recent case in the Probate Division, a 



SECURITY FOR COSTS'. 1 . j 

plaintiff who had executed a deed of assignment of all his 

property to an assignee, was required to give security for 

the costs of suit, unless he could satisfy the Court of liis 

solvency {The Lake Megantk, 36 L. T. 183). Where the insolvent 

plaintiff became insolvent, and filed a liquidation petition, petitioner. 

he was ordered to give security both for past and future 

costs {Brochlehanlc v. Kings Lynn Steamship Co., 3 C. 

P. D. 365 ; 47 L. J. C. P. D. 321 ; 27 W. R 94 ; 38 L. T. 

489). Similarly, an insolvent petitioner will be ordered 

to give security, proceedings under the petition being 

.stayed in the meantime (i2e Carta P ara Gold Min ing ( <i qv rjn^s^ y 

Co^., W. N. (1S81), 166; 30 W. R. 117. In Macnecd v. " ' 

Biggart, 18 W. R 470, a case at law in Ireland, a nominal 

plaintiff who was a pauper was compelled to give security 

for costs, thou"li the action was broufjht under the direction 

of the Court of Chancery to try a right. 

A relator in a cliarity suit, however, may, it seems, be (,. i>y ^ 
required to give security for costs on the ground of his i^°"^; ^'^^^' 
poverty (Att.-Gen. v. Skinners Company, 1 C. P. Coop, cliarity 
], 5; Att.-Gcn. v. Mayor of Rochester, Ueg. lib. A. fol. ^"''• 
271, cited in Shelford on Mortmain, 425). But where in 
an information and bill the relator was also the plaintiff, it 
was held that security could not be required {Att.-Gen. v. 
Knight, 3 My. & Cr. 154). In the last case the defen- 
dants proceeded by memorial to the Attorney-General, 
but in the two former cases by motion to the Court. 

By 25 & 26 Vict. c. 89 (The Companies Act, 1862), s. 69, 
it is enacted that : 

" Where a limited company is plaintiff or pursuer in any ;. -when 
action, suit, or le^al proceedinij, any iudoe havinfj iurisdic- "^ l'""*'^'^' . 

or o' .; J o o J ^ company is 

tion in the matter may, if it appears by any credible plaintiff, 
testimony that there is reason to believe that, if the defen- 
dant should be successful in his defence, the assets of the 
company will be insufficient to pay his costs, require 
sufficient .security to be given for such costs, and may stay 
all proceedings until .such security is given." 

This section does not alter the principle on Avhich the 



16 SECURITY FOR COSTS. 

Court refuses to allow a defendant in a cross suit to call on 
the plaintiff in the cross suit to give security for costs ; and 
therefore where a company was plaintiff in a suit to set 
aside a policy on which the defendant was then suing the 
company at law, the Court refused to order the company 
to give security {Accidental Co. v. Mercati, 3 Eq. 200). 
Secus, where the second suit is not strictly a cross suit 
(Wcishoe Mining Co. v. Ferguson, 2 Eq. 371 ; Moscow 
Gas Co. V. Internationnl Financial Society, 7 Ch. 22."), 
where it was said that whenever a suit was instituted in 
the name of a company which was being wound up, 
security for costs must be given, whether the suit were a 
purely cross suit or not). And the fact of a plaintiff com- 
pany being in liquidation is sufficient " reason to believe " 
the assets to be insufficient, unless evidence to the con- 
trary is given (Korthamjyfon Coal Co. v. Midland Waggon 
Co., 7 Ch. D. 500, 26 W. R. 485 ; 37 L. T. 82); and see also 
Freehold Land, .IV. Co. v. Spargo,^\. N. (18G8), 94. 'I'lio 
section applies only to limited companies. Where an un- 
limited company was being wound up and an action at law 
Avas brought in the name of the company, the Court of 
Queen's Bench refused to order the plaintiffs to give 
security {The United Ports Co. v. Hill, L. R. 5 Q. B. 
395). Where the statement of claim had been amended, 
thereby making a new case and greatly increasing 
the costs, the defendants were held entitled to security 
{Xorthamjjton Coal Co. v. Midland Waggon Co., 7 
Ch. I). 500). The Court may direct security to be given 
for the costs up to a certain stage in the proceedings and 
then allow the application to be renewed {Western of 
Canada Oil Co. v. Walker, 10 Ch. 628; 23 W. R. 738). 
Under the repealed Act, 20 & 21 Yict. c. 14, s. 24, where 
the words were " if it be proved to his [the judge's] satis- 
faction," an affidavit by the defendant's agent to the effect 
stated in the section was held, if unanswered, a sufficient 
ground for requiring securit}'- for costs {Official Liquidators 
of Sovthamj-iton, d-c. Co. v. Rawlins, 2 N. R. 544 ; 



SECURITY FOR COSTS. 17 

Jur. N. S. 887 ; S. C nom. Official Liquidators, dx. v. 
Pm7iod-, 11 W. R. 978). 

In Anglo -Danuhian Co. v. Rogerson, 3 N, R. 185 ; 10 
Jur. N. S. 87, it was held that an ex parte injunction 
could not be granted on the application of a limited com- 
pany, without an undertaking as to damages from some 
responsible person ; but see Pacific Steam Co. v. Gibbs, 14 
W. R. 218; 13 L. T. 431. As to what is "sufficient 
security" see below, p. 20. 

By the Life Assurance Companies Act, 1870, 33 & 34 
Vict. c. Gl, s. 21, the Court cannot give a hearing to a 
petition to wind up a company under the Act until 
security for costs to such amount as the judge shall thnik 
reasonable shall be given, and a primd facie case be 
established. Where a company had passed a resolution to 
wind up voluntarily, Malins, Y. C. held, on a petition being 
presented for compulsory winding up, that he was not 
bound to consider whether the petition stated a primd 
facie case, nor to order security for costs {In re British 
Alliance Assurance Corporation, 9 Ch. D. 635 ; 26 W. R. 
628). 

It was considered irregular for plaintiffs to amend by Where 
striking out the names of any of their co-plaintiffs ^^g^^lgj 
{Sloggett v. Collins, 13 Sim. 456), but leave would be by striking 
granted on special application, on the terms of security ^f co-piahi- 
being given for the costs of the suit {Att.-Oen. v. Cooper, ti^^- 
3 My. & Cr. 258 ; Lloyd v. Makeam, 6 Ves. 145 ; Motteux 
V. Machreth, 1 Ves. jun. 142 ; Felloives v. Deere, 3 Beav. 
353) ; and see Drake v. Symes, 7 Jur. N. S. 399 ; Davey v. 
Bennett, 3 W. R. 353; Andreivs v. Mlson, 15 W. R. 378. 
The Court will not make an order to join a number of 
persons as plaintiffs in an action merely by way of giving the 
defendant a security for his costs {De Hart v. Stevenson, 
45 L. J. Q. B. 575 ; 24 W. R. 367). 

Security for costs will be required from a petitioner 8. By peti- 
under the same circumstances as from a plaintiff: see Ex 
parte Foley, 11 Beav. 456 ; In re Latta, 3 De G. .t S. 186 

c 



18 



SECURITY FOR COSTS. 



9. By ile- 
fendants. 



Not from 
plaintiffs 
in cross 



(where the petition was for windiDg up) ; Ex parte Seidler, 
12 Sim. 106 (where the petition was under an Act of 
Parliament) ; and In re Pasmore, 1 Beav. 94 ; In re 
Norman, 11 Beav. 401 ; In re Dolman, 11 Jur. 1095 (the 
petition in each of which cases was for taxation of a 
solicitor's bill of costs). See also In re Home Assurance 
Association, 12 Eq. 112 ; and In re East Llangynog 
Mining Co., 23 W. R. 587 ; W. N. (1875) 81. 

On a petition for taxation the petitioner, if out of the 
jurisdiction, must give security not only for the costs of 
taxation, but also for the amount to be found due from him 
{Anon. 12 Sim. 2G2; Seton, G12). "Where a petition is 
presented in a cause, security \Yill not be required from the 
petitioner, if he is a party to the suit {Cochrane v. Fearon, 
18 Jur. 5G8) ; seciLS, if he is not a party to the suit {Drever 
V. Maudesley, 5 Russ. 11 ; Partington v. Beynohls, 6 
W. K 307), and a substantive motion for the purpose may 
be made before the petition comes on to be heard {Atkins 
V. Coole, 3 Drew. G94) ; and see Glazhrook v. GiUatt, 9 
Beav. 492. 

In Knox V. Broivn, 1 Cox, 359, on motion of the 
plaintiff to dismiss his own bill without costs, Lord Thurlow 
ordered the defendant, who had absconded, to find security 
for costs, or, in default, that the bill should be dismissed 
without costs ; but this case does not seem to have been 
followed : see Beames on Costs, 183. Security for co.sts 
may be required from a defendant obtaining the conduct 
of the cause {Mynn v. Hart, 9 Jur. 8G0), and from a defen- 
dant in an interpleader suit, being in the position of a 
plaintiff, if resident out of the jurisdiction {Smith v> 
Hammond, 6 Sim. 10). In Annesley v. Simeon, 4 Madd. 
390, cestiiis que trustent (defendants) were restrained from 
bringing an action at law in the name of their trustee (a 
co-defendant) till security was given for the costs of the 
action. 

A person, nominally a plaiutilf, but in reality a defendant 
or a person in any way compelled to litigate, cannot be 



SECURITY FOR COSTS. I*.) 

required to give security for costs. Thus, a plaintiff in a suits, or 
cross suit cannot be required to give security (Vincent v. compeUed 
Hunter, 5 Ha. 320 ; Wild v. Murray, 18 Jur. 892; 2 W. to litigate. 
R. 613 ; Accidental Co. v. Mercati, 3 Eq. 200 ; and see 
Washoe Mining Co. v. Ferguson, 2 Eq. 371 ; and Moscow 
Gas Co. V. International Financial Society, 7 Ch. 225). 
The rule was held to apply as between the plaintiff 
in the original suit and the plaintiff in the cross suit, 
though other matters were comprised in the cross bill ; 
but defendants to the cross suit, not parties to the 
original suit, might have security {Wild v. Murray, 18 
Jur. 892 ; Sloggett v. Viant, 13 Sim. 187). A litigant, 
resident abroad, who is made plaintiff in an interpleader 
issue, but does not, substantially, occupy the position of the 
plaintiff commencing an action, will not be ordered to give 
security (Behnonte v. Aynard, 4 C. P. D. 221, 352 ; 40 
L. T. 627 ; S. C. suh nora. Behnonte v. Giltschoiu, 27 W. R. 
789). A shareholder in a company, though resident out of 
the jurisdiction, who appears to oppose a petition for 
winding up the company, of course cannot be required to 
give security (In re Percy Nickel Co., 2 Ch. D. 531; 24 W. 
R. 1057). See further, as to cross suits, Macgregor v. SJiaiu, 
2 De G. & S. 360, where security was not required ; 
Moscow Gas Co. v. International Financial Society, 7 Ch. 
225 ; and Tynte v. Hodge, 2 J. & H. 692, where the bill 
sought to impeach an annuity deed, on the footing of which 
a decree had been already made in a former suit, and 
security was required from the plaintiff, being out of 
the jurisdiction. 

A defendant who admits the cause of action sued upon Counter- 
and sets up a counterclaim founded upon a distinct claim, 
is not entitled to security for costs from the plaintiff, a 
foreigner residing without the jurisdiction {Winterjield v. 
Bradnum, 3 Q. B. D. 324 ; 47 L. J. Q. B. 270 ; 26 W. R. 
472 ; 38 L. T. 250). 

In Maj)leson v. Masini, 5 Q. B. D. 144 ; 49 L. J. Q. B. 
423 ; 28 W. R. 488 ; 42 L. T. 531, the plaintiff sued the 



20' SECURITY FOR COSTS. 

defendant, a foreigner residing abroad, for breach of con- 
tract ; the defendant by his defence deaied the breaches, 
and made a counterclaim for breaches of the same contract 
by the plaintiff, claiming damages to an amonnt less than 
the plaintiff's claim ; it was held that the defendant could 
not be ordered to give security for the plaintiff's costs 
occasioned by the counterclaim. And see further as to 
security for costs when there is a counterclaim, The Car- 
narvon Castle, 2G W. R. 876; 88 L. T. 736; The Julia 
Fisher, 2 P. D. llo ; 25 \V. R. 756 ; 36 L. T. 257. 
Application The old rule of the Court of Chancer}^ that the applica- 
may be tion for security must be made before any step is taken, 
made at j^^j ^jsq i\^q Q\f[ j-^le at Common Law that the application 

any time. tip- • • i 

must be made before is.sue jomed, are abrogated by the 

new rules, and the Court may direct security for costs to 

be given at any stage {Mariano v. Mann, 14 Ch. D. 419 ; 

42 L. T. 890; and see Arhwright v. Xewhohl, W. N. 

(1880) 59). 
Form of The order is that all proceedings be stayed until the 

plaintiff gives security (Fox v.Blcu', 5 Mad. 147); and for 

form of order see Seton, 1643. 
Amount R- S. C. Ord. LV., r. 2 (Feb. 1876), provides that "In 

and form ^^^ cause or matter in Avhich security for costs is required, 

of security. •' _ -^ ^ 

the security shall be of such amount and given at such 
time or times, and in such manner or form as the Court 
or a judge shall direct." This rule applies to suits com- 
menced before November, 1875 (Republic of Costa Rica 
V. Erlanger, 3 Ch. D. 62 ; 24 W. R. 955). Cons. Ord. XL., 
r. 6, provided that one hundred pounds should be the penal 
sum in the bond to be given as a security to answer costs 
by any plaintiff who is out of the jurisdiction of the Court. 
Formerly it was £40 only. £100 is still, it seems, the 
proper penalty of the bond to be given in all ordinary 
cases in which security for costs is required by the Court 
{Bailey v. Gundry, 1 Keen, 53 ; Paxton v. Bell, 24 W. R. 
1013 ; W. N. (1876) 221, 249) ; and see Barry \. Jenkins, 
19 L. T. 276 ; but in a proper case the security may be 



SECFRTTY FOR COSTS. 21 

largely increased, and may in fact he ordered to any 
amount the Court thinks tit, in accordance with tlie old 
Common Law practice (Massey v. Allen, 12 Ch. D. 807 ; 
48 L. J. Ch. 692 ; 28 W. R 243 ; Sturla v. Freccia, W. N. 
(1878) 161 ; Reimhlic of Costa Rica v. Erlanger, 3 Ch. 
D. 62 ; 45 L. J. Ch. 743 ; 24 W. R. 955). Security may be . 
ordered for past as well as future costs (Massey v. Allen ; May extend 
Brocklebank v. Kings Lynn SteamshiiJ Co., 3 C. P. D. costs. 
365 ; 47 L. J. C. P. D. 321 ; 27 W. R 94 ; 38 L. T. 
489). 

The amount of the security to be given is in the dis- 
cretion of the judge to whom the application for security 
is made ; but if he proceeds on a wrong principle the 
Court of Appeal will exercise its own discretion : see 
Sturla V. Freccia, W. N. (1877) 166, 188, where an 
application that the security for costs, which had been 
ordered to the amount of £oQ0, might be increased by 
£5,000, was refused by Malins, V. C, but the Court of 
Appeal increased the amount by £1,000. 

In the case of a company, the security must be " suffi- 
cient," and must be for an amount equal to the probable 
amount of costs payable {Imperial Bank of China v. 
Banh of Hindustan, 1 Ch. 437 ; 12 Jur. N. S. 493 ; 
14 W. R. 811 ; Freehold Land Co. v. Sparrjo, W. N. 
(1868) 94). In Western of Canada Oil Co. v. ^yalher, 
10 Ch. 628, security was ordered sufficient to cover the 
costs of the defendant's answers, with liberty to apply 
again for further security when the answers had been 
put in. 

Where a petitioner is required to give security, ^640 Petitioner, 
is generally considered a sufficient amount {In re Pasmore, 
1 Beav. 94 ; Atkins v. Cook, 5 W. R 381) ; except in the 
case of a petition under the Companies Acts {In re Home 
Assurance, 12 Eq. 112; Ex jparte Latta, 3 l)e G. & S. 
186, in each of which cases £100 was required). The 
plaintiff may, instead of giving security, pay into Court 
the £100, together with a sufficient sum to cover the 



lie sure 
tics. 



22 SECURITY roil COSTS. 

expense of paying it in and gcttiug it out, usually 
£120 {Cliffe V. WilUnson, 4 Sim. 122), but the under- 
taking of his solicitor to be answerable for the costs is 
not sufficient {Re Norman, 11 Beav. 401). 

By K S. C. Ord. LV., r. 3 (April, 1880), where a bond is 
to be given as security for co.sts, it shall, unless the Court 
or a judge otherwise directs, be given to the party or 
person requiring the security, and not to an officer of the 
Court. 
Who may The plaintiff's proposed sureties must be solvent persons 
(Clife v. WilJcinson, 4 Sim. 122), and it is improper that 
his solicitor should be his surety {Ponton v. Labcrfouche, 

1 Ph. 265 ; S. C. nom. Ganteaiime v. Labertouche, 7 Jur. 
589); but in Plestoiu v. Johnson, l^Sm. & G. app. xx. ; 

2 W. R. 3, the bond of the British Guarantee Association, 
incorporated by Act of Parliament, was held sufficient 
security. And the bond of an officer in the army whose 
regiment is at the time quartered in Scotland is sufficient 
{Miller V. Hales, 17 Eq. 430 ; 43 L. J. Ch. 446 ; 22 W. R 
625 ; 30 L. T. 10). If the surety dies or becomes bank- 
rupt, the plaintiff must find fresh security (Lautour v. 
Tlolcombe, 1 Ph. 262; Veitch v. Irving, 11 Sim. 122) ; but 
the defendant must not delay his application for that 
purpose, otherwise proceedings will not be stayed in the 
mean time {Lautour v. Holcombe). 

Each In Ogborne v. Bartlctt (Beames on Costs, app. ix.) the 

'\uiUeii"ui ''^^signces of a bankrupt, on being made defendants, were 

separate allowed Security, though the original defendant (the 

bccuu-j. ■[).^^i|^^-^q-)t) liad previously obtained it ; and in Loivndes v. 

liobertson, 4 Mad. 465, it was held that each defendant 

employing a separate clerk in Court, was entitled to a 

separate bond, but the plaintiff was bound to pay one 

bond only. 

Appiica- An order for security for costs cannot be obtained as 

how- trie 0^ course; a special application must be made, and in 

made. general by summons in Chambers {Vale v. Ojfert, 22 

W. R 629 ; 30 L. T. 457 ; and see Tynte v. Hodcfe, 2 J. 



SECURITY FOK COST«. 23 

& H. 692). The order may also be made on motion. 
The application must be supported by affidavit, and it 
seems that evidence of belief, putting the plaintiff to 
answer^it, is sufficient {Busk v. Beetham, 2 Beav. 537 ; 
Ainslie v. ^ims, 17 Beav. 57). 

'The day on which an order that the plaintiff do give Effect of 
security for costs is served, and the time thenceforward °'''^^''" 
until and including the day on which such security is 
given, shall not be reckoned in the computation of time 
allowed to a defendant to plead, answer, or demur, or other- 
wise make his defence to the suit ' (Cons. Ord. XXXVII., 
r. 14). But taking out a summons for security for costs 
does not prevent the time allowed for demurring from 
running {Henderson v. Atkins, 7 W.R. 318). If, therefore, 
there is danger of the time running out before the order 
can be obtained, the defendant, it would seem, should 
deliver his defence or demur, giving notice that he does 
so without prejudice to his right of security for costs 
{Drinan v. Mannix, 3 Dr. & W. 154). 

In Gamac v. Grant, 1 Sim. 348, Sir A. Hart, V. C, Where 
ordered that a plaintiff who had made default in giving makes'^ 
security should give security within a limited time, or his f^pfauit in 
bill be dismissed. That judge, however, appears to have securfty. 
afterwards doubted the correctness of his order: see 
2 Sim. 570. And it was disapproved of by Lord 
Lyndhurst, C, in Lautour v. Holcomhe, 1 Ph. 263, 264 ; 
and by V. C. Shadwcll, in Fort v. Bank of England, 
10 Sim. 616. The practice, however, is now settled, after 
some fluctuation of opinion, in accordance with Gamac v. 
Grant; see Giddings v. Giddings, 10 Beav. 29, where all 
the earlier cases are collected in the note ; Gooj^er v. 
Burton, 1 N. R 468 ; Kennedy v. Bdwards, 11 Jur. 
N. S. 153; Gharras v. Bickering, 39 L. J. Ch. 190. The 
time limited is generally a fortnight. The dismissal 
will be with costs (Giddings v. Giddings). But a 
reasonable time, which will vary according to the circum- 
stances, must elapse between the original order for the 



24 SECURITy FOR COSTS!. 

plaintiff to give security, and the order limiting the time ; 
see O'Connor v. Sierra Kevada Company, 23 Beav. 608, 
where the motion was held to be premature. 

Where a plaintiff resided in Australia, and a defendant 
obtained the usual order that he should give security for 
costs, the Court allowed four months for the plaintiff to find 
such security, and ordered dismissal of the bill with costs, 
unless the security should be perfected within that time 
{Grant v. Ingram, 20 L. T. 70). In a recent case at law it 
was held that, where the plaintiff has failed to comply with 
an order to give security for costs, proceedings having been 
stayed in the meantime, the action may be dismissed for 
want of prosecution {La Grange v. Mc Andrew, 4 Q. B. D. 
210 ; 48 L. J. Q. B. 315 ; 27 W. K 413 ; 39 L. T. 500). 

Where an appellant had for nine months neglected to 
comply with an order that he should give security for 
costs, the Court, on the application of the respondent, made 
an order dismissing the appeal with costs, for want of 
prosecution {Judd v. Green, 4 Ch. D. 784 ; 46 L. J. Ch. 
257; 35 L. T. 873). And as to security for costs of 
appeal generally, see 2)ost, Ch. III., s. XI. 

There are certain other cases provided by statute in 
which security for costs may be ordered. 
In place of By the County Courts Acts, 1867, s. 10, the defendant, 
to'county ^^^ ^^^J ^ction of tort brought in a superior Court, may 
Court. make an affidavit that the plaintiff" has no visible means 
of paying the defendant's costs should a verdict be not 
found for the plaintiff, and thereupon a judge of the Court 
in which the action is brought has power to make an 
order that, unless the plaintiff shall within a time to be 
therein mentioned give full security for the defendant's 
costs, or satisfy the judge that he has a cause of action fit 
to be prosecuted in the superior Court, all proceedings in 
the action shall be stayed, or, in the event of the plaintiff 
being unable or unwilling to give such security, or failing 
to satisfy the judge as aforesaid, that the cause be re- 
mitted for trial before a County Court therein named. 



SECUKITY FOR COSTS. 2o 

By the Judicature Act, 1873, s. 07, the provisions con- 
tained in the 10th section of the County Courts Act, 
1867, are to apply to all actions in the High Court of 
Justice, in which any relief is sought which can be given 
in a County Court. 

The time for giving security may be extended at any 
time before the defendant has lodged the writ and order 
at the County Court {Welplyy. Buhl, 3 Q. B. D. 80, 253). 

By 28 & 29 Vict. c. 99, s. 3, a judge of the Chancery On trans- 
Division on granting an order at Chambers for transfer of County 
an equitable matter from a County Court may impose Court. 
such terms, if any, as to security for costs and otherwise 
as he may think fit. 

Security may also be ordered on the transfer of certain 
other actions: see 9 & 10 Vict. c. 95, s. 90; 19 & 20 
Vict. c. 108, s. 38. 

By s. 93 of the C. L. P. Act, 1854, 17 & 18 Vict. c. 125, in actions 
the plaintiff, in a second action of ejectment for the ^g^Q^/ 
same premises against the same defendant, may be of land, 
ordered to give security for costs. 

In an action brought under the Conveyancing Act, 
1881, by a person interested in a right of redemption, 
and seeking a sale, the Court, on the application of any 
defendant, may order the plaintiff to give such security 
for costs as it thinks fit (44 & 45 Vict. c. 41, s. 25 (3)). 

As to security for costs under the Declaration of Titles 
Act, 1862, 25 & 26 Vict. c. 67, s. 9, see In re Roberts, 
10 Eq. 402. 



0)'e tcnus. 



CHAPTER III. 

COSTS OF AN ACTION GENERALLY. 

Sect. I. — Costs of Demurrers. 

Demurrers. A DEMURRER miist state specifically whether it is to the 
whole or to a part, and if so, to what part, of the pleading 
of the opposite party. It must state some ground in law 
for the demurrer, but the party demurring will not, on the 
argument of the demurrer, be limited to the ground so 

Frivolous stated. If there is no ground, or only a frivolous ground 
of demurrer stated, the Court or judge may set aside such 
demurrer with costs (R. S. C. Ord. XXVIIL, r. 2). 

Demurrer By Cons. Ord. XIV., r. 1, it is provided that where any 
grounds of demurrer are urged on arguing a demurrer 
beyond the grounds therein expressed, and those grounds 
which are so expressed are disallowed, the defendant shall 
pay the same costs as if the demurrer Avere overruled, 
although the grounds of demurrer so newly urged may be 
allowed. 

Where the demurrer on the record is overruled and a 
demurrer ore teniis allowed, the general rule is, that the 
party demurring must pay the costs of the demurrer on 
the record, and no order will be made as to the costs of 
the demurrer ore tenus {Macyntire v. Connell, 1 Sim. N. 
S. 257, where the marginal note is incorrect ; Attorney- 
General V. Broivn, 1 Swan. 265, 288 ; Ward v. Sitting- 
hourne d- Sheerness Ry. Co., 9 Ch. 488) ; and semhle, the 
Court will not be disposed to depart from that rule 
{Mortimer v. Fraser, 2 My. & Cr. 173). In Brown v. 
Douglas, 11 Sim. 283, however, the Court refused the 
plaintiff the costs of the demurrer on the record, but 



COSTS OF DEMURRERS. 27 

allowed tlic demurrer ore teyius without costs ; and see 
Cooper V. Earl Potuis, 8 De G. & S. 688, where it does 
not appear whether the plaintiff had the costs of the de- 
murrer on the record. 

Where the plaintiff, on a demurrer ore tenus for want of 
parties being allowed with leave to amend, desired to 
amend more extensively than by adding parties, he was 
required to pay the defendant the costs of the demurrer 
{Neivton v. Earl of Egmont, 4 Sim. 574, 585). 

If a demurrer is not entered, and notice thereof given Demurrer 
within ten days after delivery, and the party whose pleading "e*ed?' 
is demurred to does not within such time serve an order 
for leave to amend, the demurrer will be held sufficient 
for the same purposes, and with the same results as to 
costs as if it had been allowed on argument (R S. C. Ord. 
XXVITI., r. 6). The order for payment of these costs is of 
course {Jacobs v. Hooper, 1 W. R. Gl) ; and see, as to the 
effect of laches on the costs, Car)iphell v. Joyce, 2 Eq. 377, 
a case of a plea. 

" While a demurrer to the whole or any part of a Amend- 
pleading is pending, such pleading shall not be amended, "en)j*iQ„ 
unless by order of the Court or a judge ; and no such order deimurer. 
shall be made except on payment of the costs of the 
demurrer" (R. S. C. Ord. XXVIII., r. 7). 

" Where a demurrer to the whole or part of any pleading Demurrer 
is allowed upon argument, the party whose pleading is thXor*° 
demurred to shall, unless the Court otherwise order, pay pa-'t »* ''^"y 
tu the demurring party the costs of the demurrer " ^' *^^ '°° ' 
(R. S. C. Ord. XXVIII., r. 8). 

" If a demurrer to the whole of a statement of claim be to the 
allowed, the plaintiff, subject to the power of the Court to ^atement 
allow the statement of claim to be amended, shall pay to of claim. 
the demurring defendant the costs of the action, unless the 
Court shall otherwise order " (R. S. C. Ord. XXVIII., r. 9). 

These two rules are substantially the same as rule 13 of 
Cons. Ord. XIV., under which, though not so provided, 
it was held that the question of costs was in the discretion 



28 



COSTS OF AN ACTION GENERALLY. 



Demurrer 
allowed 
■without 
costs. 



of tlie Court ; and, for the purpose of determining them, 
the Court would regard the allegations in the bill, though 
admitted only for the purpose of the demurrer {Schneider 
V. Lizardi, 9 Beav. 461) ; and see Mayor, &c., of Basing- 
stoke V. Lord Bolton, 1 Drew. 270. In Vansittart v. 
Vansittart, 4 K. & J. 62, S. C, on appeal, 2 De G. & J. 
249, which was a suit by a wife for specific performance of 
an agreement made in consideration of her abandoning a 
suit for divorce, a demurrer by the husband to the whole 
bill was allowed, but without costs ; see, however per L. J. 
Knight Bruce, 2 De G. & J., p. 2o8. But in Walrond v. 
Walrond, Johns. 18, which was a suit for specific per- 
formance of an agreement for separation simply, the 
husband's demurrer was allowed with costs. In Bothomley 
V. Squires, 1 Jur. N. S. 694, the bill stated a case of 
fraudulent collusion, and V. C. Kindersley allowed a general 
demurrer, on the ground that the allegations of fraud 
were too general ; but without costs, because the defen- 
dants, by demurring, had admitted the fraud. Sed qu., 
for the fact that the bill contained charges of fraud was no 
reason for not demurring {Neshitt v. Bervidge, 1 N. R. 
345 ; 32 Beav. 282 ; 11 W. R. 446 ; 9 Jur. N. S. 1044 ; 
but see S. C. on appeal, 10 Jur. N. S. 53 ; 12 W..R. 283 ; 
and see also Motion v. Moojen, 14 Eq. 202). 

When a statement of claim alleged particular facts which 
amounted practically to a charge of fraud against a par- 
ticular defendant, but by the accidental omission of several 
facts the pleading was technically incomplete, a demurrer 
by the defendant was allowed without costs but with leave 
to amend, and the costs Avere reserved {Hodges v. Hodges, 
2 Ch. D. 112 ; 24 W. R. 293). Where the plaintiff charged 
fraud against the demurring defendants, the demurrers 
being allowed and leave to amend given, the question 
whether their costs of the demurrers should be paid by the 
plaintiff, was reserved till the trial of the action {Diickett 
V. Gover, 6 Ch. D. 82 ; 25 W. R. 455). In Fayne v. Dicker, 
6 Ch. 578, a demurrer to a bill filed by a bankrupt was 



COSTS OF DEMUIiREKS. 29 

under the circumstances allowed with costs, varying the 
decree of Stuart, V. C, and liberty to amend was refused. 
Where the question raised was whether illegitimate 
children could take under a gift to "children," Mahns, 
V. C, held that, though the law was clear that they could 
not, yet it was equally clear that they were intended to 
take, and therefore allowed the demurrer but without 
costs {Ellis V. Houston, 10 Ch. D. 24G ; 27 W. R oOl). 

It seems that the inclination of the Court is not to refuse 
the defendant the costs of a demurrer allowed : see per 
V. C. Wood, Johns. 28. Where a question of the con- 
struction of a will is decided on demurrer, the Court will, 
if it was a proper question to raise, give the costs of the 
demurrer out of the estate {Evans v. Rosser, 3 N. R 685). 

Where a demurrer to the whole bill was allowed, but 
with leave to amend, the plaintiff paid to the defendant 
the costs of the demurrer only, and not the whole costs of 
the suit {Hammond v. Messenger, 9 Sim, 838). 

Where several demurrers by different parties had been 
allowed, one set of costs only was allowed in respect of 
two demurrers put in by defendants appearing by the same 
solicitor, although he acted as agent for one defendant and 
directly -for the other defendant' {Walters v. Webb, 18 W 
R 86, 587). 

Where an amended bill was filed, but a copy not properly 
amended was served upon the defendant, who demurred to 
the bill as served upon him, it was ordered that the de- 
murrer be taken off the file, and the defendant's appearance 
to the amended bill be struck out, and that he should have 
his costs if no further demurrer were filed {HopJcin v 
Ollard, 21 W. R 285). 

An order allowing a demurrer to the whole bill [state- What costs 
ment of claim] carries with it the costs of a pending jj''^''^'^ "'^ 
motion {Gladstone v. The Ottoman Bank, 1 N. R 512), to whX 
even where the motion has stood over at the request of ofSm"' 
the defendant {Finden v. Stephens, 12 Jur. 319, overrulino- allowed. 
S. C. 11 Jur. 898). But if leave to amend is given the 



30 COSTS OF AN ACTION GENERALLY. 

mutiou is not entirely lost; see Harding v. Tingey, 
4 N. K 10, where V. C. Kindersley, following the decision 
of V. C. Wood in Rawlmgs v, Lamhert, 1 J. & H. 458, 
gave the plaintiff a week to amend his bill without preju- 
dice to the motion, and if the motion was not brought on 
on the first seal day after the week the plaintiff to pay the 
costs of it. In Deiv v. Clarl-e, 1 S. & S. 108, a demurrer 
having' been allowed to a bill to examine witnesses cle 
bene esse, the plaintiff, who had obtained an ex ixirte 
order for the examination of the witnesses, was ordered 
to pay the costs of the depositions but not of the cross- 
examination. 
. In Burr II v. Cro><key (No. 3), 2 J. & H. 136 ; 10 W. R. 76, 
a motion by a defendant, whose demurrer to the whole 
bill had been allowed, for the Kecord and Writ clerk to 
strike his name out of the record, was allowed with costs. 
Deniuncr " Where a demurrer is overruled the demurring party 
shall pay to the opposite party the costs occasioned by 
the denuirrer, unless the Court shall otherwise direct." 
(R. S. C. Ord. XXVIIL, r. 11.) 
Demurrer When a demurrer on two grounds succeeds as to one and 
partially f^^jj^, j^g ^^ another no costs are given on either side {Benson 

overruled. ° 

v. Had field, 5 Beav. o46 ; Allan v. Hoidden, 6 Beav. 148) ; 
but in Davis v. Read, 5 Sim. 443, a demurrer by a witness 
to two interrogatories was allowed as to one and over- 
ruled as to the other, and the Court gave the witness 
half his costs. In Postgate v. Barnes, 1 N. R 389, where 
the defendant put in a plea to part of the bill and a 
demurrer to the rest, and the former succeeded and the 
latter failed, no costs w^re given on either side. 
Demun-er In Reed V. O'Brien, 7 Beav. 32, the Court oveiTuled a 

overruled demurrer for want of equity, but refused the plaintiff the 

without ^ / / 

costs. costs of it, on the gi'ound of the vagueness and uncertamty 

of the allegations ; and see Commins v. Scott, 20 Eq. 11 ; 

23 W. R. 498 ; 32 L. T. 420, where the costs were made 

costs in the cause. In Barber v. Barber, 4 Dr. 666, a 

demurrer to the jurisdiction was overruled without costs* 



COSTS OF DEMURRERS. 31 

on the ground that the plaintiff might prove to be en- 
titled to some relief, though not to tlie principal relief 
sought by his bill. 

Where a demurrer was overruled, but the question 
in issue had been raised in the simplest and cheapest 
manner by the course taken by the defendant, no costs were 
given against him {Willis v. Radford, 7 Ch. 7 ; 41 L. J. 
Ch. 19 ; 20 W. R 132 ; 25 L. T. 720). Where a demurrer 
is ordered to stand to the hearing the costs will generally 
be reserved {Cox v. Barker, Barker v. Cox, 3 Ch. I). 369). 
Under the old practice the Court often hesitated to deter- 
mine on demurrer any legal question of great difficulty, 
and in such case overruled the demurrer, with liberty to 
raise the objection by answer, reserving the costs until the 
hearing {Evans v. Evans, 18 Jur. QQQ ; 23 L. J. Ch. 
827 ; Devenish v. Broiun, 4 W. R. 783 ; Mortimer v. 
Hartley, 3 De G. & S. 316; Great Western Railway 
Company v. Metropolitan Raihuay Company, 2 N. R, 
209 ; Walsham v. Stainton, 3 N. R. 56) ; and see Cochrane 
v. Willis, 3 N. R. 446 ; 9 L. T. 792, where the costs 
were made costs in the cause. In Singleton v. Sehvyn, 
3 N. R. 27, V. C. Wood overruled the demurrer, but 
reserved the costs till the hearing or further order, ap- 
parently because his Honour was inclined to think the 
suit unnecessary. 

On reversing an order allowing a demurrer, the costs Demnner 
are ordered to be refunded {Oats v. Chapman, 1 Yes. 542 ; orappe^ai 
2 Ves. 100; 1 Dick. 148). 

The costs of demurrers by witnesses follow the same Demurrer 
rule as those of an ordinary demurrer {Sawyer v. Birch- ^^' ^^'''^"^*^' 
more, 3 My. k K. 578 ; Strathmore v. Strathmore, 11 L. J. 
Ch. 400 ; 6 Jur. 1101 ; Langley v. Fisher, 5 Beav. 443 ; 
7 Jur. 164 ; S. C. on appeal, 14 L. J. Ch. 302 ; Wright 
v. Wilkin, 4 Jur. N. S. 527). See also Lee v. Hammerton, 
12 W. R. 975 ; 10 L. T. 730, where a demurrer by a 
witness was overruled with costs, though the Court held 
it to be justifiable. 



32 



COSTS OF AN ACTION GENERALLY. 



Aineri'l- 
ment of 
writ. 

General 
powers of 
araenJ- 
ment. 



Striking 
out. 

Improper 
mutter. 



Amend- 
nient with- 
out leave 
liy iilaintiff, 



Without 
leave liy 
defendant. 



Disallow- 
ance of 
amend- 
ment. 



Sect. II. — Costs of Amendments. 

The Court or a judge may at any stage of the proceed- 
ings allow the plaintiff to amend the Avrit of summons in 
such manner and on such terms as may seem just 
(R. S. C. Ord. XXVII., r. 11) ; and may at any time, and 
on such terms, as to costs or otherwise, as to the Court or 
judge may seem just, amend any defect or error in any 
proceedings ; and all such amendments may be made as 
may be necessary for the purpose of determining the real 
question or issue raised by or depending on the proceedings 
(R. S. C. Ord. LIX., r. 2, April, 1880). By R. S. C. Ord. 
XXVII., r. 1, the Court or a judge may, at any stage of 
the proceedings, allow either party to alter his statement 
of claim, or defence, or reply, or may order to be struck 
out or amended any matter in such statements respec- 
tively which may be scandalous, or which may tend to 
prejudice, embarrass, or delay the fair trial of the action ; 
and all such amendments are to be made as may be 
necessary for determining the real controversy between 
the parties. By rule 2 of the same Order the plaintiff 
may without any leave amend his statement of claim once 
at any time before the expiration of the time limited for 
reply and before replying, or, where no defence is de- 
livered, at any time before the expiration of four weeks 
from the appearance of the defendant who shall have last 
appeared. By rule 3 of the same Order a defendant avIio 
has set up in his defence any set-off or counterclaim may, 
without any leave, amend such set-off or counterclaim at 
any time before the expiration of the time allowed him 
for pleading to the reply, and before pleading thereto ; or 
in case there be no reply, then at any time before the 
expiration of twenty-eight days from the filing of his 
defence. 

Where any party has amended his pleading under 
either of the last two preceding rules, the opposite party 



COSTS OF AMENDMENTS. 83 

may, within eight days after the delivery to him of the 
amended pleading, apply to the Court, or a judge, to dis- 
allow the amendment, or any part thereof, and the Court 
or judge may, if satisfied that the justice of the case 
requires it, disallow the same, or allow it, subject to such 
terms as to costs, or otherwise as may seem just (r. 4, 
ibid.). And where any party has amended his pleading Counter- 
imder rule 2 or 3 of Ord. XXVII., the other party may mgnt. 
apply to the Court or a judge for leave to plead or amend 
his former pleading within such time and upon such 
terms as may seem just (r. 5, ibid.). 

In all cases not provided for by the first five rules of Amend- 
Ord. XXVII., application for leave to amend any pleading leave. 
may be made by either party to the Court or a judge in 
chambers, or to the judge at the trial of tlie action, and 
such amendment may be allowed upon such terms as to 
costs or otherwise as may seem just (r. 6, ibid.). 

The Court or a judge may, at any stage of the proceedings, Amend- 
either upon or without the application of either party, case of mis- 
and on such terms as may seem just, order the name of Jo'^'^f^^' °^ 

. . J ' parties. 

any party improperly joined to be struck out, and the 
name of any party who ought to have been joined, or 
whose presence may be necessary to enable the Court 
finally to adjudicate upon all questions involved in the 
action, to be added (R S. C. Ord. XVI., r. 13). Any ap- Applica- 
plication to add or strike out or substitute a plaintiff or amend, 
defendant may be made to the Court or a judge at any 
time before trial by motion or summons, or at the trial of 
the .action in a summary manner. 

The general rule is, that where a party desires to amend Amend- 
his own pleading, leave to amend will be given, but he generally 
must pay all costs of and occasioned by the amendment, allowed on 

TIT • 1 1 • payment 

" My practice has always been to give leave to amend of costs. 
unless I have been satisfied that the party applying was 
acting maldjide, or that, by his blunder he had done some 
injury to his opponent which could not be compensated for 



34 COSTS OF AN ACTION GENEIlALLV. 

by costs or otherwise," iKr Bramwell, L. J., in Tildesley v. 
Harper, 10 Ch. D. 393 ; 48 L. J. Ch. 495 ; 27 W. R 249 ; 
39 L. T. 552 ; and see Brodcr v. Baillard, 2 Ch. D. 698 ; 
Chesterfield Co. v. Blacl\ 25 W. R. 409 ; Riitter v. Trecjent, 
27 W. R. 902 ; 41 L. T. 16. In CargiU v. Boiver, 4 Cb. D. 
78 ; 46 L. J. Ch. 175 ; 25 W. R. 221 ; 35 L. T. 621, a 
defendant who had put in a joint defence was allowed to 
put in a separate and amended defence, and he was ordered 
to pay th-e costs rendered necessary by his not having put 
in such defence earlier; but the plaintiff, who had instructed 
two counsel, was allowed the costs of only one, and the 
other defendants, who had appeared and objected, were 
only allowed 40.^. for costs. 
Ameml- Applications for leave to amend under R. S. C. Ord. 

Ord. ' XXVII. r. 1, are matters of practice within the discretion of 
XXYII. the judge, and the Court of Appeal generally declines to 
interfere {Guiding v. Wharton Salt Worls Co., 1 Q. B. D. 
374 ; 24 W. R. 423 ; 34 L. T. 474). 

Where an action is ordered to stand over in order that 
an amendment may be made, the party who is in "fault 
will generally be ordered to pay the costs occasioned by the 
action having been placed in the paper for trial {King v. 
Corke, 1 Ch. D. 57; Lydall v. Martinson, 5 Ch. D. 780; 
Doiudesivell v. Don-deswell, W. N. (1877) 228 ; 9 Ch. D. 
294 ; and see Long v. Crossley, 13 Ch. D. 388). 

Where leave to amend is given to a j^laintiff upon pay- 
ment of costs, such costs should be paid or tendered before 
any further proceedings are had ; otherwise the defendant 
may apply to the Court to stay the proceedings until the 
plaintiff has made the required payment ; and if default 
is made in payment of the costs the action may be dis- 
missed with costs : see Blachnore v. Fduxirds, W. N. 
(1879) 175 ; White v. Bvomige, 26 AV. R. 312. 

When an application is made for leave to alter a writ 
and a statement of claim by striking out the names of some 
of the parties, the order giving that leave does not justify 
the striking out of the name of some other party without 



COSTS OF AMEXDMEKTS. ^0 

providing for his costs of the action {Wymer v. Dodds, 11 
Ch. D. 436 ; 48 L. J. Ch. 568 : 27 W. R. 67o ; 40 L. T. 420). 

Although very extensive amendments have been made where 
by striking out allegations, the Court will not assume at amend- 

•J o o > ments are 

the hearing that the statements struck out were absurd or made by 
unreasonable, or distinguish the costs of such amendment l^^^ alWa- 
from the general costs (Hardingham v. Thomas, 2 Drew, tions. 
853, 362). 

If it is desired to charge the plaintiff with the costs of a 
case originally made and afterwards struck out by amend- 
ment, a special application must be made, and the most 
convenient time for making it is immediately upon the 
cause of complaint arising {Mounsey v. Buvnharii, 1 Ha. 
22) ; but in Steiuart v. Stevxtrt, 22 Beav. 393, and Leather 
Cloth Co. V. Bressey, 3 GifF. 474, the plaintiff was ordered 
at the hearing to pay the costs of allegations struck out by 
amendment. In order to charge the plaintiff with such 
additional costs the amendments must have been vexatious 
and oppressive. See Monck v. Earl of TankerviUe, 10 -^raeni- 

niGnts 

Sim. 284 ; Delaivney v. Delaumcy, 4 L. J. Ch. 50, where vexatious 
the application was refused ; and StricJdandv. Strickland, andoppres- 

^ -^ sire. 

3 Beav. 224, 242 ; Watts v. Manning, 1 S. & S. 421, where 
the application was granted, and in the latter case the 
defendant was apparently allowed full costs and charges 
as between solicitor and client. Where charges of miscon- 
duct were introduced into a bill by amendment, and 
denied by the answer, and the plaintiff then re-amended 
his bill and struck out the charges, he was ordered, at 
the hearing, to pay all the costs occasioned by the charges 
{Finch V, Westro2Je, 12 Eq. 24). If the claim as amended Where an 
sets up a wholly different and inconsistent case from that ^njferent 
originally made, the defendant will be entitled to all the case is 
costs of the suit up to the time of the amendment {Smith the amend- 
V. Smith, G. Coop. 141 ; Dent v. Wardell, 1 Dick.' 339 ; ^'^'^*•^• 
Mavor v. Dry, 2 S. & S. 113 ; B riant v. Lightfoot, 1 Jur. 
20 ; Ker7iot v. Critchley, W. N. (1867) 252 ; Blackmore 
V. Edimrds, W. N. (1870) 175) ; but see Ahram v. }Yard, 



36 



COSTS OF AN ACTION GENERALLY. 



Unneces- 
sary and 
improper 
amend- 
ments. 



9 Jur. 1070 ; Allen v. Spring, 22 Beav. 615. Where, 
however, in proceedings hurriedly taken to stop wrong- 
doing, the plaintiff has not accurately stated his title, the 
defendant will not it seems be relieved from the payment 
of the extra costs occasioned by the plaintiff's mistake 
as to his title {Attorney-General v. Tomline, 5 Ch. D. 
750). 

By R. S. C. (Costs) Sched., r. 18, the Court may dis- 
allow the costs of any improper or unnecessary amend- 
ment, or may refer it to the taxing officer to do so, and the 
party whose costs are so disallowed must pay to the other 
parties the costs occasioned by such amendments ; and see 
rr. 19 and 20. This rule supplies the place of Cons. 
Ord, XL., r. 8. For directions to the taxing-master to 
tax the co.sts occasioned by unnecessary amendments, see 
Burchell v. Giles, 11 Beav. 34 ; and see also Pledge v. 
Buss, Johns. 663. 

The defendant's solicitor by accepting the costs of 
amendment waives all objections for irregularity in the 
order giving the plaintiff leave to amend : see Tarleton v. 
Dyer, 1 B. c'v: M. 1 ; Hair v. Woodbridge, ibid. 5 ; Boswell 
V. Tucker, 2 Ke. 188 ; and see Campbell v. Joyce, 2 Eq. 
377. Where the plaintiff proposes to abandon a part of 
his case no order will in general be made as to the costs 
occasioned by that part before the hearing (Snell v. 
Sl-inner, W. N. (1874) 212). 



Sect. III. — Costs occasioned by scandalous and 
embai^assing matter. 

1. Costs If scandalous statements, not relevant to the issue, are 

ocCiXsion6tl 

by scandal, introduced into a pleading or affidavit, or otherwise put 
upon the records of the Court, they may be struck out, 
and the offending party will be ordered to pay to the 
other parties the whole expense to which they have been 
put by his introduction of scandalous matter (R. S. C. Ord. 



SCANDAL. 37 

XXV^II., r. 1 ; Christie v. Christie, 8 Ch. 499 ; 42 L. J. 
Ch. 544 ; 21 W. R 493 ; 28 L. T. 607 ; Forester v. Read, 
6 Ch. 40 ; 19 W. R. 114; 24 L. T. 79 ; Ruherij v. Grant, 
13 Eq. 443 ; 26 L. T. 538) ; that is, their costs as between 
solicitor and client, including (see Christie v. Christie) 
the costs of an appeal. See also Coyle v. Cuming, 27 
W. R. 529 ; 40 L. T. 455, where the next friend of a 
married woman was ordered to pay the costs ; Pearse 
V. Pearse, 22 W. R. 69 ; 29 L. T. 453, where the Court 
allowed a wife, as against her husband, costs of exceptions 
for scandal as between solicitor and client ; Cracknall v, 
Janson, 11 Ch. D. 1 ; 27 W. R. 55, where it was held by 
Fry, J., that the Court has power to strike out scandalous 
matter from an affidavit, or to order the person who has 
filed it to pay the costs of it, on the application of any 
person, even a stranger to the action, or mero motu : 
Blake v. Albion Assurance Co., 45 L. J. C. P. 663 ; 24 
W. R. 677 ; Devonsher v. Ryall, Ir. R. 11 Eq. 460 ; Ativool 
V. Ferrier, 14 W. R. 1014 ; 14 L. T. 728 ; Edmunds v. 
Lord Brougham, 13 L. T. 790; 12 Jur. N. S. 156; 
W. N. (1866) 67, 93, (where, however, the costs were 
ordered to be taxed as between party and party, sed qu.) ; 
Duncan v. Vereher, W. N. (1876) 64. 

Such pleadings as ought to be struck out should it seems 
be struck out by the judge, rather than be left to be dealt 
with as a question of costs ( Watson v. Rodwell, 3 Ch. D, 
380) ; and charges and statements which would not have 
been improper under the former system may, neverthe- 
less, be struck out under the Judicature Acts (ibid.). 

In In re Savage, 15 Ch. D. 557, parties lost their costs 
of a successful motion because they had filed an irrelevant 
affidavit containing improper imputations. 

But nothing relevant to the issue can be considered Nothing 
scandalous, however offensive or libellous it mav be in ^e's^''"*"^ 

"^ can be 

itself {Christie v. Christie, 8 Ch. 499 ; 42 L. J. Ch. 544 ; scandalous. 
21 W. R. 493 ; 28 L. T. 607 ; Rubery v. Grant, 13 Eq. 
443 ; 26 L. T. 538) ; and see Fisher v. Owen, 8 Ch. D. 



38 



COSTS OF AN ACTION GENERALLY. 



Scandalous 
affidavit. 



Officer of 
the t'oui't, 
solicitoi". 



Api^lication 
to strike 
out, how 
made. 



2. Costs 
occasionetl 
by irrele- 
vancy or 
prolixity. 



G45; 47 L. J. Cli. 681 ; 20 W. R 581; 38 L. T. 577; 
BruffY. Cohhold, 20 W. R 734; 26 L. T. 786. 

In ex parte Simpson, 15 Ves. 476, an affidavit in bank- 
ruptcy was ordered to be taken off the file as scandalous 
and impertinent, with costs against the solicitor who 
made it, as between solicitor and client. Cf. ex parte 
Thorp, 1 Ves. jun., 394; ex parte Porter, 2 M. & A. 
220. 

In Rattray v. George, 16 Ves. 232, it was held that 
counsel and agent were liable for costs on account of 
scandal and impertinence ; and cf. Emerson v. Dallison, 
1 Ch. Kep. 194. In Bisliop v. Willis, 5 Beav. 83, n., a 
solicitor, having put scandalous matter in an answer, and 
put counsel's name to it without his authority, was com- 
mitted, and ordered to pay costs. 

Where, in the course of any proceeding in the Court, 
imputations are cast on the character of one of its officers, 
as such, he is entitled to appear and defend himself there- 
from, and, if successful, he will get his costs {Talbot v^ 
Talbot, 16 W. R. 201, which was the case_ of a solicitor 
whose character had been impugned). 

Applications to strike out scandalous matter may be 
made either by summons or motion ; but, as a rule, if 
they are made by motion only the costs of a summons 
attended by counsel will be allowed {Marriott v. Marriott, 
26 W. E." 416 ; W. N. (1878) 57). If the scandalous 
matter should occur in any j)roceediug at chambers, the 
application must be made by summons (Cons. Ord. XXXV., 
r. 60). By R. S. C. Ord. XXXI., r. 5 (Nov. 1878), an 
application to strike out interrogatories for scandal may 
be made a,t Chambers within four days after service of 
the interrogatories. 

When the insertion of irrelevant, immaterial, or prolix 
matter may occasion embarrassment to the opposite party, 
such matter, or even the whole pleading containing it, may 
be ordered to be struck out (R S. C. Ord. XXVII., r. 1) ; 
and the party in fault will be ordered to pay the costs : 



IRRELEVANCY, ETC. 39 

see Davy v. Garrett (C. A.). 7 Ch. D. 743 ; 26 W. R. 225 ; 
Cashin V. Cradock (C. A.), 3 Ch. D. 370 ; 25 W. R. 4 ; 
Williamson v. X. ((;i\\-TF. i?^/- <^'o., 12 Ch. D. 787. In 
adjusting the costs of an action the Court will inquii-e, at Prolixity 
the instance of any party, into any needless prolixity in ^\^}l^^ 
the statements of claim, defence, and reply, and will order 
the costs thereby occasioned to be borne by the party 
chargeable with the same (R S. C. Ord. XIX., r. 2). 
And any costs occasioned by the use of any more prolix 
or other forms of writs and endorsements than those pre- 
scribed by the rules must be borne by the party wdio 
uses them, unless the Court otherwise directs (R. S. C. 
Ord. II., r. 2). 

By R. S. C. (Costs) Sched., r. 18, the Court or judge Disallow- 
may direct the costs of any proceeding (whether the same c"sTsof im- 

is objected to or not) which is improper, unnecessary, or proper or 

, ' • , , • c 1,1 unneces- 

contams unnecessary matter, or is oi unnecessary length, gary pro- 

to be disallowed, or may direct the taxing officer to look ceeding or 
1 1 1- 11 1 IP n matter. 

into the same and to disallow the costs thereof, or of such 
part thereof as he shall find to be improper, unnecessary, 
or to contain unnecessary matter, or to be of unnecessary 
length ; and in such case the party whose costs are so 
disallowed must pay the costs occasioned to the other 
parties by such unnecessary proceeding, matter, or length. 
Where such question shall not have been raised before 
and dealt with by the Court or judge, the taxing officer 
may look into the same (and, as to evidence, although the 
same may be entered as read in any decree or order) for 
the purpose aforesaid, and thereupon the same conse- 
quences shall ensue as if he had been specially directed 
to do so. The taxing-master must exercise the discretion 
given him by this rule without special directions from the 
judge; see Re Wormsley, Baines v. Wormsley, 47 L. J. 
Ch. 844 ; 27 W. R. 3G ; 39 L. T. 85 ; W. N. (1878), 193. 
By rule 19, the taxing officer may in such cases adjust 
such costs, certifying for payment, or set-off, or may delay 
their allowance ; and by rule 20, where questions as to 



40 COSTS OF AN ACTION GENERALLY. 

such costs are dealt with at Chambers in the Chancery 
Division, the chief clerk is to make a note thereof for the 
information of the taxing-master. 

In Owens v. Emmens, W. N, (1875), 210, 234, a motion 
to take an affidavit off the file for length and irrelevancy 
was refused, and it was said that the attention of the 
Court should be drawn to such matters at the hearing. 
For a direction to the taxing-master under r. 18 to look 
into and disallow the costs of affidavits of unnecessary 
length, see Cracknall v. Janson, 11 Ch. D. 1 ; 27 W. R. 55. 
In London d- St. Katharine Docks Co. v. Metropolitan 
Ry. Co., 35 L. T. 733, portions of the plaintiff's reply were 
struck out as irrelevant, but the application being frivolous 
and unnecessary no costs were given. 
Costs of By R. S. C. Ord. XXXI., r. 2, the Court in adjusting the 

intcrroga- costs of the actiou shall at the instance of any party 
tories. inquire, or cause inquiry to be made, into the propriety of 
exhibiting any interrogatories that may have been de- 
livered, and if it is the opinion of the taxing-master or of 
the Court or judge, that such interrogatories have been 
exhibited unreasonably, vexatiously, or at improper lengtli, 
the costs occasioned by the said interrogatories and the 
answers thereto shall be borne by the party in fault. 
Costs of The costs of every affidavit which unnecessarily sets 

iinneces- fQ^-th matters of hearsay or argumentative matter, or 

sary matter , . 

in affida- copies of or extracts from documents, must be paid by the 

^'^^- party filing the same (R. S. C. Ord. XXXVII., r. 3 ; 

Hirst v. Procter, W. N. (1882), 12). Under this rule 
affidavits by persons having no personal knowledge of the 
matters deposed to, cannot be used at the hearing, and 
the costs of them will be disallowed : per Jessel, M. R., 
W. N. (1876), 59 ; and see also r. 3a of this Order (April, 
1880), presciibing the form of affidavits ; no costs will be 
allowed of any affidavit or part of any affidavit sub- 
stantially departing from this rule. 



COSTS AND EXPENSES OF WITNESSES. 41 



Sect. IV. — Costs and Expenses of Witnesses. 

In the old Court of Chancery the evidence was usually 
given by affidavit, though occasionally it was given vivd 
voce. The Judicature Act has altered this, and the rule 
now is that the witnesses at the trial of an action must be 
examined vivd voce and in open Court, unless the parties 
agree to take the evidence by affidavit, or the Court 
otherwise order. But upon any motion, petition, or sum- 
mons, evidence may be given by affidavit, and any party 
making an affidavit may be ordered to attend for cross- 
examination (R. S. C. Ord. XXXVII., rr. 1, 2). In some 
cases the examination or cross-examination is conducted 
before an examiner. 

Defendants (trustees) who perversely and unreasonably 
refused to consent to have the evidence taken by affidavit 
were ordered to pay the costs of an unsuccessful motion for 
this purpose {Patterson v. Wooler, 2 Ch. D. 580 ; 24 W. R. 
455 ; 45 L. J. Ch. 274 ; 34 L. T. 415). 

When any person is called to give evidence in chief. Witness 
or to be cross-examined on evidence already given by him, ^"*'!'l®^ 
he is entitled to his reasonable expenses; and if they are expenses 
not tendered to him he may refuse to be sworn. This bein^^ 
applies as well to a party to the cause called to be^^orn; 
examined, as to a witness stranrer to the cause (Daveii v. "^^^*^^^r ^ 

^ \ 1/ party or a 

Durrant, 24 Beav. 493 ; 2 De G. & J. 506). stranger. 

The witness's expenses should be tendered to him at the 
time when he is served with the subpceua, or at any rate 
a reasonable time before the trial ; and even though he 
actually appears, he cannot be attached for declining to 
give evidence, unless these charges are paid or tendered. 
But he cannot refuse to be examined on the ground that 
the expenses incurred by him on former attendances have 
not been paid. If the witness be a married woman, the 
money should be tendered to her, rather than to her 
husband ; and if a person be subpoenaed by both parties. 



42 COSTS OF AN ACTION GENERALLY. 

he is entitled, before giving evidence, to be paid by the 
party actually calling him all the expenses to which he 
will be liable, after exhausting what he may have received 
from the opposite side. 
■Witness If a witness before an examiner, after tender of a suffi- 

before an cicnt amount for his expenses refuses to be sworn, an order 

examiner _ ^ 

refusing to may be obtained, on an ex iiarte application, that he shall 
afteTten- attend within four days and be examined at his own 
derof his expense {Wilson v. BrovcjlUon, 6 L. J. Ch. 205 ; Cast v. 
expenses, p^^^^^.^ 3 g^^_ ^ ^ ggc) . ^olces v. Gihhon, 5 W. R. 216 ; 

26 L. J. Ch. 208 ; Laivton v. Price, 16 W. K 73, Q>m) ; but 
such order should not direct that he shall pay the costs of 
the application {Cast v. Poyser, on appeal, 20 L. J. Ch. 
353.) 
Witnesses' Where affidavits made before decree were subsequently 
minatlon" used iu Chambers, and the witnesses objected before the 
examiner to be cross-examined, the objection not having 
been made in Chambers, they were ordered to be cross- 
examined within two months before the examiner, but not 
at their own expense, and no costs of a motion to compel 
them to submit to cross-examination were given {Hughes 
V. Spittal, 13 W. R. 251 ; 11 L. T. 691 ; 11 Jur. N. S. 151). 
Witnesses summoned under sec. 115 of the Companies 
Act, 1862, and refusing to attend, are liable to pay the 
costs of compelling their attendance {Troiver d- Lavjsons 
Case, 14 Eq. 8). 
Scale of There is no fixed scale of allowances to witnesses in the 

allowances Q|ja^jjcerv Division ; the amount to be allowed is a matter 

to ^\ it" "^ 

nesses, of discretion, but the taxiug-mastcrs generally adopt the 
old common law scale, if it be found to be applicable 
{Noh's V. Gihhon, 5 W. R. 216 ; 26 L. J. Ch. 208 ; Clark 
V. Gill, 1 K. & J. 19 ; Brocas v. Lloyd, 23 Beav. 129 ; 
26 L. J. Ch. 758 ; Thomas v. ParrT/, W. N. (1880), 184 ; 
In re Charles Lafitte d- Co., 20 Eq. 652 ; Batley v. Kynock, 
20 Eq. 632 ; 44 L, J. Ch. 565). All reasonable expenses 
properly incurred in procuring evidence and the attendance 
of witnesses will be allowed (R. S. C. (Costs) Sched., r. 8) ; 



COSTS AND EXPENSES OF WITNESSES. 43 

and this includes costs incurred in witnesses qualifying to 
give evidence, as to wliicli see iJOst, Cli. VTII., s. VIL, and 
cases there cited. 

A professional witness will be allowed compensation for Profes- 
his loss of time at the rate of one guinea a day, if resident ' ' ' • 
in London {Johes^^. Gibbon, 5 W. R. 216 ; 26 L. J. Ch. 208 ; 
Clark v. Gill, 1 K. & J. 19) ; and semble, also expenses 
of cab hire {Turner v. Turner, 7 W. R 573 ; 5 Jur. N. S. 
839). And any professional man, in the absence of evi- 
dence to the contrary, will be assumed to be practising his 
profession (ibid.). 

A country gentleman subpoenaed as a witness, is entitled Country 
to his full travelling expenses and one guinea per day for ^"^ ^^^^^^' 
hotel or lodging whilst in town (Turner v. Turner; 
Brocas v. Lloyd, 23 Beav. 129). Where the taxing-master 
allowed 2os. a day for each of a number of farmers who 
had atteuded the Court from Wales, as a fair allowance 
for maintenance and loss of time, the Court refused to 
interfere (Thomas v. Farrij, W. N. (1880), 184). 

In Wiltshire Y.Marshall,W. N. (1866), 80, a witness, a 
country auctioneer, who had been kept in attendance eight 
days, refused to be sworn until his expenses were paid ; 
and Wood, V. C, held that he was entitled to two guineas 
a day, being one guinea for his maintenance, and another 
for his loss of time and business, on week days, and one 
guinea only for his maintenance on Sunday, in addition to 
his railway fare to and from his place of residence. The re- Medical 
muneration for loss of time claimed by medical witnesses ^^'i*-'^^*^^^^- . 
who had attended duringthe examination of other witnesses, 
was allowed on taxation as between solicitor and client 
(Ryan v. Dolan, Ir. K 7 Eq. 92.) 

If a foreign witness, who is not accessible by subpoena Foreigners, 
but whose evidence is material in the cause, refuses to ^^'^1^ j^'^||°"^ 
leave his home unless he be remunerated for. his trouble, 
the compensation paid to him, if reasonable in amount, will 
generally be allowed, and taxed against the losing party ; 
and where the captain of a nlnp has been detained for a 



44 



COSTS OF AN ACTION GENERALLY. 



When 
cross-ex- 
amination 
is aban- 
doned. 



Exami- 
nation 
through 
interpreter, 



A witness 
refusing to 
produce a 
deed. 



long time in this country in order to give evidence on a 
trial, large sums, calculated at a guinea a day, and 
amounting in the whole to above £100, have been allowed 
for his detention. So, — although it is not a general rule, 
either that parties, if witnesses in their own favour, are to 
have an allowance for their attendance at the trial, or that 
after a rule for a new trial has been obtained, witnesses 
maybe detained at the cost of the losing party, — the Court, 
under very special circumstances, has allowed, in taxation 
of costs, subsistence money to a seafaring man, who was 
a necessary witness in his own cause, and who, after having 
obtained a verdict, remained in England until a rule for a 
new trial, granted at the instance of his opponent, had 
been discharged. See Taylor on Evidence, p. 1042 ; 
Potter v. Rankin, L. K 5 C. P. 518 ; " The Bahia," L. R. 
1 A. ct E. 15. 

Where the plaintiff obtained leave to cross-examine the 
two defendants at the hearing, and they attended accord- 
ingly, but the plaintiff then declined to ci-oss-examino 
them, he Avas disallowed all costs in reference to the cross- 
examination, although entitled to the general costs of the 
suit, and was ordered to pay the expenses of the wit- 
nesses so attending {Guilfoijle v. Hutchinson, Ir. R 
8 Eq. 298). 

If the cross-examining party abandons the cross-examin- 
ation, he cannot file interrogatories for the examination 
of the same person as an accounting party without first 
paying him his expenses of the attempted cross-examina- 
tion (Davey v. Diirrant, 2 De G. & J. 506). 

A party examining, by means of an interpreter, a 
witness ignorant of the English language, must bear the 
expense of the interpreter's services as well on the cross- 
examination as on the examination in chief {Flunkett v. 
Williams, 6 Ir. Eq. E. 80). 

In Bradshaiv v. Bradshaw, 3 Sim. 285 (affirmed by 
Lord Brougham, C, 1 R. & M. 358), a person who refused 
without sufficient reason to produce a deed in his posses- 



COSTS AND EXPENSES OF WITNESSES. 45 

sion to be proved by the subscribing witness, was ordered 
to produce the deed at his own expense, and to pay the 
expenses of the witness attending to prove it, and all 
other expenses caused by his refusal A solicitor is not 
justified in refusing to produce a deed in his possession, to 
be proved on behalf of persons not his clients, because he 
has a lien upon it for costs due from his clients {Brassing- 
ton V. Brassington, 1 S. & S. 455 ; Hope v. Liddell, 7 De G. 
M. & G. 831), even when the party requiring production 
claims under his client {Lockett v. Cary, 3 N. R 405 ; 10 
Jur. N. S. 144). A witness summoned for examination 
under sec. 96 of the Bankruptcy Act, 1869, is not entitled 
to the costs of employing a solicitor or counsel {Ex parte 
Waddell, in re Lutscher, 6 Ch. D. 328 ; 26 W. R. 9 ; 37 L. 
T. 345) ; and see i>i reLelghton d- Benett, 1 Ch. 331. 

By R. S. C. Ord. XXXVIII., r. 4, any party on whose Practice as 
behalf an affidavit has been filed may be required to pro- tl'on'of "*^ 
duce the deponent for cross-examination before the Court at witness for 
the trial ; but the party producing such deponent for cross- aminatioa 
examination shall not be entitled to demand the expenses ^'^'l^'^p 
thereof in the first instance from the party requiring such Ord. 
production. This rule abrogates the order of 5th February, ^^ ' 

1861, r. 19. It will be observed that the rule does not 
mention proceedings in Chambers : for the practice there, 
see Stehbing v. Atlee, 2 Jur. N. S. 1161 ; Jenner v. 
Morris, 10 W. R. 640. 

A party applying for an order for the oral examination Oral ex- 
of any witnesses at the hearing under 15 & 16 Vict. c. 86, ^'^j^'^tio^ 

•^ o ' under 

s. 39, did so at his own risk (Ridley v. Meek, 25 L. T. (Old 15 & 16 
S.), 90) ; and see further as to the costs of such viva voce g/39, " ' 
examination, Martin v. Pycroft, 2 De G. M. & G. 785, 806 ; 
22 L. J. Ch. 94 ; Langford v. May, 22 L. J. Ch. 978. 

The costs of a commission abroad must in the first Costs of 
instance be borne by the party who applies for it (In re abroad^^^"" 
Imperial Land Co. of Marseilles, W. N. (1877), 244; 37 
L. T. 588). In Spiller v. Paris Skating Rink Co., 27 
Vf. R. 225; \V. N. (1878), 228, the costs were reserved. 



46 COSTS OF AN ACTION GENEllALLV. 

Costs The costs incurred in a colony, under a commission to 

incurrGu. 

in a colony, examine witnesses, must be taxed in England upon the 
scale which would be allowed in the colony, and the taxing- 
master, in case of difficulty, ought to refer to the colony 
for information, but not to send the bill of costs there for 
taxation (Wentivort/i v. Lloyd, \S W. R. 486; 34 Beav. 
455 ; 12 L. T. 226). 



Sect. V. — Costs of Motions and Petitions Genercdly. 

Motions : It is noAV settled, contrary to Lord Eldon's opinion in 
be^<^i™n^ Mann v. King, 18 Ves. 297, that the costs of a motion 
though not lYiay be granted to the moving party though they are not 
by the asked for in the notice of motion {Poivell v. CocJcerell, 
notice. 4 jj^^ 557 . Clarice v. Jaques, 11 Beav. 623, in the 
reporter's note to which case the earlier cases are 
collected ; Butler v. Gardener, 12 Beav. 525 ; Dawson 
V. Jay, 2 W. R. 598 ; Tampier v. Ingle, 1 N. R. 159); 
but not unless the respondent appears {Pratt v. Walher, 
19 Beav. 261) ; and the same rule, it would seem, applies 
to petitions. But an order for payment of costs made on 
motion ex parte is irregular {Koikes v. Gihhon, 3 Jur. N. S. 
282 ; 5 W. R. 216 ; Ckst v. Poyser, 26 L. J. Ch. 353). 
By R. S. C. Ord. LIII., r. 3, no motion is to be made 
without notice except wdiere (1) under the previous prac- 
tice any order or rule w^as made ex parte absolute in the 
first instance ; (2) otherwise provided by the rules them- 
selves ; (3) the motion is for a rule to show cause only ; 
but the Court or judge if satisfied that the delay caused 
by proceeding in the ordinary way would or might entail 
irreparable or serious mischief, may make any order 
ex parte upon such terms as to costs or otherwise, and 
subject to such undertaking, if any, as the Court or judge 
may think just; and any party affected by such order 
may move to set it aside. 

Where two persons move on separate notices, but for 



COSTS OF MOTIONS AND PETITIONS GENERALLY. 47 

the same object and by the same counsel, and the motions 
are refused with costs, each is answerable only for the 
costs of his own motion {Oakes v. Turquand, L. R 2 H. 
L. 325). 

In disposing of the costs of interlocutory applications 
the Court is generally guided by the following rules laid 
down by Sir John Leach, V.C., in 1823 : — 

" First, That the party making a successful motion is Sir Joim 
entitled to his costs as costs in the cause ; but the party ^^^l^^ ^ 
opposing it is not entitled to his costs, as costs in the 
cause. 

" Second, That the party making a motion which fails 
is not entitled to his costs, as costs in the cause ; but the 
party opposing it is entitled to his costs, as costs in the 
cause. 

" Third, That when a motion is made by one party and 
not opposed by the other, the costs of both parties are 
costs in the cause. 

" The Vice Chancellor added, that it was therefore the 
duty of the Court whenever, by reason of special circum- 
stances, it was not the intention of the Court that these 
rules should apply, to give particular directions with re- 
spect to the costs ; but that the Court very rarely gave 
any special directions with respect to the costs of a motion 
for the purpose of obtaining, continuing, or dissolving an 
injunction to stay proceedings at law, leaving the costs of 
such motions to abide the event of the suit" (1 S. & 
S. 357). 

Before these rules were laid down it was necessary, in Will now be 

order that the costs of a motion might be costs in the Jj^^^ ^^^^^.j^j. 

cause, expressly to mention them in the order on the mo- i^ silent as 

tion, or in the decree or order disposing of the costs of 

the suit {Wild v. Hohson, 4 Mad. 49); but now the costs 

of the successful part\^ will be costs in the cause without 

express directions. {Hind, v. Whitmore, 2 K. & J. 458 ; 

Harris v. Hilliard, 20 L. T. 216). 

However, if a defendant unsuccessfully resists a motion Excep- 
tions. 



48 COSTS OF AN ACTION GENERALLY. 

for an injunction, but succeeds at the trial and gets 
his costs of the suit, his costs of the motion will, notwith- 
standing the first of the above rules, be costs in the cause 
{Stevens v. Keating, 1 Mac. & G. 6*59 ; 14 Jur. 157, over- 
ruling S. C. 13 Jur. 974). So, also, where the motion for 
an injunction stood over until the trial of an action at 
law, and the bill was ultimately dismissed with costs 
{Betts V. Clifford, 1 J. & H. 74). Parties coming for an 
injunction ex iiarte will, even if successful, have to pay 
the costs, unless they state their case fully and fairly to 
Motion the Court {Holden v. Waterloiv, 15 W. R. 139). In 
Jottand Markivkk v. Pawson, 4 N. R. 528 ; 33 L. J. Ch. 703, it 
over. was doubted whether the costs of a motion ordered to 

stand over were costs in the cause on the plaintiff dis- 
missing his own bill. In Corcoran v. Witt, 13 Eq, 53 ; 
41 L. J. Ch. G7; 25 L. T. C53, where the bill was 
dismissed for want of prosecution, the Court refusing to 
make any order as to the costs of a motion by the plaintiff 
which had been ordered to stand till the hearing, it was 
held that these costs were costs of an unsuccessful motion, 
and, as such, costs in the cause, payable by the plaintiff. 

The result of ordering a motion to stand over on certain 
terms till the hearing of the cause is nearly the same as if 
the only order made on the motion had been that the 
costs might be costs in the cause. The only distinction 
■ seems to be that the Court reserves to itself the means of 
dealing differently with the costs of the motion from the 
manner in which it may deal with the costs in the cause ; 
^jer Wickens, V. C, in Singer v. Audsley, 13 Eq. 405. 

Where a motion by the plaintiff was ordered to stand 
till the hearing, no order being made as to costs, and the 
plaintiff ultimately obtained a decree with costs, but the 
costs of the motion were not mentioned in the decree, it 
was held that the motion was substantially a successful 
one, and that the costs of it were costs in the cause 
{Mounsey v. Earl of Lonsdale, 10 Eq. 557 ; S. C. sub 
nam. Atty.-Gen. v. Earl of Lonsdale, 6 Ch. 141). 



COSTS OF MOTIONS AKD rKTiTIONS GENERxVLLY. 49 

Where the plaintiff, who was ultimately successful, was 
ordered to pay the costs of the suit up to a certain day, it 
was held that the usual rules did not apply, and that he 
must pay the costs of motions to obtain and dissolve an 
injunction made prior to that day (Webster v. Manhy, 
4 Ch. 372 ; 17 W. R. 545 ; 20 L. T. 387). 

Where one party was wrong in form only and the 
other resisted the motion in toto, the order was made 
without costs on either side {Powell v. WiUiams, 27 W. 
R 796 ; 40 L. T. G79). 

The exceptions to Sir J. Leach's rules occur chiefly (1) Exceptions 

1 • 1 . 1 . •! xi to Sir John 

where, on the merits the costs are reserved until the Leach's 
trial ; (2) where the motion is rendered necessary by ^'^^^^• 
the default of the moving party, or for some other reason 
he is asking for an indulgence ; (3) where the motion is 
rendered necessary by the opposite party's default ; or (4) 
where the motion is irregular. 

The costs are not generally reserved where a motion is i. Where 
granted ; but where a plaintiff moving would be entitled ^^^^^^ ^^.^ 
to an injunction, but for the case made by the defendant's reserved 
afiS davits {Rochdale Canal Com])any v. King, 2 Sim, trial. 
N. S. 78), especially if, under the old practice, before 
answer (Waring v. Manchester, Sheffi^eld, d Lincolnshire 
Railway Company, 14 Jur. 613), the costs are sometimes 
reserved until the trial. However, in Leiuis v. Smith, 
1 Mac. & G. 417, 420, Lord Cottenham said he could 
not approve of the practice of reserving the costs of a 
proceeding for the purpose of eventually giving them to 
the unsuccessful party ; and therefore, it would seem, 
that if the party unsuccessfully moving gets his costs of 
the suit, the reserved costs of the motion will not be 
given to him. On the same principle, in Marsack v. 
Reeves, 6 Mad. 108, the costs of an unsuccessful motion, 
to dissolve an injunction against suing on a loost-ohit 
bond, were not made costs in the cause, because the 
plaintiff generally paid the costs of such suits. When 
costs were reserved until the liearing, they conld not be 



50 



COSTS OF AN ACTION GENERALLY. 



pressly 
included 
in the 
judgment 
at the 
trial. 



obtained in case the bill was dismissed before the cause 
came to a hearing. It is therefore a useful precaution to 
ask that the costs may be reserved, not simply until 
the trial, but until the trial or further order {Rmnhold 
V, Forteath, 4 Jur. N. S. G08) ; and see Jones v. Batten, 
10 Ha. app. xi., where the order provided for the event of 
the bill being dismissed before the hearing, as to all or 
any of the defendants, by making the costs of such 
Reserved defendants costs in the cause. Where costs are re- 
be'^ex-"" served until the trial or further order they should, it 
seems, be mentioned to the Court and provided for by the 
judgment or subsequent order; where, however, an action 
is dismissed with costs this includes all costs reserved ; see 
Hodges v. Hodges, 25 W. R. 1(!2; Memorandum, W. N. 
(1876) 271, where the M. R. said that he would give in- 
structions to the registrars to insert without special direc- 
tions in all orders made in that branch of the Court the 
words "including costs of all applications ordered to 
stand over until trial, and all costs reserved to be dis- 
posed of at the trial." Where the costs of the suit were 
reserved till further consideration, but no mention was 
made of the reserved costs of a motion in the cause, it 
was held that the costs of the motion were not included 
in the general reservation of costs, and no order could be 
made respecting them (Gardner v. Marshall, 14 Sim. 
575 ; and see Whalley v. Ramage, 8 L. T. 499). How- 
ever, where certain costs reserved till the hearing were 
by mistake omitted to be mentioned in the decree which 
had been enrolled, the Court of Apj)eal on petition made 
a separate order for their payment under the general liberty 
to apply reserved (Viney v. Chaplin, 3 De G. & J. 
282 ; Harris v. HUliard, 20 L. T. 216). And in Fritz v. 
Hobson, 14 Ch. D. 542 ; 28 W. R. 722 ; 42 L. T. 677, where 
a motion for an interim injunction was adjourned to the 
trial, no order being made as to costs and liberty to apply 
not being expressly reserved, it was held that either under 
the liberty to apply reserved by the judgment, or under 



C0,ST?5 OF MOTIONS AND PETITIONS GKNKItALLV. 51 

the liberty to apply implied in the order adjourning the 
motion, or by virtue of R S. C. Ord. XLIa. (Dec. 1879), the 
Court had jurisdiction to order the payment of these costs ; 
and a separate order was accordingly made directing the 
taxation and payment of the plaintiff's costs of the motion. 
And see also Mounsey v. Earl of Lonsdale, G Ch. 141. 
It is submitted that these cases correctly express the 
practice of the Court; and that Kendall v. Marsters, 
2 De G. F. & J. 200, where Lord Campbell, C, expressed 
an opinion that the ordinary direction for liberty to apply 
did not extend to an application to be allowed costs not 
expressly provided for by the decree, cannot be relied on. 
When an interlocutory motion is refused, and at the same 
time the Court makes an order as to costs of the motion, 
this addition does not enlarge the time for appealing 
{Stvindell v. BirmingJiavi Syndicate, 3 Ch. D. 127 ; 
24 W. K. 911). In Chilton v. Gamyhell, 20 Beav. .5,31, Costs of .a 
a motion to restrain an action at law was refused on the refused 
ground that the plaintiff's equity might be enforced as Y'^^^ ^°^*^'' 
well after as before verdict, but the costs were made at once cause, 
costs in the cause ; and see CkirJcy. Wathins, 1 N. R, 342 ; 
Walker v. Daniell, 22 W. K 595 ; 30 L. T. 357 ; Hard- 
wich V. WrigJit, 13 W. R 560 ; 12 L. T. 138 ; 11 Jur. N. 
S. 297 ; Duchett v. Gover, 25 W. R. 554 ; Kinsman v. 
Jackson, 28 W. R. 837. 

The party moving, although he is successful, must pay 2. Where 
the costs of his application if it is rendered necessary by jg occa- 
his own default ; as where the plaintiff omitted to file «ioneci by 

/ r, J . ^ T t^^^ default 

interrogatories in time {Dak ins v. Garratt, 4 Jur. N. S. of the 
579, where the costs were fixed at 50s.) ; or where a "^°y™s 

party ; 
party applies, after the evidence is closed, for leave to 

file an affidavit negligently omitted to be filed before 

{Douglas v. Archbutt, 2.3 Beav. 293 ; Connolly v. Smyth, 

Ir. R. 3 Eq. 145). And see Campbell v. Joyce, 2 Eq. 377 ; 

'Willio.ms V. Carmarthen Ry. Co., 17 W. R. 34G ; 12 

L. T. 762 ; but see Robh v. Connor, Ir. R. 4 Eq. 574. 

The same rule in general applies, but less strictly, 

E 2 



52 COSTS OF AN ACTION GENERALLY. 

or he is where the party moving, though not in default, is seeking 
seeking an ^^ indulgence from the Court [BartlcU v. Harton, 17 

indulgence. "^ ^ 

Beav. 479, 482; Cocks v. Purday, 12 Beav. 451; 
Blachnan v. Cornish, 42 L. J. Ch. 576 ; 21 W. R. 741 ; 
29 L. T. 85) ; and see also Sohey v. Sobey/U Eq. 200 ; 
42 L. J. Ch. 271 ; 21 W. R 309; 27 L. T. 808; but 
the right of the other party to claim such costs must 
not be abused (Attorney-General v. Corporation of 
Halifax, 18 W. R 37). Thus it was held that the costs 
of an application to advance a cause, whether successful 
or not, must be paid by the party applying {Broivne v. 
Lockhart, 10 Sim. 420) ; but see contra, Carthetu v. Bar- 
clay, 10 Sim. 273, where they were made costs in the 
cause ; see also Adair v. Youncf, 11 Ch. D. 136 ; 40 L. T. 
598 ; Norton v. L. & X. W. By. Co., 27 W. R. 773 ; 40 L. T. 
597. In Weston v. Cohen, 20 L. T. 299, a motion by the 
defendant, who had been attached for Avant of an answer, to 
discharge the attachment was allowed, but, under the cir- 
cumstances, without costs. Where defendants applied, suc- 
cessfully, to be struck out, under R. S. C. Ord. XYI., r. 13, 
they were refused their costs because they had not applied 
sooner {Vcdlancc v. Birniingharn, (tc. Corporcdioii, 2 Ch. 
D. 369 ; 24 W. R. 454). A defendant who raises a new de- 
fence by amendment will have to pay the costs rendered 
necessary by his not having put in such defence at an earlier 
period, subject, however, to such directions as the Court 
may think fit to give where it sees that unnecessary or 
oppressive costs have been incurred by the plaintiff in 
opposing the application [Cargill v. Boiver, 4 Ch. D. 78 ; 
46 L. J. Ch. 175 ; 25 W. R. 221 ; 35 L. T. 621). The 
costs of an application to set aside a judgment obtained 
by default must be paid by the party applying [Cockle v. 
Joyce, 7 Ch. D. 56 ; 47 L. J. Ch. 543 ; 26 W. R. 59 ; 37 
L. T. 428 ; Wright v. Clifford, 26 W. R 369 ; Burgoine 
v. Taijlor, 26 W. R. 568 ; 38 L. T. 438 ; King v. Sande- 
Petitioner. man, 26 W. R. 569 ; 38 L. T. 461). And where a defect- 
ive decree was rectified on petition, the plaintiff, through 



COSTS OF MOTIONS AND PETITIONS GENERALLY. 53 

whose omission the defect had arisen, was ordered to pay 
the costs of the petition (Williaoiis v. Carmarthen Ry. 
Co., 17 W. K. 346; 19 L. T. 762). 

The staying of proceedings under a decree, pending an Staying 
appeal against it, is an indulgence which will only be f^gs^under 
granted under special circumstauces ; and the costs of an decree 
application for that purpose must, as a general rule, he appedf 
paid by the party applying, Avhether successful {Merry v. 
Nlckalls, 8 Ch. 205 ; 42 L. J. Ch. 479 ; 21 W. K 305 ; 28 
L. T. 296 ; Cooper v. Cooper, 2 Ch. D. 492— where it was 
held that no alteration had been made in the former prac- 
tice as to the payment of costs in such cases — Morgan v. 
Elford, 4 Ch. D. 352 ; 25 W. K. 136 ; Bauer v. Mitford, 
9 W. R. 135 ; Topham v. Duke of Portland, 1 Be G. J. 
& S. 603 : 11 W. R. 813 ; Lamb v. Fames, 23 L. T. 135 ; 
Be Peninsular Bank, Jopp's Case, W. N. (1867) 192) ; 
or unsuccessful {Waldo v. Caley, 16 Ves. 212; Atherton 
V. British Nation Assurance Co., 5 Ch. 720 ; Grant v. 
Banque Franco-Egyptienne, 3 C. P. D. 202 ; 47 L. J, 
Ch. 455 ; 26 W. R. 669 ; 38 L. T. 612 ; Beattie v. Lord 
Ebury, 28 L. T. 458). And see also Attorney-General v. 
Swansea, dx., Co., 9 Ch. D. 46, where the motion was 
withdrawn. In some cases it was held that tlie costs 
should abide the event of tlie appeal {Burdick v. Garrick, 
5 Ch. 453) ; see Walford v. Walford, 3 Ch. 812 ; 5 Ch. 
455 n. (4); 16 W. R. 1161: 19 L. T. 233, where no 
costs were given; and see Earl of Shrewsbury v. Trap>pef, 
2 De G. F. & J. 172, where Knight Bruce, L. J., said that it 
was not an inflexible rule that a person applying under 
such circumstances must pay the costs of the application. 
In Morison v. Morison, 1 Jur. N. S. 339 ; 3 W. R. 
296, Stuart, V. C, refused to give costs against the 
petitioner, although the petition, there being no special 
circumstances, could not be granted ; see also Barrs v. 
Fewkes, 1 Eq. 392 ; Wilson v. West Hartlepool Ry., 34 
Beav. 414. Where both parties obtained a benefit by 
the order, the costs of the application were made costs in 



COSTS OF AX ACTION GENERALLY. 



by the 
other 
party's 
default, 



the appeal, notwithstanding the general rule in Merry v. 

Nickalls {Adair v. Yoimg, 11 Ch. D. 136 ; 40 L. T. 598). 

If the decree or order appealed from is reversed before 

the application to stay proceedings is heard, there being 

no longer any presumption of the correctness of such 

decree or order, the costs of the application will be costs 

in the cause {Richarchon v. Bank of England, 1 Beav. 

153), or no costs of it will be given (Pennell v. Boy, 

1 W. R 271). 

3. ■Where If, on the other hand, the motion is rendered necessary 

the motion ]j„ ^|^g respondent's default, he must pay the costs of it if 

IS rendered -^ m 7-7 tvt t-> mi 

necessary it is successful {Tampier V. Ingle, 1 N, E, 159). Thus, 
where a bill was dismissed with costs, the plaintiff was, 
nevertheless, held entitled to the costs of a second motion 
for the production of documents rendered necessary by 
the defendant's omission of certain documents froni his 
first schedule {Lovell v. Yates, 11 L. J. Ch. 158 ; 6 Jur. 
479). Again, the costs of a successful motion to make a 
co-plaintiff, who had revoked his authority, a defendant, 
were given against the co-plaintiff {Broivn v. SoAuer, 
3 Beav. 598). And the same rule was followed when the 
opposite party's bad faith had occasioned the application 
(Re Cattlin, 30 L. T. (Old. S.) 110, affirming S. C. 3 Jur. 
N. S. 33). The party moving will be entitled to his 
costs, and to bring the motion on for the purpose of 
obtaining them, although the motion is intercepted by the 
opposite j)arty's compliance w^ith the order sought {Neiv- 
ton v. Richetts, 11 Beav. 164 ; Maiv v. Marsden, 4 Jur. 
1079 ; Acl-erley v. Frodsham, 8 L. J. Ch. 240 ; RcMinter, 
19 Beav. 33). The motion in the case last cited was for 
a solicitor, after taxation and payment, to d-eliver papers, 
which were delivered before the motion was heard ; but 
in Feasmdl y. Coidtarf, 1 Keen, 183, and J/i re Christ- 
mas, 19 Beav. 519, it was held that the costs of the 
common ' four day order ' were payable by the party 
applying for it. And see Meacham v. Cooper, 21 W. K. 
745 ; Re Devonshire, 32 Beav. 241, where an application 



COSTS OF MOTIO^'S AKD PETITIONS GENERALLY. 55 

by a respondent for leave to file a copy of a petition, of 
which the petitioner refused to file the original, was 
allowed with costs ; Yeatman v. Read, 35 L. J. Ch. 17G, 
14 W. R 123 ; 13 L. T. 580. In Patterson v. Wooler, 
2 Ch. D. 586 ; 24 W. K 455 ; 45 L. J. Ch. 274 ; 34 L. T. 
415, defendant trustees, who had improperly refused to 
alloAv the evidence to be taken by affidavit instead of vivcl 
voce, were ordered to pay the costs of a motion that the 
evidence should be taken by affidavit, although the motion 
Avas, under R. S. C. Ord. XXXVII., r. 1, of necessity 
refused. 

Under this class of cases come motions to dismiss for Costs of 
want of prosecution. According to the present practice tfo^g'^t'^J 
the defendant may apply to dismiss the action for want of dismiss for 
prosecution if the plaintiff (1) being bound to deliver a prosem- 
statement of claim does not deliver the same within the tio°- 
time allowed ; (2) fails to comply with an order to answer 
interrogatories, or for discovery or inspection of documents ; 
(3) fails to give notice of trial within six weeks after the 
close of the pleadings or such extended time as the Court 
or judge may allow ; see K S, C. Ord. XXIX., r. 1 ; Ord. 
XXXI., r. 20 ; Ord. XXXVI., r. 4a. 

The application should generally be made by summons 
at Chambers rather than by motion in Court {Freason v. 
Loe, 26 W. R. 138), but may be made either Avay (Evelyn v. 
Evelyn, 13 Ch. D. 138). If the usual notice is given and the 
plaintiff does not at once submit to speed the cause and 
tender the costs of the notice, the defendant, if the usual 
order is made, will have his costs of making the motion in 
Court (Evelyn v. Evelyn). 

Where a motion to dismiss failed but there had been 
some irregularity on the plaintiffs part no order was made 
on the motion except that the costs of all parties should 
be costs in the action (Amhroise v. Evelyn, 11 Ch. D. 759 ; 
27 W. R 639). 

In Higginhottom v Aynsley, 3 Ch. D. 288 ; 24 W. R 
782, Hall, V. C, gave the plaintiff, who appeared and gave 



56 COSTS OF AX ACTION GEKERALLY. 

a reason for his delay, a week in wliicli to take further pro- 
ceedings, he paying the costs of the motion ; and see 
Sutton V. Huggins, W. N. (1875) 235. 

The defendant if otherwise in a position to move may 
obtain his costs although the motion cannot be granted by 
reason of the plaintiff having taken the next step in his 
action {Corry v Curleids, 8 Beav. 606), or obtained an 
order to amend (Findlay v. Lawrance, 11 Jur. 705) ; but 
not if the plaintiff also tenders the costs incurred up to 
that time {Nevton v. Ricketts, 11 Beav. 164) ; and see 
Hewison v. Kenmir, W. N, (1874) 145. 

Where one of several defendants has delivered his 
defence and the time for the plaintiff to reply to it has ex- 
pired, but the plaintiff has, without the knowledge of that 
defendant agreed with the other defendants to extend the 
time for delivering their defences, that defendant cannot 
move to dismiss the action as against him for want of 
prosecution, the pleadings not yet being closed within the 
meaning of R. S. C. Ord. XXIX., r. 12, and Ord. XXXYI., 
rr. 4, 4a. The defendant's course in such circumstances is 
to write to the plaintiff's solicitor and inquire how the 
action stands as regards the other defendants {Ainhroise 
V. Evelyn). A motion to dismiss for want of prosecution 
will be refused with costs if the defendant's conduct has 
been improper {Partington v. BaiUie, 5 Sim. 667; Win- 
throp V. Murray, 7 Ha. 150 ; Barber v. Kavanagli, 1 C. P. 
C. 418 ; Hay v. Farr, ibid. 419) ; and see also Ingle v. Par- 
tridge, 33 Beav. 287 ; Barker v. Piele, 12 W. R 460 ; Herd 
V. Lupton, \V. N. (1869) 29 ; 19 L. T. 674 ; London, dc Co. 
V. Ehvorthy, 18 W. R. 246. A motion to dismiss a bill 
of discovery for want of prosecution was irregular and 
Avould be dismissed with costs (Bennett v. Harrap, 22 L. 
T. 647). A defendant moving to dismiss will not lose his 
costs because he has allowed some time to expire since he 
was in a position to do so (Athenceuni Assurance Co. v. 
Bartlett, 5 W. R. 477) ; but on the other hand, the motion 
Avas refused with costs, where notice was given before. 



COSTS OF MOTIONS AND PETITIONS GENERALLY. 57 

though the motion came on after, the time fixed by the Con- 
soHdated Orders (Ponsardiny. Stear, 2N. R.476; 32 Beav. 
666 ; 11 W. R. 926, and the cases there cited). 

Where on motion to dismiss for want of prosecution 
' the usual order ' was made, but incorrectly, as the suit 
had abated, the defendants were held not entitled to the 
costs of the motion to dismiss (Hinde v. Morton, 13 W. R. 
401). Where, after notice of motion to dismiss had been 
given, the plaintiff's solicitor's clerk by mistake gave an 
undertaking to speed the cause within fourteen days, the 
plaintiffs being in reality anxious to amend, and at the end 
of the fourteen days the defendants moved to dismiss, the 
motion was refused and the plaintiff's solicitors were 
ordered to pay the costs of the application personally 
(She^eld v. Sheffi^cld, 23 W. R. 150 ; S. C. 10 Ch. 206 ; 44 
L. J. Ch. 304 ; 23 W. R. 878). 

The costs of a successful motion to commit any person Motion to 
for contempt are payable by such person (Pennell v. Roy, ^°"^^^^ ^°'" 
1 W. R. 271 ; Fr'qjp v. Bridgeiuater and Taunton Canal 
Co., 3 W. R. 356 ; Lane v Sterne, 3 Gifif. 629 ; Da^u v. 
I^lei/, 7 Eq. 49). In the last case a motion to commit the 
publisher of a newspaper for contempt in publishing cer- 
tain letters was refused, but without costs, he having been 
in some degree to blame ; and see Tichhorne v. Mostyn, 
7 Eq. 55 n. (1) ; In re Cheltenham Wagon Co., 8 Eq. 
580 ; In re Bryant, 4 Ch. D. 98 ; In re Fells, ex parte 
Andrews, 4 Ch. D. 509 ; Ex parte Langley, Ex parte 
Smith, In re Bishop, 13 Ch. D. 110 ; Jackson v. Matvby, 
1 Ch. J). 87 ; 45 L. J. Ch. 53 ; 24 W. R. 92 ; Baker v. 
Baker, W. N. (1876) 256 ; Steele v Hutchings, W. IS". 
(1879) 18. Where the defendant, against whom an interim 
injunction had been obtained, had not received clear notice 
of the continuance of the injunction, but the Vice Chan- 
cellor held that under the circumstances his solicitor ought 
to have known and in fact did know of it, the motion 
was refused, but without costs (Carrow v. Ferrior, Dunn v. 
Ferrior, 1 7 L. T. 536). The order is, strictly, for committal 



58 CO«TS OF AN ACTION GENERALLY. 

for the contempt, but it has been usual to ask only for the 
costs of the motion by way of penalty (Bullen v. Ouey, 16 
Ves. 144 ; Leonard v. AthveU, 17 Ves. 386). If the party 
cannot be treated as liable to commitment, he cannot be 
made to pay the costs as the price of tlie contempt. An 
order of this kind merely directing the defendant to pay 
the costs may of course be appealed from {Witt v. Corcoran, 
2 Ch. D. 69 ; 45 L. J. Ch. 603 ; 34 L. T. 550 ; 24 W. R. 
501). But there is no rule that a motion to commit if 
refused must be refused with costs ; and an appeal as to 
costs in such a case will not be entertained {Hope v. 
Camer/ie, 4 Cb. 264 ; Ashv:orthv. Outram, 5 Ch. D. 943 ; 
and see 2)0sf, p. 158). 

The Court of Appeal has recently expressed a strong 
opinion against the practice of moving to commit for con- 
tempt when it is not intended to ask for a committal but 
only for an apology and payment of costs ; a party making 
such a motion in future instead of getting any costs will in 
all probability have to pay them {Plating Co. v. Farqu- 
hai'son, 17 Ch. D. 49). But such costs could only be party 
and party costs, though costs as between solicitor and client 
may sometimes be given to the party moving (<'6ifZ. ; Steele 
V. Hutcldngs, W. N. (1879) 18). Where a party in cus- 
tody for contempt has purged his contempt, he cannot be 
detained in prison for non-payment of the costs of his 
contempt {Jackson v. Maivhy). 

The costs of an application to commit must be recovered 
together with the other costs of the contempt ; otherwise, 
it seems, they cannot be obtained as costs in the cause, 
and will be lost {Const v. Ehers, 1 Mad. 530 ; Attorney- 
General v Lord Carrington, 6 Beav. 454 ; Landars v. 
Allen, 6 Sim. 619, notwithstanding Anon. 15 Yes. 174). 
As to the costs of contempt incurred by paupers, see 2^ost, 
Ch. VI., s. IX. 
When costs If the sheriff having a person in his custody under an 
°^ ^°'^' , attachment for non-payment of a sum of money lets him 

tempt and ^ • • i • ^ 

damages go at large, he may be ordered on motion to indemnify the 



COSTS OF MOTIONS AND PETITIONS GENEKALLV. 59 

party to whom the sum was payable, and to pay the costs may be 
of the application {Levett v Letteney, Beames, App. 5 ; fi^o^^^he 
Solly V. Greathead, Beames. App. 6, S. C. Anon. 11 Ves. sheriff. 
170 ; Moore v. Moore, 25 Beav. 8). But the measure of the 
sheriff's liability is not the whole sum due, but the amount 
which would probably have been recovered from the 
prisoner {Moore v. Moore). 

Where a sheriff's officer took a solicitor into custody on Sheriff 
a writ of attachment, while the latter was on his way to '^^J".^^*i°s '^ 

' ^ J solicitor ou 

conduct a case for a client, notwithstanding that the officer his way to 
had been warned of the fact, the parties served with the ^ase for a 
notice of motion to discharge (both the plaintiff and the client, 
officer), were made personally liable for the costs of the 
motion {DoM v. Holhrooh, 14 W. R. 125 ; 13 L. T. 426 ; 

11 Jur. N. S. 969; 12 Jur. N. S. 19; 35 L. J. Ch. 175, 
following the decision of Lord Eldon in List's Case, 2 V. 

6 B. 373). 

Where a sheriff had failed to make any return to a Sheriff 
writ of ^. fa., notwithstanding an order of course directing ^ake^a ° 
him to make his return forthwith, he was, upon an appli- return to 
cation ex parte against him for an order nisi, ordered to ' 
pay both the costs of the order nisi and of the previous 
order of course {in re He Iron's Estate, Hall v. Ley, 

12 Ch. D. 795 ; 27 W. E. 750, following Eva7is v. Bavies, 

7 Beav. 81). 

As a general rule an action instituted in one branch Motion to 
of the Chancery Division when another action as to the *'^^"^^^''- 
same matter is pending in another branch will be trans- 
ferred to the latter, and the plaintiff in the second action 
may have to pay the costs of the transfer ; but the plaintiff" 
in the first suit ought before giving notice of motion 
to ask the plaintiff in the second suit for his consent to the 
transfer, and if he neglect to do so may have to pay the 
costs of the application (Lyall v. Weldhen, 9 Ch. 287 ; 
22 W. R. 633 ; 30 L. T. 146 ; Sayers v. Corrie, 9 Ch. 52 ; 
43 L. J. Ch. 337 ; 22 W. R. 101 ; 29 L. T. 602 ; Salter v. 
Tildesley, 13 W. R. 376 ; 11 L. T. 759 ; Orrell v. Busch, 



60 COSTS OF AN ACTION GENERALLY. 

5 Ch. 467; IS W. R. 58S ; 22 L. T. 461). The applica- 
tion of the rule is not affected by the fact that a decree 
has been made in the second suit {Lucas v. Siggers, 
7 Ch. 517; 41 L. J. Ch. 364 ; 20 W. R. 478 ; 26 L. T. 
651). Where a party on insufficient grounds refuses to 
consent to a transfer he must pay the costs if the notice of 
motion asks for them (Cocq v. Hunasgeria Coffee Co., 
4 Ch. 415 ; 17 W. R. 509 ; 20 L. T. 207). And as to 
transfers from one Division to another of the High Court, 
or from one judge to another of the Chancery Division, see 
further R. S. C. Ord. LI. ; Cannot v. Morgan, 1 Ch. D. 1 ; 
24 W. R. 91 ; 45 L. J. Ch. 50 ; 33 L. T. 402 ; Chapman 
V. Real Property Trust, 7 Ch. D. 732. In Holloivay v. 
York, 2 Ex. D. 333 ; 25 W. R. 403, the costs of an appli- 
cation to transfer an action from the Exchequer to the 
Chancery Division, and the costs of the appeal, were made 
costs in the action ; and see In re Timms, 26 W. R. 692 ; 
38 L. T. 679 ; Smith v. WJdcJicord, Evans v. Dehenham, 
Dehenkam v. Lacey, 24 W. R. 900. 
4. Where Where a motion is made irregularly, the moving party 
the motion j^-,^jg|^ \^^ general pav the costs of it ; but it is not of course 

IS irregu- o i ^ ' 

larly made, that he should do SO. In Keuion v. Chorlton, 10 Ha. 
app. xxxii., where short notice of motion had been given 
withoiit the leave of the Court, V. C. Wood said it was 
not of course to make the party moving pay the costs, 
unless any costs had been specially occasioned to the 
other parties by the irregularity ; and he there gave no 
costs, following an unreported case of Blakeneyw. Bufaur, 
cor. Sir J. Romilly, M. R. ; and see Steedman v. Poole, 
10 Jur. 979, where the defendant served notice of motion 
to dismiss for want of prosecution for a day not a seal day, 
and the plaintiff having in the meantime filed replication, 
the Court refused the defendant his costs, but did not 
make him pay any. In Russell v. L. C. d- D. Ry. Co., 
9 L. T. 14, a motion by defendant to restrain an action by 
a co-defendant before decree was refused with costs. 
Affidavits were held to be inadmissible on motion after 



COST"! OF MOTIONS AND PKl'lTrONS (iKNEItALI.V. f>l 

answer, under tlie old practice, to contradict it, and a 
motion on affidavits under tliose circumstances was there- 
fore refused with costs as irregular {Barioell v. Barwell, 
5 Beav. 373 ; and see Castellani v. Blumenthal, 12 Sim. 
47, and Ordv. White, 3 Beav. 357). Where the plaintiffs 
gave an invalid notice of motion and then failed to 
appear, the Exchequer Division held that the defendants 
were not bound to appear either, and were not entitled 
to their costs of doing so {Daiibney v. S/iuttleiuorth, 

I Ex. D. 53). 

Where a successful application was made by motion, 
which should properly have been made by summons, only 
the costs of a summons in Chambers attended by counsel 
were allowed (Marriott v, Marriott, 2G W. R. 416). In 
Meyrick v. James, 46 L. J. Ch. 579, a motion to take 
certain affidavits off the file was refused as irreij:ular, 
but under the circumstances no order Avas made as 
to costs. 

The Court can dismiss with costs an application, which 
it has no jurisdiction to entertain (Ee Isaac, 4 My. & 
Cr. 11). And see Yearsley v. Yearsley, 19 Beav. 1, where 
notice of motion in a Vice Chancellor's cause was ir- 
regularly given before the Master of the Rolls ; but in 
Rasldeigh v. Mount, 16 Sim. 390, such a motion was 
treated as abandoned. So also, the Court may refuse 
with costs a motion to enforce an order which it iiad no 
jurisdiction to make {In re King, 10 Sim. 605). In 
Pearse v. Cole, 16 Jur. 214, a motion by a married 
woman without a next friend was dismissed with costs to 
be paid by her solicitor. See now R. S. C. Ord. XVI., r. 8, 
and see 2^ost, Ch. VI., s. Vltl. A party having an objection 
of form should be prepared to answer the merits, otherwise 
he will have to pay the costs of the application standing 
over for him to file affidavits (Ex parte Bellott, 2 Mad. 
261). But see Camille v. Donato, 13 W. R. 358; 

II L. T. 584; 11 Jur. N. S. 26, where a defendant having 
succeeded in dissolving an interim injunction, on the 



G2 



COSTS OF AN ACTION GENERALLY. 



or is made 
to dis- 
charge a 
previous 
order irre- 
gularly 
obtained. 



Receiver 

improperly 

appointed. 



oToiind of want of parties, was not allowed the costs of 
affidavits to the merits not read. 

In like manner, the party guilty of the irregularity 
must pay the costs of a motion to discharge an order 
irregularly obtained {Froicd v. Lcaurence, 1 J. & W. 655 ; 
Darley v. Nicholson, 2 Dr. & War. 86; Stephenson v. 
Biney, 2 Eq. 303 ; 14 W. R 788 ; 14 L. T. 432 ; 12 Jur. 
N. S. 428, where the order was an order of course ; War- 
rick V. Queens College, Oxford, 16 W. R. 884 ; 18 L. T. 
752) ; and notwithstanding that an offer is made to pay 
all the expenses which the party has been put to in con- 
sequence of the irregularity {Froivd v. Laivrence). So also 
of a motion to take off the file a document irregularly 
filed {Official Liquidators of the Southampton, &c. Steam- 
boat Co. V. Raiulins, 3 N. R. 349 ; McKeivan v. Sander- 
son, 21 W. R. 807 ; 29 L. T. 206 ; Spittle v. Walton, 
11 Eq. 420); or filed by a solicitor without proper 
authority (see post, p. 86) ; but not if the party moving 
raises an issue on which he cannot be believed {Jerdein v. 
Bright, 10 W. R. 380). In Ashley v. Taylor, 48 L. J. Ch. 
406 ; 27 W. R. 228, the costs were made costs in the 
action. 

In Allen v. Lloyd, 12 Ch. D. 447; 28 W. R. 8, the 
plaintiff, a member of the firm of solicitors acting for the de- 
fendant, was appointed receiver ; the Court of Appeal held 
that the appointment Avas improper, discharged him from 
being receiver and ordered him to pay the costs in both 
Courts. 

Where an order had been made outside the terms of the 
motion the Court of Appeal considered that it must have 
been made 25^*' incuriam, and discharged the order with 
costs {West V. Downman, 27 W. R. 697). 

Where an order had been made at chambers, by consent, 
which the Court had as a matter of fact no power to make, 
on the cause coming on for hearing upon the order it was dis- 
charged, and the costs were made costs in the cause {Republic 
of Bolivia V. Bolivian Navigation Co., 24 W. R. 361). 



COSTS OF MOTIONS AND PETITIONS GENKRALLY. 03 

In Davis v. Whigen, 22 W. R. 109, an order of course, 
irregularly obtained, for setting down a demurrer after the 
time allowed by Cons. Ord. XIV., r. 14, had expired was 
discharged with costs ; and see also in re Norivich 
Building Society, 22 W. R. 856, where an order to change 
solicitors, irregularly obtained, was discharged with costs. 
An irregular order will be discharged with costs, although 
the irregularity occurs through a mistake in the registrar's 
office, it being the duty of the party procuring the order to 
see that it is properly drawn up {Landars v. Allen, 6 Sim. 
G20) ; but see contra, Hihherson v, Coohe, 4 Mad. 248. 
Where an order had been obtained for service out of the 
jurisdiction and service had been duly effected, a motion 
to discharge the order was refused, the irregularity being 
only small, but no costs were given {Phospho-Guano 
Co. V. Guild, 17 Eq. 432 ; 43 L. J. Ch. 360 ; 22 W. E. 526 ; 
30 L. T. 117). See also Davis v. Park, 42 L. J. Ch. 204 '; 
21 W. R. 136 ; 28 L. T. 295, affirmed on appeal, 21 W. R.' 
301, where the Court discharged with costs an order for 
service out of the jurisdiction, being of opinion that it 
would not be a proper exercise of discretion to uphold the 
order; Tottenham v. Barry, 12 Ch. D. 797; 48 L. J. 
Ch. 641. 

If an order though technically regular has been obtained 
in breach of good faith, it will also be discharged with 
costs {Belts V. Barton, 3 Jur. N. S. 154). However, in 
Lloyd V. Solicitors c6 General Life Assurance Co., 3 W. 
R. 640, V. C. Wood said that the Court did not encourage 
summary applications on a mere slip in practice, without 
communicating with the other side, and gave no costs. In 
Stephens v. Worhman, 11 W. R. 503, an order to commit 
for breach of an injunction was discharged for a slio-ht 
irregularity in the form of it, but without costs ; but in 
Ln re Reynolds, 10 W. R. 709, it was held that an attach- 
ment for non-payment of costs would be set aside, if the 
copy of the taxing-master's certificate was not a true copy, 
however slight the error; and in that case costs of the 



64 COSTS OF AX ACTION GENEltALLV. 

application were given, though the error was only in the 
omission of the word 'pounds;' and see In re Holt, 11 
Ch. D. 168 ; 27 W. R 485 ; 40 L. T. 207. Where a bill 
■was filed on behalf of a person of unsound mind not so 
found by inquisition, and he was afterwards found a 
lunatic by inquisition, whereby the suit abated, and all 
subsequent proceedings taken without the sanction of the 
jurisdiction in lunacy became irregular and void, the soli- 
citors who took jDroceedings in the suit after the date of 
the inquisition were, on the petition of the committee of 
the lunatic's estate, ordered to refund costs and expenses 
which had been paid out of the estate under an order in 
the suit, and to pay the costs of the petition, and of an 
appeal, as between solicitor and client (Bcall v. Smith, 9 
Ch. So ; 43 L. J. Ch. 245 ; 22 W. R. 121 ; 29 L. T. (52.5). 

It seems the better opinion that an irregular order 
(although obtained as of course) is in force until it is dis- 
charged (Blal-e V. Blake, 7 Beav. 514 ; Traile v. Bull, 1 
Beav. 475). In De Geneve v. Hannami, 1 R. & M. 494, 
however, Lord Lyndhurst, C, expressed his opinion that an 
order obtained in defiance of the General Orders was a mere 
nullity, and that it was unnecessary to set it aside ; and see 
Tanner v. Dean, 4 Mad. 176 ; Jones v. Lord Charle- 
onont, 12 Jur. 389. In Ekhards v. Dadleij, 2 Jur. 464, it 
was held that a person was not justified in refusing to obey 
an order, which was technically defective, without stating his 
objection to it, and on motion to cure the defect and enforce 
the order, he was refused lus costs of appearance. It is now 
provided that non-compliance with any of the rides of the 
Supreme Court shall not render the proceedings in any 
action void, unless the Court or a judge shall so direct, but 
such proceedings may be set aside, amended, or otherwise 
dealt with in such manner and upon such tei*ms as the 
Court or judge shall think fit (R. S. C. Ord. LIX.) ; and 
by rule 2 of the same Order (April, 1880) wide powers of 
amendment are given. 

An order to discharge an irregular order carries with it 



COSTS OF MOTIONS AKD PETlTIOJJS GENERALLY. G5 

tLe costs of the application to discharge it, though not ex- 
pressly mentioned in the order {West v. Smith, 3 Bear. 
492). The notice of motion need not mention the ground 
of irregularity, but such omission may be material on the 
question of costs (Broum v. Robertson, 2 Ph. 173); and 
see Lambert v. Ilill, 1 Dr. & War. 74. 

" When a party gives a notice of motion, and does not ALan- 
move accordinorly he shall pay to the other side costs to ""'?' 

o J ' I J motions 

be taxed by the taxing-master, unless the Court itself shall 
direct, upon production of the notice of motion, what sum 
shall be paid for costs " (Cons. Ord. XL., r. 23). 

The following were treated as abandoned motions : — ■ 
where counsel were not instructed to move on the day for 
which notice of motion was given (Re Smith, 23 Beav. 
284) ; where a motion was brought on and stood over until 
a day named, and in the interval the plaintiff amended his 
bill, and a fresh notice was given (Eccles v. Liverpool 
Borough Bank, Johns. 402) ; or where notice of motion 
was given, but the motion was not brought on before 
amendment {London & Blackivall Ry, Co. v. Limehousc 
Board of Works, 3 K. & J. 123) ; whore, pending an 
appeal against an order allowing a demurrer, the plaintiff 
gave notice of motion to restrain the defendants from 
parting with certain funds, and the order was affirmed 
before the motion came on {Attorney-General v. Mayor 
of NoTivich, 2 My. & C. 406, 431) ; a motion set down in 
the Lords Justices' paper, and not made when called on 
{Turner v. Turner, Ah Jur. 1165); and in the last case 
the motion was struck out of the paper. Where the de- 
fendants gave notice of motion and then failed to appear, 
they were ordered to pay the plaintiff's costs of appearing 
to show cause against the motion {Berry v. Exchange 
Trading Co., 1 Q. B. D. 77 ; 45 L. J. Q. B. 224 ; 24 W. 
U. 318) ; and see Webb v. Mansd, 2 Q.fB. D. 117 ; 25 W. 
R. 389 ; Waddell v. Blockey, 10 Ch. D.'416. lu'Diigdale 
V. Johnson, 5 Ha. 92, it was held that a motion once 
opened could not be treated as an abandoned motion, but 



66 



COSTS OF AN ACTION GENERALLY. 



if it stood over, and no further steps were taken, it must 
be treated as a motion refused ; but see contra, Oorely v. 
Gorchj, 25 Beav. 234 ; Eccles v. Liverpool Borough Banil-, 
Johns. 402. In Felkln v. Leiuis, 11 W. R. 981, where a 
motion for an injunction stood over from time to time on 
an undertaking, which was ultimately discharged on 
defendants doing what they had professed their intention 
to do, the Court held it was not an abandoned motion, and 
reserved the costs till the hearing. Where a plaintiff gave 
notice of a motion and died, and his executors revived but 
did not proceed with the motion, it was held not to be an 
abandoned motion (Warner v, Armstrong, 4 Sim. 140) ; 
and on tlie bill in the same suit being dismissed with 
costs, the defendants were not allowed their costs of that 
motion (Leivis v. Armstrong, 3 My. & K. 69). The costs 
of an abandoned motion must be applied for on the next 
seal after that for which notice is given {Woodcock v. 
Oxford, Worcester d' Wolcerhamplon Ry. Co., 17 Jar. 33 ; 
and see Wedclerhurne v. Lleivellyn, 13 W. R. 939), and it 
is too late to apply for them at the iiearing, and certainly 
on speaking to minutes {Eccles v. Liverpool Borough 
Bank, Johns. 402) ; and where defendant dismisses a suit 
for want of prosecution, Avithout making amotion of which 
he has given notice, the plaintiff cannot afterwards obtain 
the costs of the motion as abandoned {Farquharsoii v. 
Pitcher, 4 Russ. 510). In Yetts v. Biles, 25 W. R. 452, 
the Court allowed the costs of an abandoned motion which 
were applied for at the close of the seal, subject to the 
case being mentioned by the other side in the course of 
the day. 

When a counsel intends to ask for tlie costs of a motion 
as abandoned he ought before doing so to communicate his 
intention to the counsel who is instructed to move ; and 
the costs of where this had not been done Malins, V. C, discharged an 
an aban- order previously made in the action for payment of the 

doned \ : i • , i i , i i ^ 

motion. costs of a motiou whicli had not been brought on, and 
directed that the costs should be dealt with when the 



Notice 
should lie 
given of 
intention 



COSTS OF BIOTIOl^S AND PETITIONS GENERALLY. G? 

motion was brought on (Aitlcen v. Bunhar, 25 W. R. 
366). 

The costs of an apphcatlon for the costs of an aban- 
doned notice of appeal will not be allowed unless they 
have been previously asked for and refused (Grljjfin v. 
Allen, 11 Ch. D. 913; 28 W. K 10). 

In Von Bolton v. Crmlen, 21 W, R. 356, the Court 
allowed two sets of costs of an abandoned motion to A. and 
B., who were Sheriffs of London and also Sheriff of Middle- 
sex, and had been served with the notice of motion in each 
capacity. 

To obtain the costs of an abandoned motion notice 
must be given before to the Court, and produced to the 
Registrar {Wltliejj v. Hu/kjIi, 3 Mad. 437). A person in 
contempt cannot apply for the costs of an abandoned 
motion {Ellis v. Walmesleij, 4 L. J. Ch. 461), and a 
motion cannot be renewed until the costs of an abandoned 
motion for the same purpose are paid {Bellcliamher v. 
Glani, 3 Mad. 550). As to the costs of a summons in 
chambers abandoned, see i^ost, p. 139. 

So, if a petitioner does not appear, the respondent is Aban- 
entitled to costs on producing his own affidavit of haviusc *^*°".!'-' 
been served {Ex parte Garth, 2 Glyn & Jam. 392). 

In Charlesivorth v. Gartsed, 2 N. R. 568, Sir J. Romilly, Motion prj 
M. R., held that a party 'moving to vary the chief clerk's f'^™'^- 
certificate on a point which had been brought before the 
judge personally in chambers (in which case no further 
argument will be heard, York cC- North Midland Railway 
Co. V. Hudson, 18 Beav. 70, 73) should inform the other 
side that the motion is only 2)vo forma to found an appeal 
upon, otherwise he must pay the full costs of the motion. 

For a statement of the practice as to taxation of 
costs of an abandoned motion, see Harrison v. Leutner, 
16 Ch. D. 559 ;, 29 W. R. 393 ; 44 L. T. 331. 

A party who has been served with notice of motion but Costs of 
who has no interest in the subject matter, or a respondent p^^'*'*^'^ .^, 

. . •' ' l served with 

to a petition who appears unnecessarily after service and notice of 

^^ 2 motion or 



68 



COSTS OF AN ACTION GENERALLY. 



petition, 
and ap- 
peariDg, 
thougli 
having m 
interest. 



tender of a sufficient sum to enable him to get legal advice, 
will not have his costs {Catnphell v. Holyland, 7 Ch. D. 
IGG ; Re Ducjgan's Trusts, 8 Eq. 697 ; Wood v. Boucher, 
6 Ch. 77 ; 40 L. J. Ch. 112; 19 W. E. 234 ; 23 L. T. 
723 ; Wcdter v. Beauclerl; 15 S. J. 506) ; and see Re Gore 
Langton's Estate, 10 Ch. 328 ; 44 L. J. Ch. 405 ; 23 W. 
E. 843 ; 32 L. T. 785 ; Re Halsted United Charities, 20 
Eq. 48 ; Ex parte Jones, 14 Ch. D. 624. 

If a petitioner, when he serves a petition, at the same 
time offers the respondent 40s. in order to enable him to 
get the advice of his solicitor as to whether he shall 
appear or not, and the respondent after that appears, the 
Court will consider whether such appearance be justified 
or not ; and if it finds that it is not justified will not order 
the petitioner to pay the costs of the respondent's appear- 
ance ; otherwise it will ; per James, V. C, in re Duggan's 
Trusts. But where a party was served with a notice of 
motion and no intimation Avas given him that he need not 
appear, and no tender Avas made to him of his costs of 
being advised as to the effect of the motion, he was allowed 
40s. costs {Gamphell v. Holyland, 7 Ch. D. 166). 

By R. S. C. (Costs) Sched., r, 17, where a petition in 
any cause or matter assigned to the Chancery Division 
is served, and notice is given to the party served that in 
case of his appearance in Court his costs will be objected 
to, and accompanied by a tender of costs for perusing the 
same, the amount to be tendered shall be £2 2s. The 
party making such payment shall be allowed the same in 
his costs provided such service was proper, but not other- 
wise ; but this order is without prejudice to the rights of 
either party to costs, or to object to costs where no such 
tender is made, or where the Court or judge shall consider 
the party entitled, notwithstanding such notice or tender, 
to appear in court. In any other case in whicl] a solicitor 
of a party served necessarily or properly peruses any such 
petition without appearing thereon, he is to be allowed a 
fee not exceeding £2 2s. He lc*tK ^A^ N.H«?I\ t?r^ So^^^.<^5l 



COSTS OF MOTIONS AND PETITIONS GENERALLY. G9 

And by r. 21, any party appearing on any application or 
proceeding in -winch ho is not interested, or which he 
ought not to attend, will not bo allov/ed costs unless 
expressly directed.* 

Where the registrar of trade marks is served with notice Registrar 
of an application to the Court for leave to be given -him to '^^^^^^^^ 
proceed with a registration and he appears but does not 
oppose the application he will have his costs of appearance 
(III re Orr JEwing & Go's. Trade Marks, 28 W. K. 412). 

As to the costs of the Copyhold Commissioners, see Copyboia 
Templer v. Swde, W. N. (1874), 175. c°''^: 

In applications for transfer to the credit of a cause of 
purchase-money paid into court by a public company it is 
not necessary to serve all the parties to the suit (Eden v. 
Thompson, 4 N. R 87 ; 2 H. & M. G). 

A purchaser who has paid his money into Court, but Purchaser 
has not got his conveyance, is entitled to appear, and will o}i^niotk)n 
receive his costs of appearance, when the money is dealt with to <leal 
(Nohle V. Stoiv, 30 Beav. 272), secus, if he has got his con- pm-chase- 
veyance {Barton v. Latour, 18 Beav, 526). "The prac- '°°°®-^- 
tice is to draAv up tlie order with the purchaser's consent, 
in which case he is entitled to his costs of aj)pearance, or 
on proper evidence that he has been served with notice, 
and has got his conveyance " {Nohle v, Stoiv). 

A party properly served with, and appearing on, a Persons 

appear- 
* There has been a curious fluctuation of opinion as to the right of a ^"S 'i*]" 
person served with a notice of motion or petition, but having no interest, °PP°^"^S- 
and appearing, to his costs of appearance. The following are the cases 
arranged as far as possible chronologically : — (1) Templcmcm v. Warring- 
ton (M. R., Dec. 1819), IJ. & W. 377 n. ; Garey v. Whittimjham, T. & l\. 
405 ; and Wormall v. Williamson, 2 Jur. 440 ; where the costs Avere dis- 
allowed. (2) HcncfKjc V. Aiken, 1 J. & "W. 377 ; Crawslmy v. Tliornton, 
2 My. & Cr. 24 ; L'amford v. Watts, 2 Beav. 202 ; Bruce v. Kinloch, 
11 Beav. 432 ; lluwley v. Adams, 16 Beav. 312 ; Clark v. Simpson, 6 Eq. 
336 ; where the costs were allowed. (3) Major v. Major, 13 Jur. 1 (but 
fiCG Bruce v. Kinloch, 11 Beav. 432) ; Barton v. Latour, 18 Beav. 526 ; 
In re Justices of Coventry, 19 Beav. 158 ; In re Hertford Charities {cor. 
Lord St. Leonards, V.), 19 Beav. 518, n.; Day v. Croft, 19 Beav. 518 ; 
In re Birch's Will, 2 K. & J. 309 ; Ex parte Churchill, 1 N. R. 140 ; where 
the costs werj disallowed. 



70 



COSTS OF AN ACTION GENERALLY. 



Persons 
not served 
but ap- 
pearing. 



Petition 
served on 
solicitor 
for two 
parties, 
Avho 

appeared 
for botli. 

Motion for 
several 
objects 
failing in 
the prin- 
cipal one. 

Notice o£ 
motion 
entitled in 
several 
causes. 



Payment uf 
fixed ^ums 
in lieu of 

costs. 



petition does not forfeit his right to costs, because his 
counsel raises an unsuccessful opposition to the prayer 
{Ex ixirte Stevens, 2 Ph. 772) ; but if a person, by setting- 
up a groundless claim previous to the petition beiug pre- 
sented, renders it necessary that he should be served, he 
Avill not get his costs {Re Slireivshury School, 1 Mac. & 
G. 85) ; and see Re Parry's Trust, 12 Jur. 615. 

A person not served, but appearing, will nut get his 
costs {Bennett v. Biddies, 10 Jur. 534) ; secus, if his solicitor 
apjjears for him at the express request of the petitioners, 
and the petition is dismissed with costs {Shaw v. Forrest, 
20 Beav. 249). 

In Kihninster v, Noel, 12 Beav. 24G, a petition having 
been served on the solicitor for two jDarties in the cause, 
without any intimation for which party it was intended ; 
he appeared for both and was allowed his costs, though 
the appearance of one only was necessary. 

If the notice of motion embraces more than one object, 
and the party moving fails in the princijial part of the 
motion, he must pay the full costs of the motion {Sturch 
V. Young, 5 Beav. 557 ; Lancashire v. Lancashire, 9 Beav. 
1.30 ; British Dynamite Co. v. Krehs, 25 W. R. 846). 

The costs of an interlocutory application entitled in 
several causes may be set off in one, if such application 
related wholly to the matters in that cause, but not other- 
wise {Jenner v. Morris, i N. K 479 ; 11 W. 11. 943) ; and 
see further, as to set-off for costs,^Jos/^, p. 132. 

By CWs, Ord, XL., r. 37, the Court may, upon interlocu- 
tory applications, direct payment of a sum in gross in lieu 
of taxed costs. V. C. Wood, however, is reported, in the 
London and Blackwall Ry. Co. v. Limehouse Board of 
Works, 26 L. J. Ch. p. 170, to have said that the Court 
would not act on this rule unless the parties wei-e poor, 
and anxious to put an end to the matter ; but see ex gr. 
Yearslcy v. Yearsley, 19 Beav. 1 ; Bakins v. Garratt, 4 
Jur. N. S. 579. In Cover v. Stilicell, 21 Beav. 182, Sir 
J. Romilly, M. R, said an inflexible rule, adopted by him 



COSTS OF MOTIONS AND PETITIONS GENERALLY. 71 

on petitions for transfer of funds standing to a separate 
account, and in which no ^^erson other than the petitioner 
was interested, was to allow £10 to the solicitor for his 
costs without taxation. 

Where a petition for payment out of Court is drawn at 
unnecessary length, only ten guineas will in general bo 
allowed for costs {Bull v. Jones ; Ecclcs v. Walker, W. N. 
(1880) Go ; Bourne v. Buc/don, 26 L. J. Ch. 792). 

If two motions are made (Hawlce v. Kemp, 3 Beav. '^"o 

, • • 1 / Ti Tir j7 J ^^ /^ o motions or 

288), or two petitions presented {lie Wortham, 4 Do G. & petitions 
S. 41.5), where the objects sout^ht might liave been ^^'^^^'*^ ""'^ 

^ ... . o'lG neces- 

obtained by one motion or petition, the party moving or sary. 

the petitioner will, as a general rule, have to pay the 

extra costs occasioned by such proceeding. When two 

petitions were presented on the same day in the same 

matter, Bacon, Y. C, ordered the costs of the more perfect 

petition only to be paid out of the estate, though the less 

perfect petition was presented first {Re Priiujs Trusts, 

42 L. J. Ch. 473 ; 28 L. T. 407). 

All costs occasioned by unnecessary evidence must be Unneces- 
paid by the party offering it {Littlewood v. Collins, 1 dem;e and 
N. R. 457; 11 W. R. 387; Attorney-Generals. Corpora- ''^^'^'"'^'^'^^^^ 
tion of Halifax, 18 W. R. 37; In re Star d- Garter 
Hotel Co., 42 L. J. Ch. 374 ; 28 L. T. 258 ; In re Heme 
Bay Waterworks Co., 10 Ch. D. 48 ; where the costs of 
athdavits filed in opposition to a demurrable petition 
Avere disallowed) ; and see as to the costs of unnecessary 
matter in pleadings and affidavits, R. S. C. (Costs) Sched., 
r. 18, similar to Cons. Ord. XL., rr. 9, 10, ante, p. 
39. Where the petition of a married woman by her next 
friend for the appointment of new trustees contained per- 
sonal and irrelevant charges against the petitioner's hus- 
band, the next friend was ordered to pay so much of the 
costs on both sides as were occasioned by the introduction 
of such charges {Ee Wills' Trusts, 3 N. R. 107; 12 W. 
R. 97 ; 9 L. T. 570 ; 9 Jur. N.S. 1225). 

A person obtaining a stop order on a liind iu Court is ^°^^^ °^ 

obtaining a 
stop ordgr 



72 COSTS OF AN ACTION GENERALLY. 

on funis in liable, " at the discretion of the Court or the judge at 
'^^^^ ' chambers, as the case may be, to pay any costs, charges, 
or expenses which, by reason of any such order having 
been obtained, shall be occasioned to any party to the 
cause or matter, or any person interested in any such 
stocks, funds, &c." (Cons. Ord. XXVI., r. 1). Persons having 
claims on funds in court are not entitled, under all cir- 
cumstances, to the costs of obtaining a stop order 
{Grimsby v. Webster 8 W. E, 725 ; but such costs were 
allowed in that case) ; and see Echuards v. Grove, 29 L. J. 
Ch. 839. But the mortgagee of a fund in Court em- 
powered by his mortgage deed to apply for a stop order, is 
entitled to the costs of his so doing {Waddilove v. Taylor, 
G Ha. 307) ; ho must, however, ask specially for them, or 
they will not be allowed by the taxing-master, under the 
common order, to tax the mortgagee's costs (ibid.). A 
trustee who, before paying into court, became aware that 
a distringas had been placed on the fund, and omitted to 
mention the claim, was made personally liable for the 
assignee's costs of obtaining a stop order {Re Allen, 40 L. T. 
456). In Hoole v. Roberts, 12 Jur. 108, an incumbrancer 
petitioning for a stop order, after notice that a petition 
had been presented for payment out of the fund, Avas not 
allowed his costs. See also Mildmay v. Qtiiclie, Ch. D. 
553. It is now settled that the application for a stop 
order should in all cases be made by summons, and not 
by petition {^Yrcnch v. ^Yynne, 17 W. R 198; 38 
L. J. Ch. 235 ; Wellesley v. Mornington, 41 L. J. Ch. 
776 ; WidsJi v. Wason, 22 W. R. 67G ; 30 L. T. 743), 
whether the assignor concurs or opposes ; the costs of a 
petition will be refused ( ^Yalsh v. Wason) ; and in 
Wellesley v. Mornington the petitioner was ordered to 
pay the difference between the costs of obtaining the 
order on a summons at chambers and the costs of the 
and a petition. As to the costs of obtaining a charging order 
charging under 1 & 2 Yict. c. 110, on stock standing in the name of 

order under 

\ k-2 Vict, a party to a suit, see Stanley v. Bond, 8 Beav. 50. 
c. no. 



DISPOSAL OF COSTS OF THE ACTION BEFORE TKIAL. 73 

As to the costs of petitions for the payment of money 
out of Court, or the dividends on funds in Court, see "The 
Trustee Belief Act," ijost, Ch. V., Sec. Ill ; and as to the 
costs of petitions under particular Acts of Parliament, see 
post, Ch. V. 



Sect. VI. — Where the Costs of the Action arc disposed of 
on Tntedocutory Application. 

The plaintiff may at any time before receipt of the Di.scon- 
defendant's statement of defence, or after the receipt tinuaneo 

. . ^'y plaintiff 

thereof beiore taking any other proceedmg in the action before 
(save an interlocutory application) by notice in writinsf '^'^^f'^'^^ ^y 

^ _ _ . . . notice on 

\Yholly discontinue his action or withdraw any part or parts payment 
of his alleged cause of complaint, uj^on payment of the ° ^°^ ^' 
defendant's costs of the action ; or, if the action be not 
wholly discontinued, upon payment of the defendant's costs 
occasioned by the matter so witlidrawn. Such costs are to Discon- 
be taxed and such discontinuance or withdrawal, as the !'">!!!?„ 

' no Dili to 

case may be, will not be a defence to any subsequent subsequent 
action. Save as in this rule otherwise provided, it is not 
competent for the plaintiff to withdraw the record or dis- 
continue the action without leave of the Court or a judge, Dlscon- 
but the Court or a iudo-e may before or at or after the {'"^"'"^"^^ .^ 

. -11 ^y plaintiff 

hearing or trial, upon such terms as to costs and as to any by leave of 
other action and otherwise as may seem fit, order the ^°^^- 
action to be discontinued, or any part of the alleged cause 
of complaint to be struck out. The Court or a judge with- 
may, in like manner, and with the like discretion as to "^rawal of 

cl G I G 11 CG or 

terms upon the application of a defendant, order the whole counter- 

or any part of his alleged grounds of defence or counter- ?'^'™ ^7 
, . , o o leave of 

claim to be withdrawn or struck out, but it is not com- the Court. 

petent to a defendant to withdraw his defence, or any part 

thereof, Avithout such leave. (R. S .C. Ord. XXIIL, r. 1.) 

By r. 2a of the same Order, a defendant mav sio-n judf^-- ^°^*-'^ "^'^^^ 

J o J a action dis- 
continued. 



cuutinuc. 



74 COSTS OF AN ACTION GENERALLY. 

ment for the costs of an action if it is "wholly discontinued, 
or for the costs occasioned by the matter withdrawn, 
if the action be not wholly discontinued. This rule was 
added by the Orders of June, 1876, to supply the want of 
any provision for signing judgment for costs to be recovered 
on a discontinuance; see Set. 1538; Bolton v. Bolton, 
:3 Ch. D. 27() ; 24 W. R. cm. 
Terms As a gcnoral rule, the plaintiff will be allowed to dis- 

]>iaiiitiir continue his action on proper terms and on imymcnt ot 
may (lis- l\^^, costs ; buttlic discrctiou to allow this must not be 
exercised so as to take away from the defendant any 
advantage to which he is fairly and reasonably entitled 
(Stahlschmidt v. Walford, 4 Q. B. D. 217 ; 48 L. J. Q. B. 
348; 27 W. 11. 412 ; 40 L. T. 194, where, after an action 
had been referred to an arbitrator to state a special case, 
and he had in the case found the facts with regard to all 
but a very small portion of the claim in the defendant's 
favour, the plaintiff was not allowed to discontinue). 

In Real cC- Personal Advance Co. v. McCartlty, 14 Ch. 
]). 188 ; 28 W. R. 418, one of the defendants to an action 
was allowed to withdraw his defence, after the action had 
been in the paper for trial but had been postponed, upon 
the terms of (1) giving the plaintiffs all the relief to 
which they could be entitled at the trial ; (2) paying the 
costs occasioned by the defence ; and (3) paying the costs 
of a summons for leave to withdraw. Where the plaintiff, 
before delivering a statement of claim, wholly discontinues 
the action without leave of the Court, the action will be 
dismissed, and the defendant is entitled as of right to all 
the costs of the action {The St. Olaf, 2 P. D. 113 ; 4G L. J. P. 
D. & A. 74 ; 30 L. T. 30). 

Under an order giving a defendant leave to with- 
draw his defence on p:iying to the plaintiffs their costs 
of the action, " so far as they were occasioned by the 
said defence of the said defendant," the defendant is 
only liable to pay the increased costs caused by his having 
^lefended the action ; he is not liable to pay an apportioned 



DISPOSAL OF COSTS OF THE ACTION BEFORE TRIAL. 75 

part of the plaintiff's general costs {Real cC- Fersonal 
Advance Co. v. McCarthy, 18 Ch. D. 802 ; 44 L. T. 514). 

Where a plaintiff in an action after giving notice of appeal Effect of 
gives notice of discontinuance of the action the appeal be- aiscon- 
comes ipso facto vacated, and there is no need for the tmuancc. 
plaintiff to give any special notice relating to the appeal ; 
see Conyheare v. Leivls, 13 Ch. D. 4G1) ; 28 W. R. 3:30. 
As to taxation of costs on a discontinuance, see Harrison 
V. Leutner, 16 Ch. D. 559; 20 W. R. 393 ; 44 L. T. 331. 

Under the practice in Chancery the plaintiff might dis- Former 

iirnoijiC6 * 

miss his own bill without costs against any defendant before dismissal' 
that defendant's appearance ; unless his so doing involved J.'j^^^^^''^'"' 
a breach of good faith towards the defendant (Betts v. before ap- 
Barton, 3 Jur. N. S. 154). wtthnut ' 

After appearance, the plaintiff might dismiss his bill with costs : 
full costs by an order of course at any time before the cause ^^^^^^^^ 
had been actually heard ; see 4 Ann. c. 1(J, s. 23 ; Curtis and before 
V. Lloyil, 4 My. & Cr. 194. Formerly, dismissal on the J™g ^^ 

plaintiff"s own application after the cause was set down to course, 
r, , ., ,.., ,1 .. I with costs. 

be heard was equivalent to dismissal on the merits, and 

might be pleaded in bar to another suit for the same 
matter (Cons. Ord. XXIII., r. 13) ; but this rule has ceased 
to have any application, as by R, S. C. Ord. XXIII., r. 1, a 
plaintiff cannot dismiss his action under those circum- 
stances Avithout the leave of the Court. A co-plaintiff", Co-piaintifF 
however, could not dismiss tlie bill as to himself with costs, ^|i",jfi5^°°* 
unless with the consent of the other co-plaintiffs, or on terms bill as to 
framed so as not to injure them [Holkirh v. Holkirh, 4 Mad. ^.jthout 
50), though the contrary was held in Lanqdalc v. Lanq- consent 
dale, 13 Ves. 1G7, on the authority of i^«^Ae2(; v, i\^ee(;/Aa97i, plaintiffs. 
Prac. Reg. 179, In Winthvop v. Murray, 7 Ha. 150, 
V. C. Wigram said tliat Langdale v. Lamjdah had not 
been followed, and refused to allow a co-plaintiff" to with- 
draw from the suit. A sole plaintiff might dismiss his A sole 
own bill with costs, thouoh he sued on behalf of others as L'l,'Vr.n 

' o felling on 

well as himself {Maiitoii v. Roe, 14 Siin. 353); and an behalf of 

. (, 1 ••/•/•• 1 • 11' 1 r- 1 1 ■ himself 

miant plaintin iniglit, on motion by lumseli, by his next and others 



76 



COSTS OF AN ACTION GENERALLY 



might 
dismiss 
and an 
infant. 



Pauper 
might not 
dismiss 
ex parte 
without 
costs. 



Dis- 

cluiming 

defendant. 



Cases 
where 
under the 
old prac- 
tice the 
Court 
would dis- 
miss a hill 
without 
costs he fore 
the hear- 
ing, on 
ajiplica- 



fricnd in the cause, dismiss any defendant with costs, 
though, if theCouit considered the defendant ought never 
to have been made a party, it would reserve the considera- 
tion of how such costs ought ultimately to be borne, as 
between the plaintiff and his next friend, till the hearing 
(Peai-ce v. Pearce, 9 Ves. 548). The circumstance of a 
pluhii'iff smug in formd 'pau2)eris did not entitle him to 
dismiss his own bill by ex parte application without costs 
{Pearson v. Belcher, 3 Bro. C. C. 87 ; Parkinson v, Han- 
hury, 4 Do G. M. .1- G. 508). 

If a defendant disclaimed all interest in the subject 
of the suit, the plaintiff might, on motion, dismiss him 
with costs to be paid by the plaintiff, but without pre- 
judice to the question by whom such costs should ultimately 
be borne {Bally v. Lambert, 5 Ha. 178 ; Styles v.Sltipton, 
8 W. H. 158 ; Clements v. Clifford, 14 W. R 22 ; 13 L. T. 
2G7; 11 Jur. N. S. 851 ; Berndston v. ChurcJdll, W. N. 
(1866) 8; but see contra, Wigginton v. Pateman {cor. V. C. 
Shadwcll), 12 Jur. 80). And the order might be made 
without service on the other defendants {Bally v. Lambert ; 
Styles V. Shipton; Collis v. Collis, 14 L. J. Ch. 56). 
See now, however, R. S. C. Ord. XXIII., r. 1, ante, p. 73. 
But it was held that a plaintiff could not dismiss his 
bill as to certain defendants, when he had elected to sue 
the defendants jointly {Fusscll v. Elwin, 7 Ha. 29). This 
however has, it is believed, been doubted. 

The following are the principal cases in which, under the 
practice in Chancery, the plaintiff was allowed to dismiss 
his suit without costs : — 

The Cotu't would, on motion by the plaintiff, dismiss a bill 
without costs in pursuance of an agreement come to at 
the trial of an action at law {Tchhatt v. Potter, 4 Ha. 164). 
So where the defendant had absconded, or was insolvent, 
and the jilaintiff had obtained the substantial object of the 
suit {Pinfold v. Pinfold, 9 Ha., app. xiv.) ; or the de- 
fendant by his own act had destroyed the subject matter 
of the suit and rendered its further prosecution useless 



DISPOSAL OF COSTS OF THE ACTION BEFORE TRIAL. 77 

[Knox V. Brown, 2 Bro. C. C. 18G ; 1 Cox, 359 ; and see tiou of 
Blanshard v. Drew, 10 Sim. 240 ; Gooclay v. Sleigh, 3 W. 
R. 87). So, where the suit was instituted under a 
pardonable mistake as to fact {Broiigliton v. Lashnuir, 
5 My. & Cr., 136, where tlie plaintiff had obtained admin- 
istration in ignorance of the existence of a will subse- 
quently discovered) ; or even as to law, as where the bill was 
filed on the authority of a case wdiich, in the course of 
the proceedings, was overruled (Robinson v. Roslier, 
1 Y. & C. C. C. 7 ; Sutton Harhoar Co. v. Hitchens, 
1 De G. M. & G. 1(37 ; Lancashire d- YorJcsJtire Ry. Co. 
V. Evans, 14 Beav. 529) ; or where the j)laintiff had been 
misled by the act or suggestion of the Court {Lister v. 
Leather, 1 De G, & J. 301). And lastly,' see Elsey v. 
Adams, 2 De G. J. k S. 147 ; 3 N. R. 696, where, although 
the suit could not be maintained, the defendant had con- 
fessedly been guilty of gross fraud ; but see Riley v. 
Croydon, 10 Jur. N. S. 1251 ; 13 W. R. 223. But a 
plaintiff could not dismiss his bill as to some defendants 
Avithout costs after it had been dismissed as to others Avith 
costs for want of prosecution {Troward v. Attwood, 
27 Beav. 85). 

It is exceedingly doubtful whether an action can be dis- The Com-i 
missed with costs to be paid by a defendant ; * and where ^^.^^' "^^ 
the costs of an action are ordered to be paid by a defendant the costs of 
on interlocutory application before judgment, the common ^K''"^^"'-' 
order is to stay all further proceedings. In Sivell v. Ahra- locutoiy 
ham, 8 Beav. 598, Lord Langdale, M. R., threw out a dictum, 2'^*;^^' 
that wdiere the plaintiff's demand has been satisfied, he o^'^er the 
should not bring the suit to a hearing, but should make to pay ^" 
an application to the Court to stay proceedingfs and *^^'°' 

^■ f ^ i ^ • IT t -, unless ho 

dispose 01 the costs ; and ni Hcnnct v. Luavd, 12 Beav. consents 
479, the same judge adhered to the oijinion expressed gJoJ,i*fb^e 
by him in Sivell v. Abraham. It has accordingly been so disposed 
held by some judges, that the Court would, on motion °^" 
or petition by the plaintiff, under such circumstances, 
* Scf? the cases on this point collected, post, ji. OT. 



78 COSTS OF AN ACTION GENERALLY. 

enter into the merits of the cause for tlie purpose of 
determining the question of costs, and would, in a proper 
case, make the defendant pay the costs of the suit : 
see North v. Great Northern Ry. Co., 2 Gift. 64; 
KichoUs V. Elford, 5 Jur. N. S. 264 ; Tornpson v. 
Knights, 7 Jur. N. S. 704 ; 9 W. R. 780 ; Wilde v. Wilde, 
10 W. R. 368 ; while on the other hand, V. C. Knight 
Bruce in Langhcun v. Great Xorthern Ry. Co., 1 De G. 
& S. 503, and M'Xaughtan v. HasJ^er, 12 Jur. 957, 
expressly refused to follow that practice ; and it seems to 
have been disapproved of by Sir J. Romilly, M. R., in 
Burgess v. Hills, 26 Beav. 244 (but see Trovard v. Att- 
U'ood, 27 Beav. 85), and by V. C. Kindersley in Wallis v. 
Wollis, 4 Drew. 458. It was subsequently decided by the 
Lords Justices {Wilde v. Wilde, 10 W. R. 503, overruling 
S. C. ibid. 368), that the Court would not, on motion by 
plaintiff to stay proceedings, make the defendant pay the 
costs of the suit, unless by consent. L, J. Turner there 
says: "The case of Sivell v, Abraham appears to have 
been misimderstood. All that was there decided was, 
that a plaintiff" might apply to the Court to stay the pro- 
ceediugs, and order the defendant to pay the costs of the 
suit, and that if the defendant made no objection the suit 
might be disposed of in that way ; but here the defend- 
ant objects to that course." This decision was (reluctantly) 
followed by V. C. Wood in Morgan v. Great Eastern 
Ry. Co., 1 H. & M. 78 ; but it Avould seem, neverthe- 
less, that the omission of the plaintiff to apply for the 
defendant's consent to having the costs disposed of on an 
interlocutory application, where that question was the only 
one left in the cause, might preclude hira from having the 
extra costs occasioned by going on to a hearing (ibid.) ; 
see also Ventilation cO Sanitary Improvement Co. v. 
Edelsten, 2 N. R. 53, where Y. C. Stuart refused the 
motion, but made the costs of it costs in the cause, 
because it was a well-meant endeavour to put an end to 
useless litigation. 



DISPOSAL OF COSTS OF THE ACTIOK' BEFORE TRIAL. 79 

It may, therefore, be considered as settled that the Sonlh tlic 
Court will iiotjUuder any circumstances, on interlocutory ap- ^°^' unless 
plication, make the defendants pay the costs of the action, by consent, 
unless they consent to have the costs so disposed of. And the merits 
from a comparison of the cases where the Court has of tjieaction 

. . ... . . oil inter- 

allowed the plaintiff to dismiss his own suit without costs, locutoiy 
the principle would seem to be that the Court, in such '^[^j^^^^^^.j^j^ 
cases, will not go into the merits of the suit, but decides reference 
on grounds extrinsic to the merits : see on this point the costs. 
instructive judgment of V. C. Kindersley in ^Val^^8 v. 
Wallis, 4 Drew. 458 ; and cf. Andretus v. Morgan, 3 W. R. 
145 ; but see, on the other hand, Elsey v. Ado/ms, 2 De G. 
J. & S. 147 ; 3 N. E,. 696. Wliere the matters in dispute had 
been really adjusted before the bill was filed, the plaintiff 
was ordered to pay all the costs of the suit and of the 
motion to stay further proceedings, the parties agreeing 
that the Court should dispose of the costs upon the merits 
as if upon the hearing of the cause {Chester v. Metro- 
iwlitan Ry. Co., 13 W. R. 333; 11 Jur. N. S. 214 ; 11 
L. T. 669). 

An exception to the above rule was made in the case of Exception, 
suits for a receiver pending litigation in the Ecclesiastical i-e"ceiver'^ ^ 
Court, which were never brought to a hearing, and could i;e|itlii;s 
not be dismissed for want of prosecution {Anderson v. as to \>vo- 
Gidchard, 9 Ha. 275 ; Edwards v. Edwards, 17 Jur. '"'*^- 
826; Barton v. Roch, 22 Beav. 81). In such suits the 
Court would, on motion, dispose of the costs of the suit ; 
and the costs in the Court of Chancery generally followed 
the disposition of the costs in the Ecclesiastical Court 
{Barton v. Rod). The costs of other suits which are costs of 
never brought to a hearing, such as suits for discovery °*^*^'' ^"'*'' 
{Woodcock V. King, 1 Atk. 286 ; Rhodes v. Hayne, 9 Jur. never ^"^ 
175; South-Eastern Ry. Co. v. Submarine Teler/raph Co ^•'""s'ltto 

^ -^ ' a hearino'. 

17 Jur. 1044), and suits to perpetuate testimony {Wright 
v. Tatham, 2 Sim. 459 ; Longman v. Barham, ibid. n. ; 
Beavan v. Carpenter, 11 Sim. 22 ; Edivards v. Edwards, 
22 L. J. Ch. 1055), are paid by the plaintiff, imless the 



80 COSTS OF AN AOTION OENEUALLY. 

dcfeudant luus uxiiiniiitil witnesses in cliief. Sec further 
Iuut' on tliis point jnjst, Cl>. IV., s. IV. An except iun wa.s also 
1 Ua^kr made in interpleader suits, wlu-n all claim-: I'nf i-m win- 

withdrawn (jnmt, Ch. IV., s. \'I.). 

An infant plaintitT may niove hy a person ni>t a party 

to the cause, as his next friend, for the i)urpo.se of the ai)- 
ru: I . plication, to have an action, improperly instituted, dismissed 
^u" *' 'with costs against the next friend in the action (G«^ v. 
■ea ii*t hu r;«M/. 2 Beav. 4G0). But it seems that he eannot, after 

next fricD.I ^ ..... 

iu tlio coming of age, move to dismiss tlie suit with costs against 

°'"^ the next friend (Aiion. 4 Mad. 4<)1) ; and sec further jis to 

co.sts of infants, jyont, V\\. VI., s. VII. 
Conu of A defendant whose interest has ce:i.sed j)endiiig the suit 

v.l. " fnU:- cannot get hiscostsof the action from the plaintifts, although 
he has been improperly struck out hy them under an onler to 
j^ni:,t( amend without any provision heing matle lor his costs 
'•''• ( Wyum- V. JJndds, \ I Ch. D. VMl ; 4S L. J. C'li. oGS ; 27 

W. II. «J7.') ; 40 L. T. 1-0, win r." a defcn.lant during the 
at.lion filed a litiuidaliou p« tition, thciehy determining his 
interest in the subject matter of the artiou, and was after- 
wards struck out hy the plaintilVs, wlio had ohtained an 
order for leave to amend whieh said nothing about striking 
out thi.s particular defendant), 
Dl<mi«nl Under the present practic<.> the dismi.ss.il <.f an action 
Igr Jcfeii. f^^^ ^yj^i^j^ yj- pro.secution is usually with costs (Hlr/</inhutt(>m 
V. Ayniiley, W < 'Ii. D. 2S,S ; 24 \V. II. 7s2 ; and .see ante, 

p. r^r^). 

P„r 'I'hc! dismiriMal of a bill for want of prosecution undei- the 

»it,i .,f prnctiet: in Chanrerv was also with co.sts (Stat. 4 Ann. e. Hi, 
tioft; wiib 2'J; ; and the (^)urt would not on motion for that piir|)ose 
(•ntcr into the merits as to whether the dismissal should be 
•. ith or without costs; but tin- order ihpended solely «»n 
the conduct of the plainlilT with rt!i,'ard tt» the prosecution 
of the suit (»SVifr/7 v. KuouIvh, '.\ Ha. 241 ; Troward v. 
Atlxvood, 27 Beav. S.'j ; LnuaiJili i rr <t- YovliHli 1 re Jiailvfii/ 
Co. V. KrniiM, 1 4 I5eav. r»2f)). The dismissal was with costs, 
though nothiiiL,' was said as to costs in the usual previous 



cnU 

Y 

1 



DlMrofiAL C>F ttWTS OK fllR ACTION IlKI'ollK TUIAL 81 

onloron the plaintiff to RpocHl, or in defnult to lK.*diKiniAH4-4l 
(> II V. Mitck'H'f. 24 lioav. 2')2). The circiiiusL:iu< i- 

ot : :, lulaiitH liaviii^', .since the institutiuu uf thcHtiit. 

become n bankrupt, or taken tlic benefit of the oM 
Initulveut Debtors' Act, or fiKil internx^atoricM for the 
examination of the plaintiff, diil not prevent hi.s dinmiH^in;; 
the bill with ctists, subject to the tisual onU-r to .sjh'«»| 
{Mimteith v. Taylor, I) Vck. Gl.'i ; WhmU v. Sptar, 4 )Aiv\. 
51 ; lUack-mort v. Smith, 1 Mac. k G. <H() ; liohHon v. 
Karl of iJtixm, 'A Sm. A (•. 227; I^vi v. Jleritajf, 2«i 
Bcav. 5(K) ; Jackmni v. Ivimrff, 1 K*j. GDIJ) ; and see /.a 
Gntutje V. .l/(\l7J«//rfr. 4 Q. H. I\ 210. Hut nltlioti^'h the IVf«i. 
Court wouhl nut dismiss without c«».st3 on the defen-'"!' 
dant's motion, it might direct the dcfemlant's motion R»ict>t !< 
to Htand over with liU'rty for the plaintiff to move »ti»nj „vcr 
to dijimins hi.s own bill without cost-s and file affidavit's in ^"i" pl*iin«ff 

I \ • • \" I • • *" tnort to 

support of Kuch motion ; and on the plaintm .s a))plication •itumtMi, 
the Court might di-smi-t-s the bill without co.sts {Pinfold v. ^|^* 
rinfolil, 9 Ha. app. xiv. ; Goi><l(lai/\\ tSlei(/li, '.i W. R H? . Cmmm tl>« 
However, in KcmUill v. Wahliick, 1 Sm. iV CJ. app. xxvii., '*^^" •*? 
\'. C. Stuart made an onler for dismis-sal without costs, on 
the defendant's application to dismi.s.s in the u.sual way, on 
the grounds of the defendant's great delay in moving ; tml 
qu. In yitullatf V. lAitrrence, 2 l)v (I. iV S. 'AO'A, the bill 
apjM'ars to havr Ixen disini.v<<l without co.st.x on an under- 
taking (in efl'ect) not to file a fresh bill. F«tr the form of A«to»uiu 
the onler, where the plaintiff does not proceed, in the case ^J^, **'* 
of suits to jKr|>ituate testimony, and other suits which are trou^hi u» 
not brought to a hearing, and therefore cannot l)e dismi.s.s<>d 
for want of prosecution, see Ikavan v. Catycnter, II Sim. nui du- 
22. A bill dismissed for want of prosecution might l>e '^^!^J'*' 
restored untler special circumstances (Jackson v. Purufll, prv»rcuUoB 
IG Ves. 204) ; but not fur the nure pur|x>.se of agitating the [Ti'^Vor 
question of costs {Ilannam v. South London Waiert(.\>rk« i«n«^ "< 
'• .iJMer.GI). '!Zr'^ 

Where by a former order in an action the plaintiff has i ^hm 
been onlcred to do some act, and proceedings arc stayetl L«^Lad« 

o 



82 COSTS OF AN ACTION GENKKAI.LV. 

default in in the moanwliilc, and the phiintift' makes ilefault, tlie 
onJcr"of"" defendant or defendants at whose instance the former 

the Court : order wa.s obtained may in certain aise.s obtain a further 
with costa : , , , i • • ,. 'i i • i • i • • i • 

order that the phuntiti do the act withm a limited time or 

lii.s action be di.sini.s>ed with costs : as where the plaintiff 

ha.s failed to i)ay the taxed costs of a demurrer (Whik v. 

Broralijc, 20 \V. 11. 312) ; or makes default in giving 

Recurity {Giddiiujs v. Guhlinys, 10 Beav. 2*J, and the caM?s 

cited antr, p. 2-i ; and see Iai Granr/t- v, McAiulirw, 4 Q. 

B. D. 210) ; or where proceedings are stayed till the costs 

of a former suit for the same matter arc paid {lAtutour v. 

JlitlannU, II n<av. {\'1\ , Kru,M v ' 2 N. R. r>': 

So where under tile ftJiiuer practice a t'»raniiij : 

iiun stood over with liberty for a plaintiff to bring an 

action at law and no action was brought {lirll v. /i<7/, 14 

Jur. 1120); or where the plaintiff ' !< fault in the 

])ro<luclion of a document in his j a, the CVmrt 

having given the defendants a limited timo to answer 

after the prt)ductl«in of it {Pi-iurmM of \\\iUm v. Kn 

Lnrr/HKil, 'A Swans, otj?) ; or where the plaintitT in 

defaidt in giving discovery, or in short fails to take any 

htep whicli the C'otirt thinks n 

decision of the cause lyxrLord ll..ii.. ;.- _, . .i. ..-^ ... -, 

Liberia v. Jio;fr, 1 App. Can. VA9 ; 4:. L. J C "h. 2J»7 ; 24 

W. U. lHi7; 34 L. T. U:.). 

Where tluri- has ' aii iiiiim' iiaie ordt-r 

may l>e nunle ior ti. <• suit, ns in ImuIvui' 

V. Hdcoinhe, 1 1 Beav. G24. 

Rut not But where the plaintiff was in contempt fur non-payment 

where , 1 • 1 1 1 II 1 

phiiutiff is ot costs, and proceedmgs had been staye<l on that ground, 
'"7"**''"l'* Jessel, M.R., declined to make an order that he .should 
ceotlings clear his contempt within a limited time, or in default that 
!um!'''° his bill should be dismissed {Gould v. TvAixf, 43 L. J. C'h. 

381 ; \V. N. (I>s74), On ; 22 W. R. 30.S ; 30 L. T. 2 V.\ ; and 

see Futvoi/e v. Kemmrd, 2 Giff. 533). 
3. Where Acoonling to the practice of the Court ol Lliaucer}', 
aU-ikT ^^1>^*»"^' ''^ •''"'^ abated by the death of a sole plaintiff the 



DISPOSAL OF Costs of the actk»x before trial. 83 

Court, on motion of any defendant served on the legal 
representative of the deceased plaintiff, might order that 
such rejuesentative should revive the suit ^Yithin a limited 
time, or that the bill be dismissed (Cons. Ord. XXXII., r. 
4) ; and such dismissal was without costs (Hill v. Gdunt, 
9 W. 11. GS) ; and see also Prive v. Bcrrinijton, 11 Beav. 
90 ; Mills V. Dmlr/eon, 1 W. R 514. As to the order 
where the suit abated by the marriage of a sole female 
plaintiff, see Westropp v. IIeahj,F\. & K. 141. 

Upon the death of "one of several co-plaintiffs any 
defendant might move that the surviving plaintiffs should 
revive within a limited time, or in default the bill be 
dismissed with costs (see Adamson v. JLdl, T. & R, 2.58, 
overruling S. C. 1 S. & S. 249; Chichester v. Hunter, 

3 Beav. 491 ; Ilinde v. Morton, 2 H. .V: M. 308; 1.3 W. 
R. 4()1 ; Holcomhc v. Trotter, 1 Cull. (i")4) ; nor Avas it 
any answer to such a motion that no adn)iuistration had 
been taken out to tlie decea.scd plaintiffs {Suner v. 
Deaven, IG Beav. 3(»). No order w.as usually inadL- as 
to the costs of the motion (Ilinde v. Morton). 

Under the present practice, however, an action does not Troscnt 
abate by the marriage, death or bankruptcy of any party if i''^'^^"^*^- 
the cause of action survive or continue ; nor become defec- 
tive by any devolution of estate pendente lite (R. S. C. Ord. 
L., r. 1 ; and sec Lloijd v. Diimnad; 7 Ch. D. 398 ; ami 
Morg. Cli. Acts and Ord., p. .')89). But where a .solo 
plaintiff became bankrupt and tlie defendants moved to 
dismiss the action for want of prosecution, serving the 
trustees in the bankruptcy with notice of the motion, the 
action wa.s dismissed with costs, the defendants under- 
taking not to enforce the order against the plaintiff 
personally but only against his estate in bankruptcy 
{Wright V. Swindon Ry. Co., W. N. (1870), 290; S. C. 

4 Ch. D. 104; Ahhotmn v. Grefiff. 19 W. R. 34(1 ; W. N. 
(1871), 2; Jncl-.^nn v. iV. E. Rij. Co., r, Ch. ]). 844). 
Under the former practice the proper course was for 
tlie defiiid.int t.i iiK.vf on notice, .served "n thf assio-noes 



84 COSTS OF AN ACTION GENERALLY. 

and the pl.iintifF, that tlie assignees revive within 
a limited time, or in d«-fault the hill he dismissed without 
costs : see VeHtriti v. Jlooptr, 8 Sim. .')7() ; i^/mrjte v. Jluhtt, 
2 S. & S. 490 ; Lord Iluntiiujtouc)' v. Shcrborn, 5 Beav. 
380; Fisher v. Fisher, 6 Ha. 028; ^f€iklam v. Ehiioi-e, 
4 Dc G. & J. 20S. If the hankniptcy hapiK-nod after 
decree, the order wa.s that proceedings be stayed instead 
of the bill being dismissed ( Whitmorc v. Oxborrow, 1 Col. 
91 ; Clarke v. Tljqi'iiuj, Ki Beav. 12). 

Where the plaintiff iK-came l>ankrupt and no one ap- 
peared at the trial either for him or his trustee, and there 
was no evidence that the trustee had bccu .ser\'etl with 
notice of the action, it was helil that the action hatl abated 
and must simply be struck out of the list (AV- //•/«///♦• v. 
BurgcsH, 7 Ch. D. HI; ^7 L. J. Oi. 342 ; 2<; W. K 43.") ; 
3s L. T. 232\ 
U<lirostn- When- an arlion has abateil by the death of a defendant 
uiivoH of ],^.f„p^. jud'^ment his representatives mav move that the 
.kfen.iaiit plaintitV t)btain an onler to carry on the priKxjedings 
airainst them within a limited time or that in default the 



III I KM III 



ikfuiilt of Hetinii Ik.' dismissed; and such dismis>al will be without 
coniiiiuinfe'. costs (Motion v. K uig, 29 N\ . li. < ."> ; JiurneU v. Duke of 
\\cllln<ftou, Sim. 401 ; Xurdni v. White, 2 I)e G. M. it 
G. (J78 ; r<'>r,f! V. r,>urll. 2 I)e G. M. kC. 07h n. ; (V<«w 
V. CroAv. II \V K. 7:'7 ; i! N. U. :!''l . Reeves v. Btiker, 
13 Beav. ll.'>, is incorrectly re|>orted, .^ee 2 l)c G. M. & G. 
079 n.). In the case of the biinkruptcy of a defen«Iaut the 
Court refused (in Mmifton v. Jiurfou, 1 Y. & C. C. C. 02<J) to 
make an oitler that a supplemental bill shouKl be filed 
within a limited time against the ;ussignees, or in default the 
bill be dismissed ; and see Borter v. Dubiu.r. 50 L. J. 
Q. B. .V27 : L'lt W. K. (122 ; 44 L. T. .VHi. 
1- f*" Any defendant mav at anv time before decree, by 

ilofoiuiaiit . ' , 1 • -.v 11 1 •* 1 1 1 • 1 

sitisfyiiig P'^ying to the plamtitt ail his demands, together witli 
i.iaintiffs ,^11 ^\^Q costs of the suit (i.e., the plaintiff's own costs 

Uoinanil, * . 

:uui p.aying aud the costiJ of the other defendants), obtain an order 
j',^^ g^l*. for dismissal of the suit, or staying proceedings, on such 



DISPOSAL OF COSTS OF THE ACTION BEFORE TRIAL. 85 

payment being made {Praed v. Hull, 1 S. & S. 331 ; 
Darner v. Lord Portarlington, 2 Ph. 30 ; Payntcr v. 
Carew, Kay, app. xxxvi.) ; notwithstanding the opposition 
of the plaintiff {Darner v. Lord Portarlhigton), or of the 
other defendants {Paynter v. Carevj ; Jones y. Tinncy, 
Kay, app. xlv.) ; and although the plaintitf sues on behalf 
of others as avcU as himself {Manton v. Roe, 14 Sim. 3o3 • 
Pemberton v. Topham, 1 Beav. 316). And proceedings 
may be stayed without costs if the defendant is willing to 
comply with the plaintiff's demand, and wouUl have done 
so before suit if he had been asked (Rudd v. Rowe, 10 Eq. 
610 ; l.S W. R 077 ; 22 L. T. 78.')). In a foreclosure suit, 
the defendant must have actually paid to the plaintiff, or 
tendered to him, the amount of his demand before he 
moves, and be ready at once to pay a sum into Court to 
answer costs (Paynter v. Carexv, Kay, app. xxxvi. ; Challie 
V. Gwynne, Kay, app. xlvi. ; France v. Covpcr, W. N. 
(1871), 76). The defendant cannot obtain the order, if but not if 
there is any ([uestion in dispute between him and the tion is left. 
plaintiff {ex. gr. whether certain costs incurred in reference 
to the subject matter of the suit ought or ought not to be 
paid by the defendant), and the defendant does not submit 
thereto {Field v. Robinson, 7 Beav. 66; Wainwright v. 
SexL'dl, 11 W. R. 560) ; but see Penny v. Rcavan, 12 Jur. 
936, where the Court decided, on tlie motion, the (|ucstion 
whether certain costs were properly included in the '^"'^ ^^rmblc 

not wilh- 

plaintitf 's co.sts of the suit. In Ilolden v. Kyna.ston, out costs, 
2 Beav. 204-, iiroceedings were stayed aijainst two d^. ♦■''""s** «■ 

' o . . "V- jirevious 

fendants, wiio had satisfied the plaintifi''s demand as ♦<'""lcr lia.s 

against them, without costs on the ground of a previous "^^" '"'^' ®" 

tender ; sed nu. see Wainv:rit/ht v. Sewell, 1 1 ^^^ R. 560. f" *° ■ 

In a legatee's suit, the bill was disrai.sscd on payment into suit against 

Coui-t of the amount of tlie legacy, and to the plaintitl' of of"(icfcu-^ 

the costs of the suit, as against all the executors except '^^°^^- 

one, who was also the representative of an incumbrancer 

on the legacy, and between whom and the plaintiff was a 

question of account {Sav^yrr v. Mills, 1 Mac. & G. 390) ; 



8() COSTS OF AN ACTION GENERALLY. 

find sec ftntlicras to staying proceed inffs against particular 
defendants, Holden v. Kynaaton, 2 Bcav. 2o4. 
:,. Where As to the costs where proceedings are staye»l in a 
iiiuiFM creditor's suit, after a decree has been obtained in another 
hiiits arc fjjiit ffjr t]j(j same purpose, see jtost, ch. IV., sec, II. 

ini<titutc<l. I V, 1 ... 1111/' 

J, ^yi,,,^, If it appears toihe Court thatasuit instituted on behalf 
iiiffintM of infants wa-s improperly instituted an<l is not for tluir 
imj.r'oi^r, honcfit, the Court will, on interlocutory application by any 
wiiho.^u jjf tiic defendants, d' with o- paid by the 

iKxifrieml.ne.vt friend {Fojr v, -^ . op, 1 L . ^'i); and in a 

clear caso the order will be made without a previous 

reference (Suh v. Salf, ibid. 5S(;), 
7. I>if«- Disclaiming defendants may move to have thr stjit dis- 

a.ftn- missed against tluin with, or without crests, according to 
i.ntA, circumstances (Hawlcins v. Ganlhiti . I W. K. .'H')), or to 

have their names struck out of th< " " / v. 

li rick-end* n, 4 K. cV J. GTO). As t" • < h a 

disclaiming defendant will Ix) dismisseii with or without 

costs, see ]H)Ht, p. 1 1 4. 
Action If an action is commenced without projx'r authority, it 

coiniucncc«l .•. • ,• • . • i i • •«• i i i* 

without Will l»e disniLssid on motion by tlie plamtift, and the soli- 
ntithonty citor will \)e orderetl to iMy the costs of the plaintiff as 

"'^*" 1- • 1 !• 1 1 

.li.Hu.iKv.l iK'twoc'ii solicitor and clunt, and tli ' ' ' 

iMiion with^ivo tlic dcfeudaut notice of his motion {Se^'hifjijin-hij' 

' t the tfif-Si'd Cuiii Co. V. .1 rmstirmr,, Ml Oi. D. 310 ; 41» L. J. Ch. 

' r 231 ; 2s \V. U. 217 ; 41 L. T. (i3I ; Xurs^t v. iJuru/ord, 

13 Ch. 1). 7G4; 4!> L J. Ch. 229; 2« W. R 145; 41 

L. T. Oil) ; and see In ir Saixnjf, l.> Cli. I). o'>7, where 

parties had been joined as co-petitioners without their 

authority. 

Former riulor tlic former practice in Chancery the defendant 

ChrweSy" ^^'^-^ "^'^^ served with notice of the motion, but was left to 

eet his costs from the nominal i>laintift', who had after- 
Fonncr ^ . iir i i-- „„ 

pniciico at waids to get them (if he could) Irom the solicitor. Ihc 
Lawnow pi«-^scnt rulc adopts the practice of the old Common Law 
foliowcii in Courts ; SCO lieifm>lih v. Howdl, L R. M Q. B. 3.')«. 

the Ch;ui- 



DISPOSAL OF COSTS OF THE ACTION BEFORE TIUAL. 87 

For cases under the former practice where the bill was eery Divi- 
eitber dismissed or taken off tlie file, in eitber case witb ^'°°" 
costs against the solicitor, see W rigid v. Castle, o Mer. 12; 
Allen V. Bone, 4 Beav. 403 ; Wade v. Stanley, 1 J. .^ W. 
674; Martliidale v. Lairson, C. P. C. 83; Jcrdcin v. 
Bright y 10 W. R. 380. And see also Davics v. Davics, 18 
L. T. 701 ; Robson v. Dodds (2), 8 Ei^ 301 ; 38 L. J. Ch. 
647 ; 17 W. R. 782 ; 20 L. T. 9G8 ; Palmer v. Walc,sh>/, 
3 Cb. 732 ; 10 W. R. 924, wbere a bill filed by a next 
friend in tbe name of a supposed lunatic, who was really 
of sound mind, was ordered to be taken off the file, the 
next friend paying all tbe costs ; Fentou v. Qccni's Fcrri/ 
Co., 7 E(i. 2G7; Thomas v. Finlagson, ID W. R. 2o5. 

If the suit is dismissed with costs before the plaintiff 
interposes, be cannot be relieved from his liability to 
the defendants {Dundas v. Dutcns, 1 Vcs. Junr. IIIG; 
2 Cox, 235; Hood v. Phillijis, G Beav. ]7G; Tarhuck v. 
Woodcocl-, ibid. 581); but the plaintiff may afterwards 
recover his costs, charges, and expenses from the solicitor, 
eitber by petition (Xorton v. Coojyer, 3 Sm. viv: CJ. 375), or 
motion {Mtdins v. (irernvan, 10 Beav. 5G4 ; Hood v. 
Phillips). In Jcrdcin v. Bright, 10 \V. R. 3S0, the bill 
was filed under an authority which had, in the opinion of 
the Court, been improperly obtained from the plaintiff, 
and V. C. Wood made the same order as if the bill hail 
been filed without authority ; but he refused the plaintifi" 
his costs of the application, because he raised an issue 
between himself and the solicitor, on Avhich he could not 
be believed. In like manner, one of several co-plaintilfs 
may apply to have his name, if inserted without proper 
authority, struck out of the record with costs of the suit 
and of tlje application to be paitl by the solicitor {Wilson 
v. Wilson, 1 Jac. i^- W. 457 ; Tabbcnior v. Tahbernor, 2 
Keen, G79 ; Pinner v. Knights, G Beav. 174; Maries \. 
Maries. 23 L. J. Ch. 154). But the Court will not allow 
a co-plaintifl[", who originally authori.sed the suit, to with- 
draw from it to the prijudicc of the other plaintifl's; and a 



88 .u»l> (>K AN ACTIOS OESRRALLV. 

motion by a co-plaintiff that on furtlier pnx!f»e<ling.s l>cing 
taken lie* should he indemnitied by the solicitor wiis re- 
fused with costj< (Winthrop v. Murray, 7 Ha. 150). 
The order made on the plaintiff's motion will of course be 
witliout j»njudice to any rights, which thf solicitor may 
liavc against any person who really authorised the suit ; 
but the Court will not, on Ibe plaintiff's motion adjudi- 
cate Iwtween the solicitor antl such other porwm, though 
one of the <lefcn<Iants {('ri^Mlrtf v. r '' •. <» Ha. 3N4». 
On flcfcn- A motion may Ik- made by a ;.i to have the 

'iiic.itic"n! proceedings in an action commenced by a solicitor, without 
pro|Mr authority of the r ' ; ' "* ' ^i,,! for 

payment *>( the ost.n by tb- • fn'trr, 

25 W. U. 554, and caaca cito«l there ; and bco JluhUtrt v. 
J'liillljiH. ]'.\ M. \- W. 702. On such a motion the nominal 
]»laintiff should Ik; servinl, and the solicitor will be ordered 
to p.ay his cost^ an In'tween solicitor and client, ami tho 
costs of the moving defendant as l)etwcen jwrty and party 
{CajH- Ih ■ '■ . ,'• '• ' '•:''!'•■- ' -c-o 

nixt Fevj '• . "N, 

\ L '\\ 2(i2, where the bill was filed in the name of a coro- 
pauy on the authority of one of the tlirectors against llic 
other directors; and liuiyri^fies of Jiuthin v. Admus, 
7 Sim. IH'h If the suit is really instituted by one of tho 
defendants, the costs may bo ordered to be paitl by that 
ilifentlant . aoo Jilakf \. Suiifl V ''•>, where the plain- 
tiff was iiiilHcile. In II uU v. y 2 S. A: S. 7.H, where 
a bill had been fde<i without authority from the nominal 
jilaintiff, who had abscondcnl • ' irs l»efou>, and was 
dismissal with costs for want ■ : j - uti'ju, the Court, on 
motion by the defendants, ordered the solicitor to pay the 
costs. Where a solicitor gave the relator in a charity infor- 
mation an indemnity against costs, or used his name with- 
out authority (though afterwards a.ssented to), the Court 
would order the information to be taken off the file with 
costs ajiainst the relator and .^cdioitor {Atforncij-Gftieittl v. 
SHn iwrs Co., C. T. C. 7). " The view of the Cvurt is that 



COSTS OF THE DAY. 89 

when a solicitor takes upon himself the conduct of a suit 
by saying that he will indemnity his client against all 
costs — wliere the plaiutitf is a mere puppet, and the real 
party suing is the solicitor — the Court will hold the soli- 
citor liable for all the expenses to which he has put the 
other parties by his conduct ;" per Lord Hatherley, L. C, 

in hi re Jones, G Ch. p. 49. See also In re E. S , 4 

Ch. D. 301. As to what is a sufficient retainer, see Hall v. Retainer. 
Lavcr, 1 Ha. .571; Benley v. Se}/mour, 14 Jur. -13 ; ^j^j^^^*" 
Atkinson v. Abbott, 3 Drew. 251. The onus of proving 
the retainer lies on the solicitor {Wright v. Castle, 3 Mer. 
12 ; Alien v. Bone, 4 Beav. 493 ; Wiggins v. Pej^pin, 2 
Beav. 403 ; Crossleg v. Croirthcr, 9 Ha. 384) ; but the 
retainer need not be in writing (Lord v. Kellett, 2 My. 
& K. 1, and cases tiiere cited) ; and the authority to a 
country solicitor is suthcient without express autiiority to 
the London agents {Solleg v. Wo<kI, 10 Beav. 370). If, 
however, there is no written retainer, there should un- 
tlUfstionably be an authority to institute the suit given 
directly by the client to the solicitor {lie Grag, r.r parte 
IncorponUeil Law Society, 20 L. T. 730). 

Where a plaintitf, having had four bills successfully Vexations 
donuured to, filed a fifth for substantially the same object, P'""^'^'^'^" 
tlie Court ordered the bill to be taken ofl' the file, and 
made the plaintiff pay all the costs of the litigation {Morl- 
loclc V. Mortlock; 20 L. T. 773). 



Hv/T. \n.— Costs of the Dag. 

Any verdict or judgment obtained where one party does r. s. c. 
not appear at the trial may be .set aside by the Court or a v'^vyr 
judge upon such terms as may seem fit upon an application r. lio. 
made within six days after the trial (R. S. C. Ord. 
XXXVL, r. 20). 

A judgment will be set aside under this rule if a proper Judgment 

ca.sc is shewn, but the party in default nmst pay the actual ^^*' .^"^'.'.'"nt 

costs of the day when the action was called on and of the of actual 

costH of tlie 



90 COSTS OK AN ACTION OENEHAI.I.V. 

day and of application to rcstoFC (Cocklc V. Joyce, 7 Ch. D. 5() ; 47 L. 
thcn,.i,n. J Qj^ -^.^ 2fi W. R. 50; 37 L. T. 428; Wrifjht v. 

csition to ' ' » i/ 

restore. Clilford, 2(> W. K. ^iV.)) ; including all costs thrown away, 
and the costs of applications both to a Divisional Court 
and to the Court of Appeal {King v. Sandnnan,2it W. U. 
nfij) ; 38 L. T. 401 ; hut see Jhu'ffn'me v. Taylor, 2<) \V. 
R. ')08 ; 38 \j. T. 438, whore no costs of the appeal woro 
given). In liirch v. Williams, 24 W. R. 7oO, the wlicitor 
throuj,'h whoso ovorsij,'ht the di.«nii.ssal was cau.st-d ha<l to 
pay the costs. And see Cons. Oril. XXI., r. 12, under which 
if a cause is struck out for want of pai>crB, the plnintitTs 
solicitor may Ixs orderctl to pay the costs occosionctl t») the 
advor.«!e parties. 

Wlure the plaintiffs brought the action to a hearing in 
an imperfect state, an<l it was allowed to stand over umior 
R S. C. Ord. XXXVI., r. 21, in order that thoy nr • • 
amend, the plainlitTs were rcquirtnl to pay the actual *. : 
of the day {LyluU v. }fatiin8on, 5 Ch. D. 780; 25 W. R. 
8G6 ; 37 L. T. tiU ; including the expenses of the defen- 
dant's witno- •• ' ' hail been kept in attendance {Ibitl). 
See also Lh 'I v. Ihrn-^f^vrH, W. N. (1877), 228 ; 

Mo:lnjv. Co^vie,47 L. .1 ('!i. ilTl ; J'". W. K. 854; 38 
L. T. 008. 
Cons. l>y Cons. Onl. XL , r. 'J I, where a cau.se coming on f«»r 

Onl. XL. r. jj^^^riniT was struck out for want of parties or other defect 

21, ^ . . * 

on the part of the plaintiff, the defendant was entitled to 

the taxed costs occ:isii»ned by the first setting down, 

although he did not get the costs of the suit. When a 

cause was set down as *' short " and struck out, the defon> 

dants wore entitled to their costs of the day unless they had 

concurred (}[illi--I< v. Jiwoks, C. P. C. 474). 

Former YoT tlio foruicr practice, where there was a defect for 

wlioro want ot parties, see Jiou'scil v. Morri.'i, 1< h<]. 20 ; / tirzc 

tlurc w;is ,<;i,anvood, 5 My. & C. 00 ; Sambrooh' v. Ilinjcs, G L. J. 

a defect lor • - ' •' ^ ^ 

»-ant of Ch. 258 ; Bici'dcrinann v. Seiftiiour, 1 Bcav. 594 ; Price v. 

^"""^"^ Bcrringtoii, 2 Boav. 2s5. 

The ci^t* By Cons. Old. XL., r. 22. the costs of the dav were fi.\e«l 



COSTS OF SrECIAL CASES. 91 

at £10 unless the Court should otherwise direct ; and only of the day 
one sum of £10 was payable though there might be several ^^^^ ** 
defendants. The costs of the day would not be given 
where the defect occurred after the cause was at issue 
(Fussdl V. Elu'in, 7 Ha. 20) ; nor where the cause was set 
down by the plaintitY for further consideration, and on 
exceptions to the Chief Clerk's certificate, and the excep- 
tions were allowed (Osborne v. Harvcij, 12 L. J. Ch. 66). 
The Court would sometimes also reserve the costs when 
the cause stood over with liberty to amend {Mason v. 
FmnkUn, 1 Y. .t C. C. C. 242). 



Sect. VI 11. — Costs of Special Ccises. 

The practice in special cases, which wa-s formerly 
governed by 18 I'v: 14 Vict. c. 3'), is now regulated by 11. S. 
C. Ord. XXXIV., wiiich provides (r. 7, Ap. iSvSO) that no 
special case shall hereafter be stated under that Act. 
Under the present practice, if it is desired to obtain a 
decision of the Court on a special case, an action is com- 
menced in the usual way, and after the writ is issued the 
parties may then concur in stating the questions of law 
arising in the action in the form of a special case for the 
opinion of the Court (Ord. XXXIV., r. 1). The parties 
may also agree that on judgment being given a fixed sum 
shall be paid by one party to the other, either with or 
without costs of the action, and judgment may be entered 
for such sum with or without costs, as the cjujc may be, 
and execution may issue forthwith, unless otherwise 
agreed, or unless stayed on appeal (r. (!, Ap. ISSO). In the 
absence of any agrceujent theeost^s arc in the discretion of 
the Court, and the ordinary rules as to costs apply ; and 
see Ustickc v. Peters, cited below. In practice, however, 
the costs are frequently arranged, see Biinston v. War- 
burton, 2 K. & J. 406 ; or a question is asked how and by 



02 < OSTS vV AN ACTION GEKEHALLY. 

wlioin the costs of the action and special ca.se are to be 
horno {Hnrvi»on v. Curnxi:aU Minerals Rij. C<>., HI Cli. D. 
(j(j ; '2U W. R. 2:)H). 
Former Under the old Special Case Act, 13 & 14 Vict. c. 3'>,the 

'"^ ' ' costs were also in the discretion of the Court, an<l a.s a 
firncml pcnoral rule, the Court, in disposing of them, was governed 
rule w. to ijy (|,(. rules wiiich roculat«.<l it in ordering payment of the 
h^riai costs of a stiit instituted hy hill. Thus, if the difficulty 
''^' arose out of a t.stator'H will.tlr in an ndniinistrati<»n 

suit, wen* ordtred to \n- l»ornf 1 !al«»r's general estate 

{Cook-f>(ni V. Jiinyham, 17 IJcav. 202 ; IlhulU v. Taylor, 5 
l)e (J. M. \ r;. .'i77 ; A nnilaiji v. Co^itrM, 3.'» Bt>av. 1 ; Karl 
Cowley V. Wcllcalfy, ih. Cu\'i ; but »<c Lloyd v. Cocker, 27 
Beav, 049) ; or residuary real ettlatc (Marthall v. Grime, 
2'S IJeav. 37J)) ; or if there were no general e>tatc, by tho 
fund specifually lM<nicathcd (Cook-jton v. Jiiwjham ; but 
see also, IJoyd v. Cvcli r). In liarunhy v. Tastttli, 11 Eq. 
303, the costg of all |>artie8 to a gpociol case on the con- 
struction o{ a will were ordered to ]h» paid out of the estate, 
the personal estate being first liable. 
Whrrr In UHtickr V. Pftriv, 4 K. & J. 4r»7. however, V. C. 

MKviai Wu«xl held that the cast* of a special case were not to bo 
r«M« decided on the same principle ns thono t»f an administra- 

1k) iVi.i i.> tion suit, and that a plaintitV succeeding u|H»n a special 
unMi.crjw- ^,^^^. arisinc out of the ctMistruction of a will was entitled 
to his costs from the ■ a, t-ach party fiurly claiming 

what he thought hin. tletl to ; and there Uing no 

question of conduct involved. From the report of the 
case, it iloes not apjK^ar that any question as to the cost* 
was inserted in the special cjuso. So in Mortimore v. 
^l^^rtimolr, 4 De G. i^ J. 472, a special case having been 
statcxl for the opinion of the Court, at the instance of 
a tenant for life, with a view to obtaining an increase of 
her income by an investment, v( which the Court in its 
jud<^ment expressed disapprobation, the income of the 
tenant for life was ordered to bear the costs. Again, in 
;:>abin v. Jlmpe, 27 Beav. 501, the costs of a ."special case 



COSTS OF THE ACTION. 93 

were, in answer to a question in the case, declared to be 
payable by the defendant, upon the principle that, if a 
bill had been filed for specific performance, a decree would 
have been made ;igaiust him with costs. 



Sect. IX.—Cwts of the Action. 

Where further consideration of the action is reserved, The costs 
the costs of the action are generally also reserved [Scar- ^^jj„ 
borough v. Burton, 2 Atk. Ill ; Jellicoc v. Price, 1 Y. *?y: wianais- 
C. C. C. 74); but otherwise tliey are usually disposed of 
at the trial. If the costs of the suit are reserved at the 
trial, that reservation will not it seems include costs of 
interlocutory proceedings, Sec, reserved until the trial, 
which therefore, unhss expressly mentioned, may be lost 
{Gardner v. MarxJudl, 14 Sim. .")7') ; W/idlleij v. Jhimage, 
8 L. T. 4iH)). Although the costs of the suit are not ex- 
pressly reserved at the hearing, yet the usual direction 
for the adjournment of the further consideration of the 
cause in eftect reserves them (Setoii, p. 72 1 ■. am! see 
Wall is V. liastarJ, 2 W. R. 47. 

Wiiere, however, in a partJiership suit, there was no 
special reservation of costs in the original decree, it was 
held that tlie defendant could not, on further considera- 
tion, be ordered to pay the costs of tin- action (Austin v, 
Jackson, 11 Ch. 1). !>42 ) ; and see iV?(W/ v. Ulliot, 10 
Ch. 424 : 2.S W. K. 777: o-S L. T. 110. 

It has recently Ixeii lai<l down that the costs of appli- 
cations ordered to stand over until trial, and costs reserved 
to be disposed of at the trial, should follow the event of 
the trial unless otherwise ordered, without any special 
directions ; see lloiltjes v, Ilodcje^s, (M. R.), 2.') W. R. 1G2, 
Mem. W. N. (1870), 271. Under R. S. C. Ord. XV., r. 1, 
any matter required on further consideration as to costs 
may be proved by affidavit (Bcanei/ v. Elliutt, W. N. 
(1880), D!>). 



f>l COSTS OF AN ACTION GESKnAI.LV. 

M.iy i« In Homc instances the Court divides the costs, and 

ftt InX-rcnt g'^'^''< ♦'^t the trial the cr.sts up to the judgn)«nt or decree, 
iiuic*. an J reserves tlie subsc^juciit costs (a-s in M<ii\i,(nei/ v. 
Graham, 2 R. & M. 353; and see ;kw/, p. 127) or, on 
further cousidcnition, gives the costs up to the judgment 
to the plaintiff, and tho -••' 'ii^nt costs to the defen- 
dant (:us in M>H'hr v. M 1 Moll. IIU ; Anon,, 4 
Mad. 27*1; Sentancf v. J*orter, 7 Ha. 426) ; or lastly, 
gives til' *" a part of the actioi *' ' nid 
roservos t liintly \. IlvU. 17 i v. 
Midland Ry. Co., 10 Ch. D. M W he re the qucalion of 
is partly disposetl of at • 'h«- further «• n- 
.; .. ..( i|,e cost* umliv ild Ih? cxprw-ly 
•n, p. 72>. An rvalion of cost* 
as to somo defendants did not prevent the Court giving 
thi'ir c«»sls to other d- *' ' ' * . i . . . .. |,^| 
Ixc'U direclf<l, and c ; • ttl- 
ings had been reserved till after tlic trial at law (Rict v. 
^^ ,./<;>», \\ Bcav. r>()M). If the costs of the action are 

^i\».n at the hearing, this includes all tl ..-»•* of the 

action, and the suhsetjuent costs are not : 'Qimr- 

rcU V. lieckfiud, 1 Mad. ifsC ; Clutton v. Paniuu/V. & 
M. 3()i; Kr,hl V. J'ark. 10 Ch. 334; 44 L J. Ch. 2.S(; ; 
'j:> W . li. 17.'» ; 33 L. T. H3). In the hust-intntioned case 
specific performance was decreed against a vendor, an 
imiuiry wa.s»lirectod as to ilainaiie«. and tli ' mt was 

ordereil to |Miy the ousts of the .suit. The j .:i carried 

in claims fur damages to a very large amount, the whole 

of which were di.siillowed, M?veral of them not coming 

within the scope of the inquiry directe<l ; and it was held 

that the defendant mu>t pay .so much of the costs as were 

jMoperly incurred in carr}ing out the inquiry, and the 

plaimitT must jxiy all the rest. 

Oonoral \\y R. S. C. Ord, LV., r. 1, the costs of, ami incident to 

in ciian- ^H proceedings in the High Court {i.e. all proceedings 

cm- actions ^j,j^( have actually come into the High Court, In it 

[ITe dil'^r.'" JirowhrOCe TnuJe ^fark■, J) Ch. D. 018 ; 1'7 W. R. 2H}), 



COSTS OF THE ACTION*; 95 

are in the Jiscretiou of the Court, but not so as to deprive tion of the 
a tmstee, mortgagee, or other person, of any right to "^"^ ' 
costs out of a particuhir estate or fund to which he 
would be entitled according to the rules hitherto acted 
on in Courts of Equity. This is the rule when the action 
is tried without a jury ; when an action or issue is tried injury 
by a jury, costs follow the event unless otherwise ordered. jJi^^^,*! ^j^^ 
As to costs of an action or issue tried by a jury, see j^^t *^^'*^"^- 
p. 101. 

The rules of the old Court of Chancery as to costs, Rules of 
with a few exceptions, remain in force in the Chancery [/^'jj^'^'^j 
Division ; sec R. S. C. (Costs) Sched., r. 28, pro- Chancery 
viding that the rules, urders, and practice relating to '.^^,^,\y i„ 
costs, existing prior to the Judicature Act, shall re- '*><-" <'''•»';- 

- . . . . , cerv Uivi- 

main in force so tar as they are not inconsistent witli sion, except 

the Act and Rules ; and .see also Prinale v. Gloaq, 10 ^'}l*^^^ 

' •' -J' iilttrea l>y 

Ch. D. (i7<; ; 4.S L. J. Ch. 3^0 ; 27 W. R. o74 ; 40 L. T. the new 
512; (M. R). '"••^'^- 

Although the costs of an acti<.iii in tiic Chancery ^^^^t^ i„ 
Division, being in the di.scretion of the Court, (as were <''>:»»*"i'ry 

r • 1 1 • • /-11 I>i vision 

the costs of suits under the pnictice in Chancery) do gcnenUiy 
not invariablv follow the result, yet they do .so as a ^""",'*' *''.*' 

^ •' result. 

general rule. Pvihul facit\ the party who fails must pay 
the costs ; and the onus lies on him to show why, in 
any particular ea.se, he shouM not do .so {Vaiicouver v. 
Blisft, 11 Ves, 4().'{ ; Jfumpson v. lirnndiijood, \ Madd. 
394). The tendency of modern decisions is very strongly 
in favour of making the co.sts follow the result; sec the 
ilicta of Lord Kldon in Vancouver v. Blisx, 11 Ves. 4(j3, 
and Staines v. Morrin, 1 V. &'B. 8, 15 ; of Lord Cotten- 
ham, in Millimjton v. Fox, *j My. & C. .352 ; of Lord 
Westbury in liarllctt v. Woinl, 9 W. R. .Sl7 ; and of Lord 
Cairns in Patch v. ^Yal\l, 3 Ch. p. 210, and in Ferguson 
V. ^\"iison, 2 Ch. p. f)2. 

In some very peculiar cases the plaintifT, though success- SucceMfuI 
ful, has been ordered to pay all the costs of the suit ; sec ^^^y\]^^ 
ex.gr. ^Yoottoa v, Woutlmi. \\ . N. (Isc;)), 17.', ; 3'c»/'?/u:oi "'■aerea to 

p.iy costs. 



f)f) COSTS OF AN ACTION GENKUALLV. 

V. Johnson, 29 Bcav. 77. Such an order has been made 
even where the action was tried before a jury {IIavi'i*t v. 
Petltcrtck, 4 Q. B. D. Gil). But of course such cases are 
very rare. 

rnsiuccsK. It .seems tljat tlie Cuurt cannot, or at least will not, 

ful jiiirty , ... 

only i.riy8 make an unsuccessful party pay costs as between solicitor 
i-.-iriy an.i j^j^j client, unlcss (1) there is a fiduciary relation between 

juirty cohtB. ' ^ ' •■ . . 

Kxceptiona. ^'^^ parties, or (2) there has been somctliinj; in tlic nature 
of .scandal, cj*. ffr., gross charges of fraud maile, and not sus- 
tained ; Init he may Imvc to pay the costs of trustees as 
between solicitor and client, whether there is any fiinil 
nut »tf wliich they can Im- paid or not (Tuniei' v. ('ollinj*, 
1-2 K<|. 4.S^); and .s«e> Furt\s(er v. Rtud, G Ch. 40; ID 
W i: 114; 24 h T. 7;». In Simjiwn v. M,ilh> ,}h', -^ 
CiitV. 707 : (i N. U. 24'>, a bill collusively filed for a pur- 
jxi.se ditVercnt from its o.stensiblc one, was dismissed with 
all costs, charges, and exj>enses properly incurrc»l by the 
defendant in relation to the suit. 

In Keiuin v. Cnnvfonl, C Ch. I). 29, .so hhk n nia bill 
as containeil very gro.ss charges of immorality was «lis- 
mis.sed with costs as between solicitor and client. .\ii 

Poworof arbitrator to whom the matters in issue and the costs 

arl.itnitor ]y^^.^, l,^.^^,^ refcHed by the Court, can awanl solicitor and 

to MW.iril •' 

casts. elit-ut costs if there is a fiduciary relation between the 

pjtrties {Mordue v. Palmer, G Cii. 22). Ti?e mistake of 
an arbitrator as to the law of costs is no ground for .setting 
aside the award (Allen v. Greenftlude, IV.i L. T, 'tiil). 
AVhere an arbitrator awards damages, but says nothing 
about costs, the costs are recovenible by action (Metro- 
l,oIitiin Bif. Co. V. i<larrj>e, W. N. (1880), 79). 

. , . ., Even wIkio tlie plaintiff fails in his suit, it is now 

A lil;lin(ltr 1 r 1 • / II' I I 

failing in settled, contrary to the former doctrine {\\ i/kJiam v. 
tbcsmt 'W'ukham, 18 Yes. 423), that he may nevertheless receive 

may never- J > '' •' 

the'iess get his costs, if there is a fund to be admini.stered or an estate 
tberels^a* i'^ litigation, and the case involves a point of con.struction 
fuml, or Q,^ Avhich it is necessary that the opinion of the Court 

estiite in , , , , , ^, i^ .. -r* ►-- r 

litig:itiou ; should be taken {Ihonuisvii v. Juost'6, o r>eav. n ; L€t' v. 



COSTS OF THE ACTION. 97 

Lelane, 4 De G. .^ S. 1 ; Westcott v. CuUiford, 3 Ha. 274 ; 
Wed(jwood V. Adams, 8 Beav. lO.S ; and see the earlier 
cases collected in the notes to the two last cases ; Lcighton 
V. Leighton, 18 Eq. 458 ; Garth v. Toivnsend, 7 Eq. 220). 
The princi})le of these cases is thus stated by Lord 
Langdale, M. R. : " If, through the exertions of a plaintiff, 
the Court is enabled to distribute a fund, or if it makes 
a declaration of rights necessary for its administration, 
there, although the plaintiff may fail in his claim, the 
Court will not permit the other parties to carry off the 
fruit of his exertions "without defraying his costs out of 
the fund" (8 Beav. 105); and see Taylor v. Haygartk, 
8 Jur. 135. The plaintiff may obtain his costs out of the 
fund or estate, although the action be dismissed (Ashe v. 
Bernj, 3 Moll. f>7; Lynn v. Beaver, T. & R. G9 ; Wind- 
harii V. Graham, 1 [Russ. 347 ; Ilardey v. Hawlshaw, 
12 Beav. 552; Douglas v. Cooper, 3 My. & K. 382). 
But the circumstance of the defendants asking for a 
declaration of title in their favour is an inducement for 
the Court to give costs {Thomason v. Moses, 5 Beav. 77 ; 
Johnston v. Todd, 8 Beav. 48.9 ; Merlin v. Blagrave, 
25 Beav. 125). "Where letters of administration are re- 
voked the administrator will not get his costs of an 
administration action instituted by him with knowledge 
that another person claimed to administer {Houseman v. 
Uousenmn, 1 Ch. D. 535). In Wisden v. Wisden, 5 Jur. 
N. S. 86, where the costs of the suit were payable out'of a 
fund belonging to the plaintiffs, defendants who took a 
declaration of title had no costs. A plaintiff claiming to 
be a creditor of a deceased person and failing, does not 
come within the rule (Jones v. Hoiu, 14 Jur. 145; and 
see Berry v. Morse, 1 H. L. C. 71, 78) ; and the plaintiff 
must have a prohdj'dis eausa lltigandl {Boreham v. 
Bignall, 8 Ha. 134). If, however, the plaintiff has 
acquiesced in the construction in favour of which the 
Court decides for a long period before taking proceedings, 
the suit will be dismissed without costs, though the point 

u 



98 chsts of as action generally. 

was hufficictitly doubtful to justify it-s institution (Yifchify 
^'} v- V. llanniinl '.\ Ha. G20). But where there is no fund or 

whether , . ' , 

i^rwrnnlly cstatc in litigation, it is at least doubtful whether a 

.h'f't'n.hint I'l''^i"<'ff whose action is dismissed can have his costs from n 

whfjrothcrc (leffudant |jer.s«»nally ; sec CtMtth v. Jncksou, 6 Ves. 41 ; 

!.VcKta"". Tldvcll V. Arid, .*J Mad. 4O0 ; JjCWis v. J^\rhnrii. 3 Mer. 

420, where the juri8<liction was deniiil. On the other 

hand sic Sprinfifichl v. (Htctt^ 3 Mer. 421>, n. ; Dujhur v. 

Siifil, 4 l)e (J. M.t^ Ci. .')20, •)2.'>. " I liave lia«l considemble 

doubt, and have looked with iny leame*! brother into 

several cases, u|>on the question <»f ilirootinjj co«ts to Ik* 

|Kiid by a ticfendant, where there is neither a fund to In? 

adininistere<l nor an cstnto iu dispute, and where a plaintiffs 

ca.sc fails. Without saying that the jurisdiction docfi not 

rxi.Ht, I think it a juris«liotion of conHidrrable cleiicacy and 

dirticulty."— yVr L. J. Knight Bruce '4 I)e (;. }A.X (}..'>2:)). 

The licttcr opinion undoubtedly is that the defendant 

^-u., ^Ci v*/ »i,o. K a KrF^"""^ '^' ordered to |>ay the costs in such a case; sec 

.♦ -s yj^\,i ^ ^„M-~ Dickti V. YatcH (C A.), Ih L*h. I). 70. 

■" '■/CcrtAin Although the dis|H>Ral of costs is in the discretion of the 

viri'ncTi.lM ('«»tirt, there ore, ncverthclesii, certain general priuciple« 
f..ih.>».-.l ailoi)tod bv the Court, which regulate the cost-s of actions 

llV tllO . 

CoMrt iu griKnilly, as well as others in reference to the costs of 
orthT'ciu l»"»'l>c"l">' ki"ti« of actions. Tlie latter are diactisseil in the 
of the next chapter ; of the former it is attempte<l to give some 

aolion. , ^. , , 

explanation Ik>1ow. 
winntho Where a plaintit)' comes to enforce a legal right and 
Mu"'in there has Vkcu no misconduct on his jiart he is entitleil to 
nsiKvti.f a I j^ costs as of rieht (Cdntcr \. Whittinohttm, l.'iCh. D. 

legal title. .,,,,.,,„,. 

.'.(H ; 2s W. U. 720; 43 L. T. 17; Cur/Mjixiiurn of 
i^W«Wtr V. /*<•«•, 2 De CJ. M. & (J. 427 ; and see Trinity 
Jloiise V. Ry'tll, 3 Bro. P. C. 3S9 ; Farina v. Silvfrlocl; 
4 K. \- J. G.')l) ; Ihiiyetis v. HaUhj, 2(i Beav. 249). 

On the other hand, where the plaintiff sues in respect of a 
legal title which he fails to establish. his action will generally 
be dismissed with costs {Chapjtell v. Piu\lay, 2 Ph. 227 ; 
Jionciandt v. JJthmcId, 3 N. 11. 32 ; Corporation of 



.It 



COSTS OF THE ACTION\ 99 

Rochester v. Lee) ; and so where the bill was ancillary to 

the plaiutiflf's legal rights, and he failed at law {Me}/ric!c 

V. Whi':ihav\ 4 Mad. 27-). Bat this rule is not inflexible 

{Leather Cloth Co. v. Avwriean Leather Cloth Co., 8 N. R, 

264, where a bill to restrain the infringement of an 

allejied trade mark was dismissed but without costs on 

account of the defendant's conduct). Where, according to 

the old practice, proceedings at law were had in the course 

of the suit in equity, the Court frecjuently made a dis- Distinction 

tinction between the costs at law and those in enuitv. I'^'^"'^*'" 

•_ ' the costs .' 

The former almost invariably followed the result of the law ami in 

action or i.ssue,* whilst in the disp(,>sal of the latter the *^'^"' '^ 

Court was influenced by considerations as to the conduct 

of the parties (Clifton v. Orchard, 1 Atk. 610; Anon., 

2 Atk. 14 ; Fomcard v. Duifwhl, :\ Atk, .').')') ; Stevens v. 

Praed, 2 Vcs. junr. ')19; Wrii/ht v. Hunter, 5 Yes. 7JJ2 ; 

Jones V. Farrell, 1 De G. ».^- J. 208) ; and .see further a.s to 

the costs of i.ssues generally following the result, Bcames, 

233 iieq., and Corporation of Rochester v. Lee. In Wilson 

V. Metcalfe, 3 Mad. 4.5, an issue having been granted in a 

foreclosure suit, whether the mortgagee's heir was dead, 

and found against the mortgagee, he paid no costs, because 

the Court by granting the is.suc showed that it thought 

the objection reasonable. The costs of an issue ordered Costa of 

to be tried in the course of the suit are not strictly part 

of the costs of the suit ; and, if the issue were onU'red on 

interlocutory apphcation, might even be dispo.sed of before 

the hearing of the cause {Duncan v. Varty, 2 Ph. 696, 

oveiTuling Matins v. Price, 2 Coll. 190 ; Ri'jhy v. Great 

Western Ry. Co., 14 Jur. 710). But the costs of a ca.sc 

sent for the opinion of a Court of Law have l)ecn held to be 

costs in the cau.sc {Humplirey v. Grey, 3 De G. iV. S. 450 ; 

but sec contra, Salkeld v. Johnston, 1 Mac. & G. 533). 

In Prevost v. Benett, 2 Price, 272, where several issues iss„os 

were found partly for the plaintiff and partly for the ^^""'^ ^^^^^ 

• Except in the case of a bill to establish ft will against an heir-at-law, 
as to which see pout, rh. VF., '^or. VI. 

Ji 2 



100 COSTS OF AN' ArTI«'.N- GEST-RaLLY. 

defendant, cacli party was allowed the costs of the issues 
found in liis favour, and had to pny the costs of those 
found against him ; but in ]\'oithcrlc)/ v. ]{i^ms, 1 H. & M. 
.'U'.t. no costs (>( the issues were given under similar 
circumstances, though the defendant lia<l the costs of the 
suit. 
Wlicrc ft It was a general rule that where a trial at law failed 

wal ^""^ through misdirection of the judgr, and a new trial was 
direcu-^l. direct<(l, no costs of the firht trial were given to either 
party, whatever might Ik* the nsult of the seojnd trial 
(Bearhlock v. TyUr, Jac. .571 ; Corjxtration n/Hixh/'jitrr 
V. rrr, 2 IV (;. M. & r,. 427. 4:n . Whitr V. LImU, 
:i Swans. :H.S; 4 Mad 214; Dunoin v. Varti/, 2 Ph. 
690). In Dunani v. Vaiiy, where the plaintiff .nucceedetl 
nt the first trial and failed at the second, no costs were 
given of the first trial or of the motion for a m-w trial ; hut 
in liotrltltH'k v. T>jlcr, und(*r similar circumstance^, the 
parly failing at the hist trial had to |>ay the co8t« of the 
niotinii ; nntl s<h' WhUf v. LUlf. Where a new trial was 
ordered on payna-nt hy the defendan'> to the plaintiffs 
(tho 8ucce.<»ful parties at the first trial) of the costs of the 
first trial, it was held that the defendants were not 
compellahle to pay those costs unless they proceetle<l to 
a ntw trial {Lumfffti v. /'iWier, 7 Sim. 525). In Parkfr 
V. Mon'tfl, 2 Ph. 4.'>.'^ a party failing on an iswue appealed 
against the order directing it, and the I>>rd ('hanctdlor re- 
versed the order and tlirntcJ a new i>Mie. hut resined 
the costs. 

Tho former practice of the Court of Chancery of send- 
ing i.'^sues to be tried at law was altered by Stat 25 & 
2«) Vict. c. 42 (Kolt's Act), at"ter the passing of which the 
Court declined as a general rule to direct an action to 
Ih? brought or issues to be trietl at law (IhurnpoH v. 
J('pson,\ N. R. 17.S; Kmnont v. Darcll. 1 H. \ M. 5r.;j ; 
Youiiff V. Fernie, 1 De G. J. & S. 353). 

The above casos were decided under the ol«l practice, 
but they are retained in the present edition as it is |>ossible 



COSTS OF THE ACTION. 101 

that they may have some bearing on the question of the 
costs of issues or actions directed to bo tried before juries 
under the Judicature Act. 

Now by R. S. C. Ord. LV., r. 1, wliere any action or Costs of 
issue is tried by a jury, the costs follow the event unless i,y ^ jurv.' 
upon application made at the trial for good cause shown 
the judge before whom such action or issue is tried or the 
Court shall otherwise order. 

Under this rule, if an application as to the costs of a C.vsts of 
jury trial is net made to tlie judge at the trial, a subse- ^,uj^,,.7i)g^ 
qucnt application may be made to a Divisional Court P'^'^ent 
{Bovry V. Bell, nronhs v. Israel, 4 Q. B. D. 95 ; 48 L. J. ^''"^"^"'^ 
Q. B. 1<)1 ; 27 W. R. 247 ; :W L. T. G07 ; Mj/ersv. Dcfries, 
SUUJons V. Lawrence, 4 Ex. D. 170 ; 48 L. J. E.x. 44(J ; 
27 W. R. 71)1 ; 40 L. T. 7!>.')). But not to tlie judge who 
tried the case, nur to a judge at chambers (liaker v. Oa/ics, 
2 Q. B. D. 171 ; 4G L. J. 24(5 ; 2:. W. R. 220; 3.'. L. T. 
832; Tyne Alkali Co. v. Lawson, 30 L. T. lOO; W. X. 
(1877), 18). And if the judge at the trial lias made an 
order as to costs a Divisional Court has no jurisdiction 
{Mars<lcn v. /.. »f- )'. i^/. Co., 7 Q. B. D. (141 ; oO L. .1. Q. 
B. 318). As to the time witliiu wliiili snr]\ an application 
must be made, see Kipiasfon v. Mackinder, 47 L. J. 7(> ; 
37 L. T. 3IM) ; Collins V. ]y,lch, :> C. P. D. 27 ; 4!) L. J. C. 
P. 2C0 ; 2S W. K. l'hs. H I,. T. 78:.. 

Sliould the jutlge desire to deprive the succes.sful 
party of his costs, he may if he please do so without any 
actual application being made to him {TitDicr v. Ifei/laud, 
4 C. P. D. 432; 48 L. J. C. P. y.\r> ; 41 L. T. .V.d); pro- 
vided both parties are present and have an opportunity of 
arguing the (juestit»n at the time (Collins v. Welch ; 
Marsden v. L. cC 1'. !{>/. Co.). 

Where in the same action the jury find for the "Follow 
plaintiff with damages as to one cause of action, and for *°'^^*'" " 
the defendant as to other and distinct causes of action, the 
word "event" must be read distributively, and the de- 
fendant is entitled to ta.\ his costs of the issues found for 



102 CC'Ms OK AS ACTION GEKEnALLY. 

him, unless the Court or judge othcmisc onler; aoo 
}f>/rrM V. Dr/rkM, 5 Ex. I» ' " ' '» ; 4H L. J. 440 ; 28 W. 
U. 40(; ; 4 1 L. T. (]yj ; J> V. 6'ni//, o Kx. l>. 1^0, n.; 

40 L. T. 1D2; L'llh v. De SUva, 6 Q. B. I). o'2\. 

Where a notiHuit is set asulo and a new trial h.vl wlncli 
results in the plaintiH'K favour the nilej;ive« him his c«»j»ta 
of lK.th trials {('tren v. Wriifht. 2 C. P. D. 3o4 ; 46 L. J. 
427; 2) \V. II :>02 , 3(1 L. T. 355; Field v. Great 
yorthtrn lOj. Co., 3 Kx. I» 2*^ ; 20 W. ]\ ^'7 
31) L T. Mh. 

Where the plaintifT huc<1 for two »uni« of JClio and ds., 
r<^jH'clively, ami wan nonMiitc*!. ami on the w-cond trial 
which wajHonlcrcd, an«l which wa« trie*! with a jury, faiU**! 
OK to the X'*^'> and hucceedod an to the 6«.. h«' ««•» onlercd 
to |>ay the co«tKof both trials Ilitn-ls v. J' t C^. B. 

tf.. fi..wi.^f •..,/,*/'.. ,^ The judj;o itf not cunfine<l to the conduct of the l^artjr 

^..-TlrtM *Vl ^'••'•"K *I>o litigation, but he must omuroo the tnith of tbo 

•*^-*»^aw<*^-4* verdict (llantctt v. KiW, 5 Kx. I). 307). 

^""^'•(UV Ifad.' ' • at anyt ■ ■ - •- the 

•^'"^*7'. action oil "i.ntil to . tiff 

toiiicr — is entitletl, the Court will not give the plaintiff the cost* 

to a Ik.u...^ . . - 11-. '»43, SmUh v. 

(f iWM, 1 Coll. 555 ; Girtjg v. 5^/^, 22 Bcav. 314 ; 
Ifudsim V. linineU, 14 W.R 911 ; 14 L T. GUH; 12 Jur. 
N. S. 51 J)). But a tender must be verA* ■ - to save 
costs; and, at least, where prior to the -■ re Acts 

the courts of law and equity had concurrent jurisdiction, 
as in the case of a inorti^'nge debt, it must have been a legal 
teniler or a court of equity would not support it [Gammon 
V. Stone, 1 Ves. 339) ; and sec Painter v. Citretc, Kay, app. 
xxxvi. When defendants desire to st.iy their liability to 
eostsinan action they must make a "clear imconditional 
offer, ei|uivalent to the whole rights of the plaintiff at the 
time; " ;xt Fry. J. in Trotter v. }facfenn, 13 Ch. D. 588 ; 
2^ W. Iv p. 247. And the tender must of course include 



COSTS OF THE ACTION. 103 

the costs of the action up to tliat time {Lill v. liobinson, 
Bcatt. 83; Fradella v. Wellcr, 2 R & M. 247; Jamicson 
V. Teague, 3 Jiir. N. S. 120G ; Hnrris v. Harris, 1 N. K. 
43 ; 11 W. R. G2 ; MA ndrew v. Basset t, 4 X. R. 12 ; Mod 
V. Couston, ibid. bO.yjyWliere the dcfeudants ot^ored to ., ^ ^ 
submit to a decree, each party to pay their own costs, *." . ^ ' , 
which offer tlie ph\intiffs who were ultimattly successful 
merely refused, no costs were given on either side after the 
date of the offer Lord Kensington v. Metropolitan Bail- 
way Co.; Williams v. Same, 14 W. R. 7.U ; 14 L. T. oSO). 
In Geanj v. Xorton, 1 De G. & S. 12, V. C. Knight Bruce 
held, in a suit to restrain the infringement of a patent, 
that the plaintiff was entitled to an injunction, although 
the defendant j)romised n<»t to infringe the patent and 
offered to pay the costs of j^reparing the hill ; anil, there- 
fore, the defendant n«>t having temhied tlie costs of 
obtaining an injunction, the phiintiff w;us entitled to i»ring 
the suit to a hearing and get tlie costs uf it. Antl in Ktlly 
V. Hoitper, \ Y. *!v: C. C. C. 197, the s;ime judge held that 
the plaintitT was entitled to an answer from the defendant 
with a view to the account, and aceortlin^ly gave him his 
costs of the suit, tliougii the ilefendant ha<l before answer 
tendered the costs up to that tiujc. See also Stephens v. 
Hntt, 10 L. T. 231. 

Where the defendant pays money into Court under R. S. riiymcnt 
C. Ord. XXX., and the_sum paitl in is accepted by the '"^° ^'''"'^• 
plaintitT in satisfaction of the entire cause of action, tin; 
plaintiff, after notice to the defendant, may ta.x his costs 
and in case of non-j)ayment within forty-eight hours si<'n 
judgment for his costs so ta.xed (R. S. C (Jrd. XX.\., r. 4). 
If the plaintitT do<_-s not arcept tin; sum paid into Court 
but goes on with his action anil then fails to recover more 
than the amount paid in, the general rule is that the 
plaintiff will be entitled to the costs of the action up to the 
time of the payment into Court, and the defendant will be 
entitled to the costs after that time (Bnc/don v. IIi[/;js, 4 
E.x. 1). 174 ; 40 L. J. E\. 7 •"»•') ; 27 W. K. .SM3 ; in'cttou v. 



104 COSTS OF AN ACTIOK GENERALLY. 

MecM, 7 C'li. I). H^i!* ; 26 W. 11. Jin? ; 3H L. T. :.<•(;,. In 
Lan;/ri'l'j€ v. Cn„ntUll, 2 Ex. 1>. 2.S1 ; 4l5 L. J. Ex. 277 ; 
25 \V. U. :J'»1 ; 'Ml L. T. 04, however, where the pl.iintift" in 
the event recovered nothing l>eyon<l the amount |>;iid into 
Court, it was held tliat the defindaut was entitled tu the 
co.sts of the suit from the comuunrt'inont. If the plaintitT 
fails to give notice to the defendant that lie accept.s the 
amount paid in within four days, as ro<iuirt'd hy R S. C 
Ord. XXX., r. 4, ho lo8C« his aUsolutc right to casts, but ho 
may still apply for them tinder Onl. \s\ . (fhtaves v- 
Fleming, 4 Q. 13. D. 226 ; 4S L J. g. B. X\h ; 27 W. R. 
4.')S). "The true con.strucli«»n of Onl. XXX., r. 4 ami 
Ord. LV. i.i that Ord. XXX., r. 4 is suhject to Onl. LV., 
and the effect of the two rules is that in cases falling 
within Ord. XXX., r. 4, the plaintitT is cntitltHl to his c«»sts 
unless there are »4jmo huthcicnt reasons for depriving him 
of them ; but if there are he can be so deprived " {limad- 
hurd V. WUUy, W. N. (1H7G), 21. Lindley, J., at 
("handK-rs). 
Omun.l of WhtiMvcr a defendant allrgcs any grouml of defence 
ariwn after whicli has afiseu after the commenccntcnt of the action 
action t|,^> ijlaintilT mav dtdiver a conffs^sion of .such dcfonct* and 

brouclil. ... ,.' 1 • 1 • r I I- L 

Sign juilgUKUt for his costs up to the timeot pleaiUng such 
dt fence unless the Court or a judge shall, either before or 
after the delivery of such confession otherwise order (K. S, 
('. Ord. XX . r. a); see Chain plon v. Funnhy, 7 Ch. I). 
WIW ; 47 L. J. Ch. 31).') ; 2G W. K. :VM, where it was held 
that a plea of adjudication in bankniptcy four months 
alter the date of the service of the writ is a " ground of 
defence which has ari.sen after the commencement of the 
notion." This rule seems to be the same in effect as r. 22 
of Trinity Term, 1^33 (Foattv v. Gamgee, 1 Q. B. D. GGG ; 
24 W. R. liliK where the defendant pleaded pleas in bar 
and then pleaded in addition the bankruptcy of the 
plaintiff after action brought, and the plaintiff confessed 
the plea and was held entitled to judgment for his costs up 
to the time .'fstioh pleading). 



COSTS OF THE ACTION. 105 

In an action for rent, and for damages for breaoli of cove- 
nant in not building a wall, the defendant paid money into 
Court to satisfy the claim for rent, pleaded performance of 
the covenant by building the wall after action brought and 
paid £1 into Court in respect of the breach before action ; 
it was held, that the plaintit!", Avho took the money out of 
Court and confessed the " defence " as to the wall, was not 
entitled to costs under this rule, on the ground that the 
allegations did not amount to a " defence," but that he 
was entitled to the costs of the action under Ord. LV., or 
under 15 it 10 Vict. c. 'A, s. 4 {^Callander v. Jlinvkins, 2 
C. P. D. 592 ; 20 W. R. 212). 

In like manner an oifer before action from the defen- Offer itefoie 
dantof all the relief which the plaintiti' ultimately obtains b'ronght. 
by the action will be a reason for depriving him of the 
whole costs of it {MUlington v. Fou\ ii My. & Cr, 352 ; 
Williams v. Tliomus, 2 Dr. & Sm. 29, 37; Bv.vrdl v. 
Delcvante, 10 W. II. 302 ; .S Jur. N. S. 205 ; 31 L. J. Ch. 
365 ; Eemnant v. Hood, 27 Beav. 74, iS2 ; Ilarmer v. 
Prlesth)/, 10 Bt-'av. 509); or on the other hand, if the 
plaintift' before taking proceedings substantially t)fters the 
terms which the Court imposes upon him, it will be a 
reason for giving him the costs of the suit {Xe^hitt v. 
Ben-idfje, 1 N. 11. 345 ; 11 W. R. 446, overruled on the 
merits, 3 N. R. 53). But the defendant's offer must be 
unconditional ; ;iiid therefore, in Widier v. Pidey, 1 Russ. 
375, which was a suit by the trustees of a settled 
legacy for j)ayment of it, the costs were ordereil to be 
paid by the executor, because he hail rjualified his otTer for 
payment of the legacy by insisting that it should be in- 
vested in .such security as he should approve. In Edcfstcii 
V. Edelden, 1 Do 0. J. A: S. 185 ; 9 Jur. N. S. 479, Lord 
Westbury, C, said that he could not take notice of negotia- 
tions antecedent to the suit, .save in ea.scs of bad faith, or 
where the negotiations had amounted to a biiuling release 
of the cause of suit ; and that the defendants in that case 
(who had substantially acceded to the terms otTercd 



lOO rt-M.s vi AN' ACTION GENEKALLY. 

I>y the plaintiff before suit), having rcsisteU the plaintifTs 
claim an<l taken the chnncc of obtaining a lunctit by the 
hiiit, must l>ear the costs of it ; niul see Mt Aiidrcw v. 
Jidssetf, 4 N. Jl. \-2. On the other hand, see Williams v. 
ThoinUM, 2 Dr. .^ Sni. 21>, :^7. 
Whcro There is no rule moregeneral than that, where a plaintitf 

fniu«l IS (lainis on the crountl of fraud, the juilKment or dismissal 

cbarge<l '^ j r» 

shall be witii costs {ikoti v. Dunbtir, 1 M<»II. 442; ^ew 
Jinnntwich, iW. Co. v. Cout/braif, 9 H. L. C 71 1 ; hnigley 
V. Finhtr, ;» Heav. JK> ; W,M v. Jimrn, \ Sim. N. S. 205 ; 
t^t raker v. Ewing, V.\ W. II. 2.sri ; GvilU v. />i7/o», W. N 
(lS7(i). (>n ; Ship V. ('li^dill, H» F>|. h7) ; and see the 
cases collected in lieameP, 104, nn.( 12) (14). Kven if the 
jtlaintiflf succeeds in obtaining the relief prayed for and 
has the coftts of the suit generally, but faiU to establish 
the allegati«<nt< of fraud, he must pay the c«j«t« occaiiioned 
bv such allegations Uing intr«Kluce<l {lilrftf v. liiuvn, 10 
W. It. 509 ; H Jur. N. S. (;o2 , JoutM v. Hickett*, K) W K 
.'>7<) ; and see Climli v. Fiunnciol (' '■•nt, .'> E<|. 4.')U ; 

Loiulou Jidtil: of Aimtitilitt v. Li 4.., . . , L U. 4 P. C 
572 ; 21 W. It Mil; 29 L. T. IHO ; TaUfr v. Cunnimjham, 
2i W. 11 l'>;i, Thonmm v. i,W/Mwt/, 2 A pp. C'as. 215); 
or, lor tiie sake of simplicity, no costs will be given to 
either side, where, but for the allegations of fraud, the 
jdaintitY would have been entitled to the co.st« (Cullinf/- 
I'ortli V. Uoyil, 2 R-av. 3H.'> ; Rnvliux v. Wickham.d 
\V. II. ')(I9); and j»ee f\irther on the subject uf the appor- 
tionment of co.sts iufixi. But in SUtuilaml v. Willnd, :i 
Mac. & G. (J(»4, where charges of fraud in the bill were 
neither supported nor repelled by evidence on either t-iile, 
the costs were not thereby affected, as it did not ap|Har 
that anv costs were specially occasioned by such charges. 
Ill /''//' r V. Ft/h'i', 3 I^av. •').'>0, however, a bill contain- 
ing unproven charges of fraud against solicitors was dis- 
mi.<sed without co.-^ts, because, by mi.xing up their personal 
interests in the tran.«yictions in question, the defendants 
)iad rendered au invct^tigation not unreasonable ; and in 



COSTS OF THE ACTION. 107 

De Montmorency v. DevcrexLv, 7 CI. .;- F. 188, a bill to 
set aside a gift to a solicitor was dismissed on the ground 
of confirmation, but ^Yitllout costs; and sec Lord Clanri- 
carde v. Hen nimj, 30 Beav. 175. In Parker v. MvKcn na 
10 Ch. 96 ; 44 L. J. Ch. 425 ; 23 AV. R. 271 ; 31 L. T. 739,' 
the plaintitf setup a case which entitled him to relief and 
also a separate case of fraud; .so much of his bill a.s was 
founded on the ca.se of fraud was dismissed with costs and 
he got no costs of the rest of the suit. See also (rnty v. 
Lewis, Parker v. Lewis, 8 Ch. 1035 ; 21 W R oo-) . on 
L. T. 12. > . . .-o, .J 

Inlike manner charges of fraud made by defendants 
will, It unsubstantiated, be visited with costs, even thou-h 
the defendants get the costs of the action generally see 
^yraJht V. Ilotvard, 1 S. & S. 190, 205, where the defence 
wa-s by answer and cross bill; Warrln v. Thonuu^, 2 W R 
442; Plcdr^e v. Bu,<^s, Johns. GiV.l Where a 'i.laintitV 
succeeds m a suit on the ground of fraud, he will be entitled 
to all the costs occa^sioued by it, ami therefore, in /Stanleu 
V. Bond, G Beav. 423, a bill f.>r the delivery up of securi- 
ties fraudulently obtained being taken pro confcs.o, the 
plamtitl was held entitled to the costs of an action at law 
commenced on the securities, though not specifically inaved 
for by the bill. -^ x . 

Misconduct or harsh or vexatious conduct of anv Dartv m , * 
cithoi befoie suit or m the prosecution of it, is a reason for '° i''-"tiff 
depriving him of costs, in cases where he might otherwise Lit. 
be entitled to them (//(o-(/^ v. AV/r/>/.'y, \V. N (1877) 
199; Tnrquaml v. Marshall, 4 Ch. 3,S7 • Vicker^ v 
Vickers,^Y.^. 537; Lnces v. Gibson, 1 Eq. U'.y- though 
It IS perhaps too much to speak of costs in the laiTrrua-e of'*^ H'^ ^ ^V'A ^'^ 
L. C. Hart (^1 rmstron>j v. Mdr, 1 Moll. 178) as " the tlsti ^^ ^^ ^' ^^ ^ 
monial of good conduct which the Court dispenses in 
awarding co.st.s." If the plaintitl' has been guilty of delay L,chc. 
or laches in taking proceedings he will not get his costs 
although he succeeds in obtaining relief (Lee v. Bro^vn, 4 
\cs. .J02; learce v. Xewlyn, 3 Mud. m-Attornci,^ 



h)i^ COSTS OF AS ACTIOX OB>:Eh.M.I.V. 

General v. Kastlakv-, 2 Ea[. Kep. 14') ; Lord v. Loni, 3 Jur. 
N. S. 4S.')) ; and if tli«ro liad Ik.'Cii proceedings at law 
under the former prartice as well as in cqiiity the Court 
although it allowed a successful plaintiff his cost« nt law 
woidd refuse him those in (Hjuity on account of his laches 
(A mm., 2 Atk. 14) ; and see the other cases cited antr, p. 
!U). H*} delay in prosecuting the suit will liC a ground 
for refusal of costs (ArcUpoid v. Sculhf. 9 H. L. C. 360. 
377 ; Ca,ie v. Allt-u. 2 Dow, 2S0. 2*»0) ; an.l see Purcrll v. 
BlrtiUcrfuiH^tt.'A Jo. & I^'il. 24. wlnre the original bill wa« 
filed in 1S2H and the then plaintiff having died, oiiil a hill 
of revivor not having Ikh-u fiU«l till 1S43, L. ('. Sugdrn 
gave c<»sL» only from thr filing of the hill of revivor. Hut 
in suit« U'tweon menil>cni of one family, which wouM 
naturally not be institutetl without much conAidcrat ion, the 
Courl will nut attach i urv to the circumstance of 

some time having ilaj' ru the claim in made ; see 

theobservationsof Sir J. Komilly.M. R in /^iirrv. Firldrr, 
1 N. K. IHS. His Honour wo-h tlu-re speaking of laches as 
a bar, but as he gave the cost« tu the plaintifT in that case, 

PiMiuawil '''•'* '"^■'"•'fl*'* '^Pl'b' *** ^^^*" *^ *''*^ subject of cost*. In liko 
without manner the action will be dismissetl without costn, if the 
defence is suoces^ful, but tlu* ib-frndant's conduct has not 
met with tin- Court's approval {Lritthrr I'luth Co. v. 
American Lmiher Cloth Co., 3 N. R. 264; Fitld v. 
Chuivhill, 4 Jur. 731) ; Cloves v. litck; 2 Dc G. M. A O. 
731 ; Pi((-< v K'(n']''hr'id'j« HiijIaLMy Ikmnl, II) W. R. 
^M ; 'J'> L. T. i:>'> ; h'-frourt v. Kutcuurt Hop Knaence Co., 
JO Ch. 27i; ; 44 I. .1. Ch. 223 , 23 ^V. R 313; 31 L. T. 
.')G7, where both parties were manufacturers of substances 
intended to deceive the public ; (nttif v. Lewix, H Ch. 
103'); Jl W 11. i>23; 2i» I- T 12; liyam v. Clarkf, 
W. N. (l^TG , (IS). Dr if the defendant by his harsh or 
vexatious coniluct ha« rendered the suit unavoiilable, he 
will have to pay the costs of it, though there is a <|ueiition 
to bo tried {Lillif v. Lrgh, 3 Dc CJ. iV J. 204) ; and sec 
Lvrd Cran^toirn v. Johni<vn, 5 Vcs 277. The s;inie priu- 



cott*. 



COSTS OF THE ACTION. 109 

ciple was applied by L. C. Sugtlen in Wisr v. Wise, '2 Jo. 
& Lat. 40:i, wlieic a person's negligence in settling an 
estate without notice of a prior incumbrance rendered a 
suit to enforce it necessary. And generally, where costs 
are occasioned by the conduct of either party, that party 
must bear th»^m ; and where, by the misconduct of both 
parties, neither party has costs: (/"'/• V. C. Kindersloy, 
Parry. Lovegrove, 4 Jur. N. S. GOO, ()0.">) ; and see WaUis 
V. Bastard, 17 Jur. 1107; Bloomer v. Sinttlr, LS E(]. 427. 
Where the plaintit^'s carelessness had been such that he 
would according to the general rule have lost his costs, he 
was nevertheless held entitled to them on the ground of 
his having made a fair offer to the defendant the refusal 
of which led to the litigation (Torrance v. Bolton, 14 Eq. 
124; affd. 8 Ch. 1 iS). 

Wiiere the j)laintiti' is himself /tarticei^s crimiai.'i, and Wliorc tho 
seeks to set aside a security or transaction on the ground li,j'"/,.LJ* 
of public policy, the decree will sometimes be without costs <*'■'''"'"'»• 
(Debenham v. Oj', 1 Ves. 27t» ; Monjun v. Bruen, LI. \ G. 
temp. Sugd. 1<S0 ; hni^QQ contra, Jack nut n v. Mitchell, 13 
Ves. .')81 ; Woml v. Barker, 1 Eq. l.'i!); 11 Jur. N. 8. JH).')). 

In many of the older c;vses, the bill was dismissed or Where it 
decree made without costs, becajise the Court, although it ^.^ .' 
decided in favour of one party, thought it a hard case 
upon tho other party {Shalenv. Barrington, I !'. W 4Sl ; 
Coppin V. C'oppin, 2 P. W. 2!)1 ; Forben v. Tai/li>r, 1 Ves. 
Junr. 09 ; BroJic v. aS7. Paul, 1 Ves. Junr. 320; Mosely 
V. Virgin, 3 Ves. 184; Dickenson v. Lockyer, 4 Ves. 30; 
Everett v. Backhouse, 10 Ves, 94). But now that the 
principles f>f e<|uity are more settled, and in the present 
inclination of the Court to n»ake the costs follow the 
result, it would seem that less weight would be attached 
to such a consi<leration ; still, in a case of extreme hardship, 
it is not to be entirely overlooked ; per Jessel M. R. in 
Broder\. Saillanl, 2 Ch. D. p. 099; 24 W. R. 1011 ; 
and nee Ex jMirte Waiiwil</hf, 19Cli. ]). \>. l.")2. Where, or tlie 
however, tlic point of law involvcil in the case is a {aw'is^new 



110 COSTS OF AS AfTI«»S f;KNKl:.M.LV. 

new one, llie C'<»urt will not in yencnil sisit the unsuccessful 
party witli cost,s in the absence of any misconduct on his 
part, especially if the case is a liani one ujvm him ; see ex. 
f/r. Ji>h V. BanniMer, 2 K. & J. .{71. An«l if the suit is 
instituted on the authority of a oa&c which is overrulctl 
•luring the pro^jresH of the suit, it is thec«»ursi' of the Court 
to dismiss it without costs {li*thiniton v. RoHiter, 1 Y. A C. 
C. C. 7 ; Lancasliire Wdhvay Co. v. Evinut. 1 4 IJeav. 529 ; 
^nWm Ifftrf>ou)'Co. v. // ' ' 1 De (1 M. »V (J. 167). 

(hi the other hand, tlio cit< -of a previous decision 

on exactly the same point is a strong reason for giving the 
8ucces.»fid party his r <»■ v. Wi/kfi, 'A Mer. 4'>(J ; 

Attorney-Ctcixend v. A. ,. . 11 W. K. 11M>; FuneU v. 

aUemn, 11 CI. tV F. 702 ; Has>*eU v. Dickmm, 4 H. L. C. 
2JKJ). 
The pcmon It is ;ils<i a gimr.il principle that tln> p.nrtv who is 

who ^vXm ,. ,. ., .,, ' . 

thi' Iwncfii ' easetl liy tlie institutiou of tfie siiit, or has the exclusive 
of the •ml iKinefit of it, should ivay the costs of it; and, therefore, 

HhouM ... . . . 

Uaf the the plainlitT in a .stiit under the limiti-d liability clauses of 
co»u o ii. ^1^^, Merchant Shipping Act.s was required to |>ay the costs 
of all the defendants, l»oth at law and in equity {African 
Steam Ship Co. v. Sv\inz>/. 2 K, A: J. G60 ; and see London 
tf- South- Wtstern linilvMiy Co. v. James, 8 Ch. 241). So 
whore a plaint itT suctl in respect of a lost bill of ex- 
change, he pjiid the costs at least up to the hearing 
(}f<ti^ninei/ v. (iriihitm, 2 U. i*^" M. .*l.'».'J) ; but not the muI>- 
se(pient costs, if the imleninity otTcrid by him were found to 
be sufficient {ibid.) ; and in a suit for contribution amongst 
co-sureties each jxirty |>aid his own costs (Jlitchman 
V. Stewart, 3 Drew. 271). I'ponthis principle the co.sts of 
redemption actions are di.»5|x>seil of, and the cases will be 
more conveniently discussed in the following chapter, 
where the cost.s of actions for redemption are treated of. 
Wlioro the If the plaintiff raises his case in such a fonn as to 
iKvasions occasion unnecessary expense, that circumstance is taken 
umieccs- Jj^^q consideration with reference to costs, either by di.s- 
expensc l>y allowing the plaiutitT the cxtm costs cKcaxiuncd by his 



COSTS OF THE ACTION. Ill 

mode of pleading, or giving him no costs at all. In his mode 
Bensusan v. Xehernias, 4 Do G. tt S. 8JS1, two -"^^lits ^jjg'^^^J^"^ 
having been instituted where, in the opinion of the Court, 
all the objects might have been comprised in one suit, the 
Court allowed costs only as of one suit ; so where the plain- 
titT proceeded by supplemental bill instead of by petition 
{Davies v. WilliamSy 1 Sim. 5) ; and see Bezant v. Wood, 
12 Ch. D. GOo ; The Pasithea, W. N. (ISTO), 112 ; Btiker 
V. Wood, W. N. (1881), 7. Where a bill was filed for the 
appointment of new trustees in a case which came within 
the Trustee Act, the plaintiff was ordered to pay all the 
costs (Thomas v. Wxlker, 18 Beav. o21); but in Wells v. 
Malbon, 10 AV. R. :JU4 ; 8 Jur. N. S. 240 ; :J1 L. J. Ch. 344, 
trustees who ha<l filed a bill instciul of paying an ascer- 
tained sum claimed by opposite parties into Court under 
the Trustee Relief Act, were disallowed only the e.xtra 
costs occiLsioned by their loing .so. Again, in Aitorncy- 
General v. Holland, 2 V. \- C. 08.S, no costs up to the 
hearing were given to the relators in a charity information, 
the object of which might have been attained by a petition 
under Sir S. Romilly's Act ; and see AtUtruey-Ge neral v. 
Bevi'ii, 11 Jur. 114. In like manner, a bill by an unsuc- 
cessful plaintiff' wivs dismissed without costs because the 
defendants, by not .serving Iiim with a petition, had forced 
him to file a bill {Crause v. Cooper, 1 J, <*^ If. 207). On 
the same jirinciple allegations in a bill which j)reventeil 
the case being decided on demurrer, and were unsupported 
by the evidence, were considered to be ground for dismiss- 
ing the bill with costs (Lind v. Isle of Wight Fcvvy Co., 
1 N. R. 13). On the other hand a defendant ought as a 
general rule to make his defence in the least expensive 
form ; and it was formerly the practice to dismi.ss the bill 
without costs if the defendant did not demur when he 
might have done so {Wehl) v. Kiifjhind, 29 Beav. 44; 
Ernest v. Weiss, 1 N. R. 189). In Godfrey v. Tudcer, 8 
N. R. 20 ; 33 Beav. 280, Sir J. Romilly, iM. R. refused the 
defendant his extra costs only, and allowed him the costs 



112 



COSTS OK AS ACTIOS GBSEIIALLY. 



Coiicof 
unnoooa* 
M17 pro. 
covdingn. 



riinccex- 

Mrjr 

I'laintiffn. 



iwrr 

KlMt«iiitnl 
of cUiin. 

IlcfuKil to 
a<liuit 
nllo^tiuiui 
ol fact. 



Refusal to 

ntiinit 

di>cunicnt.< 



as of a «]<;nunri.r. But tlic jiractitc in tlii.s rcsjKtt is now 
altered ami the action will ])c clisraissecl with costs although 
the (lefeijtlant mi^'ht have ilemiirretl {Ihtnh v. Truvbr'uigt 
Co., 10 Ch. 4.')!); 2.} W. K. \A\ ■ :V,] L. T. i:{7 ; J'emxe v. 
WattM, 20 y^i 41»2; 44 L. J. Cli. 4!»2 ; 2A W. R 771) ; 
hut we /// ,r Stuiti- (iiiiicr I.imitfil, 42 L •!. Ch, 374, 
and //» re Strain Slokrrf'n.,2li\V. K. .'»4.'», where the cosU 
of evidi'ucc toripjxw<«'adeiiium»hIe petition were«li«»alloweti. 
A defendant is not justified in not demurring en tho 
ground that tho statement of clhim containi chnrgeg of 
fraud ; see anU, p. SM. 

The C011I.H of unnecessary pi ist 

ax a general nde be paid by ti , .hhI 

them {Pamifli v. llurfrtj, 2 LVjII. 241) ; as the ai«tj» of 
making an infant defendant infiteatl of plaintiff in a lega- 
teeV Kuit (IfiHikiiuj v. yicholU, 1 Y. i C t'. C. 47«) ; or of 
a UHelejw intpiiry ( HV/l^>^^rr v. Chaftman, I Coll. 181) ; or 
of unnecessary evidence {AmUlry wlloru, 26 Bcav. 195 ; 
J'.ri^tHiil, Ai., Sinlttt, V. (; " W. N. (IHH2), 4). 

liy li S. C Urd. XVI.. r. 1, a mt. though unsuc- 

ceHhful, will Ih? entitlcil to his costs occasioned by joining 
as plaintitVM any jhtkou or pt»r8»»nM who are not found en- 
titled to nlirf, unless, the Court otherwise directs. And 
if a plaintitT delivers a statement of claim unnecessarily, 
the Court may make such onler as to the costs occasioned 
thereby a.s shall seem just (\l S. C. Ord. XXI., r. Ic.) 

liy R S. C. Crd. XX 11.. r. 4, where the Court or a 
judge shall be of opinion that any allegations of fact 
ilonied or nut admitted by the defence ought to have been 
admitted, the Court may make such onler as shall be just 
with resjvct to any extra cost.s occasionetl by their having 
been denied or not admitted. And by R S. C. Ord. 
XXXII.. r. 2, either party may call upm the other party to 
admit any document, saving all jtjst exceptions, and in 
case of refusal or neglect to admit after such notice, the 
costs of proving any such tlocument shall l>e paid by the 
party so neglecting or refusing, whatever the result of the 



COSTS OF THE ACTION. llB 

action may be, unless at the lieariug or trial the Court 
certify that the refusal to admit was reasonable ; and no 
costs of proving any document shall be allowed unless 
such notice be given, except where the omission to give 
the notice is in the opinion of the taxing officer a saving 
of expense. As to the costs of improper matter, and affi- 
davits, &:c., of unnecessary length, see R. S. C. (Costs) 
Sched. r. 1«, ante, p. 89. 

It seems that, notwithstanding the opinion expressed The costs 
by V. C. Wigram in Mouuftey v. Barnham, 1 Ha. 2'2, the ||i^„'j|^Jpj 
Court will in some cases, at the hearing, order the i)laiu- 1'> anicna- 
titi to pay the costs occasioned by allegations struck out i,e oi.uin'oJ 
by amendment {Stewart v. Steirart, 22 Beav. :i93 ; -'^ »''.^' 

• >. — 71. hearing, 

Leather Clnfh ('ompany v. Bresse)/, .3 Uitt. 4/4 ; r inch v. stmUf. 
We8t}'0i>e, 12 E<i. 24). But a defendant is not justi- 
fied in entering into evidence with regard to charges 
against him struck out by amendment, and will bo liable 
for the costs of such evidence lieing taken {Ste^vart v. 
Stewart). 

However, the nile, by whiili the Court visits the costs A i>arty 
ot unnecessary proceedings upon tlie party wlio lias occa- i^se his 
sioncd them, is not carried to tin- extent of denrivinir 1^"^*'' 
a successful ])laintit^" or <lefendant «tf his costs, because t ho Coui-t 
the decision of the ( ourt goes upon a part only of the l,',^^,'^ ^nw 
case or defence put forward. "Although the plaintiff 's of the 
case might have been much narrowed, yet we must re- |^,u7' ' 
member that it is often impo.ssible for a plaintift'to know i"r«arJ. 
what will be the particular views or facts which will most 
influence the opinion of the Court" (/ler L. J. Knight 
Bruce, Perry v. SJiipvay, 4 De CJ. & J. 3.*>.'{). And in 
Wheatley v. Bastuw, S W. R. 21)0; 11» Jur. 222, though 
the relief was given on a dift'erent eipiity from that on 
which it wa.s sought, yet the former being a])pareiit on 
the bill and evidence, V. C. Stuart gave the plaintiflf his 
costs. In like manner, where the defeiulant takes several 
grounds of defence, some of which only arc valiij, that 
circumstance will not in general avail the piaintiti" in 

X 



1 1 1 CASTS OK AN ACTluK GENERALLY. 

c<»t.s (CloiLLd V. lii.ck, li Dc n. M. & fl. T.'H I ; but fttruw 
where tlic ilefenilant vexatiuu.sly raises an issue of fact 
which fails on the evidence (ibid.) ; see Jones v. Furreil, 
1 Do 0. .V; J. 2(KS; ir//y</ V. IfunarJ, 1 S. A: S. 205 ; 
Hover V. Cooper, 2 Ha. 40,^ ; Pledge v. /f(/«!i, Johns. 
<".().'{. And a plaintiff cannot, by raising; n minor ami 
qtiitc suhsidiary |M>int, relieve himself of the costs of tlie 
.suit if h(> fails on th*- main and sul>stantial ({lU'.wtion 
(Ii<ihhi)f„ V. JoltiXMut, Hcaniis, app. S ; J'rme v. Smlr, .*J 
Jiir N S 711 . Mayor of SouUi Motion v. Attorney- 
Ciincral, .') II. L. (.'. 1». If the plaintiff drmand.n a little 
more than he is entitlotl |o, and the defcnilant resisUt the 
demand in toto, he will generally have to pay the costs up 
to the hearing {Jeff ryes v. -I^i-rt «{• Mnsiennana tUink, "i 
Ya\. GSl. i^r WcmkI, V. ('.). Where th.- plaintiffs failed to 
a con.sidcrahlo ixt^nt in their case, tlu-y got no costji, 
although judgment was given in ihi'ir favour {Xalional 
Iimuiiiiu-i Cti. y. Pntde)ttiuf Assurauce Co., it Ch. D. 
757; 4(J L. J. C\i. S71 ; 2<i NV. U. 2G ; 'M L. T. JU ; ami 
see Kt\ins v. Diivis, 10 Cli. 1>. 747; 4^ L. J. Ch. 223; 
'J7 W. K. 2S."); 39 L. T. 391, where the plaintiff's 
prt>ct*itiiiij.;s were emliarrassing). 
Wl.cro the The circumstance that the institution of a suit luw been 
botn ' suggested l»y the Court is no protection to an unsuc- 
rivoin- ces,sful plaintiff against costs (Scott v. Dunlmr, 1 Moll. 

iiiiii,|c-.| lijr ' 

the Court, 442, wlure the filing of the bill was suggestetl by the 
Hou.se of Lonls) ; and sec Earl Xelson v. Lord UridpuH, 
10 lieav. 305, where the suit was recommended by a Muster 
in the course of an earlit-r one. In Attorney-deneral v. 
Dam A Canons of ]r;/*«/A>r. S H. L. C. 3C;», 404, how- 
ever, an t'x iijph'io information, filed in conye<juence of 
an adiUv.^s from the Hou.sc »»f Commons, was dismis-seil 
or the williuut costs. A j\n'tiori a defendant tloes not escajx- 
dofon.l.iiit (,^^g(,, In^cause he has acted on counsel's opinion (Malina 
on v. Hill, 1 Cox, isr> ; M Queen v. Fartjniiar, 11 Ves. 467; 



counsol's 
Dpinioii. 

A.9 to iLo 1''**^ costs of p:irticular defendants arc often disposed of 



opm.on iioidton V. Bcard, 3 Dc C. M. & C. 608) 



COSTS OF THE ACTIOK. 115 

on considerations other than those aftecting the costs of costs of 
the action generally. A tlisclaiming defendant, if brought J^fen " ^^ 
to the hearinii, will be dismissed * "vvith or without costs, l^'*"^- 
according to the form and extent of his disclaimer (£'arZ dants dis- 
of Cork V. Russell, 13 E.i. 210; Bidgway v. Kijnneysle}/,'^^'^^^-^ 

2 H. & M. oG'), and cases cited in the note to that case\ stated ia 
The rules of the Cr»urt on this point are thus stated by Sir y'',',.j 

J. Rorailly, M.R., in Fnr<7 v. Lord Chesternell, IG Beav. Chr,!cr. 
51G. First, where a defendant disclaims in such a manner" 
as to show that he never had and never claimed an in- 
terest at or after the institution of the suit, then he is 
entitled to his costs ; secondly, if a defendant having an 
interest shows that he disclaimed or oflfered to disclaim 
before the institution of the suit, there also he is en- 
titled to his costs ; thirdly, where a defendant having an 
interest allows himself to be maile a party to the suit, and 
does not disclaim, or ot^er to disclaim, l>efore he puts in 
his defence or disclaimer, in that case he is not entitled 
to costs. These rules, which it seems apply to a dis- 
claiming heir-at-law {(h'(nf v. Adarnson, J^o Beav. 383), 
were approved of by V. C\ Wood in IidUnn}i v. Brieken- 
den, 4 K. iV J. G70 ; and compare the dicta of V. C. 
Wigrain in Tippivj v. Povcr, 1 Ha. M)o, 408. They 
may be illustrated by a great variety of cases. 

In Ohrli/ v. Jiukins, 1 De G. & S. .";43, the defendant The first 
omitted to say that he never claimed, and was therefore "^^ *^" 
dismissed without costs. And see further as to the first 
rule, Vide v. Meredith, 18 Jur. !)92 ; Beddoes v. Pufjh, 
26 Beav. 418; Gabriel v. Slurgitt, 5 Ha. 97; Earl of 
Cork V. Russell, 13 K<i. 210. In Bella mi/ v. Bricken- 
den, 4 K. l^' J. G70, it was held that the disclaimer of a The dis- 

devisee related back to the date at which the estate ''*''"?'■ ""^ 

a devisee. 

l)asscd to him, and was a disclaimer ah initio; and the 

defendant was consc(iucutly held to be entitled to his 

• But, it seems, a decree of foreclosure may Ix; made against dig- 
claiming defendants {Collins v. Shirh-tj. 1 R. & M. fiSS ; Pcrkin v. 
Sfnjford. 10 Sim. 502 ; Ahhtt v. fJdn-ardit, ibid. «. ; Johnson v. Clarke, 

3 W. R. 193). 

I 2 



1 Hi tii-^Y-. I y AN AC"1I<«S OKN£i;AM.V. 

costs, even lliougli llie plaintifT lia«! written to lii> hoiici- 
tors liefore suit to kuow whether he claiineti an iutorest, 
and receiveil no answer; and see Ili'ff/ius v. Fixudin, \o 
Jiir. L'77. In Jiuchnnan v. (ireenvxny, 11 Bcav. '»8, 
however, a tlovisee disclnintin^ ditl not ^'et his cost.'s. 

TIiomcadJ \>^ to t),L. .second rule lai<i »h)wn in Funl v. IsOi\l 
ChcMfct'jield, 8ce Lock v. LoinaM, lo Jur. 162 ; Thomimjn 
V. Kemlall, 9 Sim. 3!*7 ; Wnnl v. .S7. ■ • 1 Dr. \- S. 

2Gi). In the la-st atsc the assij^nec of u ... ;;^.i^or, having 
been made defendant to a foreclosure bill, Ijufore appear- 
ance disclaimed by letter, and oflureti to be dismiHtted, 
and ho was held to l>e entitle<l t«) his co.stJt. But it is not 
sidlicient all(gati«'n to nay that the defendant was applied 
to Ix-fore suit, and did "not refuse" to disclaim [Ilmwiaon 
v. Pcnncll. 4 Jur. X. S. GH2 ; W. H. 71l'> ; or to wiy 
that, if the plaintifT, in a fon-closurc suit, had appliinl to 
the defendants, they wouhl have releaned the e«|uity o( 
riHlcniptiou (Ci'll'nm v. Shirlry, 1 It A: M. G.*lfi ; Fonl v. 
Loi'il I'henterjieltl, lU Ikav. 51(J ; Fuitl v. H'/h'/i*, 1(J lieav. 
120); hut see cunti^t, (inruey v. Jnckmju, 1 Sm. &. U. 
1'7, a iM-sc which is irreconcilable with those mentioned 
above. 

Tho thirvJ As to ihc third of the rules .Htate<l above, see Htut'us v. 

'^"'^ JloUom, 10 Jur. 1077. IG Beav. 259; Talbot v. Ket,i^- 

htiul, 4 K. & J. 9,} ; Duvis v. Whitnwir, 2H Beav. 017. 
Persons proix^rly made defendants to a suit, and dis- 
clalMiing, .'<liould utTer to have the Muit dismitMcMl aii 
against them without cost^ {Tuibot v. Kemdicad; 
DuvIh v. Wh'itiiane ; Clurkr v. Ji'iuliun, W. N. 
(l.SGG), :{:>2 ; 15 L. T. 17G) ; and if they do *n\ and the 
plaintitT continues them on the record, and com|>els them 
to put in a defence, the course is to dismiss the suit as 
ajjainst them without costs up to the time of the offer, 
but with costs subsetiuonlly incurred (/>.(»-/y v. Whii- 
viore ; Goxving v. Mowhroy. 2 N. K :\s\ ; 1 1 W. K. 
851 ; Joins V. Rhiiid, 17 W. H. 10!«1). It makes n.» dif- 
ference that the defendant has j<ri\ i.ni^ly tli«;.l:iiiij.<l bv 



COSTS OF THE AfTIoy. 117 

letter {Goivinr/ v. Movbra}/) ; but tiee Ward v. Shake- 
.^haft, 1 Dr. & Sm. 261). In Chnie v. Tolouan, 21 W. R. 
(it) ; 42 L. J. Ch. 2:3 ; 27 L. T. oOO, however, iu a fore- 
closure suit, the assignee of the mortgagor disclainu i1 and 
offered to be dismissed witiiout costs, but on the ground 
that he had not di.sclaimcd before suit he had to 
bear them. In DiUon v. Ashinu, 3 N. R. 359; 12 
W. R. 3GG, a defendant to a foreclosure suit, -who 
assigned /)eH(?f»/(? lite, and offered to be dismissed 
without co.sts up to the date of notice of the assignment, 
received his subsequent costs. In Earl of Cork v. 
Riiftfiefl, 13 E(j. 210, judgment creditors were made de- 
fendants to a foreclosure suit, who after issuing execution 
had assigned away all their interests before bill filed, and 
disclaimed by their answer ; and it wa.s held that they 
were entitled to their c<ists. The plaintiff is not bound 
to a.sk the defcndant'.s con.'Jent to the action being dis- 
missed against him without costs, but it rests with the 
defendant to offer it {Talbot v. K»'ra.'<}ua<l ; Fcrbrr v. 
Fiirher, 30 Beav. .')23). 

If a disclaiming defendant also pleads and appears to 
claim his costs, he will not get them {Maxurll v. Wiifht- 
u'lrk, 3 E.|. 210. 15 W. R. 30+); and see Drailley v. 
liorlasr, 7 W. K. I 2.'. ; Slij^pcr v. G<ni(jh, 36 L. T. 02 ; 
Thninpfion v. Ifitilson, 34 Beav. 1<I7. 

Where a l»ill was Hied for foreclosure against the mort- 
gagor and a second mortgage!-, and the second mortgagee 
who had been paid off offere<l to disclaim at the plaintiff's 
cost, which offer was refused, and the second mortifacrec 
then disclaimeil, it was held that he was entitled to his 
costs (Dnif V. Gudjcn, 2 Ch. D. 209). But a statement 
by a defendant, a second mortgagee, that he has agreed 
to transfer his mort^'arje, and is willini' to disclaim, un- 
accompanied by an offer to be dismi.ssetl without costs, 
will not entitle him to his costs {Roberts v. IIiKjlicii, 6 

In Glover v. Ro'jcrs, 11 Jur. lOoO; 17 ],. ,|. (,'ji. l>, it When a 



118 



C(»STS OF AV ACTIOS GEyEBALI.Y. 



fliiirUini- 
ing <lcfcn- 
(Uut niAT 
go into 
CTidencc. 



ii. rrr»on« 

iinnccm- 

Miiljr 

fen(i«nu. 



was liclil not to \h: i:cct-S>.'iry tlmt a (Hsolaimiu;; »lelVt»<l.u»t 
siioiild prove the facts \\\n>u wliidi Ili>^ disclaimer is ItuK^-il ; 
and in Ilnrst v. Hurst, 1 \V. II. lO.i, the qucMion wliether 
guch defendant is entitled to go into evidence was Iffl un- 
decided. If. liowevcr, the phtintiff un<ler the old practio^ 
filed replication to the answer, and the tlefondant was 
thereby compelled to go into evidence, the plaintiff' had to 
pay his cost,s (/'ori/ v. Ln, ' * ' /. ll» Bi'av. olU) ; 

and see WmininH v. Lonfjj- .*»sl. Where the 

bill prayed for the coftts of the suit against a defendant 
who di«rlaimed, and Ktated certain factn as to hi« n<>t 
IwMng made to |>ay coht.n, the plaintifT wa" hehi to be 
justifie*! in enterini; into evidence ron/*ii, an<l the defend- 
ant wa.H ordereil to pay the oost« of the suit {Dtaeon v. 
Ihttion, 7 Sim. n7H . A.H to the citxis of nn innocent 
htakehulder, svv Mixl v. I'irkrriny.S Ch. I>. :i7i ; 47 L.J. 
Ch. 527 ; 20 \V. R (J37 ; 38 L. T. 799. 

If a party in unnee^sKartly made a d« femlant to the 
suit, although he may have an intoreAt in the Kubjecl- 
njntter of it, he will l>e entitled to bin costM from the 
plaintiff; as where a residuary legatee wan made defen- 
dant to a creditor's suit, then* l>eing a ' f in tr»i»»l 
for payment of debt* (Smith v. ..I t \V. \i. 
3.53) ; or a certiAcated luinkrupt wom made defendant 
{Panurll v. Jfurlri/, 2 (.'oil. 241). On the other hand, 
the costs occasioned by an hei^e^s-at-law, who was not a 
necessary |iaily, K'ing made a co-plainti(T, including the 
costs of makin:; out her pedigree, were onleretl to i>e paid 
by the plaintitVs {Ptaire v. U'dM/ji/i, .5 I>e G. & Sm. 31.'i). 
Where tlio bill prayed alternative relief, and on the view 
adopted by the Court certain defendants were unnecessary' 
parties, they were ili>missed with costs ///•.»«//>/ v. HmtU, 
.S Sim. ."iGl'V In a recent case the ]>luintitV brought an 
action against two defendants, claiming alternative relief; 
he succeeded against one, and failed against the other, 
who got judgment in his favour with costs. The f'ourt of 
Appeal, varying the onler of the Court Wlow, made the 



COSTS OF THK ACTION. 119 

unsuccfissful defendant, who \Yas really to blame for the 
litigation, repay to the plaintiti" the costs the latter had 
been ordered to pay to the successful defendant {Child v. 
Stennivfj, 1 1 Ch. D. 82 ; 48 L. J. Ch. 392 ; 27 W. R. 402 ; 
39 L. T. 302). When a plaintiff joins two or more 
persons as defendants he must pay the costs of any 
defendant against whom no c^ose is established, and who 
did nothing to make the plaintiff believe him to be 
liable {Marsh v. Dunloji, 21 8. J. 7o). A plaintift' is not 
justified in making persons parties merely because other 
defendants insist that they ought to be parties ; and 
persons ma<le defendants under those circumstances, the 
Court bting of opinion that they were not necessary 
parties, were disniis.seil with costs {Williams v. Page, 
24 Beav. 0.54). In Will ia ins v. Williams, 1 W. R. 
237, persons interested under a will, but unneces- 
sarily made parties to a suit for administration of the 
estate, were ordered to bear their own costs, they not 
having objected to being made parties in their answer or 
at the hearing. If a person iniproperly made a defend- 
ant claims an intm.-t by his defence, tiie suit may be dis- 
mis.sed as against him at the hearing, but without costs 
{Randall V. Randall. 4 L. J. ( 'h. (Old S.) .)(»). Where 
defendants, hy decree declareil to be unneccs.sary parties, re- 
mained l>elbre the Court, and attcndt.-d the iuijuiries under 
the decree, tluir costs subsequent to decree were ordered to 
be borne by themselves {(jlrdlcsfon v. Creed, 1 W. II. 
228). A party made defendant for purpo.ses of di.scovcry, 
but who is a jnere witness, will be dismissed with costs 
{J)e Ctnahrw iJr ('nrahe/.\ Jur. N. S. 712' : l.uf s.,' Ilmtlij 
V. Xev'tnn, .*{() \V. H. 72. 

A defendant may be ordered to pay costs to a third Costs of 
party who appears in consequence of bcinir served bv the Y'^'^^^^ 

1 r 1 X • 1 • 1 ,^ ^ liroiight in 

defendant with a notice under R. S. C. Ord. XVI. r. IS, under 
{Dawson v. Shepherd (C. A.) 49 L. J. .-.21) : W. X. (IS-SO) S;,,^xvi. 
IIU). But in Yorkshire Wai/ijon Co. v. ycn'imrl Coal 
Co., o Q. B. D. 208 ; 49 L. j. .-,27 ; 2.s W. K. 50.-) ; 42 



120 (f>sTS ay AN ACTION GESEltM.I.Y. 

L. T. C}'.]7, tlic contrary seems to }mve Ixen licUI. Where 
the (lefendaiit.s l»ruujjht in thinl parties, who. in their turn, 
brought in fourth parties, and the suit was ilismissed with 
costs, the Court of App<'al helil that there was no jurisdic- 
tion to make tlie plaintiff i>ay tlie awts of the third and 
fourth parties {Withxm v. Vane, 4* k T. 71H ; W. N. 
(IHHl) 79). In the most recent case on this point the Court 
«i'.rf.-..^v y i; H, rr-hold tliat a third party is in th«' fcu • >'U witli regard 

JCwp.xj, iy«.vy (,, rusts as an original partv ill>>i ,./.'•,// <( '. A 

aovvp b.).v ^ ' 4.-. L T 7M W N. (1H81) 170). SG^D.^I'f 

iii. Fonn*l " Where no account, payment, conveyano-, or other 
^^ '**■ relief is Miught against a party, but the plaintiff re«juir«» 
such party to appear to <»r answer the bill, the costs 
occasioned by the plaintiflf having required such party so 
to ajM r answer the bill, antl tl »f all pro- 

ccedii., ■jui lit tlurcim, hhall be p •plaintiff." 

Sec Ahnun v. Ward, (I Ha. 170, where defendants in the 
same interest as the plaintiffs, but who had refusetl to join 
as co-plaintiffs, were :»" • ' ''•• -'s under this order. 
And as to formal |»art. Anhrr \. HtJrfton, 

'J Moll. 40+. In Tojiham v. Jjuke of Portlaml, 3 N. R 
1S.*{, the truslrc-s of .i ' ' !• on tin- plaintiflTs 

marriage, who wire i. ^ to the suit, were 

held not to be entitloil to their dwts from their co-<lefentl- 
ant^ who paid tin* plaintifFs co«(ts, but were allowed them 

out of their trust estate. And .see as to partii- • '• 

defendants for discovery only, ;x»«/, ch. IV., sec. IV 

Whut Although letters written "without prejudice," with a 

roay'^Uc* virw to the conjpromise of the suit, are not generally 

uw.i «s to atlinissible in evidence (HtKjhton v. Hifjhtnn, l.> Beav. 

."•_M ), they may be read on the question of casts {Wood' 

,inl V. kasten} ('tmnticM %. Co., 1 Jur. N. S. .SOO ; 

Williams V. Thoman, '2 Dr. i Sm. 20. H7) ; and, seinhit, 

though not refeiTe«l to in the pleadings {Malcolm v. Scott, 

:\ Ha. .S}»), notwithstanding Whitlfi/ v. ^fa^ti^1, 3 Beav. 

220, where tlie marginal note goes too far {iter V. C 

• AitiiUvit*. Wigrani, 3 Ha. 6.Sj. Where the costs of the suit are dis- 



CO&TS OF THE ACTIOy. 121 

posed of on further consideration, the Court will not look 
at the evidence given in chambers, or on interlocutory 
application, or, in fact, at any evidence but that in the 
csLUse {Curlinr/ y. Austin, 2 Dr. i^ Sni. 1-29; 10 W. R. 
082). In Duusfan v. Patterson, 2 Ph. 341, at the hear- 
ing of a motion an immediate decree was taken for an 
account and costs, and furtlier directions were reserved ; 
and it was held that at^davits filed on the motion could 
not be read on further <iirections as to costs. I'ho Court 
declined to receive, under Stat. LS t.^- 14 Vict. c. .S.'>, s. 28, 
affidavits as to conduct filed with reference to costs 
{Batemnn v. Mdnierisony 2 W. K. <!()7 ; Kvans v. Lewis, 
2 L. T. .>.il)); but see contra, FnUons v. Lonl Dillon, 
2 W. K. .-)()7: 2.S L. T. (O. S.) lo4. In Palmer v. 
Pernj, W. N. (ls7()) 58, after a decree directing an 
inquiry as to damages, an affiilavit showing attempts on 
the j)art of the plaintitVto make an amicable arrangement 
befi»re the imjuiry was proceeded with, was held admis- 
sible upon till' tiuotion of costs, on the authoritv of Fal- 
lovs V. Lord Dillon. 

The Court will not order costs in ;in action to be jKiid Cost.sin 
without ta.xation even by consent (Klni/v. Kin;/, 1 dur. },'','^,/'^^)|'"* 

N. S. 272). I'.v whom 

Where several co-plaintift's i»r co-defendants are ordrred ''^" 
to pay costs, they become jointly and s.v. r.illv li.ible 
{Poole V. Franha, 1 Moll. 78; Mvrahjth v. Jhi;/li,s, I] Yo. 
iV J. 188; Asjiilen V. ^cddon, W. X. (IS77) 207; Ex 
parte liishop, 8 Ves. 333) ; and, therefore, where a decree 
has been made reserving costs, the defen<lants are entitled 
to a continued representation of all the original plaintiffs, 
though not necessary parties, as a securitv {lilnr/.-hiirn v. 
Jepson, 3 Swan-;. IMS). Assignees of any partv to the 
."uit adopting it become liable to the costs of it from the 
comnienrement (Whitromh v. ^finrlli n, '> Mad. 91 ; Poole 
V. Franks) ; so, also, a n<xt friend appointed in the course '^'"'V''" 
of the suit; and see Cook v. llntkvxnj, 8 Eq. (J12. \\\ a ,.mon"-t 
tithes suit the Court, in decreeing an account an<l jtav- 'l''^*'"" 

"- ' • ilaiit-. 



1"2'2 ro-T<; or an actiox genehai.i.y. 

iijciit, iiiay ;ijij»<)iti<iii tli-- costs where llie tli fv lulaiils have 
several (i'-ftnces {L'mlnifr v. Petictjrk, Johns. 210 ; and jee 
]\'olUy V. lirownhiH, l.S Price, oil); but necua where there 
i.s a common defence {Esdailc v. Peacock; Llot/d v. Mack' 
worth, 2 (nvill. <Hn. corrcctinp S. C. Bunb. 138). But 
the Court will not in j,'eneral jjive dircction.n in the decree 
for contribution by the def<>ndantg infer m ; or after a 
general derree for costs entrrtain an appliration in the 
suit by one defendant, wlio ha.s l>een rom|H.>llctl to pay the 
whole, for that jMjr|K).se (Michel v. HnlUn, 6 Price, 87 ; 
Pitt V. litnnte,', 1 V. & ('. C. < '. «»7(M. However, in Noiih 
V. Gurnejf, \ Jo. xk H. .')(MI, the il<-f«ndantA were onlered 
to ]>ay the coRtM of the »uil without prejudice to any 
r|UCKtion Wtween them im to contribution thereto, though 
the pr.riso cfli'ct of KUch a rrstrvation is not clear. 

lu M /Vmoi v. Thomttun, 2(» Va[ 4:)!» ; 2;J W. R 744, a 
decree for 8{>ecific performance with co^Im waA made 
again>it two defendants, one of whom wa.H mainly reK|Mjn- 
.«<ible for the .suit ; and Hall, V. ('., in.siTti-d a declaration 
in the tlecre«' that. a.s lM«tween the two iht't ndanlh the one 
wln» was chiefly to blame ought to |»ay the whole of the 
coKth. and ga\«' the otlier defendant liUrty to apply in 
chambers as to payutenl to him of tliest- costs ; the order 
of couH'e In-ing without prejudice to the plaintiflTK right 
to recover his oo.stj* from both or either "if the defeuflants ; 
ami .sec Tv'iuUn-Oiv v. Jiniol, W. N. (lh7.H) Hiii. Where 
co-defentlant.s an* orden*<l to pay the co»itK of an action, 
one co-defendant cannot, by an independent proceeding, 
obtain eontributit'U in " of .such costs against the 

other (A<(/Wy v. Mi" lb Ch. I). 230; :i<> W. R 

45). In Af*j^Ien v. Sedtloi}, W. N. (1877) 207, where a 
bill had been dismissed with costs, the Master of the 
lu»lls. on the authority of Mttedi/th v. HiKjhe^. 3 Yo. & 
J. ISS, held that, whether the liability for co.'ts was joint 
or .several, the defendants were equally entitled to have 
their cost.s t;u\ed again.<;t the surviving plainlift's in the 
;il>sence of a lei:al personal representative of a deceased 



COSTS OF THE ACTI(>y. 123 

plaiutiflf. In a late case an action was brought by a 
hnuitie, so found, and his committee to sot aside an 
agreement, on the ground that tlie hniatic was of unsound 
mind when he entered into it ; during the trial the 
lunatic died. The interest of the committee thereupon 
ceased, and his administratrix obtained an order to carry 
on the proceedings. The action was dismissed with costs, 
to be paid l>y the administratrix, but the estate was in- 
solvent. A motion to vary tlie judgment by rendering 
the committee liable for the costs of the action up to the 
death of the lunatic was refu.sed with costs {Harlaud v. 
Garhv.tt, W. N .(ISSl) cS). The costs of all parties liable to 
make a contribution shoiild.it seems, bo added t(»t;ether,and 
borne by them in jjiopurtion to tlie shares in which they 
are bound to contribute (Mo^jo v. Sjt<irr<iii\ IS W. K. loo ; 
22L. T. lo4). 

In suits to restrain the infringement of trade mark-^, Lirn for 
the plaintiti' has .sometim-s been held entitled to a lien *^"*'"''' 
for his co.^ts on the goods bearing the j)irated mark in tlic 
hands of innocent parties ( r/)?/<fo*» v. h'/hm, \'2 K<|. 140; 
7C'h. l.SO; roiimrdii, \.r,t,,, '.V.\ l!.av. [\\-l\. \\\\{, in 
MtKt V. riiirriu'i, S (,'li. 1). :{72, 47 L. J. Cli. .")27; 2() W. 
R. 6-37 ; .'is L. T. 71)1), where the goods were in tlio hamls 
of wharfingers, the Court of Appeal <piesti.>ned this doc- 
trine, and held that even if the plaintitV had any such 
lien, it must certainly be postponed to the wharfinrrers' 
lien for their charges. As to the cases where costs pay- 
able out of a fund arc \x\\<\ before division or apjxirtioned 
on the different shares, sec j^^'^f, cli. IV., sec. 11. 

The Court of Chancery wouM not, except in charity Oidor may 
suits where tliere was no relator (At(onieif-Gcncral^'"'\^"f 

. , ^ •/ nianc lor 

V. Cin'i>oriitii>n of CltrHier, 14 Heav. .S.'jHi. and inter- i'''*y"'f"t of 
pleader suits, directly make an order for the paynuMit l,cUTcn 
of costs between co-defendants; but that object was ™"'''f^'"' 
indirectly attained by ordering the co.sts of one defendant '"' ' 
to be paid by the plaintiff", and received back by him from 
another defendant; see ax. (jr. Blenlinsoj)^) v. Blcnkbu 



]H i a<T^ f.F AS" AMImS GF.NF.RaI.I.V. 

tiii/ij), 12 lif.'iv. .'((is. Tlic practice in this lespoct is now 
altorcd, and the drOndant who is liable t«» the costs as 
hctwcen himself and ids co-tlcfendant, will be ordered to 
p'ly tlnin directly to the eo-def«'ndant (Htidoir v. Great 
lirifnni Asj*iira)\ce N(»c. (('. A.), 17 Ch. D. COO). 
A«iviince WImtc there is a ftunl in Court in the .snit, or the liti- 

Hainii'ff on K-'^^ion is respecting an estate vested in trustees, who arc 
a<"<-oiint of brforc the Court, tlu' ( 'ouit has in .•ionio instances allo\ve«l 
an advance to be made to the plaintit), if in p •verty, on 
account, to enable him to prosecute the suit (Joties v. 
Co.rrtrr, 2 Atk. :VJU : //; //ry v. ApplrUy. 2 Cox. 409 ; 
J'eriftluil V. S^jiiirr, 1 I)i. k. 31, S. C. Beames, app. 22 ; 
JtirkrnMon v. .Miirir, 2 Dick. ■»«2, S. C lioames, app. 'A), 
especially where some heavy expense, such a-s the costs of 
an arti«in at law (/Vr»V/t<i/ v. t^fuirr), or of a commission 
abroad I />/«/.' /»#y« v. J/ariV I. had to l>c incurre<l. "Hut 
there must l»c very s|)ocinl circumstanr-es indeed to war- 
rant an advance of money for the pur|>osP of fee<lin^ liti- 
j^.ition " (/»rr V. C. Ix>ach in TUhttmtu v. Ifnrijirnirs, ^ 
Nb'ul. 172, where the application was refuse*!). There is 
no recent rej»orte«l case where such an application hiis 
been prant«d . :ind s. .■ .Vyr v. Maulc, 4 My. iV: C. .*U2 ; 
JWk V. Jiixhrif^ 2 Sim. 40, where it wa.s n-fused. The 
Lords Justices have allowed a suit to perpetuate testi- 
mony to Ik? in.slituteil with the appntKition of the Master 
in lunacy, if he should be satisfied that there wa-s rea- 
MMiable «^ound for it, such costs as the Master should 
think pr«»per being paid out of the estate of the lunatic 
ylu /v Tuifhiir, fi Ch. 41(J). 
To whom Parties representing th«' same interest, if they sever 

r«v.»bic. j|n.|, (lofences, will not, except under sp«^cial circum- 

r.«rtics • • 

spvi-ring. stances, be alloweil separate sets of costs, but one .set oidv 
between them {IlmjUcs v. Kty, 20 Be.iv. \VJ7 ; Btdl v. 
^yefi^ LomUm Nc/mW liiMtnl. 34 L. T. G74 ; De liurgh v. 
Chichester, \\) W. U. 221) ; though as to the difficulty of 
lavin-.: down any precise rule, see (irrcihj v. hivender, 
11 Beav. 417. In Eden v. Saish,'! Ch. D. 781, where two 



COSTS OF THE ACTION'. 125 

det'euilauts sovLTed upoji a summons, aud appeared by four 
counsel, the costs of only one counsel for each defendant 
were allowed. Where one of a class of defendants is 
separately charged, aud relief is prayed against him. he 
is entitled to appear separately and have his costs, though 
such cliarge aud the jnayor for relief l>e struck out by 
amendment (Sliaw v. Joloinon, H W. K. ()2!>t. Where 
tlie bill charged fraud, the defendants who severed and 
did not oppose the plaiu tiffs claim, had their costs of 
separate answers {Cl'uich \\ Financial Corpoyafion, ") Eq. 
450), Where several defendants have a joint fiduciary 
interest, the circumstance that one of them has also a bene- 
ficial interest is uot a ground ft>r their .severing, unless the 
beneficial interest conflicts with their duty {GatDit v. 
Taylor, 2 13eav. .S4(), though separate costs were for 
special reasons allo'wed iu that case). And generally trus- 
tees and their cestuis-que-trust are not justified in .severing 
{Furr V. Slicriff'c, 4 Ha. .')2.s ; Reade v. Sjyarkrs, 1 Mol. 
>>; ; ami so with mortgagor aud mortgagee {Reimmnf \. 
Hooil, 27 Beav. 74. ii\'.i; (jrrtdijw Lorinnlrr, 1 1 Bcav. 417j. 
lu AUri'Jj,' V. ]\\'i<throol-, 4 Beav. 212 ; Wilts v. Cooper, 
\) Beav. 2!»4, 2:J!I ; and Riiss,-ll y. Xirholls, J) Jur. (11. S, 
residence in ditl'erent j»arts of tiic country was held sutii- 
cient cause for severing; and .see Jluniilton v. James, 
Ir. R. 11 E(|. 22.S ; but see contra, Farr v. Shcriffe. 
In Uarcy v. Whittinyham, o Beav. 2(j<S, husband and 
wife, living apart, were held entitled to one set of costs 
only between them ; and see Mikhnay v. Qaicle, 40 L. 
J. C'h. (107. Two trustees having severed, and one im- 
puting misconduct to the other, the (.'ourt, having no 
evidence but the answers, gave one set of costs only, and 
left the divisi(jn to the taxing master {Course v. Harn- 
jfhrey, 2(J Beav. 402 ; AUorncy-Ueneral v. Wyuille, 28 
Beav. 4f)4j. But if the evidence is clear, the costs will be 
'4iven wholly to the innocent tru.stec (Webb v. Webb, IG 
Sim. o.')). In Meldnua v. Hayes, 21 W. R. 74G, an exe- 
cutt'i, wh(»>.' co-executors, acting in opposition to his 



12(J COSTS OF AN ACTluS »;KNKIlALI.V. 

advice, lin<I hroiiglit heavy l««s.se.s ii|x>ii {\iv estate, waa 
lit'M justified ill severing,', ami lii.n rejiresciilatives. lie 
having ilicd jH'iulentr lite, were heKI entitleil to a sk^-iki- 
rate set of cosU. But an allegation hy one truntee tliat 
lie knows nothing of the |»raye«l fur, U not a 

groiinij for si-paratr r..>t< v C'lxh, 1 Jiir. N. S. 

.^04). ill Pt'ince \. II JT lieav. .*U.l, two iriiH- 

teoH, who had Kevrrini, having iH-m or<l«T*'d to pay a 
Hiiin of money into C«)urt, and one of them having |taid 
the whole amount, one net of costA only wa-s aU«iw«><l. and 
waii directed] to be |)aid to the truMlee who had paid the 
money, the other tniHto-*- ' i iilrihution 

towardH that amount. An i: >i to join 

ax plaintiff in a suit to recover tniMt fundn lent in breach 
of trust, titherwiM- he will not riTeive any co(»t8 iu» defvn- 
ilant {UmjUes v. AVy. 20 liiav. :{l»7>. 

IVrHonal ciiargi-t of frautl against a trustee will, it 
seems, juHtify his co>truNtee.H in declining to join with him 
in his defence ( It' " ''' " ' ^ 7 ( 'h. D 504. vv ' 

a trustee, who ^ trustee, had lii» 

out of the estate, although he at the Mime time defended 
liiti own character). 

Ah to the right of u trustee, in whom property of a 
hanking com|>;uiy is veated, to defeml hy a !ie{>arate solici- 
tor when the right to bring and defend actiuns is given to 
the directors, see Ileiitrirh v. Sutfon, fi Th. 220. A 
cestui-«jue-tnist al>out to bring an action should apply to 
his trustee to join him an co-plaintiff with an indemnity ; 
if he refuses he must Ix'ar his own costs, but if he is not 
applitnl t<», the plaintiff must |xiy them (HfaiU v. 
Sparkr^i, 1 Moll. M. Persons not parties to the action 
having liWrty to attend proceedings under a judgment or 
decree are allowed one .set of cost.s only, if they are in the 
same interest {St'>rtison y. Al'in<jtnn, 8 L, T. 719; 11 
W. K. 'J.'Ui . 
fH'vrral On the i>tlK r hand, if one .solicitor appears fur two or 

ilotVn.iiinis more defendant-^ ^v]l.. ihmU.- «.. ixiratethf< H'-.- and the:nf;..i. 
BI>|>canng * 



COSTS C'F THE ACTioy. 1:27 

Is di5;nii.s.scd wiili costs as to one of them, suoli ilefendant by the 
will only be entitled to receive from the plaintift' the costs solicitor. 
of the proceedings which relate exclusively to his defence, 
and a proportionate part of the costs of the proceedings 
taken jointly for all the defendants for whom the solicitor 
iippoars ( /^' ('nlijulnmn. '> De (J. M. i^- O. .S')^ ; and the 
same rule applies as botwreu the sulitMtur aiitl any one of 
the several defendants for whom he appears {ihld.) ; and 
see Jlarmcr v. II<n'ri-<, I Russ. 1. '>."), 1">7; Daries v. 
Chatwood, 11 (Jh. D. 244. But the rule in Be ColquJioun 
does not apply to the solicitor to the suitor's fee fund, 
appearing for a defendant at the instance of the plaintiff, 
and also for defendants defending in f\>rmd jMiitpcris 
{Fvazer v. TJiompxon, 1 CtitV. '■\o~). However, l>y Cons. 
Ord. XL. r. 12, the taxing master is to consider whether 
two or more defendants employing the same solicitor 
ought to have ilefended separately ; and there is no 
appeal from the taxing master's di^or('ti»»n {licnH'ic v- 
Lord L'buri/: 22 W. R. C^ : VA 1,. J. Cji. NO; 2!l L. T. 
4 1 'J). 

Where costs are directeil to l»e paid out ot a fund info.sLsout 
Court, they are, as observed above, onleretl to be paiil to " *j ^'j' 
the solicitors of the parties directly. Where a solicitor, solicitors. 
by arrangement with his client, retirid bom the suit, and 
another solicitor conducted it thenceforth to its conclusion, 
it was held that the latter solicitor had priority for his 
costJi (Corvidck- v. Jieishj, 3 I)e G. Sc Jo. 157; and .see 
Re HnviKtrd, 14 T.eav. bS). In I'nhhlc v. lio<jhvrst, 1 R. 
Si. M. 744, it was tliscuvered after taxation that the agent 
was not a s«)licitor, and the master was directe<.l to review 
his taxation, and »li.sallow all items except disbursements 
to the clerk in Court, though some of the costs were in- 
curred at law, and the agent was an attorney; and see 
Coates V. Hmvkyanl, 1 R. »Iv: M. 74(5 ; Siunnev v. Rid;/- 
wny, ibid., 74.S. 

If the costs are payable to a partnership firm, they may Co.st« pay- 
be directed to be paid to the member-, of the liini as co- p^rtner- 

ehip firiD. 



lliH ( o-T> >>y AS ACTION GKNLIlALLV. 



lull 



cu«t« 

i. . 
till 



partiHTs, iiiiiijiii;; tliciii ill tlio <»i«lcr l»y tlu-ir t. hii>l 

uikI surijaines. Any iiieiul"r i-f tli.- fimi can tli.n ivceivt* 

them (Seton, p. 121). 

Apportion- \Vc have alrea«ly seen that the tosl.s o| ihe suit may 

'lUi*' ^"' •'»p|x>rti<»nt'tl (1) with resp^M^t to timo, the costs up to a 

Alto rcrtaiu p«ri<Ml iM-iug given to tin- plaintitV, ami tin* suhsc- 

" <|iient costs to the dcfcmlant or vice Vfrad (seeautf, p. !>+) ; 

ii. Aiii..iik'»i (-) with ie.s|>cct to different ilefen<lant,s hilh \vli<n |>ay- 

dofcn.ianu. ^j^j^ ^. j^,jj ^^ j|,j.„j ^j^^^. ^^^^f^ ^ | .j | ^ j^,y ; and (3; some 

I!>'fcnnro instances have been given of apportionment willi re«poct 
t-iMilijcoi- t„ i|,4. Huhject-matter of the suit, as where the plaintiff or 

iiintlcr of 1 1 I « .1 » 11 

the •uit. (hfentiant huoccftis, l»ut has to pay the costs occo-sione*! l>y 
iinfoundeil chargis ol" fraud, or other Mtatement.s of fact 
failing in tlie evidence, or of unncceiisary evidence or 

otliir pPK-etdings. \r. (^ee lOl/r. pp. !M», lOtl. 112. Wl). 
Tl»e sjiine prinriph; apph<s where the Huit cml»racf<* uiore 
than one object. In Jknn v, Sf orris, o \V. U. .•{4.'>, the 
OOKts of a suit to admini-ntor two estate«« vested in the 
sanjc trustees u|)on thf wime trusts wire urdcreil to be 
paid out of tlie two funds e<)ually ; and see the caMM 
where the costji are ap|>ortione»l Utween the real and 
iMi-sonal estates, jH»il,c\i. IV., sec. II. So in Irbtf v. Irhi/, 
2i lieav. .'*2.'», the costs of a suit to adniini.stcr the estate 
of a ileceased jK'rson.and incidentally to execute the trusts 
of a settlement under which he w.xs tenant for life, were 
payable, a.s of an administration suit, out of the assets of 
the deceased ; but, so far o-s they were increased by itJ» 
being a suit to execute the trusts of the settlement, out of 
the settled funds; and in Steu\irt v. }fim]nis of Donffjal, 
"2 Jo. cV Liil. ti.'JG, the costs of raising a family charge were 
borne by the estate, but the costis of dealing with it when 
raised were payable out of the fund ilsvlf ; and sec Botf- 
Thc Court cott v. St u'lniiu, 4 W. U. 707; 2 Jur. N. S. 702. But the 
.""\ . Court is not inclined to make refined distinctions on the 
iiicily to uppvirtionment of cost.s, on account of the expense of 
Sr'"" apportionment (A'»o« v. Cottee, 1(J Bi-av. 81). And in 
Jones V. FurixU, 1 De 0. & J. 208, Lord Crau worth 



COSTS OF THE ACTION'. 129 

held that tlio plaintiff ought to pay the costs of part of 
the case, auJ was entitled to receive the rest ; " but," he 
added, " ray experience leads me to say that such a dis- 
tribution generally leads to a great deal of unnecessary 
expense to both parties, and I think the best practical 
course is to cut the knot by saying that there shall be no 
costs given or received ; " and see Bon'cr v. Cooj^er, 2 Ha. 
408,410; Tanna- \. Hcanl, 2-3 Beav. .555; Baidart x. 
Tennant, 10 Eq. 141; Dichw Brooks, 15 Ch. D. 41 ; 
Metzler v. Wood, 8 Ch. D. 006. 

Where an apportionment of costs is directed, the order Apportion- 
may be framed in one of two ways. In one way it may be i. indiuiing 
so expressed as to involve an apportionment of the whole r'"'M><^rtion 
of the general charges ; in the other way it may be ex- gcnemi 
pressed so that the exception only extends to the excess of thrsiiit" 
fxpense incurred in consocjuence of the excepted matter 
(1 Smith's Ch. I'r. 1()^'>). Where the exception is of "so 
much of the cuMs of (he suit as," »ltc. ; or the direction is to 
" tax the costs of the plaintiff of this cau.se, except so far as 
such costs have been occasioned," «.^-c. ; or, " that the plain- 
t iff's action, so far as it seeks relief on the footing, &c., be dis- 
missed with costs," the general chari,'os arc apportionable; 
.'^ee HehjhnKjtonv. Grant, 1 Bcav. 2i}0; Proad v. Bides, W. 
N. (1866) 22 ; U W. W. Wi) ■ 1 Smith's Ch. Pr. 108.5, 1086, 
and the MS. ca.scs there cited ; and Seton, pp. 117, 118 ; 
forms IG, 17, 18. On the other hand, a direction to " tax ii. not in- • 
the costs of the plaintiff (or defendant) of this action, ^" '"jiJ'[.^j,f 
except so far as such costs have been increased by," &c., t^« genonvl 
followed by a direction "to tax the costs of the defendant 
(or plaintitV) so far only as the same have been incri-ased 
by," &.C. (Seton, p. 118, form 19) ; or an onler dismissing 
so much of the information as seeks," Sec, without costs, 
and directing that the defendant should pay to the in- 
formant "his costs of the suit" {Attorney-General v. 
J.ord Carrington, 6 Beav. 454) ; or a direction for the de- 
fendant to pay to the plaintiff " so much of the costs as have 
been occasioned by," kc. {Morris v. Simmons, 1 Smith's 

K 



!;{() COSTS OF AN ACTION GENEHALLV. 

C'li. Pr. lOM), n. 7), tl<x« iK't iiiv..lvo ati aji|H,rtionineut of 
the general charges. 

In Jiegbie v, Fenwick, Fcmvicl: v. Jiegbie, G Ch. 869, 
original and crofw suit.i, a clocrce madtr in l»oth dismissed 
the liill in the* st^Tond suit \\\{\i costs, so far a.s it sought to 
set aside certain securities, and ordered that the costs of 
B., the plaintift' in the first suit "so far as tho same have 
been increased by the answer of F.," the plaintiQ' in the 
Bccoud suit, should be taxed and paid by F. to B. It 
was held that the costs of so much of B.'s bill as was 
directed to antici|)ating F.'s answer were included in this, 
and that the costs of the hearing mu.tt bo ap{Mtrtioned in 
like manner. In the cross suit the bill, which was for two 
objects, was, as to the first, »li- ' -i-*, and F. 

hiul to pay a pri»|>ortion of tK' _ : the suit, 

following lle'ujUiugton v. Gntnt, 1 Beav. 230; Ifunly y. 
Hull, 17 Beav. a:.'). 

In an action for an injunction the plaintifT succeeded 
(»n one of the three points in issue and failed on the 
other two ; an order was made to tax the costs of the 
ilefentlant of so much of ill' ' ' '' ! ! • d, 

and t<» lax the cost.s of the ]•. n, 

with a set-oflf of the costs of the plaintitT against those of 
the defendant ; under this order the taxing-master taxed 
the costs as a whole and ap|)ortioned them in thirds 
between the parties, allowing the plainlitV oue-third and 
the defendant two-thinls ; the plaintifT objected to this 
mode of taxation, and contende«l that i ' * i ought to 
be gone into and allowe*l to each |>arty ^ as it was 

incurred in resjK*ct of that |Kirt of the claim on which he 
had succeeded. The taxing-master overruletl the objec- 
tion, sjiyinj; that if it had been intended to give the 
plaintitV anything more than he had alloweil him the order 
would have given him the costs of the action "except so 
far as they had been increased l>v the ad«lition of the 
is>nes on which he ha«l failed;" ami on ap|)eal the judge 
In Id that the ta.\ing-ma,ster wa-* right {Kn'ujht v. Purseli, 



COSTS OF THE ACTION*. 131 

40 L. J. Ch. 120; 28 W. R. 90; W. N. (1879\ 182 ; 

41 L. T. o81) ; anJ see SjKirrow v. Hill, 7 Q. B. D. 362.K6i3Tl/,7^ 
Where the plaintiff in a liglit and air case succeeded as 

to eiglit windows and failed as to five, no costs were given of 
the suit in the ordinary way, but it was left to the taxing- 
master to apportion the costs by finding how much of the 
costs related to the five windows and how much to the 
eight, the balance being paid to the party entitled to 
most costs {Bourkc v. A/cx<ind>'a Hotel Co., 25 W. R. 782). 
And see Cracknall v. Jansou, 11 Ch. D. 1, 23. 

In Umfi'cville v. Johnson, 10 Ch. 580, two plaintiffs 
joined in a suit to restrain a nuisance ; the second plaintiff 
got an injunction, with costs to be paid by the defendant ; 
but as regarded the first plaintiff, the bill was dismissed, 
and the costs occasioned by his being added were ordered 
to be deducted from the costs so to be paid by the defendant. 

Where a claim and a counterclaim are both dismi.ssed '^''*''» ^"^1 
with costs, the plaintitt pays to the defendant the general ei.iim, 
costs of the action, and the defendant pays to the plaintitV '"'.*'' '!"*" 
only the amount by which the costs have been increased with cost?, 
by reason of the counterclaim ; there is no apportionment 
{Mason v. Brcntim, (C. A.) 15 Ch. D. 287 ; 29 W. R. 12() ; 

42 L. T. 72(; ; 43 L. T. 557 ; Saw-r v. BiKon, 11 Ch. D. 
41G; 48 L. J. Ch. 545; 27 W. 11. 47 J ; 40 L. T. 134; 
and see the opinion of the taxing-master in the last case). 

If both parties recover something, the plaintiff on his Costs in 
claim and the defendant on his counterclaim, then, if the counter- 
action is tried by a jury and no special order is made as claims, 
to co.st<?, the plaintiff is entitled to the general costs of the 
action, and the <lefendant to the costs of the counter- 
claim ; .see Balnea v. Bromley, G Q. B. D. GOl ; Pottery. 
Chambers, 4 C. P. D. 457 ; 48 L. J. C. P. 274 ; 27 W. R. 
414; 3!) L. T. 350; Blahe v. Apphyard, 3 Ex. D. 105; 
47 L. J. Ex. 407; 2G W. R. 502; Haiti nan v. Price, 
■11 W. R. 400 ; 41 L. T. (i27 ; Neale v. Clarke, 4 Ex. I). 
280; 41 L. T. 438; Davidson v. Gray, 5 Ex. D. 189 n. ; 
40 L. T. 102 (C. A.) ; 42 L. T. 834 ; Cole v. Firth, 4 Ex. 

K 2 



10*2 rr.sT^ r.F AN ACTIOS CES'ERAITY 

1). :>oI ; H> L T. .s.'»7 ; .SVoo/v v. TmjU,,; .'• g. I). I). *>(;i> : 
49 L. J. g. U s."i7 ; 29 W. R. 49 ; 4M L. T. 2i»8). If. how- 
ever, the counterclaim is not in tlie nature of a cruss- 
action, but is a mere set-off, and the balance is in favuur 
of tho (h'fendant, then it wouM seem that the defendant 
oui;lit to hav<' tho general c«»*.ts u{ the action (litiinrs v. 
Bixynihy). In that case, Brett, L. J,, expre>ise<l a «h*cide<l 
opinion that tho ndo ought to l>e as follows, vi/.. where 
Ihoro i.s a claim with iiisueA on it, and a counterclaim 
(which ix not a Het-off but is in the nature of a cross- 
action) with issues on it, and the plaintiff succeeds on the 
claim, and the di T ' * ' 'i rounti-rclaim. 

the taxation, if no' . I Im* by taxing 

the claim as if it anil its issues were an action, and by 
taxing the cnuntorclaim as if it and its i'inuejt wore also an 
action, an«l the allocatur for cant-s nhould bo given fur the 
balance in favour of the |virty in whose favour is such 
balance ; the master on taxati«)n dividing items which an* 
ciinnion tolK)th art- ' IT ' rfieiil y. Hi-^idnum, 

n (,» \\. 1). :\'ir,; r l <'. p. n. 4^9; 

•J7 W. i; 7..(i 

The County Courts A<t. Isu7, • not apply to 

coimteiTlaims at all (///<iX<* v. Api>l- , . . 
setoff. Where the costs i»f a suit hml been apportione*!, so that 

costs were jm'ablo by tho plaintiff to the tl.ft-ndant and 
also by the defendant to tho plaintiff, it was the practice 
in the Court of Chancery to direct the one set of costs to 
be set otT against the other, and the balance only to U? 
paid. This rule has been adopted umKr the new pro- 
cedure ; and it is now provided (K. S. C. (Cost**) Sche<l. 
r. 19) that in any case in which a party entitled to 
receive costs is liable to pay costs to any other party, the 
taxing officer may tax the o">sts such jiarty is so liable to 
pay, and may adjust the same by way of deiluction or set- 
otV, or may. if he shall think lit, delay the allowance of th*- 
costs such partv is cntitleil to Voce ive until he has pai«l or 
t. n 1.1. d fli.^ (..>.f< li.' i- liable to pav: or such oftirer may 



COSTS OF THE A( TIOX. 133 

allow or certify the casts to be paid, and tlie same may be 
recovered by the party entitled thereto in the same 
manner as costs ordered to be paid may be recovered. 
An order to set off may be obtained in chambers 
{Robiirfs V. Buk, 8 Ch. D. 19.s). For forms, see Seton, 
pp. 117, lis. 

Where money is payable by the defendant to the Sct-ofT 
plaintiff, and costs are directed to be paid by the plaint it^jj^j^j^j.^ 
to the defendant, or vice versa, the costs may be set off ™""<^.v 
.i<Tainst the money; see Cooper v. Pitcher, i; Ha. 485; ' 
Pringlr v. Glnioj'w Ch. D. (uG; 48 L. J. Ch. 380 ; 27 
\V. R. .574; 40 L. T. '^l'2, where the money was payable 
by the plaintiff nnder an award, and the plaintiff had 
abscondetl ; and see the cases occurrin<^ in administration 
actions, ;)u.s/, p. IflO. N(»r is the ri<,dit to set off inter- Not inter- 
fered with bv the ordinary .';t)lieitor's lien for eo.sts (Prin<iU' [^^'^'^'^}^^ 

-' ^ *' by 80I1C1- 

V. (iliHif/ ; liahtirtx V. liuer, 8 Ch. 1), 11»,S; McrCCr v. tor's lieu. 

iirnve^, L. K. 7 (^ V>. 4!»l>) ; but see ex parte Cleland, 2 Ch. 
808. But co.>ts will not be set off against sums due on an 
unascertained account [Wliallrif v. Rifinn'fr, 8 L. T. 40!)). 
Ill Wriff/if v, C/inril, 1 Drew. 70-, where the bill was 
dismissed with costs as aj^aiust husband and wife, (ktVnd- 
iug jointly, so far as it charged the- wife's separate estate, 

in<I other payiiienls were ilirected to be made b\ the 
iiusband, it was lieM that the costs being payable on the 
husband's .sole receipt (see i>osf, Ch. VI., s. VIII.), a sct-otf 
aro.se. Costs payable under different orders in the same 
.suit may also be set off against each other. In Jir>/<iii \. 
Saloon ()innil>iiH Co., 4 Drew. .'}4(), the j)laintilV liad been 
ordered to pay the costs of a motion in the cause refused, 

'lid suUsequently the defendant had to j)ay to the jjlaintitV 
other costs; e.xecution having pn.'viousjy i.ssued for the 
first set of costs, it was held on motion that the defend- 
ants were entitled to a .set-off on their undertakinjj: not to 
levy more than the balance. In CatiuU v, Siiiioiis, G 
Beav. 304, costs ordered by the Master of the Rolls to be 
paid by the plaintitT to the defeudaul were ordered, on 



131 



C('8TS (<r AS ACTIOS GESEItAl.LY, 



Where 

kccitictt- 

oniittfNl 
from tho 
docrw. 



motion before the Master of tlic RoIU, to be set otT apiinht 
costs oidereil by tin* Loni Chat " * ' i»ai<l by tho 
(lefcnclant to the plaintifT. In i >> v. Civnley, 

'A K'[. lUn, costs of a suit were set off against cost« of a 
Kununons to vary a certificate ; ami see Rit^ntrts v. T 
.S Cl>. \y. lOH, where the defendant chanj^cd his soli .. . 
between the two orders. CostA |)ayable in two 8tiit« in 
Chancery, in which the same ctttato wai» beinjj vA- 
niinistore«l, c«iid«I Ik? wi-t ofTone H^'ainst t' *' r i/^r v. 
Pain, 4 Ha. •J'i*»» ; but not thr cornts of . .: linst tho 

coots of an action at law between ihc same parties, 
{Wrltjht V .Vw'/iV. 1 S. A S. 206). Tlio fV.urt of V ' 
ruplcy follows the practice of the ohi Court of Chai. 
in this respect; neo ex ftarte Orijfin, in rt Adams, 14 
eh. 1). 37 ; ll* L. .1. Kkcy. 28 ; 2.H W. K. 714 ; 42 L T. 
704, wluTo the Court of Ap{X'a] refus<il to allow the co<its 
of pnxMiilings in the Queen's IVnch Division to bo set off 
apainst costs of proceedings in l»ankruptcy. Nor ift there 
any right of s<-t-olf undi-r r. 1I>. s 

hap|x;n to bo the same, the pro. . ^ u 

arc incuiTCtl arc really s(>|>arato and distinct {Barleer v. 
Jlrmming (C. A), 5 Q. B. I). (309). 

After a decree was passetl, tho Court n-fu^ctl on pctilinn 
t«» give a dtftiulant, wIio.hc co«ii» were acciihntally oinitlrd 
from the decree, his co8t« of tlic suit, although ho was a 
mere trustee, and would have l>een ' ' m 

(Cu/m</n V. ^•arc7/, 2 Cox, 200). hi A. >; 

(2) 27 Beav. -171, the costs of certain parties were 
ordered to be |vud out of a fuml, previoiLs to its distribu- 
tion, to a firm of solicitors, who had acte«l for thera since 
1S40, but were not their solicitors on the reconl ; another 
linn who ha«l acted till 1S40 and had not been changed, 
haviiig IkuI no nftice till the fund wa.s di.stribulcd, obtained 
on jK>tition an order for the p;iyment of their co.sts by the 
beneficiaries. As to the means of recovering costs re- 
ser\ed till tho hearing, and then omitted to be disposed 
of, see ant(\ pp. 41>, ')0. 



COSTS OF TUE ACTIOX. 135 

The mere fact that, after action brought, the defendant Whether 
has conceded to the plaintiff the principal relief sought, '^^ jj'"J^"^ 
does not disentitle the plaintiff' to bring the action to trial o^^ *'^o 

e t r • y • ^ i question of 

lor the purpose of getting his costs ; but where the costa alone. 
parties Iiave compromised the action, so that everything 
is settled but the question of costs, the Court will 
refuse to decide the question of costs at the trial : 2>^'' 
Jessel, M. R., in Ston- v. Corponition of Maidstone, 
W. N. (1S7.S) 211) ; and sec further on this point, Bobcrt.t 
V. Bof)€rts, 1 S. & S. 3!) ; Gibson v. Lord C)'(inlri/,{j Mad. 
365 ; Whafle>/ v. Lord Sujffield, 12 Beav. 402 ; Kellij v. 
Hooj^r, 1 Y. i^' C. C. C. 1!»7 ; FradcUn v. ^Vdhr, 2 R. .t 
M. 247; linnjcsH v. Jlills, 2(! Beav. 244; BunjCiis v. 
Hatdy, ibid. '1\\)\ Morgan v. Great Eastern lit/. Co., I 
H. »t M. 78; Grilfin v. liradi/.SO L. J. Ch. 13() ; 18 
W. R. 1.30. But the j)laintitf should imt iuing the cause 
to a hearing, without tirst applying for the defendant's 
consent to have the costs disp<xsed of on motion ; see ante, 
p. 7h. AViiere the matter in dispute inis been deter- 
mined otherwise tlinn by the parties tliemscivcs, the 
Court will always hear the cause for the purpose of deter- 
mining the question of costs (Lamled Estates Co. v. 
Weeding, W. N. (1.S71) 14MK 

As to what costs are included in the costs of the action, What mo 
see " Costs of Demurrers," ante, p. 2(1 ; " Costs of Amend- Srac'tion. 
ments," o»^', p. 32; " Costs occasioned by scandalous and 
embarrassing matter," ante, p. 3(i ; " Costs of Motions and 
Petitions generally," ante, p. 4ti ; " T.ixation of Costs," post, 
ch, VIII. The costs of speaking to the cause on minutes Cost*of 
may also bo inrluilcd in the costs of iIk' cause. " Jf there ''P<''»'*'"g 
is fair ground fur the a])plication, and there has been no minutcH. 
improper opposition, the costs arc usuallv made costs in 
the cause ; and the decree, &c., is often post diited, so as to 
include the costs of the day." — Seton, p. 1 540, But a party 
moving to vary the minutes as settled by the Registrar 
does so at his own peril as to costs {Prince v, lloinird, 14 
Beav. 208 ; lirHish Dynamite Co. v. Krch.-^, 2.') W. R. 84G). 



13G rOPTS OF AS ACTIOS GENERA I.I-V. 

Where If tlio i»Iaiiilirt' does not apj^onr wluii llit- a<t:'>n is 

nlXs" called (.n for trial, the (kfcMidaiit, if he haj> no counter- 

.i.fntiit at claim, will lie entitled to jiulj^ent, dismissing the action 

the truL ^.^j^ ^^^^^ (R. S. ( '. Urd. XXXVI. r. 19 ; FarrcU v. WnU, 

3G L. T. 95) ; without proving that he has liccu served 

with notice of trial (.hnnfs v. Crov, 7 C'h. D. 410; 47 L. 

J. Ch. 2()(); 20 W. K. 230; ;}7 I.. T. 749; Hotmin v. 

linhnnn, 22 S. J. 7<» , AVy/*/ ' ' 7 Ch. I). MWl; 47 L. 

J. l'.k< y. 24 ; 20 W. U. 22:» , ■ • . Joy«r. 7 < 'h. D. .'>C ; 

47 L .1 Ch. 148; 2G W. R 41 ; 37 L. T. 42«, is overruled 

Test action, on this point). A to«t action ha.s Wen disnii.s.Hotl with 

cost« under thin Order; see Hohiuson v. Chudwick, 7 Ch. 

D. 87H ; 26 W. R 550 ; but anotlur may be suUlituted 

for it {Amo8 v. Chculwkk, 9 Ch. D. 459; 2G W, R H40; 

39 L. T. 53). In fl ' ' ..... .y 

in such an action hi . t 

costs by the other plaintiffs (ibid.). Where the action 
had abated by the bankruptcy of the sole plaintifT, and no 
notice of thi* action had Ix'en hcrvrtl on the tru.stee, the 
action waji hiniply struck ont of the li.-it {KUh'idtjt v. 
Jiurgcs«, 7 Ch. I). 411). If the defendant has a counter- 
claim, hf must, in order to obtain i ' ! uu it, prove 
KUth claim *»o far as the burden o! . • s ujion hiin 
(R S. C. Onl. X.XXVI. r l:» For the fonuer practice, 
where the plaint ilT mad«' default at the hearing, sec 
Beame.s, 23C : Snuth'sCh. Pr. C05 ; Z'^". v A'' ' - M ..1. 
21 ; JiiHjers v. 6'oo/y, 17 Ve». 130. 
VThcre Similarly, if the plointiff ap|>ears, and the defendant 
dcfoH.iant I jj^. jjj^. plaintiff mav prove his claim .so far as the 
dof.viit at burdon of proof lies on him i^R S. C. Onl. XXXVI. r. IH); 
* ' '"** ■ aji'l the Court will then give him such decree as he may 
be entitled to. The plaintiff nted not prove service of 
notice of trial {Charlton v. Dickie, 13 Ch. 1). 100; over- 
ruling Cix'L^hvtt V. lA>ndon Cab Co., 47 L. J. C h. 120; 
2() W. R. 31). In Williams v. Brisco, 29 W. R 713, a 
defendant obtained an onler to set aside a ju«lgment 
which had been entered again.st him in default, and 



COSTS IN CHAMBERS. 137 

liberty to appear and defeiul the action, upon tlie terms 
of paying to the plaintiff" all his costs of the action sub- 
sequent to the delivery of the statement of claim. As 
to the former practice, see Hakewell v. Webber, Ha. 
541 ; Browne v. Smith, o Jur. 119-3 ; and notes to Cons. 
Ord. XXIII. r. 12, in Morgan's Ch. Act.s and Orders, 
4th ed. A.>< to the terms on \vhich an action dismissed 
for non-appearance vf the plaint iti" may be restored, or a 
judgment obtained through non-appearance of the defen- 
dant may be set aside, see ante, p. Of. 



Sfxt. X. — Costtf of Proceedintja in Chamber.^. 

If any party appears upon any application or proceetl- r.irty im 
iuff at chambers, in which he is not interested, or upon Py^T"!-^ 
which, accopling to the practice of the Court, he ought « ill got no 
not to attend, he will not be allowed any costs of such ap- ,ioing. 
pearance, unle.s.s the Court or judge shall expressly direct 
such costs to be allowed (U. S, C. (Costs) Schcd. 
r. 21). And by Cou.s. Ord. XL. r. 2n, parti<«s attending 
proceedings in chambers without previous leave (»f the 
judge, get no costs unless by special order. 

To entitle a person interested in an administration Spnial 
action to the costs of atten<ling proceedinf(S in chain- "7/ ^^i'" 
bers under the decree, he must attend by special leave 
of the judge ; if he attend under the common order 
without special leave, he may be ordered to pay not 
only his own co.st.s, but also the e.xtra costs occasioned 
by his attending unnecessarily (Shurjf v. Lush, 10 Ch. D. 
4G8 ; 1^7 W. II. :)2.S ; Re .}faniluill, lioirijer v. Marshall, 
\V. N. il.sT'.b, 12; and .see \l S. ('. Ord. XVI. r. 12b. 
(April, US.SO), poiil, p. 1 <»()). 

"The law stands in this way, that any persons in- 
terested wIk; ought to be served can, under the general 
practice, attend, as of course, the })roceedings ; but that 
does not entitle tliem to the costs of attending. That 



138 COSTS OF AN A<^TIOS GF.NFnALLV. 

is (k'terniiiicd l»y tlic judge in chambers, who, under a 
general order,* decides Avhat parties interested in the 
estate shall attend the taking of the accounts at the 
cost of the estate ; that is the subject of a sj>ecial ap- 
plication. I cannot prevent anyb<Mly attcn<ling the pro- 
ceedings ; if there were tifty |>eople, I could not prevent 
them instnicting fifty solicitors to attend all the pro- 
ceedings ; but if they did, they wouhl not only jwiy their 
own costs where I found forty-eight of tliem unnece«- 
sary, but I shoidd njake them pay the extra c«»sts 
occai«ionc<l by attending unnecessarily. That has always 
l»een the practice in my eliaml»or?* since I have had the 
honour of sitiih',' Int.- "' tSli't,i> v I.n-li 10 ( *h 1) 47"^ 
/M-r Jesse), M.K 

By Cons. Ortl. XXXV. r. 20, the judge may uumtnati; 
one solicitor to represent a class ; and any nn-ndwr of the 
class who insists on l>eing reprcscnteil by a diflTcrcnt so- 
licitor must pay his own solicitor's costs, and also all the 
extra costs «M-. : by his Wing s<|virately repn*- 

sented ; ami s' , p. \>^*K If the -ame solicitors 

appear foi different parties in the same suit, the costs of 
only one attendance in chaml>eni can be allowed ; but 
the solicitors may have separate sets of costs of briefs to 
ctuinsel, and fi>r ciwts out of chaml>€rs (linncn v. Gel- 
hithj, W. N. (1HC7), 190; 16 W. R. H87 ; IG L. T. 553;. 
And where a receiver pa.sj»ed his accounts in chanil)ors. 
an<l the same .st»licitor ap|K«are<l Inith for him an«l for 
one of the parties in the suit, only one copy of the 
account was allowed (Slitirp v. Wvlglit, 1 K<j. 034). 
CoiU of The costs of counsel attending at chambers will not be 

Mt"ndinc nllowcd, uulcss the judge certifies it to be a proper ca«e 
fti fhi\m. f^^r counsel to attend (H. S. C (Costs) Sched. r. 14). 
This rule is from Cons. C)rd. XL. r. 29. Costs of counsel 
are allowed in all cases at the Rolls without certificate, 
except in applications for time [Webb wfitzgemld, W. N. 
(1875), 244). 

• Cous. Ord. -\.\XV. r. IC 



COSTS IN CHA^ICERS. 139 

Wljere a summons is adjourned into Court, the Court Where a 
is to be understood to certify that it is a proper case to^^T""""^'* 
be heard by counsel, unless the contrary is stated (Gre- '^ntrcourt. 
ville V. Grcville, S W. R. 130; o Jur. N. S. 1237; Graham 
V. Graham, Johns. 624). On an adjournniont from eham- 
bers, costs are reserved without express iliroction {Wallis 
V. Bastard, 2 W. K. 47 ; and see Leeds v. Lcwh, 3 Jur. 
N. S. 120O; Dickrn v. JLnner, 2 L. T. 276). Where the 
summons was adjourned into Court, and the point was 
then considered unarguable, the costs were maile part of 
the costs of the proceedings in chambers (lie Mitchell 
33 J.. J. Ch. 187; 12 W. R. 30; L. T. 282; 9 Jur. N. S.' 
1272 ; but .see Clark v. Siynpsmi, 17 L. T. .5.")I)). 

Where a .Simmons, wiiidi ought to have been brought 
before the judge personally in chaml)ers, was adjomned 
into Court at the suggestion of all parties, V. C. 8tuart 
not only did not make the party taking out the summon.s, 
who entirely failed, pay costs, but gave him £5 for costs 
{HallUcj V. Hrndtrsiin, 4 Jur. N. S. 202). 

Where defendants, who had been ordered to produce 
document.s, omitted, in their original affidavit, to state 
their desire to .seal up j.art of a buok, the costs of a sub- 
sequent summons fur leave to do thi.s, were made costs in 
the cause {Talbid v. MarshficUl, 1 Eq. G). 

If an adjournal summons is refused with costs, this in- co.,t5 
eludes, as a rule, not only the costs of the adjournment '^''<^'"<' 
into Court, but also the costs uf the summons in chambers rcfuscT 
(Re Ijistone Park Co., W. IS. (1.S70). 7 ; is \V. K. i>s.-, ; 
Beach V. Slrddon, 3J) L. J. Ch. 123; .1A«(/,- v (,/// •>!' 
L. T. 7<>4; W. N. (IWU), 27()j. 

Costs follow a reversal of a decision of a judge at cham- 
bcrsi (Frirnd v. Lumlon Chaihaiu <t- Dover Rail. Co. 
2.-) W. R. 73:.). In Real d- Personal Advance Co. v 
McCarthy, 14 Ch. D. 188; 28 W. R. 418; 42 L. T. 48, 
where the defendants had offered in chambers what the 
Court considered j.ropcr term.s, the plaintiffs were ordered 
to pay the costs of the adjournment into Court, 



»fi«n<lonc<l 
tiummonji 



110 COSTS OF AK ACTION GENEltAI.I.V. 

\Vli( TO the clji« f cK rk'h cortifiaito \va,s rcftrro<l luick to 

liiin, and subsctjuently cunlirnicd, the Court under the 

circMnisLances refused to make any order as to the costs 

of tlie Mimmons and subsequent references {Kdhj v. 

Hoihn', 2'J L. T. :j.s7i. 

Conu of The costs of a summons taken out ami abandunc*!, 

must be paitl by the i)arty taking it out (Linter v. licU, 

7} Jur. N. S. II')); and see Tucker wJIcrmnnav, -\ L J. 

i;h. 4.')(;. 

Where As to attendances At judges' chambers, where by reason 

«"""n."iX of the nun-att<'ndance of any party (and it is not con- 

pn^wfU-l j^idered cxp<'<lient to pnx*tH.'d »v ]xirlf).i*T where by reason 

through of the negh'ct of any jxirty in not Wxug pre|)ared with 

"ttf (I ""y P'^^M'*^'' fvidenoc, account, or other proceeiling, the al- 

or nptlcrt tcn«hinci' is adjuurncHl without any UM.-ful propres« l»oinjj 

of « i^nriv. ,,„nj(. (|„. jud^'e may onUr hucli an amount of co*l> (if 

any) as he sliall think reasonable tu bo paid to the {tarty 

attending by the jMirty >«» abr%«nt or "'\\, or by his 

solicitor jHrsonally ; and the party • ..i or neglectful 

is not t«) be allt)wed any fee as against aiiy other party, or 
any ctttate or fund in which any other party is interested 
(U. S ('. (Costs) Sthetl. r. II). Thih rule is from Cons. 
Old. XL r. ;J1 ; and .see also Cons. Urd. XXXV. r. II. 

As to the |K)wer of the judge or master t«i allow extra 
fees for long attendance at chamln*rs, «)r for eases of diffi- 
culty, see H. S. C. (Cost>) Schetl. r. H» ; and as to co.-t.s 
of uuni'ce.sMvry or impro|)or matter, see ibid., r. 18, untr, 
p. :V.y As to the costs of cretlitors proving their claims 
in chambers, ."Jeo Cons. Onl. XL rr. :i4. '2.'i, jHj«t,i'\i. IV., s. 
II. As to the costs of members of a class or next-of-kin 
proving tluir titKs in chaml»ers, see poet, ibiJ. As to 
the costs of a purchaser in a sale under a d« ■ ', 

Ch. VI., s. X. And as to liie co.-ts of j»iuC' _ r 

the Companies Acts, see jH>8t, Ch. \' . - 1. 
An»no.v r-.v K. S. C. (Costi>) ,^-hed. r. iia. (April, 18M)>. the 

tionsfor j^ ^^f .^n application for further time, iu the absence 

tunc. II 

of any order, are in the discretion of the taxing master. 



COSTS OF APPEALS. 141 

SkcT. XI.— CcWs (»/■■ .4^)^/(v/.s-. 

1. — III the Court of Appeal. 

By H. S. C. OrI. LVIII. r. 15, "such deposit or other Security 
security for tlio costs to be occasioned by anv appeal shall ^""^ '^^^^ °^ 

bi • 'f ^ rr appeal : 

e nia.le or given as may ho dircctod under special cir- ll. s. o. 

cumstances by the (.'ourt of Appeal."' Tnder this rule Lvii, 
Beciu-ity lor costs has been roiiuirrtl in the follow i n q- i- !;'•• 
cases -.—Wilson y. Smith, -2 ( "h. L). (17 ; 4.'> L. J. ( 'h. (i[)-2 ■ i^y]!" 
24 W. R. 421 ; .*U L. T. 471, where the special circum- 
stances were the appellant's poverty, and the ,<,aeat length 
of the evidence; Clarke) v. Roche. 4(i L. J. Ch. :?72 ; 
2.-) W. R. .SOD ; :u\ r.. T. 7S, where a Countv C'ourt iudge 

•■•JO 

was a resjMindent, the appeal was a .second appeal in a 
County Court matt<'r, and had been twice argued before 
the ExchecpU'r Division, and the appellants had failed to 
pay taxed costs already incurred ; Wa,hlell v. Blodeif, 

10 Ch. D. 41(; ; 27 \V. R. 2;W ; 40 L. T. 2.S(;, where thJ 
appellant w;is insolvent, and three a|.p.-als h.id b.-en 
brought when (.ne would have sutHced ; Wii'iitn v. Church, 

1 1 Ch. I>. .')7ti ; 27 W. R. S4.'i, where in a heavy case the 
ippellants were ordered to pay £200 into Court; Smith 
V. White, W. X. (1S7!)|, 2on. where there had been great 
delay in pro.secuting the action ; Stoi'/c v. Hoopers Tde- 
(jraph Works, W. N. (l."S7G), 230; Re Tees Bottle Co., 
20 S. J. .-).S4. 

It makes no dirterencc that both parties are appealiu"- 
{Deuce v. Afason, W. N. (l,S7l»), 31). 

The fact that theap])ellants are foreigners not domiciled Api.elknt 
in Kngland is a "special circumstance," entitling the j^^'S'i 
respondents to security (Grant v. Banque Franco- ^^^'>^^- 
t:<jyptienne, 2 C. P. D. 430 ; 47 L. J. ( '. P. 41 ; 2G W. R. 
li« ; 3H L. T. 022; Xnersnoss Shijtpimf v. Ro)jal Mail 
Co. \V. N. (1.S8U), 133). So where the appellant is 
resident out of the jurisdiction (Re Kathleen Mannirneen 
W. X. ris7M), 21o). 



11-2 fOKTS or AN A« rioS OESERALLV. 

Inuolvent If an :i)i{>4llaiit is insolvent and the Court is of opinion 
•M* nt. ^j^^^ j^^, j_^ vexatiously and unroasonaldy prosecuting the 
ap))oal, ho will he ordered to give security ( Usil v. BrtaAey, 
3 (;. P. I). 2(K; ; 2(] W. II. :M\). Wlure the ipitsti.m 
at issue ha<l n<»t Imou j>reviousIy considereti in a ( '«»urt of 
Error, the Court of Appeal refused to onler an insolvent 
appellant to give s«'curity {Rourke v. White Mom CoUUry 
Co. 1 C. P. D. 550). 
VotcTij of 'i'Ij^j iiK-rc poverty of the appellant, it is now Rottlc*!, is 

nii|*fllAnt. . ,-' ., •/»» It 

sumcient groun«i for rc«piinng secunty (//« Ah/i- 

Urnj. 1!> ( 'h I). Hi ; :W W. U. 1 12 ' 

Smith, \V. :<. '\SS0), lOi. An api 
liahlc to give security ought t«) oflfcr it without waiting for an 
application to lie made l«i the ( ourt, and !«uch off»>r. 
nhlf, ought to Ixj a4-cepte«l. If afterward-* an apj... 
is nia<le to the <'ourt, the Court in dealing with the 
will consider whoM conduct made the application n« . . 
nary (The Cou.'^t '' 'V !' ' ' ' 27 W. It 7*7). 
At>v>e9J Wherever an nding up a ciin)|)any 

wl'nJing u|i '""^ hccn Hiadc, and that order is appealed fmm hy the 
onlcr. c«»m|>iiny itstlf, withont any«'; 

for costs, the Court will W i — . , , 

tion for security (/a re Diamond Fuel Co., 13Ch. I). 4(KJ ; 
2s \V. U. 3(H>; 41 L. T. 373). 
Apptica- An appli ' ' '^ity nmst alwav> in- n».i<ie- 

be tujulo promptly, < U* nfusid ff «>r;vmi/io7i of 

pwnipUy. SnUaaJi \\ (iowhnan, W. N. (1880) 107' 

In (ritiiit V. liiin'/ur Fiiiuco-I' 'if, I C P. I>.143 ; 

2i \V. K. 331) ; 34 L. T. 470, it w.u ... . aat after the cost^ 
incident to an appeal had l)cen actually incurred by the 
respondent, and after the time had been fixetl for bearing 
the apjHal. it wa= too late to apply for security; and see 
/;./• ^Kuti' //»//«7u';m o)hI Homer, \V. N. (ls70), 91). The 
applicant must of course make good the grounds on which 
his application is liased, otherwise it will lx» dismissed 
{Potter V. Cotti.u, W. N. (1h70), 204). 
OrJcr It is not the practice of the Court of Appeal when order- 

to v;>*'« 



COSTS OF AITEALS. 14B 

ing an appellant to give security for costs tu fix a time security 
^vithin which this is to be done {Polini v. Gray, Sturia y-^^u\[ed 
Freccia, 11 Ch. D. 741 ; 28 W. R. 81; 40 L. T. 8C1, ^'t^ 
explaining on tins ponit, in re li'orii, 10 Lb. D. 3 / 2) ; reasouuUo 
if the orJor is not complioil with in a reasonable time, the ^""*^ ' 
resjiondent may move to dismiss the appeal for want of 
prosecution; but what is a '' rea.sonable time,' must de- ,., 

1 ' 'or tlie 

pend on the circumstances i>f each case {Polhii v. (rrai/. 'UM'^"'* 
Sturia V. Freccia ; Vale v. Oppert, 5 Ch. D. G3.S ; "2 ") W. R. ais,„i^ed. 
010). "Where an appellant had neglected to com))ly with the 
order for nine mouths, the appeal was dismissed with costs 
for want of prosecution (Judd v. Green, 4 Ch. D. 784 ; 
4(; L. J. Ch. l>:.7 ; :2-. W. R. 293 ; S.') L. T. 873) ; and see 
L\c jHirte [sii'irs, In re liiium, 10 Ch. 1). 1 ; 47 L. J. 
Rkcy. HI; 27 W. R. 2U7 ; 3!) L. T. :)20 ; Kanitz v. 
ScurboroiKjIi, W. N. (187vS), 21(!. <»" o>^<6*^u.(^ o*^ h l\r 

Security may bo ordered either by payment into Court ivounty 
or by bond with sureties {Phoaphaie Seirage Co. v. JIart- ''^''*' '"^ ^ 
nioiU, 2 Ch. I). .Si 1, where security was ordered to be given 
for £2(M), the costs of the ai)plicali«»n to follow the costs of 
the appeal). 

It is not necessary to obtain leave to serve an appellant 
with notice of motion for security for co.sts (Grills v. 
Dillon, 2 Ch. 1). 32.-. ; 4:. K. J. Ch. 432 ; 24 W. i:. 4M ; 
34 L. T. 781). 

The Court of Appeal can •re(juire such security as it iiankruptoy 
thinks fit to l)c given for the costs of a bankruptcy appeal, •''i'i>«»'- 
notwitlistanding rule 145 of the Bankruptcy Rules, 1.S70 
{Ex parte Isaacs, in re Baum, 9 Cii. 1). 271). 

Upon an appeal from the Admiralty Division the Aamimlty 
Court of Appeal refused to order the defendant to give ^Pl'^"'''*- 
security fur costs, although his ship had been arrested and 
released on bail, and he had obtainctl a stay of execution 
pending the appeal {The Victoria, 1 V. 1). 280; 24 W. 
R. 590). 

Under the ])ractice in chancery a deposit of .€20 was pormpr 

required in all cas.-s win it- a p.'tition <if aiipi;!) ,,r re- P'-'"''''-''-' '" 

chancery. 



Ill ((»1> i'.| \S \. ;ir.N- «^>VskI: vl.I.Y. 

luariiig was |»rts«.ijlctl, bui ilti.-» aiat»wj»l imglii l>c iiicrca.se«l 
in u |)iop-r caKo ((\irpoi>>f'<'' •>'' /A'«'<'";- v J>;iU 
U Cli. 7')S). 
R. S. c. ]iy R. S. C. Ord. LVIII. r. b, the Court of Appeal has 

^'^l 187i'' p<^>W(r to make sucli order a.s to tlio costs <»f t!u- ap|»oaI as inav 
A Mirr.^.. sfiiii just, "rndt r till' h<\v law costs arc in tin* tli>crcti«»u 
fill a,.iKii. ,^j- ^|,p (j,j„rt ; and thu opinion of llie judge«of the Court of 

mil will, M , 111 - • •• n 

A K^MH-ral ApjXial is that,asaj(cnoi-al ruh', thi- ^ 11 

ruu-.n.t j,t.i|,iHCi>Ht.H. ThcoKlnilcof thi.sC*. . .— 1 - : il 

lilt OMt*. f^ 

ap|K-llaiit haii to boar hin own Ci»i», is uo longer to be acted 
u|K>n unless the particular Court in the particular case 
shall make an order to the contrary;" Mminntudum 
1 Ch. D. 41, /xtr Janus, L J. ; Oliixtnt v. Wriyht, 45 L. J. 
Ch. 1. And see Ci-aclruaH v. Junson, 11 Ch. D. 1. 23; 
27 W. R h.')! ; 40 I^ T. CH) ; and for the furuur pr.i. 
Denny v. llnnccHk- (N«>. 2) U Ch. 138. The rule nj ; 
to A«lniiralty appeaU (The Condor v. Titt Smtnaea, W. N. 
(1879), G7; The City of Bei-tin. 2 P. I). 187; 2:. W. K. 
7H.'l); to appeals from the Palatine Court (AndcisuH 
V. Wchhy, W. N. (\S7C,), 2:U); and see Ue v. XnlUdl, 
\'2 « "li 1). r.l : I.. County Court ap|K>alH {AtJiiy v. S<dtj- 
ir/VA, ].'» Ivj. 24.'>); an«l to liankruplcy ap|M-als [K'r jnirlf 
Muaters, 1 Cli. D. 113; 43 L J. Hkoy! 18 ; 24 \V. K. 113 ; 
33 L. T. G13). But a trustee in kinkruptcy who is respon- 
dent to a successful ap|>cal will not be onlered to |Miy costs 
personally {Kx ixtrtr .V/<iy>/r/on, In »r yuOmn, 10 Cli. D. 
.')8(i). An ap{xllant who faiU-d in proving allegations of 
fn\ud, but succeeded on a mere point of law, vcus deprived of 
\ns coaU {Kx jMwte Cinq>cr, in >v liauini,\Oi'\i. I). 3I3);and 
si'O in tt Harrison, 13 Ch. 1). (103. Ami in gonenil when an 
a|>pellant succeeds on a point not raised in the Court below, 
ho will be allowed the costs in the Court Wlow, but not the 
Costs in tlio Court of Appeal ; .sec Ilusscy v. JIurne Payne, 
8 Ch. 1). G70 ; 47 L J. Ch. 7.'>1 ; aft'd, 4 App. Cas. 311. 
In ex park Harris, in re James, 19 lu{. 2o3, an appellant 
who succeeded only on a ground not raised in the Court <if 
first instance was made to pay the costs of the original 



COSTS OF APPEALS. 145 

hearing, 6€d qu. Wliere the Court of Appeal reverses 
the ilecision Ix'low and dismisses the action with costs, 
tliis will not inchide costs incurred in chambers under the 
decree which is reversed ; to obtain these costs a special 
order is uectssary (Mirrsltull v. BerriJije, 19 Ch. D. 245). 

The Court of Appeal cannot annul a direction in a judg- 
ment previously delivered that a third party shall pay the 
costs of the interlocutory proceedings taken to bring him 
before the Court, although by the judgment in the action it 
is ordered that he bo dismissed from the action with costs 
to be paid by the defendants {Beynon v. Godden, 4 K\. 1). 
24(1 ; 4S L. J. Ex. 80). 

An action was dismissed, and as against C. and 1)., 
two of the defendants, without costs ; they both appealed 
on the ground that the dismissal ought to have been 
with costs, anil that an incjuiry as to certain damages 
should have been granted. The plaintitTs gave a cross 
notice of aj)pcal ; the cross appeal having wholly failed, 
and the other appeal having succeeded as to the damages, 
held, that (.'. and I), were entitled to the costs of both 
appeals, but that the Court couhl not vary the order of the 
Court Ix'low as to costs {Grtilumi v. Camj/bcU, 7 Ch. D. 
4D0 ; 47 L. J. Ch. 593 ; 2G W. R. 33(3 ; 38 L. T. 195). 
No variation in the order of the Court below as to costs 
will be made when the appeal is dismissed, even if the 
(,'ourt of Appeal considers that the order wa.s erroneous, 
prtivided that the judge below had a discretion in the 
matter, and has exercised it as he thought right {IlarphaM 
V. ShaHlod; 19 Ch. D. 215). 

A respondent, who, after the time for appealing has ex- 
l)ired, knowingly allows his opponent to incur expense in 
preparing for the appeal, without telling him that he in- 
tends to object that the appeal is too late, may lose his 
costs {in re Blyth <0 Yuinxj, 13 Ch. D. 41G). And if 
a respondent takes the objection that the notice of appeal 
was given too late, and the appeal is dismissed on that 
ground, the appellant will not be ordered to pay the costs 



1 iC COSTS OF AN ACTION OKNEIIALLV. 

of affidavits filed by tia* respuudeijt aflir tlie appeal was 
set down {Ex f^irte Furdmif* Vmegai' Co., In iv Joiifi* 
1+ fli. 1). 28.-) ; 2H W. R.H21 : and soo Mitrhell wVondu, 
W. N. (18hl), 83). 
U. H. C. ]f ,^ rt'spondcnt omits U\ givi- notice tliat wytou the 

LVIII. r. C. Iparing of the apptal he will contend that the decision of 
the Cnuit below shoidd l>e varie<l, this will l>c ground, in 
the discretion of the Coiirt of Appeal, for an adjournment 
of the appeal, or for a special onler as to costs (\\. .S. C, Ord. 
LVIII. r. (j). A re.sjxiiident who has given cross notice 
of apfxal under this ride i« in the same position as to costs 
as if he had presented a cr«»s.H app«al fllnrrinon v. Coru- 
wall MInrnih Jiy. < '.».. IS C'h. D. .S.'H). NVhere there were 
two respondents to an appeal, one of whom gave cross- 
notice of ap|>eal affecting his co-re.spon»lent, the Court 
ma<le an apjxirtionment of the costs of the ap|>eal (ibid.). 
NVIn re in the Court Ik-1ow the judge deprive<l the suc- 
cessful |Kirty of his ca^^ts, and no notice of his intention to 
a.sk for such costs was tjiven by him. it was held that it 
was not ojK-n to him when res|>ondent on the ap|H'al to ask 
for sucli costs (Harris v. Aaron, 4Cli. I>. 74J»; 46 L J. 
( 'h. 4HS ; 'J.-) W. R ;j -);3 ; 30 L T. 43). 

Where the ap|K.'llant gave notice to a respondt-nt whose 
costs the appeUant luul been ordered to pay that no altera- 
tion in the onler as to his costs was asked for, and offen^l 
to pay his costs, the res|xjn<lent was not allowed his 
costs of appearing on the apjnal (i'lnnann v. Klk>n\, 
7 Ch. 130). 

^Vhen on an appeal a notice has Wen given by the 
respondents that they inteutl to apply to have the judg- 
ment below varied, and the appeal is dismissed, the 
appellants must pay the costs of the appeal except such as 
were occasioned by the notice {'Die Lauretta, 4 P. D. 2.') ; 
4vS L. J. P. D. v^ A. .5.-. ; 27 W. R 002 ; 4o L. T. 444). 
R.S.C., ^„y ]K\rty printing evidence for the purpose of an 

LVIII. r. ajipeal without an order of the Court below or the Court of 
1'2, party Appeal, or a judge of either, shall pay the costs thert-.f 



COSTS OF APPEALS. 147 

unless tlie Court of Appeal or a judge thereof, shall other- printing 
wise order (R. S. C, Ord. LVIII.' r. 12). fj;^^ 

Copies of the judge's notes were ordered to be printed for appeal 
use on an appeal by Lindley, J. (W. N. (1870), 23). The tLe costs, 
charge for a copy of a shorthand writer's notes of the pro- 
ceedings in a County Court was allowed as part of the costs 
of an appeal {Ex parte Sawyer, in re Boivden, 1 Ch. D. 008). 

The costs of short-hand notes of evidence in the Court Costs of 
below are not usually allowed upon an appeal, and only „p^g ^,f 
wliere a j^pecial ca,sc is made for allowing them {In re cviaenco. 
Duchess of Westminster Co., 10 Ch. D. 307; 27 W. R. 
.">39 ; 40 L. T. 300 : Kelli/ v. Bijh-s, 13 Ch. D. 082 ; 40 L. J. 
Ch. 181 ; 2.S W. R. 5.S.7 ; 42 L. T. 338, where James, L. J., 
said the Court strongly discouraged shorthand notes of 
evidence) ; .see al.so HiU'n Executorti v. M((nagers of 
Metropolitan Asylum District, 40 L. J. Q. B. 008 ; 28 
W. R. 004; W. N. (1880), 08; and .^^ee as to the costs 
of sliorthand notes generally, 7)0«^ ch. VIII., sec. VII. 

Where the vivd voce evidence was voluminous and in- 
dispensable for the proper argument of the appeal the costs 
of printing and transcril)ing it were allowed, but not the 
costs of taking the notes by the shorthand writer {Biysbi/ 
V. Dickinson, 4 Ch. D. 24 ; 4(J L. J. Ch. 280; 2:> W. R. 
80, 122; 3.-) L. T. 070). 

If the appellant does not appear when his appeal is Whoio 
called on for hearing, it will be dismissed with costs with- ','j!Jkes'.k'- 
out proof by the respondent of .service of notice of appeal f'»>'t at the 
(Ex ixirte Lows, in re Lows, 7 Ch. D. 100; 47 L. J. "'"""" 
likcy. 24; 26 W. R. 220). 

A party applying to discharge an abandoned notice of Costs of 
appeal with costs must apply on notice {in re Oakwell '^^^^^^^^ 
Collieries, 7 Ch. D. 706 ; 20 W. R. .">77j ; and an applica- motion, 
tion for the costs of such abandoncl notice will not be 
allowed unless a previous demand for them has been made 
and not complied with {Griffi.n v. Allen, 11 Ch. D. 913). 
When a party gives notice of appeal and then omits to 
get the motion set down, so that it is not in the pajjcr, the 



148 COST> OF AN ACTIOS (.KNKltAI.I.Y. 

Oilier jiarty sliouM not a)>|>cnr l»iil slmuM make a substan- 
tivo application for his costs (Webh v. Afansfl, 2 Q, B. D. 
117; 2.') \V. R. 381>). In a lato case, A. gave notice of 
appeal, l)Ut l>cfore setting it clown sent a letter withdraw- 
ing his notice. The res|K»n«i».'nt'H solicitor, thern' 
wrote to 8;iy that he haii iltlivcreti briLf-. ainl sh 
require payment of tlic resjionclent's cosls of the appeal ; 
to which A. returne<l no answer. On motion to (li.smiss 
the appeal for want of prosecution, the Court made an 
order to that cftect, and ordered A. to pay the costs of the 
appeal and of the motion to diNmis«. leaving the ({uestion 
of the coHt-H of the hrii U <hliv« r^l on the U- dealt 

with hy thr taxing-master J'lfirit'Oi v. ' . 16 Th. 

D. 27H). As to sen'ing a woond notice of appeal when 
the first had not been net down in time and the contj< in 
such a case, see ymioit v. I^tntlon <£• yoiih-WrfUru Hy. 
Co., 11 Ch. 1). lis; 27 W. R- 773; ¥) U T. .V.»7. A 
statement made by counsel on the hearing of the case 
brl(»w that he diK^s not intend t<' ' • f 

^^hich the counsel on the other .- ■-, 

will not prevent an apiK-al if the undertaking uot to 
npjKjal is not embodietl in the onler (/?<• //»// tf- Count i/ 
Jiunk, TnttUr'n Cluiw, l.'K'h. I). 261). But if the appeal 
is dismis.s<.Hl the apjH-llant will, if the res|K>ndent ;i^k.s for 
them, be orxleretl to pav the costs in the Court below 
(Ih'ulX 

In re Clark; 1 De CJ. M. v^ (J. 4.'{. where the L.rds 
Justices differed, the ap|>eal was dismi.ssed with costs on 
the ground that their lonl.-hi|xs" difference of opinion was 
not as to the correctness of the <lecision behiw on the 
materials l)efore the Court, but as to whether the appellant 
.should have an «.>pj>ortunity of further investigation. But 
the usual eourse, under the former practiee, when the 
Lords Justices difl'ered, was to at^rm the decree ap|K?aled 
from without costs {Kivrf v. King, 1 De G. & J. 663. G74). 
Aiul generally where there was a fair question to lie raised 
or a dirticult point of construction, the Lords Justices 



COSTS OF APPEALS. 149 

would dismiss the appeal without costs ; see ex. gr. Boys 
V. Bradli'ij, 4 De G. M. & G. o!S ; Hodgson v. Smithson, 
26 L. J. Oil. 110; Vichcrs v. Bell, 3 N. R. 624. This 
practice, however, is no longei* followed. A difference 
between the members of the Court of Appeal is not a 
ground for depriving a successful appellant or respondent 
of his costs. 

Where the appellants obtained leave to withdraw their With- 

II 11 1 i ^1 11 drawal of 

appeal they were ordered to pay such costs as they would appeal. 
have had to pay if the appeal had been dismissed with 
costs {Attorney-General v. Corporation of Halifax, h Ch. 
116; and .see RrBarneiTs Banking Co., 37 L. J. Ch. SG). 

Where the rcspun<lont.s had consented to the withdrawal 
of a petition of appeal under the fornier practice they were 
not allowed their costs of ap{x\iring on the appellant's 
motion for leave to witlidraw it {Lawton v. Price, 
3 Ch. 304). 

Where a trustee in bankruptcy presented an appeal 
but wa.s removed before the appeal was heard, and a new 
trustee was appointed who declined to pro.secute the appeal, 
it was held that the appeal must be dismissed, the creditors 
not having adnj)ted it although an opportunity had been 
afforded them of so doing, and that the respondent was 
entitled to his costs out of the deposit, but that no personal 
order for costs could Ik.- made again.st the appellant {Ex 
parte Shcard, in re Poole;/ (No. 2), 16 Ch. D. 110). 



2. — //( fill' House of Lords. 



ARTY iircsontini: a petition of appeal to the Hou.se off^c^urity to 
is re»piired by the Standing Orders of the Hou.se to on ni-inal 



A PAl 

Lords 

"ive .security for costs by recojniizance, either in pcr.son or V' . 
by substitute, to the amount of i'.^OO, and a bond for £200, Lords. 
or in lieu ol the bond by payment of £200 into the Fee 
Fund of the House ; sec Standing Order 4 ; A}>pellate 



ir.o 



rr?TS ('F AS ACTKN f: FN EH A 1 IT. 



iliKniiwx>l 
uixinllr 
follow the 
mtull. 



mpK-islly 

«ll<-rr Uirff 
ll.1>r 1*-rn 

(wo Mii>il«r 

ill . 1-1"IU 



win ir t», 
(^>^ltt^ 
l<cl<>» h*V( 
pivrn c^in- 
ttictini; 
ilfcisionf. 



Wh. I.- 
tlnrt' r- » 
ihtT. n-ii.x< 



.luM Ml), ti-ii Alt, ls7(i, 30 & 4" Vici. c, •;•, .-. 11. Tlu-RC 
sccurilics must l»c given by every appellant, whether he 
appeals on Imh own behalf or in a representative capacity, 
within one week after the presentation of the np|>eal to 
tlie MouHC ; otherwise the appeal standii tlisinis«ed. The 
whole snm of £700 is then subject to the onlcr of the 
}Iou>ie with reganl to the coeUt of the appeal ; toe 
Stanrliiijj Onli-rs, 4 A !<•. No i * 

from tlie Attorney-Cionc-ml, Ix'nl \ 

of the Crown sning on behalf uf the CYown {Loi\l Adeocaie 
V. LoM / 9 (1. ^- F. 173) ; nor fn»m p<Tw>n.H Ruing 

in fontui y-.. y..<«. Whi-n the AHonu'y-(»en»ral prow- 
ciitejt at the inntancc of rvlators, th«- !nt!«r mu^t <«nter into 
the recognizance {Dnu i: Scott, .•>! 

«l«ei • : i.s ft 

I < II 

general rule follow the result (Stewart v. Afrnzies, 8 CL 4c 
F. .*109), though the I ' of the respondent's 

conduct ((Vtuir V. 7/ - . i. i. ■ '• '■ 

And where two judges have f»u< .<)ed against 

n party who ap|>eaU to the House of Lords, it is almost of 

colli • " ■ ' ' " ■ ' itis 

v. -I . L VI n 

although the judge* below gave diflferent reasons for their 

juJgmet ' But ^ " ' ■ H. 

L C. h7:i . . and in 7',. ,... .;,...; -, . I . . .. II. 

I*. C. 10'». 2'2't, an np|>eal on a |>oint of con>' . ^va« di»- 

luisKC^l after two previous decisions the faime way, and the 
costs were all ' ' * T' ' . ihc 

Ibmsc i>f I><'i lout 

cost-s, where the caM? has gone through two Courts below, 
and conflicting decisions have l>eeu given {Xotii<ltff v, 
Prlcluirtl, S HI. N. S. 493 ; 2 CI. A F. 879 ; Clarke v. I/mi, 
G H. Ll C. 633, GGl, in both of which ca.scs the apfteal 
was under such circumstances dismi&<cd with costs'. But 
if there is a difference of opinion among>t the Lords the 
apptal is sometimes dismisseil without costs ( H'in^ v. 



COSTS OF AITEALS. 151 

AiH/rave, 8 H. L. C. Ls3 ; Simpson v. Westminster oi o^.u^o 
Palace Co., ibid., 712; Monijpenny v. Moniipcnny, 9 H. i^hTwh 
L. C. 114, 140). But there is uo rule to tliat etTt-ct 
(Hopkinson v. Bolt, 9 H. L. C. 5.5.5) ; and uiuler the pre- 
sent practice the mere fiict of their Lordships diftering in 
opinion is perhaps hardly a sufficient reason for departing 
from the general rule {Dublin Hailira)/ Co. v. Slattern/, 

3 App. Cas. 1155). 

The practice of the House when tlieir Lordships are Practice 
equally divided in opinion is explained by Earl Cairns, ^^^^ 
L.C., in P)-yce v. MonmoutL'<hive Canal «(• Railway Cos., ''hen the 

4 App. Cas. 197, 219. His lordship there says : '' There i;;^'"' 
are upon these occasions always two separate motions pro- 'i'^i'led. 
posed to the Hou.se. The fii-st is the motion that the 
decree api^cakd against he reversed. That motion may bo 
rejected by a majority, or it may Ix' carried by a majority, 

or the numbers of contents and non-contents may be equal 
ant! thereup<..n the decree stands affirmed. But in all 
these cases if anything is said about costs a .second motion 
is n<;cessary. For example, if a decree stands affirmed and 
the apiK'al i.s disniissod an<l if it is desired that the appil- 
lant should be ordered to pay costs, a farther motion must 
tlien be made that the appeal Ixj dismissed with costs, 
not for the purpo.sc of obtaining the dismis.sal of the appeal, 
for that has been done by the tirst motion, but for the 
purpose of ordering the co.sts to be paid by the appellant. 
Now it is obvious that if your Lijrdships are divided upuii 
the first motion and the votes for reversing the decree and 
for atlirming it are eijual and the decn-e stands affirmed, 
merely on account of the ancient rule that the presumption 
is in favour of the negative, the residt of a second motion 
that the appeal be dismi.s.sed with costs would be (unless, 
which is not to be supposed, the minds of .some of your 
Lordships wore to change in the interval) that the 
numbers would again be equally divided upon the .s.eond 
motion and the presumption would again bu in favour of 
tile negative, and therefore the motion for orderiufr costs 



1.-2 



AS ACTION GFSr.KALI.V. 



DiMniMwJ 
niJiT !« 
without 
r «t« in 
rum »i 
harrtthip 
nr «lifl>- 
C0U7. 



i'< i" {mill liy tlie apficllniit wouM iii»l U- «.»iin •!. 1 "ti^- 
r|iiently tlic cflTcrt wouM be the Mime as if nutliiiif; were 
K;ii«l alnjiit ooeU." Sec al»o lUtker v. Ixe, 8 H. L C 495 ; 
7 Jur. N. S. 1 . A ■ " 1 App. ( a^. 713, 7.V) , 

PrwUntial Atotu, ' . . j. i'luU, 2 App. Caa. 4^*7. 

In CAften of ImnlHhip or difticulty the appiMl \n sometimea 
(liHiiUHKcul without c**^' ~~ /v. Iiti«fi,6 H. L. 

37, wliop' tin* H<>'; ' ■ ' •■ trrount 

of tlio «lirtVrfiir«'(» in iho 

tranRfer of certain nharea (though nofrau<i i».t>. « •.tnhlifihe*)), 

,.. ' ...... ,. 

of opinion (the jadfrment below being aftirmoil by five to 
tltr<*), and \v circuniManceM the appeal wan dia* 

niiv»«-<l hut Will.- '- 

In Wilmm V. 11 11 U C. 40. 71. LortI St. Leo- 

nnnU HcemH to have thought that the apficllant might 

),,.•'•••■• ' - ■: 



A «'.J t 
in the 



honciil or fair construction of hi* contract. And see Sayer 

V. Itiyullrtf, :. H. L (' " ive 

diftirulty." til- .. I. .1. ...... .ji«. 

iiii-vMil witlioi. II two pn-viuun 

decisions the same way*; WhaiUy v. WhuUry, 3 Bl. I. 

IS, win-re tli« on the 

not very inltl.-,. . » \en in 

the Court below ; Ingll» v. 1/ 1, 3.H4, 

where the decRH* below wa« txo-pi an i«> coata, 

without r ' ( .\ . . ,j ,^^ . jj„j 

Attorucii ' ^ H. L 

C 3(50, 384, where the appeal of the Attorney General on 

an rjc ofjicio ii • • ' * ',,.<y^ 

from the Hon H ; 

but qn. the power of the House to give oo«tf< in that caae 

(i7»/«^ p. *»S.'>). A sjiijht variation in the details of a decree 

which is substantially affirnuil will not generally save the 

• s<>r /?^t. T. rr,,j\. 10 n.n. :»*o. s. c. < Dc r,. m. k o. 56. 



COSTS OF Al'Pr.ALS. 153 

appellant from costs i W'uUace v. Pattmi, 12 CI. v^ F. 491 ; dwre* will 

n w- - TT T .. .-v.. »»■ . • I II f • • A" ■ not sure 

Siivei'i/ V. AuKj, .1 H. L. L. 02/ ; ^atioual Bod nun ^avi- ^^^^^^ 
gation Co. v. ]r<7«o», o App. Cas. 176); especially if the 
error might have been set right by an application to the 
Court below {Savery v. Kintj) ; and see TrUf<(e€s of 
Dumhe Harlxntr v. Don (fall, 1 Macij. HIT; Seilfion v. 
^e/^*, 5 H. L. 1. In a lattj case, however, where the House 
substantially aftii nictl the tlocisiun of thi- Court l»elo\v bvit 
altered their inteilocutor, it was hold that the respondents 
were not entitled to their costs in the appeal, on the 
grounds that the alteration in the interlocutor was neces- 
sary to give complete security to the interests represented by 
the appellant'^, and becatise the attitude of l)oth sets of 
respondent** before action brought Wiis sueh a>^ to justify 
tiie institution of some action for the j>ur|X)se of obtainiui:; 
the declarations nuide by the House {Patrrsnn v. Pri"'ns( 
dc of St. An^hrtr-t, f, App. Cas. HUt]). 

Where there is a funti or an estate in litigation, tlie Whrr* 
costs of an unsuccessful appellant may be allowe<l otit "'f f„n,j or nn 
guch fund t»r estate {Pirinhuyosf v. J'o ml* rijuyf. '.\ H. L. ft^'* in 
C. 19.-., 22.-.; ThlluHsnu v. Hr.nlhshaw. 7 11 I.. C. 429 ; InluhT 
K'trl of li,,r,n V. UiHhiH,,,,, n N. R. ({.-.4 ; Hrno v. y>r,w- -l^frce i. 
bi/teryof J>fir, 1 H. L, Sc. !MJ, where, however, it was .said 
that the awarding of costs out of charity estates was an 
encouragement to groundless litigation). In Fli^lor v. 
Jirifvlif, 10 H. L. C. l.-.O, the costs of an appeal by .somo 
of the residuary legatees were given out of llieir shares 
only of the estate ; i.r. the apj)eal w;ts in effect <lisnii.ssed 
with cost.s. 

In Chiirler v. Clont> r, 7 H L. .'{(14, wlnre tlitir i><)id- 
ships were cc|ually diviiit-d, the costs of both parties were 
ordered to come out of the estate, the dit^icidty having 
been creat<'d liy the act of the testator himself; and see 
Maxwell V. Maxwell, 4 H. L. .')Ofi ; Slnfflcfon v. Tttmlin- 
«07i, 8 App. ("as. 40 K III Sat/erv. Jirmlhi/, r> 11. L. ( '. 
S73, the respondent's costs only were given out of the 
fund. 



i: 1 



( rtsTS OF AN A<TI<'N fi»:N*rnAI.!.T. 



Wl.rr^ the 

)»|'|«-a1«'I 

fr"iii i» 
rr VI- rvfv I. 
I'mler 
fomior 
jirmrticp 

Mjr.rMful 

M|>f«-lliint 
nrrrr troi 

rnkt* of 
•l'I--al. 

I tirrr •rrr 

fiin<l or 



ll \va> l<.riinily an iiitl<\iliU' ruii- in tlic H«•u^e <.t I/>r<i.s 
tliat a MicocHsful ap|Mllant couM un»lcr no circum.stanccs 
liavc his C08U of appeal from llit- rc-spontlcnts who Rup- 
|M»rte<l the decree of the Court l»clow ; see Mmyin v. 
A'jv/jM, 3 CI. & V. 151) ; Mackri-ify v. Jiammije, 9 CI. A F. 
his, s.il ; Jlutinehlll Coal, lie. Co. V. ydlMHi, ibid,. 817; 
AUonieii Grueml v. CVw, 3 If. L. C. 244>. 277 ; Ifumilton 
V. Litthjohu, 4 CI. »l- K 20; Z)i.ron v. AVfi»i«, .i H. L 

A KucceHbfiil appellant, however, M^mctimes had hU c<Mt« 
out of (hi'fund or e^^Alr if thcr {SttJce^ 

V. Ilrnm. 12 < 1. iV F. 203) ai 7 H. L 

:.«Jh. Ill Ayrr V. MJh.vrH. I* H. L C 619, a »uccc*«ful 
apfMllaiit wait nllowiil to add theccMtln of the appeal to hi« 



I • 
1" • 

■urmMiui 
p-l Ihrir 



lii>'l • 



.S) . ^ thf A|>|>ella(c Juhntliction Act, 

1 s7<i, however, thia rule hnn l>eeii altereil, and the cotinw 
now iH to i^vc h- rit* all their costs, inrlu- 



din;; their omi» 



•'ir 



i> there in tome Hpecial 



reation for depriving: llu-m of them; i»e<' Mrtitipu/iUiti 
Halluxiy C<.. V. ./.n App. Caa. 193; (t'Hin-U v. 

/'■ ' ' ' • ' ; _ (f,y fjir'tinj V. CoitJuhtfUll, 

:\ App Cft^. 112*. 
Where an order inatle on an application with refenincc 
to the taxation « ' anlt-d leave to appeal, r- 

the cvksLh for tlu i i Ap|Kal. it wa.H held i; - 

n«»tj» thus resi-rved mutit be dealt with in the mime manner 
a.s the ctjsta of appeal ; and the juilgwenl of the Court of 

tlie . 't V. 

BnuUrtj, 3 App. Ca^i. 944\ 

In " Sinyfr" ^f^u'll i ii r Mu i . 
App. Cas. 37<», where the order 
was revereeil and the ca-se remitted to the Chancery Divi- 
sion, it wa.s onlen.*d that any costs which had been fviid by 
the plaintiffs to the ' ' ' :.t should be repaid, and that 
tlit> oost.«< of tlio .^uit > including the costs of the 



« V. H .^.'N. 3 
Court of Apjxal 



C0.>1> UV APPEALS. 155 

ap(x'al to the House, should be in tlie discretion of tlie 
Court below upon the farther hearing of the case. 

Where two questions of difficulty in an appeal had been 
created by the testator, all parties in the appeal had their 
costs out of the estate {Beilfonl v. Kirkpnfricl; 4 App. 
Cas. 96). 

Applications on the part of a successful appellant for the Appli.niion 
cost^ of reversal should be made at the bar before the I^'J^^^/^ 
question is put to the House, because they will be inetVoc- "'^'•n to ^ 
tual after judgment has been pronounced {Deu.ii- Scott, 
14.5). 

Where the ilecree appealed from is partly reversed and ^Vhercthe 
partly affinnetl, the practice is to give no costs of the ,^^rtly re- 
appeal {Tor II' V. Browne, ') H. L. C. 555) ; an«l where the '■*"'^'^' ""'^ 

11 111- - . • I'ArtlT 

House reverseil the decision of the Court <»f Appeal on the !»ftirnie<l, 

ronstruction of a deed, but all the other ix)ints raised ],y ";' ''*^''*"' 

• . given. 

the ap{x>al were al)an<loned by the appellants, each p:irty 

was left to b«'ar their own costs both in the Court of 

Appeal and the Ht)use of Lonls {Klliot v. Lonl J{<»Mn/, 

W. N. (1S8I), l.U; 45 L. T. 7GM). On the other hand if 

the decree is substantially affirmed and varied only in its 

details, the appe.il will l>e dismissed with costs ( Widhwr v. 

ration, 12(1. .t F. VJ\ ; Surnif v. ]{!»</, :> H. I.. ( '. Ii27 ; 

and see yeil^iou v. BettM, .'> H. L. ! t 

If the House of Lords, reversing the decree of the Whore 

Court below, dismi.s.ses the suit jvs at the hearing with ^!!"i!^ "!*''* 

costs, such costs are costs uj) to the hearing otdy, and will k'^<^" "" 

4 • I I .1 i r xi . • .- ' • • »p|>c!il, the 

not inclucle the co.sts ot the prosecution <•! einjuines, or co.st.s of 

i.s.sues dircc'ed bv the decre«; aijpealed from (Sirtr v. j"^'*"'''"'- 

hinrau, CI. iV r. 716, 74rj ; Shmv v. Lnvliss, .") ('1. »*;.• sciuont to 

I'. I 29 ; MiUjor, dc. nf S„„th Moltun v. Atfnrunj Genrnd, ]l\ ■^'"'"S 

•'• H. L. C. 1 ; }fM<ilH,n V. Biirchrll, '2 Ph. 1.'}!)). 'UuM. 

In GotlnoH V. JIule, 7 CI. & F. 549. the appeal having ^^'"^'^•^ •''P' 

been unexpectedly called on, the appellant's counsel were re.si...ii,ient 

not present, but he appeared in person, and the Hou.se ^'■)'"7. . 

... ' ' • (Icfnult at 



allowed the appeal to stand over on payment of the costs the hoar 

in/j of 
Apjw>a 



of the day by the appellant. In Frnz'rr v. Gordon, n CI. '"'^ "^ ""^ 



i:,.; 



'F AN AClUiy OF.NKKALI.T. 



Whcrp 

rrii)M>n<lrt)t 

U< ihr mm- 

JM-ICMi-V of 

the •|'|««l, 



Whfrc 
there are 



& F. 711', llio res|>omkiit, on the iiuii-apiKarance of the 
npptllant, opcnc<l so much of liis case as showeil n priiiui 
fnr'ie case, and the a|)|)eal was tlieii ilismis-sod with costs, 
lint in RitkdtM V. Lcn-i^, 2 CI. & F. 100, and Murphy v. 
t'tmvxty, \> CI. it F. 7'J, the apjHal was at t>nce disnu.>is«^d 
witli ('Ost« without hearing tlie res|x»ndent.s. Where the 
respondontH did not appear to support the decree of the 
Cotirt behiw, and liad not even answered the |Htitiiin v( 
appeal, th«- Housi* reversed the decree, but with<»ut ctwts, 
althou;;h there hud been n previous decision on the same 
|K)int (JIamiifoH v. LiUUjohn, 4 CI. & F. 20). And lastly, 
where neither patty ap|Knred, th»- appeal wa.s d.'isn ' 

without cost ^ (Slifi-fiii rur v. MitliUr(ott,\) ( 'I. <V F. 7-K ' 
cannot be given to a roipoudent who has omitted to answer 
tlie :ipjM*al {i'h/ur'tt TniMfrcM v. C'l*/)!*', Mai h-an A: Kob. 1 1 '»>. 

If a res|>i»ndent has an objection to the competency of 
an ap|M-al to the House of lytrds, he ^houhl bring it. by 
preliminary |M'tition, lieforc the Ap|M'al Committee ; for if 
it is n«»t raised till tin- hearini;, and i' 4.1.1 

ap{K>al will b<- disini-si-d wi'lioiit « 
linttrrHhy, 1 11 I ' .*iH«). If the petition against the 
ctun|K*tency of thu ap|>eal i.s dismis.sed, the practice is to 
reserve the costs of it till the hearing of ti»e ap|)eal (Cieila 
V. (iriU. 3 H. L C. 2M); M }fitl,nn\\ Uonai-il, 5 H. L.C. 
U31) ; and if the ap|H'al is afterwards di.smissed with costs 
on the merit.s, the co-«ts of the preliminary discu.vsion will 
not Ik* included, unleNS the consideration of them was 
rcservcil {CinujMl v. Campbeil, 7 CI. & F. Wt). In 
(iitiy V. Forlfti, .*) CI. & F. 3.')6, theco.^ts of the respondent 
unsuccessfidly ilisputing the competency of the apfxal 
(which had Wen reserved, ibid. 379) were included in the 
costs of the appeal on its dismissal with costs. But in 
jAirubcrt v. J\t/ton, S H. L C. 1, the c<xsts of the prelimi- 
nary petition dismissed were dtHluctc*il from the costs of 
the ajjix-al, dismissed on the merits. 

If there are cross apjx>als. one may be di.-;mi.vied with 
ami one without costs, according to circumstances (Court 



APPEALS FOR COSTS. 157 

V. Ruharts, <J L'l. ^S: F. G')). And in Moiyiin v, Evarn^, 
b Bl. N. S. 777; 8 CI. & F. loO, the appellant in the 
original appeal was held entitled to a decree with costs in 
the Court below, and received his costs of the cross appeal, 
which was dismissed, by way of imlemnity, as he could 
not have the costs of his own appeal. Where there were 
cross appeals and neither party was completely successful, 
neither of them got costs, either in the Court uf Appeal or 
the House of Lords (A'ltchison v. Lohre, 4 App. Cas. 
755). 

An action will lie on an i>rder of the House of Lords 
directing an unsuccessful appellant to pay the respondent's 
costs (Miirhi'lhi, iir. Co. v. Mhn, Ss L. T. .S15). 

In Prendergast v. Premferr/ast, ^ H. L. C. !!>.'), •2'2'),a 
tru>tee was held to be entitloil to appear by counsel on 
the appeal, but not to print a case or a|»}>endi\', and was 
disallowed the costs of so doing: .see Banqiui Fntuco- 
Kfjl/ptu'iine V. Giant, \V. N. (1S7}>). 1<»5. 

As to taxation of costs ortlered to be paiil by the House, 
see Standing Order 10 ; and as to recovery of such costs, 
^QQ post, ch. IX., sec. III. 



8fxt. XII. — Appeals for Costi^. 

By the 49th section of the .hidicature Act, 1.S73, no Ju.ii.'.aure 
k-r made by the High Court of Justice, or any judge f^'J;/^^^' 
thereof, a.s to costs only, which by law are left to the di.s- "u ajiiHial 
cretion of the Coiirt, is to be subject to any appeal, except without^ 
by leave of the Court or judge making .such order. '<^**'^- 

The rule is imperative. In Ihirris v. Aaron, 4 Cli. D. 
749 ; 40 L. J. Ch. 4SS ; 2:. W. R. 3.5:^ ; .-JO L. T. 4.3, a 
1 till was dismi.sscd without costs; the plaintiff" appealed 
against the whole decree, but his apjical was dismissed ; 
it was held that the Court had no power to vary the 
order <>f the Court below by directing that the bill should 



on 



158 COSTS OK AN A<TI<'N GENKICALLV. 

l>c disiiii>sc<l with c«>hU ; ami soe Utir/Jtnui \. Simckiocl; 
10 Ch. I), p. 21'); IJtnunf,- v Jl>>n,t,tnj, I'hiUiim v. 
Lhiinn'rr, ihiil., p. 2-il : di'dhtim \. ( 'i lajtltrll, 7 f'h. !>. 

4!M»: 17 L. .1 Cli. :.93-. 2<; W. It .TUi , :\H L T. 19.V 
No ni>|H.-.'il lies fntiii a j»i«l;;'- s orijcr ns to tin* pluintiff'ji 
costs ill an inl(.Tpk;ul<T isMu {Ilnrtmout v. /'.•»^ .• s Q H. 
I>. 82). ^tf cu^U^^^^ia la^' f»'l^. 
Or.lcr All order declaring; that a defendant han cnnniilted a 

.hrr'tm-a hiracliof an injunction, but .•■■ - ■ '■ •;<«. rxcopt 

j.iri.vKuiii* ||,;it he pay tin- cohIh of the >, ..t, in not 

i'„ jTj t'j'iT within tlie 4!Mh >«oction of the Judicature Act. IH7?1, and 
f -!« n.»v ,„^y ],p apix ahil fn.ni ( Witt v. r.,n-i.,>ni. 2 Ch. I). 09; 45 
fn.1.1.''"' L J. Ch. G03 ; 24 W. R .',01 . 34 L T. orA) ; In >y (Y«. 
•*^«-"». iiiftth, 46 L. J. Ch. 375). Where the application in re- 
.•.I'lX.tinfi fwwnl. however, there can be no ap|K>al (AiJi^r'fuih r. 
u. ..n.n.ii Onti-^nn (No. 2), 5 <'h. l>. (MM /' ■ -^ v. (Voiirj/i>, 4 Ch. 
i»rxMM^. ^^^^ j^^^^ ^^ Jan„au v. T W. N. (IH.H2) 21). 

In the name way, where at the trial the Court siinply 

ordiTH th«' .* ' ' ' ' 1 

appeal will . . 

without admitting that the plaintiflf was entitled to bring 

the action, and this is therefore the n'al <pie:«tion at issue 

in tlu- ap|Kal lUrkM v. Y.iftM, IS Cl». I). 7t>). 

(\.»u iMT- •'^" orxler directing trustee* to pay c-stn pemmally 

■'"' ' > forms DO exception to the rule that there can lie no appeal 

ri.-ci.tion. f(.r costs (In rr Jloidriu n Ti ' 1. I>. 2sl ; 2) W. K. 



77l» ; :i'» L. T. !»a.'» ; TayUw \ /». 4 Ch. 6'J7'^' But 

an order giving a tnistee his "costs, chaiges, and ex- 

niiin iH-nse-V is not simpiv an onlcr as to cost.s " within the 
A ., , discretion of the Court," and may be apixaied from ; for a 

•i.t. i.- W trustee has a right to hi.s charges and ex|K»n<cs, and can 

only l>c deprived of them for grass misconduct (In re 
Cftenmll. Joium v. Chruufll, S Ch. D. 4I»2 ; 47 L J. CTi. 
5H.S ; 2G W. R. '^9:^ ; 3S L. T. 494). Similarly, an exe- 
cutor or a residuary legatee, who sues for administration, 
is j)n »iti /(ic<V entitloil to his costs out of the estate ; and 
therefore an order depriving him of them i< suhje<:t to 



API'KALS FOR COSTS. 159 

appeal {Fiirrow v. Austin, 18 Cli, D. '>.s) ; and see E.v 
fHirte Woiniri-ijht, 19 Ch. D. p. l')2). So, where in a 
suit between incumbrancers to ascertain priorities in a 
funil, the Court decided in favour of one of the defen- 
dants, and ordered the cv)sts of the action to bo pai(i out 
of the fund, an appeal by the successful dofondant as to 
the costi was allowed {Johnstone v. ('o.r, 10 C'ii. 1>. 17^. 

If a decision, although relating to costs, also involves a Where a 
question of law and principle, it is clearly the subject of pri*,*^i'Y.'' 
■ ppeal (//? re Rio Gmnde D,) Sul SteamsIiipCo., 5 Oh. D. »'' i"voUeii 
282 ; 46 L. J. Ch. 277 ; 2:. W. R. 328 ; .SG L. T. 003 ; u".^**'^'''' 
<ee aho Kr jxivte ]Vu<ld*ll, iii rf Lutsi-Iu'r, C Ch. D. 331). 
And where an innocent vicar and churchwardens had been 
ordered to pay the costs of a suit to wliich tluy wore par- 
ties niert'ly in their ropresfutative characttr. it was said 
that an appeal l»y them for costs only would have been 
entertained {Etherington v. }Yihon, 1 Ch. 1>. 100 ; 4.') L. 
J. Ch. i:>3 ; 24 W. R. 303 ; 33 I. T. <;:.2). 

Wiiere the judge made an order a«lopting tin- report of 
a referee, which was .silent as l<» the costs of the reference, 
and leaving the costs to be ilealt with by the taxing 
master, an appeal from that order was held an appeal for 
e....>ts only {Rowrliik- v. Ijei<j}>, 26 W. K. 720). 

In a recent case, the plaintitT recovered damages for 
breaeh of covenant against his le.s.sec the defendant, antl 
the latter recovered the same amount against his sub- 
lessee.^whom he had brotight in as third party. On the 
"lefendant claiming from the third party the damages and 
costs in the c;i.se between the plaintift' and the defendant, 
the third party demurred to the claim for costs ; an 
appeal fron: an order overruling the demurrer, was held 
an apjK'al for costs only (Ilornlnj v. Cardwcll , W, N. 
(1881), 170; 4o L. T. 7.Sl)Xfvj<i; >*,3J</ 

Section 49 «loes not apply to a master or a district 
registrar, and therefore a judge can vary as to costs the 
order of a district registrar, dismissing an action witliuiit 
costs (Fo^itrr v. Kdv.-ai'ils, 48 L. J. C. P. 707). 



I- ri... 

■<• in 



•>.lii''l 



160 COSTS op AS ArTK'N CKNKHALLV. 

u-ii»r of >iii ;ij.|MMi lii-> i<i ilif n<Hi>«- i>i Louis for co^t.H alunc 
^"''- ihojIlM V. Mnnxfohl, :\ CI. k V. 'MVl ; M'Auini v. Ailo,,,, 
ih'nl. '.\V>7i ; MrtrtijxAUiiix Anyhuii IHt*trict v. /////, .'» Ajip. 
Civ. '»H2). But an appeal nj^^iiiist nii oril«r whirli iin|> 
a« a cunditiun of liaviug a new trial, the |»avmciit wiih . 
certain time of the costA of the first trial, is not within 
the rule (MrtroinJiUin Anylutn District v. Hill). 

Untler the practice in chanrenk'. the ' nii« \%.i.i 

cry. the winie, viz, that as the (liH|Mi>al uf ^ *>( the 

suit wan in tlie discretion of the judge, there ct>uld not )« 
nn appeal or rehearinj* on th I' 

thin rule howfver, there wti. — .. . 

ceptiuns. TIiud, where the conts were Uid u|Hjn an estate. 
or onlere<l to lie paid out of a fund, the Court would hear 
an rip|val. th<>Ufyh f"»r co^l/« alone |'(7uiy»y>r// v. J'iii>lay, 
..»".'( an - IMi. 227 ; r-i;/l"i' v, ]'t>jJi'tin. 1' Vej«. 72; Tayl»n'\. 
"•*■;'*. Si'nthoiitr, 4 Mv. A C. 203, 1 \ud nee further, as to 

lIuH exci'ption to the gei "' v, //.ii-in, 4 My. 

tV Cr. 3G(); L'yiY v. M . . SM , Jnwur \. 

Jrmnu', 10 VcH. 562; Juini^oue v. C.u-. li» Cli. D. 17. 
• » Again, wliere the cpieiitiou invidveil a principle or a 

, I i.nii- rule of { r^ •■ lo l»e laid down, then an exception v i 
n.lc or luadr {I V. l*Hi\lay ; an»l He« W'tOkri' \. F,- 

l™'«w^r' 21 W K. 4!I3 ; P.ilmtv v. WaMty. 3 Ch. 732; IT. W. K. 
{»24 ; IVo V. Tutnn. Thf ihirut, L R, 3 P. C COto An 
np|>eal for cotit« alone was allowmi agaiuKt a decree diH- 
niis-sing without costM a bill by a pluintiflf who failed to 
establish his legal title (CAiiyyW/ v. 7*«»n/«»»/ ; i'aritora- 
tion of J{>Hhri*tn' v. /,«•. 2 Dc G. M. & tJ. 427) : and 
where a mortgagee was refused his costs of a redemption 
suit (Outn V. Grijpxth, 1 Ve«. 250 ; Xotion v. Cooper, 
r. Do G. M. v^- G. 72S ; (\>tUrrll v. N S Ch. 2f>.M ; 

and against a judgn»cnt awarding cj _ i:s?t an ofticcr 
of the Crown suing on its behalf (/.on/ Adi'ornte v. Lonl 
J>nugla3,9 CI. & F. 173); and where the question was 
as to the mode of provitling for the costs of adminis- 
tration suits {M€UzicA V. Conuor, 3 Mac, & G. G4ii ; 



APPEALS FOR COSTS. Id 



Taylor V. Southjatc, 4 My. .<c C. 203; Eyre v. MarscUn, 
ibid. 231). So au appeal would lie, when the Court was or cosu 
directed l^y Act of Parliament to give costs, and they were *";\, 
not given according to the Act {Tod v. Tod, 1 BI.' N. S. ^^Jug 
039; Ex jxirte Bishop of London, 2 De G F .;- J U • *rp° r'^ 
lie Alcrton College, 1 De G. J. k S. SlJl). ment. 



r-nAiTKi; iv 

CXWTS IN rARTini.AR ACTIONS. 

Sfxt. I. — Actions for an Arcouni. 
Wli*rc ilie " It is gcncmllv tnio, timt if a stilt ih instituted for an 

qiioMtion in , ' ii • i i • • 

ciiio of arrount iK'twctn two |KTS4>n«, uno ailcjjinjjj that notlnni; is 
ftmount. ^\^^^. f^^^,,^, |,jp, jj„j ^ K'^Iancc is foiiini to W duo from liiin, 
that pcTMUj will havf to |»ay the costs of the suit anil of 
the account. Hut the case would lie whollj varied if the 
ca.se were that one party admitted a jjiven stun to be tine 
from him, and tin* otlier ha<l claimeil a much larger sum, 
and th«' suit proceedetl only for the pur|)«)sr (,f a.<icertain- 
inj^ whether such contested balance were rrally due or 
not. In this case the cost.s would de|K'nd u|>jn the sub- 
stantial result, that is, if the balance claimed, or a sub- 
stantial part of it, were shown to be due, the claimant 
would obtain the cost.s of the suit ; if no part of it w. r. 
due, he would have to pay them ; and if only a sm ill 
portion of it were due, the Court would prolwibly give no 
costs on either side. But in all tl s the Court 

endeavours to see what were the - . :....:.-il questions 
and causes of liti«;ation between the parties" (/xr Sir J 
liomilly, M. R.. .Vd^ v. Bifj'jemlen, 24 Beav. 207. 2UV 
In that case, the defendant, who claimed a larjjje lialance 
to be due to him from the plaintitV, and failed on eveiy 
item which the plaintiff disputed, had to pay the costs of 
the suit, though a large sum was still due to him after all 
deductions. 
Whof tlio -^" accounting party who refuses to render his accounts 

accounting h^fore action brought, or disputes his liability to account, 
party o > i j > 

refuses to will have to pay the costs up to an<l including the hearing 



ACTION'S FOR A\ ACCOUNT, 163 

{Anon. 4 Mad. 273 ; Attorney-General v. Glhbs, 1 De G. render 
& S. 150; S. C. on appeal, 2 Ph. 327; Boi/nton v,^''"''''^- 
Richardson, 31 Beav. 340; Sellar v. Grijin, 11 W. R. 
583; 9 Jur. N. S. (;i2 ; Krinji v. Burn, 4 Giff. 348; 
1 N. R. 257 ; Jefrri/s v. Marshall. 10 W. R 04 ; 23 
L. T. 548), even though it slioulJ turn out tliat nothing is 
due to the jAixmix^ {Atfornei/-Gentral v. G(hhs),oi' the 
plaintiff waives the account at the hearing {Colburn v. 
i'iimiiis, 2 Ha. 543), or the defendant offers a gross sum 
which it turns out would have covered what \Yas due from 
him (Colbjer v. Dvxlley, T. .1- R. 421). Where the defend- 
ant, an agent, unsuccessfully resisited the plaintiff's right to 
surcharge and falsify, and live items of error were proved, 
the plaintiff got the costs of the action up to and includ- 
ins: the hearinir, and the future costs were reserved for 
further consideration {Mozlei/ v. Coivir, 2(j W. R. 854). 
But on duly accounting, tlie defendant will get his costs 
subsequently to the hearing out of the balance (if any) 
found due from liim (Jinijntov v. RicItanJson) ; and if 
the plaintiff perseveres in having the accounts taken after 
the defendant lias rendered his accounts by answer (now, 
statement of defence), which turn out to be substantially 
correct, and there is no balance, the plaintiff must pay the 
defendant's costs subsequent to the hearing {Anon. 4 
Mad. 273; Attorney-General v. Gihhs ; Thompson v. 
Clive, 11 Beav. 475). But in Collyer v. Dudley, the de- 
fendant paid the whole costs of the suit. In Sitrlni/rtt v. 
Dashiuood, 2 Giff. 521, where the amended bill contained 
charges of wilful neglect and default, which were dis- 
proved, and the accounts in the answer were substantially 
correct, the Court gave a trustee, who had refused to 
account, his costs from the filing of the amended bill, and 
made him pay the costs up to that time. In the same 
case a trustee who had not acted had no costs down to 
the filing of the amended bill. If the defendants have 
occasioned the suit by not keeping accounts, they must 
pay the whole costs of it (Pcarsc v. Green, 1 J. i^ W. 

M 2 



104 C<».=vTS IN rAnTirULVU ArnoKs. 

13"») ; an«l see P-t'^ni: v. h'r,h,i, l-S Eij, .*J.'»(J, Avliore the 

bill was dismissed, but without cost,«, because the defend- 

An cxccu. ants had not kept accounts and vouchers. However, in 

nci<i.x:t to ^y^itt^ V. J'tckson, \5 Bcav. 101.it was said by Sir J. 

funuNh K4jrnilly, M. K., that an executor Ijad a riijht to have hia 

not miffi- accounts tnk«n in this Court, ami the more neglect, as 

Ihlriic' distingiiishcii from pertinacious refiLsal, to render his 

him with accounts, was not ■' ' nrivr him «r ' -ta ; 

and sec irtcc v. '» i iv, 4<. An • r or 

tni.stco is not justifie<l lu rcfusiog accounts to the solicitor 

Hr i* not of the parties, though he may suspect that the solicitor 

ju.iifitsl in r^^,j,,irj»^ them fur his own puqxjses {Krvtp v. Jiurn). 

arcuunu to Wlicrc an information was filt>«l against a public officer, 

t«!rc7uio "'"' ''^' ^*'^'* ordered to account for a great number of 

l*rticm. years, CJiffard, V, ('., on the 'it was a hard 

case, and tlie defendant was ii > blame, refused 

to make him pay any costs {Attornry-Gcnertd ▼. Ed- 

inuiuh, \s L. T. .i():.\ 

. A solicitor and agent mav be charginl a.-, .m .m.M,i,iine 

j-v<. party, although lu* is a mortgagee for the sums due to 

nn'srcnr '*""• '^"'^ ^^^^ plaintiff asks for redemption (Iktillin v. 

inn.v iw (niU, 7 Ves. *)S(> ; ami in that i^ajic Ix»rd Kldon gave the 

j.!»y ri«tj« defi-ndant the costs down to the answer as mortgagee, but 

"* "" . made him pay the costs of the subsequent enquiricsl But 

i«rtT. see Aoiion v. ('ix»;>^r, 5 I)e G. M. & CJ. 72.S. 

(»r lor for lu JeUicoc Y. Pricf, 1 Y. & C. C. ('. 74, the Court 

oii*o"!.u' *hclincd, in a suit for an account, to give the costs down 

««ay i« to the hearing to the plaintitT at llie hearing, but reser\*ed 

the hear- ^'"■' <l»'Cslion of co-sts Until furtluT tlirectii»ns. T' . ms 

»%'• to Ik? the more usual practice ; but see i , v. 

JiicJtardwn ; Kemp \. Burn; Selltw v. Orijfin ; where 

the Court made an order at the hearing for the payment 

of the costs down to that time. 



ACTIONS FOR APMIKISTRATION OF ASSETS. IGo 



Sect. II. — Actions fur Administration of Assets. 

It is a general rule, that wherever an action for the ad- Wherever 
ministration of tlic a.ssets of a deccasctl person is rendered ^(1^0^^^ 
necessary by the nature of his will, or the circumstances intostato 
of his property, or by his dying intestate, his general siono.l tho 
personal estate must bear the costs of it (Jollltf't' v. Fa-4, >l>rtUnlt.v, 

•' Ins estate 

3 Bro. C. C. 27; Studh„ime v. Hodifson, 3 P. W. SOU; lK^•ir^ the 
Pearson v. Pearson, 1 Sch. & L. 12 ; Wilson v. B roivn- ''"^^ 
8miih,9 Yes. ISO ; Ginjtherx. Allen, 1 Ha. .'lOo ; Phil pott 
V. St^Georgcs Hospital, 6 H. L. C. 338 ; Shuttleivorth v. 
Howarth, Cr. l^ Ph. 228). And as to cases where costs 
should be given out of an c.><tate generally, see Dl Sora v. 
Phillips, 10 H. L. C. 62.>. Tlie rule' equally applies, 
though the doubt on the construction of the will was 
introduced by parol evidence for tho defendant {Noursc 
V. Finch, 1 Ves. Junr. 302). Nor will it make any 
difference that a declaration of the rights of the parties 
(which the Court can make without giving relief, 
under Stat. 15 it IG Vic. c. «G, s. aO), is all that is re- 
quired to enable the executors or trustees to administer 
the estate or execute the trusts of the will. Where the 
bill, in an administration suit, rai.sed a question in regard 
to the testatrix's will, upon the decision of which the 
plaintiti^s title to any interest in her estate depended, and 
the decision w;is against tlic plaintiff taking any interest, 
the bill was dismissed with costs {Anderson v. Anderson, 
41 L. J. ( 'h. 247). The costs of a special case on the con- 
struction of a will generally fallow the same rules as those of 
an administration suit (Cookson v. ]iin;fharn, 17 Bcav. 2(50). 
In In re ('()y<<>'.y TrustM, W. N. (1M77). .S7, trustees of a 
will who had reali.sed the estate and paid the debts, 
were directed to retain the surplus for a year on the 
chance of an administration action being commenced. 

In an action for the general admini.stration of a.ssets the ^"'=»« "f 
costs of all proper and necessary parties are paid in the for general 



ir,G COSTS IN I'ARTKILAR ACTIOKS. 

niin.niNtra- first instance out of the assets before they are di.slributed ; 

Jjl'"^/^;" that ih, in effect, where the estate is sufficient for all pur- 

i»i»ufficicni, poses, out of thc rcsidue. The residue, however, is, pro- 

Wh«t is porlv KpeakiiiL'. onlv what rouiains after all tlu- oxpensos of 
rchiduc. I.I »-. -If. 1/; 

adniini.stcnng thc estate have hcon i>aid [hyrr v. MurtKien, 

4 My. iV Cr. 231 ; ShuttletcotiJi v. Ilovyirth. Cr. & Th. 
22S; Elhornr v. GiuHlr, 14 Sim. in'»t, inrludinj; the co«t« 
of an administration action {Tnthcwtf v. Iithf,ii; 4 Ch. D. 
.'»3 ; 40 L. J. Ch. 12.j); and including al««) where there U a 
jfift of residue to persons and cU««e« of per»on<«, the co«»t« 
of a-srortainin;; of whom nurh claKHon consist {In re Reeve's 
Tru^tM, 4 (h. I>. S41 ; 4fJ L. J. Ch. 412 ; 2.> W. R.fiSS ; 
C«iu ;{•; L. T. 006). Ami therefore, where there ia a resitluary 

ti'r.mi j^ifl, but a |K»rtion of the resiilue is undiH|«»M d of, rithcr 
»*iHron through the happening of some event, or by ojK;ralion of 
imrtTn.of law, the Court will not throw the co«tiJ exclusively on the 
thcrci.i.tuo. p^^j »indih|>osod of, but will ap|)ortion thi-m between such 
part ami the jwrt wlr ' 11 given (A'yiv v. .Uiirn./rM, 

4 My. i^- Cr. 231 ; / ' v. J'riiUuint, 4H L J. Ch. 

036 ; W. N. (1870), 04 ; Titthnnj v. Jl(l>/(tr, 4 Ch. D. 
TiS; 4('. L. J. Ch. ir»; Ffntonw Wilh, 7 Ch. D. 33 ; 
47 L. J. Ch. 101 ; 2«; W. It 130 ; 37 L T. 373 . lilann v. 
Ml. 7 Ch. 1). :182; 47 !>. J. <*h. 120; 2(1 W. R. 1C5); 
the cases of (Vain in v. Jiroutfhion, 10 E«|. 77, and Sivrfi 
V. CttmUrffiml, IS h>|. .'V7H. cannot bo considered as law. 
The rule applies equally whether the |>artial intestacy 
arises from lapse (as in Ack'rt>*fil v. Smithsufit 1 Bro. C. C. 
.'.03; 4 My. \ Cr 245; /^i«-^^ v. Wnlln; 1 K. * M. 
7:>2 ; Titiheuif v. Jhli/itr. 4 Ch. D. .'»3 ; Frutini v. WIUm, 
7 Ch. D. 33 ; 47 L. J. Ch. 97; 2r, W. R. 13!» ; 'M L 1 . 
373V or from revocation of the bo<piest by the testator him- 
self (as in CiW'i.fyirtl v. ('he-*l>/u, 2 E<1. 123 ; 1 Swans. 571, 
n.) ; but .-^ee contixi, Chatteris v. Youmj, Beanies, app. 27; 
and SkiymsJiii-e v. Xorthcote, 1 Swans. 560 ; the effect of 
which latter ca>e seems to Ik? mi.>vstated in Lord Cotten- 
hams judgment in Ei/re v. Marfihn, 4 My. A- Cr. 245. 
Instances of the costs being apportioned where the jxirtial 



ACTIONS FOR ADMINISTRATION OF ASSETS. 167 

intestacy arises from operation of law are Eyre v. Mo rsdcn, 
and Elhorne v. Good'', 14 Sim. 16-"), where accumulations 
beyond the limit of the Thellusson Act were heltl to be 
undisposed of; and see also Green v. Gascoifnc, 13 W. R. 
371; 11 Jur. N. S. 145; and Attornci/-Geucral v. Lord 
Winchehea, 3 Bro, C. C. 273, S. C. suh nom. Attorney- 
General V. Hurst, 2 Cox, 304; Puice v. Archh'nihop of 
Canterbury, 14 Ves. 3G4 ; Jones v. Mitchell, 1 S. cV S. 
290; Crosbie v. Mayor, dc, of Liverpool, 1 R. «& M. 
761, n.; Johnson \. Woods, 2 Beav. 409; Hopkinson v, 
Ellis, 10 Beav. U9 ; ir((/-e v. Cumberlege, 20 Beav. :)03, 
509 ; Gillara v. Taylor, 16 Eii. 581 ; Liickcraff v. Pritlham, 
48 L. J. Ch. (i3(i ; W. N. (1879), !)4, where gifts of residue 
to charity tailed as to the realty, or personalty savouring 
of realty under the Mortmain Act. As to the form 
of the order in such case, see Set. 589, Williams v. 
Kershavj, 1 Ke. 274, n. So where a testator gave charit- 
able legacies to be paid out of his pure personalty, it was 
held that the costs of suit were payable out of the two 
kinds of personalty rateably {Tempest v. T'cmpeM, 7 
Dc G. M. & G. 470 ; reversing S. ('. 2 K. .^- J. iuVy ; 
Beaumont v. Ollnira, 4 I'h. 30!>). In Taylor v. Mixjy, 
27 L. J. C'h...Sl6 ; 5 Jur. N. S. 137, however, a testatrix 
bequeathetl to charity so much of her residue "as she 
could lawfully give to charitable uses," and made no dis- 
position of the reniaindtT, and it was held (but (pi.) that 
the costs of the suit ought to be pai<l wholly out of the 
impure pcrsitnalty. See Jnhnsltnu' v. Hamilton, 14 L. T. 
282; Adnlph V. Dulnio,,, 26 W. R. 53; Lnris v. liorfr- 
feur, 3S L. T. 93 ; W. N. (187.S), 21, (1.S79), 1 1 ; Taylor 
V, Linlry, 5 Jur. N, S. 701. In Shejtheard v. Ihrfham, 
6 Ch. 1). 5!)7, where the bequest was held to be specific, 
the costs were paid first out of the undisposed of per- 
sonalty, next out of the realty, and lastly out of the .specific 
bequest, 

A legatee is now considered as bringing his action on CosIk of n 
behalf of himself, an-l all other the legatees of the testator iuir"' 



1C8 COST8 IN I'ARTICl'LAR ACTIONS. 

{TJuyinaa v. Jones, 1 J;i. ^ S. i:}4 ; 29 L. J. Cli. 570 1. Tho 
cosU of tax action to establish a title to n legncy, whether 
pecuniary or R|)ccific (lUt/jshatoe v. Newton, Bcanieft, 17 ; 
Barton v. Cookr, .'> V. ;•'; f '.»/«• v. Buchthvld, 
3 Jur. N. S. 32H), arc y i always if there ia 

a (iifliculty of construction, or general administration is 
neccsMiry, payable out of the general nhscl-s. So tho 
general r.state, and hot tho particular fund, muKt bear the 
coRtA of a Kuit to e^tablihh a donatio motiis cttUM 
{Gardnf}' v. Parker, 3 Mad. 18*); or to declaro tho 
rij^htM of ) ' .| on real estate {Dug- 

dale \. J> I . 1 , , or to have a legacy 

ill which the plaintiff haH a revenionary intcrcatv whether 
vi'stc<l or cent t a|»art and j»o« 

JIoii4ji*i>n, ^ I', v. ...*); ilandlcy \. yAi.c.' .. .i.u .\. .> 
90); and ^emlle, including tho coutu of in\i>«*tment 
{Ilandfry v. Jktvies) ; but «ec contra, Gttyther v. Alien, 
1 Hm. .'»0.'>. uhcre • ' ' ' " • If a fixi-d cum in to bo 

Inid out in land ti. tnunt cunie out of tho 

fund, but if InndH of a certain value arc to bo bought, 
8uch co^tJ^ come out of th< 1 perxonal «ftnt<'. But 

if the plaintifl^s interoM i- «• n iiigent, and fniU jjonding 
the Buit. or even after decree, ho cannot have h'xn cohIb 
{Hay V, Bourn, 5 Boav. ClOK Tho co»tJ«, however, of 
rmjuiriij* for tho U-nefit of the !• ' ■ .!n- 

tonanci', Ac, will come out of the !■ „.. ..:.....' (>•, 
T) Vcft. 4G4). And t\& to the cohUi of members of a claM 
• iititlrd to a 1 • jx^t, p. 1H6. 

wiirirtio Ailmission *-i .i - i-. by an executor hufficient foi j..i_>- 
Ud.a'r ci '""'"^ ^^ ^ legacy is an admi&siou for all puqxtees of the 
on «.ln.w- Huit, and extends to costs (Attur^ey-Genrrxtl \. Laices, 
»Z^[ ^ Ha. .S'2. 44. Phihlr'^ • SiX^'Ufyy. Jfof^n,, 2 My. 
HciTccfor ,^ K. .■>.'»7 ; y^K'A V. ' . {] Ha. 531; MCadhy v. 

of I* irt^mcy M'Carthy, 1 Moll. 1^6>. And where a decree is made for 
ranvT'"^ l^aymcnt of a legacy on admission of assets, it will in 
with cvwta. general bo with costs, either out of the estate or by tho 
executor personally, as to which see j'oef, pp. ISO, scq. 



ACTIONS FOR AbMlNISTRATIOK OF ASSETS. 169 

But it seems that the ph\intift' in such a case should 
exhaust every means of obtaining payment of his legacy 
without suit ; see.Ayhner v. Winterhotham, 4 Jur. N. S. 
19, where the plaintiff omitted to ot^er a power of attorney, 
and had no costs of tlie suit. The plaintiff may also h^sc his 
costs if he is guilty of laches in hringing forward his claim 
(Lord V. Lord, SJm: X. S. 4S5), though the defendants set 
up the Statute of Limitatiuns and foil (ibid.). In Davies v. 
Austeii, 1 Vcs. Jun. 247, a decree for payment of a legacy 
was made without costs, on account of the ungraciousness 
of the claim, the executors having spent more than the 
amount of the legacy on the legatee during his infancy. 

Where, however, a legacy has been severed from the Smu if 
bulk of the estate, and becomes the subject of litigation, |^^ ^"^J 
the particular fund, and not the general estate, must bear severe*! 
the costs uf a suit respecting it {Attoruriz-Gcucral v. L((urs, ^^^^^ „/ 
8 Ha. 82 ; .}fa)iiiieua v. Rogers, 8 De G. M. k G. 828) ; and the csutc. 
see Klt^g v. Taylor, 5 Ves. 80f) ; Jcnnur v. Jcnour, 10 Ves. 
5G2 ; WiL-iOii v. Squire, 18 Sim. 212 ; Hilly. Ruftoj, 2 J.& 
H. 684; Penttiufjion v. JiucUr)/, (J Ha. 4.')8. lu the ca.se la.st 
cited, the question was between tlie residuary legatees 
and a charity as to the title to a fund, which had been 
transferred into the names (»f trustee.<', after a life interest, 
and the ('i»urt held tiiat it went to the resiiluary legatees 
as part of the general assets; and, therefore, the costs 
came out of it. Where the legatee was an imbecile at the 
date of the will the (.'ourt on that ground gave th(; costs 
out of the testator's general estate {Potheen ry v. Pothccary, 
2 De G. il- S. 788). An executor trustee cannot by paying 
a legacy into Court relieve the residue from its proper 
burden {Ln re Jilrhtt,9 Ch. 1). :)7(; ; 47 L. .1. < h. sKi; 
27 \V. R. 104; 81) L. ' T. 4lst. Where the estate had 
been administered, and a large fund set apart to answer 
certain legacies, the costs of a suit for appropriating and 
securing one of those legacies were held to be payable out 
of the corpus of the legacy (GovernrssrM' Bcncvolcnl Insti- 
tution v. Jiusbri'lyer, 18 Beav. 407}, notwithstanding 



170 rOf-T« IN PAnTfTLAR ACTIONS. 

tliat tlic tcnaiii !■ i jii. -i im- Ktjncy wa.s not a party to 
the suit (Jilchtirdittut v. Himhnil'jer, 20 Ikav. 137). But tlio 
fund must be actually severed from the estate when the 
ju'tion in commence<l, an<l it maul's no dif' that it 

was raiM.'il and net apart before the per»oii i to it 

were actually axcertained iDmjdaU v. Dugdale, 12 Beav. 
247). Nor will the adinisnion of a.HM>ti( in a legatee 'm suit 
alter the rase, or the mere fact that the {Kirtirular amount 
h.'LK been paid into a bank or placed in cUftiMly {xMidin^ 
the declHion. Sec AHorney-GeneruJ. v. Lnurs, 8 Ua. 32, 
where the tllHtinction ' ' ' ' the fund U 

.'•evei«-<l, and where it , it \t\ V. (.'. 

Wignim : " If tbo executors, admitting the K'gacy to bo 
pa\.ili|. s« \i r it from the • td a ilijipute afterwartU 

an^^ s 1h twi . u the penninn ;■• .'..■•;,», nr some of t» hum, the 
Ie;;aiv Im loic^H, and the ( Viurt Uitu to devide tu whom it 
belongH, there the particuUr fund bean the oosU ; but 
if the dinput. ' ' ' lh« 

legacy and t: ^ :iie, 

whether the legacy is |)ayable or not, that caoDOt be tho 
CHsv of a heverantx; in the wnhe in which the nde I have 
referred to applie^t, Iiochusc then, until the (/ourt makcA 
itM decree that tiie legacy i* |Mkyable, the legacy U not 
severed from tho CKtato : Uic executor* liavo kept it 
under their » ' * ' ' ' •' . |M»int 

ileeiditl " (p. t .47 L.J. 

Cli. 117 ; 20 \V. K, 77 . :t7 L. T. G31. Tlio costs of an 

nnsuccejisful action !• .... j^ny 

bo set otV by the exe« .; . ..^ ; .. ^. ;-. .,..11 they 

are entitloil under the will, notwithi>tanding a.v«i^'iimentM 
anil incumbrances (/ii re Kiuipman.Knafmuin v. Wre/onf. 
is C'h. 1). :m)). In Itohfitf \. Ifiin\>,tfi, 17 IWav. 2.>1». 
where the administrator .settled with the owners i.f three- 
fourths of the residue, and a bill was filed by the owner of 
the btlur fi»urth f<»r an account, it was he!<l that the 
plaint itl's share wa^ liable to only one-fourth part of the 
COsU> of the suit. Sec also SjKnccr v. ]yutxl, E<]. oi)7. 



ACTIOyS FOR ADMINISTRATION OF ASSETS. 171 

An exception to the general rule winch gives the costs Exception 
of an administration action out of the estate is made where ^ncAi 
the action is not for the benefit of the estate, or as to so rule in 

1 /• 1 • 1 1 rill a^luiinis- 

much of the costs as are occasioned by unfounded charges tmtion 
or vexatious proceedings, " No costs ought to be given out •'*^/"^"''' 

f^ <^ ^ ^ f when tho 

of an estate except for those proceedings only which are in action or 
their origin directed with some show of reason and a ^"li^jncTin 
proper foundation for the benefit of the estate, or which >t is not 
have in their result conduced to that l>enefit " {per Lord i>cncfit of 
Westbury, C, in Bartlett v. Wood, 9 W. R. SIT) ; and in <hc cst«tc. 
that case the costs occasioned by charges of fraudulent 
conduct made in an infant legatee's bill against the exe- 
cutor and disproved were disallowed. So in Marahdl v. 
Bremnci', '1 W. R. 320, the assignees in insolvency of one 
entitled in remainder having filed an :ulministration claim 
seeking to have certain ha-sdiolds converted, the Court 
being of opinion that the tenant for life was entitletl to 
enjoy the leaseholds in spci-ir, gave tho ])laintitr no costs. 
In Macl>eii:it' v. Tttylor, 7 Beav. 4(i7, a bill for general 
administration was filetl on behalf of infants entitled to 
one moiety (jf the residue, and the persons entitled to tlic 
other moiety by answer, and at the hearing objected to 
the suit as unnecessary, and tho accounts having proved 
to be substantially correct, the costs were ordereil to ho 
paid out of the plaint itV's share alone. See also Ihtrbrr v. 
Barber, .'i My. I'v: Cr. (J.SS, where the costs were j)aid out of 
tho two shares of residue which alone were substantially 
affected by the stiit ; It W lard v. Fidptnl, \ Ch. ]). .SM!» ; 
46 L. J. Ch. 4;t; ii.') W. R. KM ; X^ L. T. 7:)() ; In re 
Chennell, Jones v. ChnneU, H Ch. I). 4!l2. 

But if the suit has enabled the C«)urt to administer the Hut tho 
estate, the plaintitV thoui-h he fails in his nartienlar claim •'''""|"'^ 
will be allowed his costs ; see Tlion)/>s<>u v. S/iejtjxa-d, i»ll<'«e.l 
2 Cox, Itil, will If the plaintitV fdtd his bill mi the footing Iim,,'!*.), l,o 
of an intestacy, and a will was afterwards established in f''''/^ '" '''^ 
the Ecclesiastical Court; and Taiflor v. llaytjarlh, «S Jur. 
135, where the plaiutifl*:! unsuccessfully claimed to be tliQ 



172 



COSTS IV rARTK^ULAR ACTIOKS. 



An action 
for «<lniin> 
idtrittion nf 
kn infjuit'ii 
proiirrly 
jirimi'i/neit 

K IwiK-flt 

to hiin. 

What wonU 
Duffiricnt 
to throw 
the ro»Ui 
nn a 

IMirt irut.tr 
f<in<l. 

" Tr»U. 

mrnt*ry 

CIPCtlM!*." 

toniht|i ri- 



next of kin of an lu. i.ti. . umI the real next of kin were 
ascertained l>y onf|uiri«H in the suit ; and sc-c the cases on 
this point collected, ante, p. 97, srq. The Court also 
considers that it is pr'nuti ftic't' a iK'nefil to an infant to l»e 
nia<ic a ward of Court and have his property secured and 
duly administered {iter L. J. Turner, Clayton v. Clarke, 
I» W. K 718). 

It is now sctthnl (contrarj* to some former c.i.>i ->, that 
the term " testamentar}' expenses," or " exccutt.>rHhip ex- 
pi-nses," includes the cofftJt of an notion for admiuJAtratioo ; 
and f' ' .'.-•• • • .• , j^^ 

of Hii ^ • ■ ; . -ion 

in exoneration of the general csiatc {M'dea T. Harrimtn, 

n ch. :iir,; 4n L .i. <h 3h5; ti \\. R \\\ ; :jo l. t. 

HM); He Ynviii/. Yi,uu>j v. IhJman, 44 L. T. 4UI) ; 
IfarhM- V. IfarliM-. 20 Iv|. 471; 44 L. J. Ch. 512; 2:1 
W 11 7H9; ;W L. T. 247 (tlislinnuiAhinj? In rt Biei't 
i:-'>f-. ^• f / V. ir.ir,.rr. ir, h^j. 577; 21 W. K. SOH); 
!•' ..nj V. J ..,ny, 11 Ch. I). 440; 4M L J. Ch. 6!»1 ; 40 
L. r 39.J ; Sluirp v. /,mVi, 10 C\}. D. 408 ; Morrrll v. 
Finher, 4 I), (i. t^ S. 422K Ifinwne v. (ir>Himbrlthj^, 4 
Mad. 49.'), an«l the numerous r-v A •' nt foUuwed il. must 
iherefori" ho considrretl to be < i. 

Hut the term "testamentary expenses" doc« not 
inohuii* till" costs of adniini • . •• /,.^j_ 

iu»i \. Ji<tr,ir(i, 45 L. T. 2!'_ . 4 a 

direction in a will that costs of administration are to conic 
out t»f a jvarticidar fund, the Court will not hesitate to de- 
prive of his costs any plaintiff who has ini>titute<t an im- 
pri»|)er adniinistnition suit (He Young, Yuunt/y. iMtiman). 
The charge in a will of the '* costs of executing the trusts 
hereof," u|x>n a fund to l> !.• l»y the cxecdtor-*, was 

held ni»t t*» extent! to th« : executing the trusts of 

the real estates, being confined to the costs of executors 
in that diameter (Lord Hromjhaui v. lA)rd W. Poulett, 
19 Beav. 119). In a creditor's action, the costs are pay- 
able out of the same funds as the debts, and therefore, if 



ACTIONS FOR APMINISTUATIOX OF ASSETS, 173 

a particular fund or estate is cliargeJ with debts, the costs 
of a creditor's action also will be charged upou it {Wihou 
\. Heaton, 11 Beav. 492; and see Mutlow v. Mutloio, 
4 De G. & J. 530). Where a testator had charged his 
real estiite with payment of his debts in exoneration of 
his personalty, it was held, Lord Kingsdown (Uss., that 
this did not include costs to which the executur had been 
put in resisting an unfounded demand by a creditor ; 
such costs being costs of administration, and therefore 
payable out of the general personal estate (Lovat v. 
F)xi8er,L. R. 1 Sc. Ap. 24). 

If an administration action is also for other purposes, or Whore tho 
it becomes necessary to administer or execute the trusts !|[j.j''f" " 
of another estate or fund in it, the costs of the action will other 
be divided ; see Yoiinrj v. Martin, 2 Y. Sc C. C. C. 582, ^"'■'''^''* 
where the costs of a suit to administer the estate of a 
testatrix, including a fund appointed by her will, were 
payable, so far as related to the appointed fund, out of 
that fund, and a.s to tho remainder only, out of general 
estate. In Irliij v. Iil>i/, 24 Beav. 52'), the costs of a suit 
to administer the estate of a tenant for life of a settle- 
ment, to whom the trust funds had been lent on mort- 
gage, and to realise the mortgage and incidentally exe- 
cute the trusts of the settlement, were payable, so far as 
an administration suit, out of as.sets, but so far as increased 
by its being a suit to execute the trusts of the settlement 
out of the settlement funds. And in JJemt v. Morris, 
5 W. R. 345, it was held that the costs of administering 
two estates, which had been dealt with as one fund, should 
be paid out of the estates e<{ually, thou^li tli«v wire un- 
equal in amount. 

The costs of a suit to execute the trusts of the will of a 
married woman, made under a power, her general estate, 
which was not com])riscd in the will, being administered 
under the decree, were borne by the two funds equally 
(MayJ V. Field, 24 W. R. Gi\0). In Mcnteath v. Camp- 
bell, 26 W. R. S4.S, it was held that the costs of obtaining 



171 (UMS IN rAUTl" ILAU ACTI<>KS. 

probate of the will of a marricil woman, wliicli purported 
to be ma<lc under a power, but merely operated to pjjss 
her separate estate, must fall u|V)n tin* appointed fund ; 
but 8ee BlaiUod- v. GviinlU, 7 Eq. 21'. . 17 W. R. 11 + 
Whero a suit was instituted by the admiiii>trator(^' iMimn 
lion (»f a testator aj^iinst the personal representative of a 
ilefaultinjf executor of the same testator, to recover the 
amount due from him, and also to administer the estate 
of the ori^dnal testator, it was held that the executor's 
estate must bear the costs of it (Hyatt v. Ilijutt, .'iO R'av. 
630) ; but in Palmer v. Journ, 43 L. J. Ch. lUi), where 
an executf>r died insolvint, havi; ij>lii«l the .i 

and an administmtion suit wa-'< i n;(ainst his 

cutors, who accounted for what they had received of the 
tesUitor's estate, it was hehl that they were entitle<i to 
the costs of accounts against themselves, but not to costs 
of accounts against the estate of the insolvent executor; 
and that as to other costs of suit, being parties in )>oth 
capacities, they sliould have half the costs ; and see also 
Kitto v. Luke, 2.S W. K. 411. 

A (lilt t tion that costs are to be paid out of a {particular 

liniti, docs not conclusively determine that that fund is 

ultimati'ly to bear them; see S/iej}jntiil v.ShtpjMinl, '.V,i 

Heav. 121), where costs had lx?en ordered to 1m? |)aid out of 

income instead of out of capital, and it was held that this 

did not prevent the matter IxMng afterwards set right. 

■Wlicre real As t<> the nioile in which the e«»sts of a suit to ad- 

''"'' , minister both real and personal estate should be borne, 

i-sUitcs arc the rulo seems formerly to have been as follows, viz., 

Tsxv^-li in ^^''^^ where a testator created a mixed residue of realty 

ih.' s;imc and pcrsonaltv, and the two were a<lministered together 

action. 'r ^ \ ex • • t f 

as a common inud, the costs of the suit were paid out of 
both ratcably, according to their respective values ; but 
where the real and {XTsonal estate were given upon dif- 
ferent tnists. and a suit was necessar}- to determine the 
rights of parties, the general costs of the suit were pav- 
able exclusively out of the general jx-rsonal estate, even 



ACTIOKS FOR ADMINISTRATION OF ASSETS. 1(0 

although the difficulty arose with respect to the real estate 
solely, if there was a prayer in the bill for admiuistration 
of the personal estate also. See in illustration of the prac- 
tice as stated above, Cradock v. Given, 2 Sm. i.^' G. 241 ; 
Bunnett v. Foster, 7 Beav. 540 ; S. C. on appeal sub nam. 
Christian v. Foster, 2 Ph. 161; JoJnu^ton v. Todd, 8 Beav. 
489; Green v. Bushi/, W. N. (186G), 344; i^kirroiv v. 
Skirroiu, 17 W. R 750, where the costs were paid rate- 
ably ; and Fiiphy v. Moi/sri/, 1 Ke. 578 ; Fidford v. 
Brown, 2 K. & J. 420 ; Stringer v. Harper, 20 Beav. 
585 ; Barneurll v. Ircmonger, 1 Dr. & S. 255 ; Maddi- 
son v. Chapman, 1 J. i^- H. 470; Fuxlcf/ v. Fuxlef/, I 
N. R. 509 ; Band field v. Randjield, 2 N. R. 309 ; 11 
W. R. 847 ; where the costs were paid out of the 
personal estate only. In Sanders v. Miller, 25 Beav. 
154, however, the costs of the suit, so far as it was 
for the administration of the real estate, were ordered to 
be paid out of the undisposed-of realty, and so far as for 
the administration of the personal estate out of the un- 
disposed-of personally. Ami the Court of Appeal has 
recently laid it down that where an a(.'ti(ni is bn>ui,dit for 
the administration of real and personal estate, the general 
costs of admin-istration must be borne by the personal 
estate, and any additional costs caused by administering 
the real estate must be borne by the real estate ; and, 
further, that it is the duty of the judge to apportion the 
costs, and not leave the matter to be dealt with by the 
taxing master {Patching v. Banutt, 45 L. T. 292 ; In re 
Middleton, Thompson v. Harris, W. N. (1882), 15 ; 30 
\V. R. 293). This must, therefore, be taken to express the 
present practice of the Court on this point. 

The cases as to the liabilities of descended and devised 
real estates for the costs of an administration action, do 
not appear to lay down any very certain or uniform prin- 
ciple. In Roiv V. Row, 7 Eq. 414, it was held that the 
costs of administration must, as between the heir-at-law 
and specific devisees, be borne primarily by the real 



17C COST* IN I'AltTlCTLAn ACTIONS. 

estate descended ; but see Luck-cra/t v. Pridliam, 48 L. 
J. Ch. 03() ; W. N. (1H79), 94. In Scott v. Cumberlund, 
l.S K<|. :.7>S, Malin.s, V. C, said that tlie old rule that de- 
scended estates must exonerate devised estates, was still 
in force, an«l held further, that real estate descended, 
whether hy rea.son of lapse, or l>ecauso it was never de- 
vised, must be a|)plie<l in payment of the costs of admin- 
istration in priority to pcrwmal estate effoctually disposed 
of. On the other hand, it wa-s held that whore part of the 
real estate wa« undisposetl of, and descended to the heir, 
the co.sts must be divided between the ileviscil and de- 
scended estates pro ittta {Ma<ldtson v. l*i/f, 32 Beav. 
(;.")« ; and sco Jiiiffot v. Lfggf, 2 Dr. & S. 259 ; 13 W. R. 1 ; 
r, N. H. :>; 11 L T. 2<;3; Jlanlu'icl: v. //</rrfuiVil-. 42 
L. J. C'h. (I3(»l In this conflict of authority, it is difficult 
to discover a principle ; but it is submitted that the true 
principle is that foUowctl in .M(t(Uison v. Pyc and liugot 
V. l/tgg*\ There is no such thinp a.s a residue of real 
estate, ])roperly so adled, and the devisee has no e<juitj 
to charge the heir with the whole expenses of administer- 
ing the devised a.s well as the descended estates. Id 
»S7<a</ v. JIat\Utkcr, 15 K«j. 175, where the testator 
charged all his real and personal pro|K'rty with the pay- 
ment of his debts and funeral and testamentary expenses, 
and the j>ersonalty proved i: '• ut fur payment of 
debts, it was held that the . :;ly devised and de- 

««ceuded estates were liable rateably to the payment of the 
debts and exixni.ses, and the costs of the suit. See also 
In re Jones, Jone^iv. Cales^, lU Ch. D. 40. Where the 
residuary personalty is insufficient to pay the costs of the 
suit, then, as between pecuniaiy legatees and residuary 
devisees, the deficiency must be made up by the fonner 
{Tumkins y. Coltlairst, 1 Ch. D. 62G), following out the 
principle of Hoisman v. Fryer, 3 Ch. 420. The costs of 
the general administration of personal estate should not, 
in favour of legatees, be thrown upon descended realty 
{Uai^ison v. Harrison, 8 Ch. 342 ; 21 W. R. 164). In 



ACTIOK^ FOR ADMINISTRATION OF ASSETS. l7v 

Jad'son v. Pease, li) Eq. 90 ; 23 W. R. 43, where the 
residuary personalty after payment of debts was insuffi- 
cient to pay the costs, V. C. Hall held that the deficiency 
must be borne by the specifically bequeathed personalty, the 
specifically devised realty, and the residuary realt}', rateably. 
The particular costs and expenses, however, incurred 
after an order for sale of any part of the real estates in 
effecting the sale, should, it seems, be borne out of the 
proceeds of sale {BarnewcU v. Iremonr/er, 1 Dr. & S. 
255). If the personal estate is exhausted in payment 
of debts, the costs will come out of any estate or fund 
charged with the payment of debts (ir/sJcH v. WisdeTif 
5 Jur. N. S. 80; Piu:lci/ v. Puxhi/, 1 N. R. 509). If Costs of 
the action is for the administration or execution of the ^"'^ \" ^Y* 

cnte trusts 
trusts of the real estate alone, the costs will fall on the of real 

residuary real estate {MarnJudl v. Grime, S W. R. 385) . •^"^ *■'""> • 
or if there is no such real estate, upon the estates spe- 
cifically devised {Sanders v. Miller, 25 Beav. 154; 
Barnewell v. Iremoufjcr, 1 Dr. ifc S. 255) ; and for the 
purpo.se of apportionment, the amount of the incum- 
brances (if any) on each estate should bi^ deducted from 
its gioss value (ibid.). If part of the real estate is un- 
disposed of and descends to the heir, the costs will be 
livided between the devised and the descended estates j^ro 
raid {Bufjot v. Lcggr; Maildison v. Pije, cited ante, p. 17G). 
In a suit for executing the trusts of real estate which has 
been settled by will upon infants, the Court has power, if 
neces.sary, to direct a sale or mortgage of sufficient part of 
the property fur payment of the costs of the suit {MiOideno 
V. Mandeno, Kay, aj^p. ii. ; Adams v. Adams, cited ibid., 
iii. ; Cannellv. Beebij, 1 Dick. 115, Beame.s, app. 7). But 
the Court does not charge the costs of an administration 
suit on any part of the estate administered and direct a sale 
against the Avill of a person beneficially entitled, who sub- 
mits to pay his .share of the costs (Lees v. Lees, 15 Eq. 15] ). 

The rule which throws the costs of the action on thcBuitlic 
part of the estate which is not specifically disposed of, whtcU^costa 



178 



C(»STS IN rAHTkULAR ACTION'J. 



arc jiftjai.lc does Hot ai>ply as l>ctween llie aj<poiulc<l aiiJ uiiap- 
(luctlocfi p<5intcil portion« of a fiiml in course of ailmiuUtratiuu 

notnj.|.iy (TroWnie V. Rt,uth>hie, 1 Dc G. & S. 062, (\1\ ; Waritu 

JIM iM-tu'ccn , . . 

ilip ap. V. PoMtlrthiOiiUr, 2 C<>L llfi) ; hut the costs in that case 

jH.iiii«l ^^^ payalik! out of the appointc<l and unap|x>inti«l juirtA 
npi^.inU;.! rateahly, acconlin;; to their respective values {ibid.); ami 
lunll/'^'* '*^«' ^"^f'^orr V. Dij^uu, 15 Ch. I>. 506; 2;» W. R. 12. In 
Wunrn v. PoHllfthn\tltf, the suit was to administer the 
estate of a marrioil woman, who had made her will under 
CohU nf K a {K)wer. When several a«lministration suits have Ixn-n 
consolidateil, and one iltH-n-i* made in all, and the conduct 
of them j^'ivcn to the plaintiHT in one of them, he will lie 
entitle<l to his further costs properly incurretl in prosecu- 
tion of tin* dt'ci ' ' ' ' ■ »Hts as plaintifT in 
his own suit, iii ^ ^ , and ex|K um's in- 
curred in the conduct of Rales under the decrco {Lockhart 
V. Ilnrihj. 10 IJeav. 2;»2). 

'i'lif citst.s of an mlminifttration action an' |»ayahl(' in 
priority to the costii of n suit in the rrob;tte I)ivisii)U 
cluirifc !o resixjcting the will, and there ordcreil to be paid out of 
im;.'nt*i..n ^''*^ estate (7/1 »Y M<i-/lt> i>\ li>'vlt» v. MaifhtiP, J Ch. I). 
in rn.Uto 5;i(j . }fau,r v. Mnjor. 2 ])rew. 2Hl) ; but not to the 
liiii not to charges lucurreil in refercuce to Iho e«tiUe by an omcer of 

charK^of jii^j Court wlurc the estate is bcini; administered: sec 

an officer , . " 

ofUio Min'l«on V. ^foriiiou, 7 De O. M. i^ (J. 214, 224, where 

the estate cumpriseil West India pro|K-rty, and the con- 
signee appointi^il by the Court was allowed to retain 
advances made by him out of tli ' i : lity to the 

costs of the suit. An executor r has also 

a right to retain his own ticbt in priority to the costs of 
the suit {Clii.'ismn v. Dnct's, 5 Uuss. 29; Tippiuij v. 
\n iiriority Powcr, 1 Ha. 4()5 ; Ilofue v. Hhephcrd, 20 L. J. Ch. hl7 ; ."l 
Jur. N. S. S(t6 ; Richmond v. White, 12Ch. D. 301) ; notHiith- 
standing Locones v. Stothcnl, 1 S. & S. 4.'>ii, contiti. And as 
to the priority of the costs of the suit over debt>, .see po«t. 
K.xccutors and administrators are, in the absence of 
gross misconduct, entitled to their full costs of the suit as 



|>lnintiir 
liAvinK 
tlio am- 
•lurt of 

MiiUi con* 
•olidale*!. 



<\MtN of 

iiuit, a 
|irior 



Court, 



Ri^lil of 
rvtaiiur 
by cso'ii- 
tor of hill 
own ik-lit 



to tlio 
cosIh of 
tiic suit. 



Cost* of 

executors 

and 



ACTIONS FOR ADMlMlbTRATION' OF ASSETS. 170 

between solicitor and clieut out of the estate, together a^lminis- 
with any other costs, charges, and expenses properly in- aTnlints" 
curred by them (lUite, p. 5 ; and see Sharp v. Lush, tration 

suit.s 

10 Ch. D. 4G8 ; 27 W. R. 528) ;* and in priority to all other 
parties, as to which sec post. As executors can only 
obtain complete exoneration by having their accounts 
passed in the Court, the Court is anxious not to deter 
thorn from so doing by refusing them costs {Low v. Carter, 

1 Beav. 42G ; Hall v. llallct, 1 Cox, 141 ; and see Howard v. 
Easton, 29 W. R. 885 ; Citrtcis v. Candler, G Mad. 123). 
And if an executor refuses to join his co-executor as 
a plaintitf in a proper case, and is therefore made a 
defendant, he will be refused his costs {Colhjer v, Dudleij, 

2 L. J. Ch. (0. S.) 15). The mere fact of executors being Mere 
charged with interest on balauces in their hands, or any ^iu not 
mere ne<diwnce, is not in itself a sufficient irround for ^•'M'rive an 

. . . °° ' . - , . ° executor of 

Visiting them with the costs of the action, or even refusing his costs. 
them costs {Flanamin v. Nolan, 1 Moll. 84; Travers v. ^f '""^'" 

_ _ "' ' retaining 

Townsend, ibid. 49G ; Xoblc v. Mei/mott, 14 Beav. 471 ; i>aiancos 
Bennett v. Atkins, 1 Y. & C. 247 ; Woudhcad v. Marriott, JlS ^„.i 
C. P. C. G2 ; Fglin v. Saumlcrson, 3 Giff. 434); notwith- <'ii'»'-«c.i 
standing Lord Loughborough's dictum in Sccrs v. Hind, interest. 
1 Yes. juur. 294, which wa.s disa])piuved of by Sir W. 
Grant in Ashburnham v. 'Thomj^son, 13 Yes. 402, as too 
broadly stated. " I have often lieard it laid down as a 
principle by some of the greatest judges, that an executor, 
though in the result made answerable for default by reason 
of loss incurred through neglect, or chargeable with interest 
for retaining money in his hands, yet if there was nothing 
V)cyond such negligence or retention of money against him, 
is entitled to the costs of the suit " (per Sir A. Hart, L. C, 
in Travers v, Toiunscnd). 

But if the executors' accounts are falsified, or they have But if the 
been guilty of gross or wilful negligence, or have acted "HSy 

of gross 
• The costs, charges, ami expenses of gottingin a particular ilobt sppci- miscou- 
tically bc(picatheJ are allowed to the exociitors out of the general estate ami 
are not charged on the particular fund (Perry v. MaUloircro/f, i Beav. 201), 

N 2 



180 COSTS IN PARTICrLAU ACTIONS. 

duct. tLcy from fraudulent or intcrotcd motives, tlu y will have to 
Tilitcd P^y ^''^ ^^^^^ ^^ ^''^ ^"'*» ®^ ^ much of it as has l>e€n oc- 
with co«u. casioncd by their misconduct ; or, at least, will not be 
allowe<l costs; antl see GilUrt v. J^f, 13 W. R. 1012. 
Mherc llomillv, M. R., disallowed the costs (»f an executor 
who vexatiously obstnicte«l the taking of his accounts. 
The general principle is thus state«l by Sir T. Plumer : 
" If a suit would have been proper, and the cxi-cutor a 
iiecesRary party, though the cxecut«jr had not misconductc*! 
himself, he ought not to |Miy all the costs of such suit, 
though in the coupw of the suit it npfnars that he has 
misconducted himself; but if the mi.Hcon*luct of the 
executor was the sole occasion of the suit, he ought then 
to pay the Costs" (Tfhhs v. Cn'i^nt' r. I Mad. 290). And 
in Jfetnjh V. ScunI, 24 W. R. ul. Sir ('. .1. vm 1 M 11 
expressed himself as follows: — 

"In certain cases of mere nej^lect or rvfnmd to fuihi>ii 
accounts, where the ne;;lect is very uro**-**! "^ the refusal 
wholly indifeusible, I res<rve to myself the right of making 
the executor or trustee |>ay the costa of litigation caused 
by iiis neglect or refusal. But I '^ ' ' !f 

from saying that in every case of m'.; _, , n 

every case of more refusal, an honest executor or trustee, 
who has fairly •' 1 his duly, an onerous and thank- 

less duty, is to 1. 1» . -i-. But where I find, in ndditi«»n to 
an unjustifiable neglect i«r «lelay that there Iixh bein mis- 
conduct in dealing with the trust fund, then I look U|>on 
that neglect or ' ' .f the latter mis- 

conduct ; and ^ \. ••. the neglect or 

delay might not be sufficient to induce me to order the 
trustee or executor to pay costs, yet, wlien combined with 
such misconduct I should order him to ilo so." 
^^^ In the following cases— Bailry v. Goul'l, 4 Y. & C. 221 ; 

executor* J>etnu'tt V. Atkins. 1 Y. & C. 247; XuUe v. Mei/motl, 
*;^"' , 14 Beav. 471 ; Fhin<n/an v. Xolan, 1 Moll. .S4 ; Tifii'erft 
thoir full V. Toii'tisrihl, ibid. 45)0; I{it>/ils v. Rm/il.t, 14 IVav. .'>4 ; 
'''''**• Cofton V. Cfurkr, 1(3 Beav. 'l:}4 : llohjaU v. Huwrth, 



ACTIONS FOR ADMINlSTnATION OF ASSETS. 181 

17 Beav. 259, executors retaining balances in their hands 
and charged with interest thereon, were nevertheless 
allowed their full costs; and in Taylor v. Tabrum, G Sim. 
281, they were allowed costs, though charged with a loss of 
£3,000. Again, in Bennct v. Goinrj, 1 Moll. 520, an 
executor in whose accounts £300 had been disallowed had 
his costs ; the disallowance of a credit honestly claimed 
not being a falsitication of accounts ; and see Smith v. 
Cremer, 24 W. R. 51 ; Massey v. Massey, 17 L. T. 233. 

In Raphad v. Bochn, 11 Ves. 02 ; 13 Ves. 500 ; TMs v. Where 
Cavpe.nter, 1 Mad. 290 ; Pocock v. Reddington, 5 Ves. 800; ^cVe 
Coh/er v. Coh/cr, 11 W. R. 79 ; 32 L. J. Ch. 101, executors, f ^'"•c'l 

•^ . . . . ^"0 costs 

though chartrod with interest on balances in tlieir hands, of the suit 
were allowed the costs of the suit, except as to tlie "'gpepj!^] 
enquiries thereby rendered nece.s.sary, of which they had inquiries 
to pay the costs in Tehlm v. Carpenter, and of which ^y thoir 
no costs were given in the other cases cited. And in I'rca.h of 

. trusL 

Ileirjhinijton v. Grunt, 1 Pli. GOO, tliey were charged with 
compound interest, and ui.'ide to pay the costs of %o much 
of the suit as sought to charge them witli interest, but 
received their full costs of the rest of the suit ; and .see 
Pr'ide V. Fook^, 2 Beav. 430 ; Smlthorpc v. Tipper, 13 E.j. 
232, where trustee.^ were ordered to pay so much of the 
costs as was caused by their defiiult ; ]\'ildin(j v. Landor, 
W. N. (18GG), 327. "in Jiirk.'i v. Mickletlnuait, 34 L. J. 
Ch. 3G2, where large balances were found due from exe- 
cutors, they were not allowed any costs, even on condition 
of making good the balances. 

Lastly, in Seers v. Hind, 1 Ves. junr. 294; Xeirton v. Where the 
Bennet, 1 Bro. C. C. 3G2 ; Roche v. Hart, 11 Ves. 58, G2 ; l^^^^^''"^ 
Mosley v. Ward, ibid. 581,3; Ashburnham v. TAom^^on, p'!'»'«c'> 
13 Ves. 402 ; Crackdt v. Bdhune, 1 J. & W. 58G ; Tid'ner tWoiL 
v. Smith, 3 Sm. 6i G. 42; Eyfia v. Saunderson, 3 Giff. «^ ^^^^ s"'*- 
434 ; Walrond v. Walrond, 29 Beav. 58G, the executors 
had to pay all the costs of the suit ; and see Wroe v. Seed, 
4 Giff. 425 ; In re Raddyffe, Pearcc v. Raddyfe, 50 L.J. 
Ch. 317 ; 29 W. R. 120 ; Hooper v. Hooper, \\. N. (1874), 



>li'-I.t..>ini< 
I 



182 C08T8 IN PABTICULAB ACTIOyS. 

174. lint if, \\hcii ordtTciJ to |>ay the cost« at the hearing, 
they couiply with the decree, they may receive their 
8ub8e<|ucnt cost« (Hcweit v. Foster, 7 Beav. 34ii). In Hide 
V. IlnyvxjoJ, 2 Atk. 12'" 'ty of fraiul were 

cliarge<l with costs, nrttwr _ , ial ilireclion iu 

I'ut the will that they Khould have costs out of the ottate. But 

txt-ut.ini ij" jIjj. p)jiit,tify fails to e.«*talili8h the particular ehar.;'^ 

< ntill<'<i to • • 

r.M- of made, the execut<»rK, though they have been guilty i>t 
iif;,'ligcnce, will Im) cntitle<i to their costii of meeting tho»o 
• hargea ; ficc Smith v. Chambers, 2 Ph. 221, where it was 

i;..,!..../ 1"M that tl. • ' '■ ' ! ' :.\\v.j.u 

ii^:>„cmr. m-iiy,, were i i:. 1 

therefore the exocutoni were allowed comU. And sec 
further oh to the c«»HtH of injudiciitU!>ly d< ' 

yoUe V. Jhrtt, 5 Jur. N. S. 4; 2h I • : .._. 

they were not allowed ; (inthnm v. )'■ . H4 L J. Ch. 

220; la W. R 396; 11 Jur. N. 8. Ion; 12 L T. 39. 

KwM.t..,, Where two or m ' •- > • : ,. . . i ,_ 

iiii|>lim(c«l , , 

11. Ii..,rli of trU^t, till' Jiia: _ t 

' of \m costs hy all, and the ( 'ourt will not dtstinguiiih 
juiiiUj. iM'lween the relative degrcNvs of ty (/xp 

Huxvle. 2 Ph. 140j. The circu:.. that tl.. 

proves insufficient may be a reason for rofuAing the tru*- • ^ 
all or a }>art of their cost«, if they have not strictly 
ndin • • - \ their tnist (lirerv. Tupy, 10 W. U. 277). Hut 
ill li J v. SjHtjf'iirth, 9 Rav, I9'», the rej)ro«entatives 

of a defaulting executor fairly accounting were held cn> 
title*! to retain their costs of the suit out of tl 
though in.surticient to repair the breach of tru>t. 
was, in fact, a mere creditor's suit 
Whcro Or again, if the executors, though not guilty of any 

ii.kvo i.ctc*I breach of trust and without any fraudulent motives, have 
iKrv,i>viy acted jxTversely or with unreasonable caution or suspicion, 
in.n.fon. they will have to pay the costs of a suit occasioned by 
" ". such conduct. An execute »r is ordiii ' 

rnutU'n : 

the accounts of his testator's c>tate to I ' 
nifusing to duar)' legatee, and if he refuses he will have to pay personally 



ACTIONS FOR APMIKISTRATION OF ASSETS. 183 

the costs of the suit up to the hearing (Kcmj) v. Burn, 4 accomit, 
Giff. 348 ; 1 N. R. 257 ; 11 W. R. :27« ; l) Jur. N. S. 375) ; 
but not the subseciueut costs if he accounts fairly {ibid.) ; and 
see the cases collected ante, p. 102. In Greshamx. Price, 
35 Beav. 47, however, executors ^Yho had neglected to 
produce their accounts were merely deprived of their costs 
up to the hearing. So in a legatee's suit, where the 
executor has returned eva,sive answers to enquiries by the 
legatee {Grierson v. Astle, 3 L. T. 288) ; or has been un- 
reasonably cautious as to the evidence of a matter of 
fact {Lyse v. Kingdon, 1 Coll. 184) ; or has annexed con- or pay a 
ditions to the payment of the legacy which he has no right ^^"^^^ 
to impose (WaJtrvw Pati'y, 1 Rus. 375). But it seems the 
legatee should exhaust every means of obtaining payment 
of his legacy before instituting a suit [Ai/lnvr v. Winter- 
hothara, 4 Jur. N. S. ID). Trustees ought not to refuse to orncouro 
pay a settled legacy into Court under the Trustee Relief l^citTcMn 
Act, if .so requested, and having refused so to do, they ^'ourt. 
were charged with the costs of a suit to secure it 
{HamUeij v. D<ivie'<, 5 Jur. N. S. lOO). And an executor Exccut-ir 
or trustee is nut justified in refusing ti) pay a legacy h^vh"?'*" 
or distribute a fund without tlie direction of the Court, '^'*>'-'' 

. I f 1 1 1 1 . • 1 ., tloiibt.s in a 

on the ground of legal i|t»ul)ts in a clear case. See clear ca.-(.'. 
Harvey v. Harvey, 3 Jur. \)V^ ; Harrows v. Greenwood, 
4 Y. & C. 251 ; Firniin v. Pulham, 2 Do (}. & S. 99; 
Price v. Londen, 21 Beav. 5()M, where the executor or 
trustee had to pay costs; and Kniyht v. Martin, I R. Sc 
M. 70, where he got no costs. But on the etlier hand, the Opinion of 
opinion of counsel, however eminent, is no protection to pnltwiion 
an executor against costs if he takes upon liiniself to act ^" ^''"'^."" 

... , ,. ,, , -It • I 1 • tor aijainst 

upon a particular construction ot tlie will without .seeking costs, 
the direction of the Court (JiouUon v. Heard, 3 I)e G. M. 
& G. G08) ; and if he distributes the whole estate according 
to a wrong construction, he will have to pay personally the 
costs of a suit, in which the plaintiff successfully establishes 
his title to a .share (ibid.). The reasiMi there assigned for 
charging the executor personally with co.ils was that bv 



184 COSTS IX PARTICULAR ACTIONS. 

distributing tlic estate he hail prevented the plaintiflf 
having his rights determined at tlie expense of the estate ; 
and see Curt'in v. RohinKun, 8 Beav. 'l\'l. 

Where sun'iving executors i ni pro j>crly resisted the claim 
of a legatee on an adniini«trati<in summons, but gave no 
notice of the proceedings to the executor of their deceaiiod 
co-executor, it wius held that the estate of t! ' ' 

executor wjus not liable for iIk- costs of surh ; 
(Pauil V. Moiiinxer, 21) U T. 41S.. 

Where executors in making a |>;irl»ai .iiAinl>uU»n 
of a residue made two seriouji raislakei*, it was held 
that the whole cos I j« of iho suit should bo taken out of 
the estate a* if they batl never divided it, and the 

/v. 
Fulfonl, i-Ch. D. 389 ; 46 L. J. Ch. iS ; 25 W. R 161 ; 

:]:. L 750) ; and " " .",:> L T. 421 

In /;» rt Tan,,, .. . », 7 Ivj. 436, ox ecu tor* 

(bencticiaries) made up their nccounU, set ayMTi a portion of 
the residue as an indemnity fund, and |»aid the adult 

their hhan-s.r.t.i" *' ' .! invest r 

of certain infant 1' „ iledan.. 

tmtiou suit, in which the executor's accounts were sub- 
stantially uphelil ; and it was luld that t" 
jMiid out of the undi^lributcil residuary c*i-: 
the adult legatees nor, in the first instance, the executors 
should receive costs without accounting for their shai-* 
and contributing t*. t' . but that after |)aynient ut 

the costs of the pla !.d any other parties entitled 

thereto out of the indemnity fund (which was in Court) 
the surplus of the fund shouhl be piiid to the executors 
towards payment of their costs, 
Cost.H of An administrator of a supitosed intestate, acting bond 

\rator /'<'<". ^^'^"^ I'^'l^ ^ ^ eutitletl to costs out of the e-state, 
«hoso jiUliough a will was afterwards produced, the residuary 

wTorcif.™ legatee under which obtained revocation of the letters of 
administration ami prol»ate of the will {Miixhou«e v. 



ACTIONS FOR ADMiNIaTRATIOK OF ASSETS. 1S5 

Herbert, 5 \V. R. 583); and see Taylor v. ILiiigarth, 
S Jur. 135. But au adiuiuistrator whose letters are revoked 
will not get his costs of au administration suit instituted 
by him with knowledge that another person claimed to 
administer {Houseman v. Houseman, 1 Ch. D. 535 ; 24 W. 
R. 592 ; 3-t L. T. 033). 

In a recent case a grant of })robate to A. was revoked 
and probate granted to B. ; on aj)peal to the Houjso of 
Lords thfir lordships were equally divided and the decree 
therefore stood, and the costs of botli parties, " as well in 
the Court below as in this House," were ordered to be* 
paid out of the estate. The personal estate being in- 
sufficient, A. filed a bill for administration in order to get 
his costs, and sums expended by him as executor before 
the revocation ; and it wjus held that the direction of the 
House of Lords, being based on llie jurisdiction of the 
Probate Court, did not make A.'s costs of the probate 
litigation payable out of the real estate, and that adminis- 
tration must be limited to the testator's personalty {Cli"rfrr 
v. C/iartcr, 3 Ch. D. 21S; 45 L. J. Ch. 705; 24 W. K. 
874 ; 34 L. T. 412). Where, however, executors took 
legacies under the will of their testator, which also gave 
them the residue, and the ne.\t of kin disputed the will, 
which was established with the excej)tittn of the resiiluary 
clause, the executors were allowed all costs of j)roving the 
will, including costs ordered by the Hou.se of Lords to be 
paid to the next of kin (F\tlt(ni v. Andrew, 4(» L. J. Ch. 
131). A personal representative claiming part of the 
estate beneficially is in no better position in (hat respect 
than any other defendant, and will hiive to pay the costs of 
au action in which that portion is successfully recovered 
from him {Bruia v. Kiu>tt, 12 Jur. (JKJ). 

\\ here there is a beipiest to a trustee for payment of w'hcro the 
debts and tiien in trust for one absolutely, the lejjatee is !«^'"''*"^'»T 
not a neces.sary i>arty to a creditor's suit, and will be dis- ncrc^sary 
mi.s.sed with costs, to be paid by the plaiutitl' (timith v. ^""''■• 
AndreiLs, 4 W. R. 353) ; but semhlc, not if he does not 



186 COSTS IN r.\RTICULAIl ACTK'yP. 

object before or at tlie hearing,' {]]' ill lams v. WlUiayns, 

1 W. R. 237). In tliat ca.sc he nui.st bear his own 

costs {ibid.). 

Costs of It seems that where a pecuniary or specific legacy is 

^i^Tchl given to a class, tlie costs of raising the legacy only will 

proving' comc out of the general estate, and the costs of ad- 

thcir title ... ^ r \ • • ^i i r i 

to ^harc muiistenng the funu, Comprising tlic costs ot each person 
in a ]e;,';i( V, pj-Qyipor liis title as a member of the clas'j, will come out 

come out ^ "^ 

of the of tlic fund itself (i^o^'/co^^ v. Ncinnan, -^ W. H. 707 ; 2 

lemhc. J"»*- N. S. 702; Walli^.s v. Witham, Beamos. app. 1 ) ; but 

see contra, Dwjdnle v. Dmjdah, 12 Beav. 247. And, of 

course, where a fund charged upon nn estate by a previous 

settlement has to be raised in an administration suit, the 

costs of raising it only conie out of the estate {Stewart v. 

]\[ai-qvis of Donnjid, 2 Jo. «.^ Lat. {\^i\). 

r.iit But all the co.sts of ascertaining the mendicrs of a cla.ss 

rcskhmiv <^''>titled to a rcsiibie, or the next of kin of an intestate, 

legatees arc part of the general costs of tlie suit, and are payable 

and next ,. i i i ^ \ c i- • • 

of kin, out out ot the general personal estate hetore division 
°^^'"^' (Shutilnvorth v. Hovarth, Cr. & Ph. 228; Doody v. 

estate ^ . • ■ 1 i> 1 

before lUfjfjins, 9 Ha. app. xxxii.) ; and see further as to the costs 
chvLsion. Qf iiext of kin proving their title in cXxMwhars, Bennett 
V. ^Youd, 7 Sim. .-.22 : Bubwdl v. T,ifi<irt, 3 Y. & C. 173. 
AVhcrc a residue was given as to one part to A. and as to 
other parts to several elas.ses, the whole residue, including 
A.'s part, bore the costs of :uscertaining the cla.s.ses {In re 
Reeve's Timsts, 4 Ch. D. .s41 : 4(i L. J. e'li. 412 ; 2.3 \V. li. 
628 ; 3() L. T. JlOti ; and see Boulton v. Beard, 3 De G. M. 
& G. 608). The rule applies although the testator has 
given his residue in certain proportions amongst diflferent 
classes ; and all the costs of a.scertaining the members of 
the several classes in such case must be borne by the 
estate generally, although some classes are more numerous 
than others, and the expenses of ascertaining the members 
of them consequently greater {Shuitlev.urth v. Hovxirtli). 
In Attorney-General v. Haberdashers' Co., 4 Bro. C, C. 
177, two unreported cases {Whistler v. Batvlinson; Holden 



ACTIONS FOR ADMINISTRATION OF ASSETS. 187 

V. Burnell) arc cited in which persons who came in under 
the decree, and chiinied to be next of kin or heirs at law, 
and failed to prove their title, were nevertheless allowed 
their costs ; and see SingUton v. Toinlinson, 3 App. Cas. 
405 ; 1 L. JR. Ir. 57 ; 2G W. R 722 ; 38 L. T. 653. 

But any extra costs which are occasioned by the con- But any 
duct of a residuary legatee, or the party entitled to a dis- oocasionca 
tributive share, or are for his exclusive benefit, will come ]>y a party 

f , • • a 1 4 "\7 himself, or 

out of his own share. Ihus in Basevi v. berra, 14 v es. incurred 
313 ; 3 Mer. 676, the defendants being entitled to a {^^'2^^^'' 
residue in equal shares, and long enquiries having been come out of 
rendered necessary by the bankruptcy of a pei-son entitled 
to one share, the costs were apportioned on the several 
shares. So w^here pending the suit the plaintiff, residuary 
legatee, compounded with his creditors and became insol- 
vent, whereby two supplemental bills were necessary, the 
costs of them fell on the plaintiff {Brace v. Ovmond, 2 J. 
& W, 435). Where any of the persons entitled have where any 
incumbered their shares the rule is that the assignor and |*,|„!j]pg ^^ 
assignee are only entitled to one set of costs between them, an ad- 
viz., the costs of the assignor, which are directed to be ji^n suit 
paid to the assignee towards his costs, so far as the same ''a^'c m- 
may be required ; and the excess (if any) of the assignee s tiicir 
costs is payable out of the particular share {G reedy v. sliarcs. 
Lavender, 11 Beav. 417); and see Me BrigJifs Trusts, 3 
W. R. 544; Remnant v. Hood, 27 Beav. G13; Turner v. 
Gou'don, 19 W. R. 403, S. C. sub noni. Turner v. Soivdon, 
23 L. T. 799 ; Perceval v. Perceval, 9 Eq. 394 ; Ward v. 
Yates, 1 Dr. & S. 80. Lord Langdale, M. R., added a 
direction to the order in Greedj v. Lavender, to exclude 
from the assignor's costs " any additional costs incurred by 
reason of the said defendants, or any of them, having 
assigned, mortgaged, or incumbered their shares" (11 
Beav. 421) ; but Sir J. Romilly, M. R. disapproved of this 
direction as too refined {Coates v. Coates, 3 N. R. 355). 
Hall, V. C, has recently held that if in an administration 
suit an inquiry as to incumbrances is added in Chambers, 



188 COSTS IN rAinuULAR ACTION/. 

the costs of the inquiry must be treated as part of the 
general costs of administration and be paid out of the 
general estate {Gee v. Mahuod, 23 W. R. 71 ; W. N. (1874), 
207). In lleywood v. Grazchrook, 13 Jur. 019, where 
some of the parties who had incumbered their shares had 
joined other defendants in tlieir defence, V. C. Knight 
Bruce held that the estate should have the benefit of the 
assignor having joined with the others, and the assignee 
must add his costs to his incumbrance ; but in Greedy v. 
Lavender, 11 Beav. 417, it was said that the costs under 
such circumstances must be apiK)rtioned. In Ross's Trust, 
15 Jur. 241, Lord Cranwortii, V. C, gave thea-ssignce of a 
life interest his own costs, and no costs to the tenant for 
life ; ami in Mussim v. llacketl, 2 L. T. .'>l>2, the Court 
gave a married woman, who had settled her interest, and 
her chihlren, and the trustees of lier settlement, but one 
set of costs, and left it to the taxing master to say to whom 
they should be paid. ^Vllere there were two as-signees 
of specific portions of a fund the two portions bore the 
costs of the suit rateably (llorrison v. Harrison, W. N. 
(1870), 45). An ineumbrancer will not be entitled to 
costs from the piaintitf merely because he is a neces.sary 
])arty, though from the iVame of the suit he can get no 
relief in it {Jo'/ce v. J)e Mohyns, 3 J. i^- Lat. (»il8). And 
it seems that, if the a.s.signor is not entitled to any costs, 
neither will his assignees be so {Carr v. Henderson, II 
Costs of Beav. 415; Massey v. Moss, 1 Ha. 319). In the latter 
.•i.ss;gnces ^^^^ ^j^^ exccutor was in default and bankrupt, and his 

in bank- _ . .... 

rnptcy of assignees wcrc made parties; and V. C. ^Vigram seems 
to have thought they might have had their costs, if the 
bill had unsuccessfully attempted to charge them with 
specific parts of the testator's estate (p. 321). But where 
an executor, who was an insolvent, filed a bill for 
administration and -made his a.ssignees defendants, it was 
held that they were entitled to separate costs (Cliilwell v. 
Hochndl, 2 W. R. 030). In Kitchener v. Kitchener, 13 
Jur. 701, the costs of the Attorney-General, made a party 



executor. 



ACTIONS FOR ADMINISTRATION OP ASSETS. 189 

in respect of a reversionary interest belonging to a felon, 
were not provided for by the decree, as his right -would 
not arise till the reversion fell into possession. The costs 
of taking out administration to a beneficiar}', who had 
mortgaged her share for more than its value, for the mere 
purpose of making the suit complete, were ordered to be paid 
out of the general fund (Cotton v. Penrose, I'-l Jur. 761). 

Residuary legatees and other persons served with the Costs of 
decree and obtaining an order (under Stat. 15 & 16 Yict. served with 
c, 86, s. 42, r. 8) for liberty to attend the subsequent pro- (I'-^'^'ce ami 

. . . . . having 

ceedings are, it would seem, in the same position as to liberty to 
costs as persons parties to the cause ; and see under the "^*<^"'^^ 

^ ^ ' proceed- 

old practice Hutchinson v. Freeman, 4 My. & Cr. 400. lugs. 
But where a number of persons in the same interest appear 
separately, only one set of costs will be allowed (Stevenson 
V. Ahinr/ton, 11 W. R. 930 ; and see Fvxen v. Foxen, 13 
W. R. 33). In Re Taylors Estate, Dauhney v. Leal^e, 1 
E.l. 495 ; 35 Beav. 311 ; 35 L. J. Oh. 347, Lord Romilly 
laid down the rule that in an administration suit by a 
residuary legatee, other residuary legatees, served with 
notice of the decree and having liberty to attend tlie pro- 
ceedings, would not be allowed their costs of attending the 
taking of the accounts in Chambers, unless the plaintift' 
and the accounting defendant employed the same solicitor, 
and in that case would be allowed one set of costs between 
them. Tliis has been followed in Hubbard v. LatJtam, 35 
L. J. Ch. 402; 14 W. R. 553 ; 14 L. T. 61 (J ; Wracjg v. 
Morlcy, 14 W. R. 949 ; Armstrong \. Armstrong, 12 Eq. 
614; Jose2)h v. GooJe, 23 W. R. 225; W. N. (1875), 4. 
See however Bland v. Daniell, W. N. (1867), 169 ; and 
see also Belleiu v. Belleiv, VV. N. (1808), 253 ; Lewis v. 
Matthews, 38 L. J. Ch. 510 ; 17 W. R. 841. 

If a defendant, by the decree declared to be an un- 
necessary party, nevertheless remains before the Court and 
attends the proceedings in Chambers he does so at his own 
risk (Girdleston v. Creed, 1 W. R. 228 ; Grace v. Tir- 
rington, 2 Coll. 53) ; anl no costs were allowed althouoh 



190 COSTS IN I'AKT1( LLAl; A<T1«.N>. 

the defendant w;us next-ut'-kiu in the residiuirv legatee, who 
was a lunatic (Thorp v. Thorji, 3 Mer. IKJ). 

By R. S. C. Old. XVI., r. 121). (April, 1H«0), in any cause 
for the administration of the estate of a deceased person, 
no party to the cause other than the executor or adniini.s- 
trator .shall, unless hy leave of the jn<l;L,'e, l>c entitled to 
appear eitlier in Court or in ChanilxTs on the claim of any 
person not a party to the cause against the estate of the 
decea.sed in respect of any deht or liability. The judge 
may direct any other party to the cause to appear, either 
in addition to or in the place of the executor or a<lniinis- 
trator, upon such terms a.s to costs or other\vi.»«c as he shall 
think fit. And l»y Con.s. Ord. XL., r. 2.S, parties attending 
any proceeding in chamhers without having obtained the 
]>revious leave of the judge to attend the same, are not 
all(»\ved any cost.s of such attendance unle.ss by spivial 
order; and see (0</' , p. l.*{7. 
r.(si(lii.-\ry It is a common practice to allow residuary legatees 
uui ^^^ their costs out of the estate as between solicitor antl client; 
tiititlcl to ^J^,^^ j^^ jj^,^ Qj^ly ]yQ done with the consent of all partie."? 

coKts ;u) "^ Ti ni t 

l.ciAvotn {Ji/cnklutiO}^ V. rof^hr, .3 \. A: C. 207 ; reiuicr v. Taylor, 
'''^YV , '^ Mad. 470, G Mad. .S ; Martin v. Mawiham, S Jur. 

ftinl client, ' ' x/ ' 

unless \>y HOD) ; but ill Jilciikinsop V. Fofftcr, the Court refused to 
vary an order i^iving them costs a.s between solicitor and 
client, on the mere ground that it was not by con.sent »)f all. 

Set-off of If j^jjy ^{- 1),^ parties to an adiiiinistiiition action are 

tlic costs '' * I • 1 1 • 

.iwiirdea debtors to the estate and insolvent, their costs will be set 
irii'tv^ otf ^)/'o taiiio against the debt due from them {Jfanner v. 
.i-ainst a Harris, 1 Ru.ss. 155) ; and in Nicholson v. JSorton, 7 Beav. 
from him ^7, thcy Were carried to the .separate account of the 
to the legatee instead of being paid to her. So in Cooper v. 
Pitcher, 4 Ha. 4M5, the plaintiff's costs were directed to 
be set oti" against payments erroneou.sly made by the exe- 
cutors to the use of the plaintiff, who, by the decree 
made in the cause, was declared to have no interest in the 
fund, but was allowed his cost.s. If an executor becomes 
bankrupt in the course of the suit, his costs before 



ACTION'S I'OR ADMIisISTRATIOK OF ASSETS. iDl 

bankruptcy must be set otf agaiust the balance due from 
him to the estate, but he will be entitled to his costs 
incurred subsequently to the bankruptcy (Samuel v. 
Jones, 2 Ha. 246). So if the l)ankruptcy was before 
suit, and a sum is fouud due from him, no part of his 
costs can be set off against such sum {Cotton v. Clarl', 
1*3 Beav. 134:)..1^' Although the executor is indebted to ^^ ' ^Zjul^ ck^^^e(t,^u>OK/ 
the estate in an amount exceeding the amount of his'-*-^^' /» 1\^. 
costs payable at a future day, if there is no reason to 
suspect his solvency, he will be entitled to immediate 
payment of his costs {Stevens v. Fillen, 12 Jur. 282 ; 17 
L. J. Ch. 214). Where two executors, defendants in a 
suit, gave a joint retainer, and one died insolvent and in- 
debted to the estate, the survivor was held entitled to be 
paid out of the estate all the costs for which he was liable ; 
and the costs incurred for the deceased executor in taking 
the account of his debt, were set off against the debt 
{Watson v. lioiu, 18 Eq. C80 ; 22 W. R. 793); sed qu., 
see Smith v. Dale (M. R.), 18 Ch. D. 510 ; 44 L. T. 4(J() ; 
29 W. R. 330. 

"A creditor who has come in and established liis debt Cost? of a 
in the Judge's Chambers under a decree or order in a ^^''^^^'t^r 
suit shall be entitled to the costs of so establishing his liis debt in 
debt ; and the sum to be allowed fur such costs shall be *^'''""'^*'^'"^- 
iixed by the Judge, unless he shall think tit to direct the 
taxation thereof, and the amount of such costs, or the sum 
allowed in respect thereof shall be added to the debt so 
established " (Cons. Ord. XL., r. 24). 

This rule does not affect the costs to which the plaiutiff 
in a creditor's suit is entitled {Flintof v. Ilaynes, 4Ha. 
309). In general, all creditors required under the (Jeneral 
Order of 27th May, l8Go, to prove their debts, are allowed 
a fixed sum of £1 13«. 4cZ. if the debt is under £5, and 
£2 2s. if above (Seton, 832). In Waterlow v. BiLrt, 18 W. R. 
G83, S. C. sub iiom. Waterton v. Biu-t, 39 L. J. Ch. 42.5 ; 
W. N. (1870), lOG, three guineas was held a proper sum to 
allow. ]3y rule 4 of the same Order a creditor failing to 



192 COSTS IN PARTICULAR ACTIONS. 

produce liis security or otlicr evidence of lii> cliiiin, will 
get no costs. Creditors attending under r. 3 of the Order, to 
p»roduce securities or other evidence, will be allowed a proper 
fee for such attendance. Where an estate wliich was insuffi- 
cient had been apportioned amongst the creditors, but 
not paid out, a creditor was allowed to come in on 
payment of the costs of the application ami of the re- 
Costs of a apportionment {Angdl v. ILiddon, 1 Mad. 029). If a 
failing in porsou claiming to be a crcilitor fails in his claim, the 
toVe a™ Court will order him to pay the costs thereby occa.sioned 
creditor; (Hdtck V. Sccuies, 2 Sm. & G. 157 ; Yeoriiaufi v. Haines, 
24 Beav. 127 ; Colyer v. Colyer, 10 W. R. 74S ; and see 
Wright V. Larmuth, W. N. (18(39), 3G). The more proper 
course is to a.sk for the costs when the claim is adjudi- 
cated on, but an order for payment of them may be made 
on a distinct summons {Yeoriiaih<! v. Hai/nes)] and not- 
withstanding the pendency of an appeal against the order 
disallowing the claim (Colyer v. Colyer). In Morgan 
v. Elstoh, 4 Ha. 477, the Court gave a bond creditor 
leave to bring an action at law, and, the jury having 
given nominal damages, refused the creditor his costs 
of making the claim and his costs of the action, but 
gave him the costs of exceptions to the Master's report 
but disallowing the claim. Where a person made a claim 

succecaing against the estate, and failed as asfainst the estate, but 

as against ° . _ _^ 

the succeeded as against the beneficial interest uf the adminis- 

tratrix*' tratrix, it was held that he must pay so much of the costs 
uf the summons as were occasioned by the claim being 
made against the estate {Bentley \. Bentley, 1 N. 11,390); 
but in Scurrah v. Scurrah, 2 W. R. 53, the claimant was 
allowed to add such costs to his claim against the benefi- 
cial interest. A plaintitf, whose title as devisee is ad- 
mitted, must yet pay the costs of an unsuccessful attempt 
to establish his claim as a creditor (Lancefield v. Iggul- 
den, 10 Ch. 13G ; 44 L. J. Ch. 203 ; 23 W. R. 223 ; 31 
L. T. 818). 
Where a Under the practice in Chancerv whorever a decree had 

creditor s ' 



suit. 



ACTIOXS FOR AKMlXisTllATIOK OF ASSETo. 193 

been made in any suit for the administration of a deceased suit is 
person's estate, any creditor who had commenced an action upo^ ^ 
at law to recover his debt midit be restrained, upon the decree 

... . ' 1 being 

application either of the plaintiff in the suit or the per- made in 
sonal representative, upon the terms of the personal rcpre- ^^^^^^^ 
sentative paying the costs at law down to the time when 
the creditor had notice of the decree, and the costs of the ap- 
plication ; and if the creditor, instead of bringing an action 
had instituted a suit, the proceedings in such suit would 
be stayed on the same terms {Paxton v. Douglas, 8 Ves. 
521 ; Goate v. Fryer, 2 Cox, 202 ; 3 Bro. C. C. 24 ; Lauion 
V. Laivton, 8 W. R. 458 ; ^Yhite v. Leatherdale, 1 W. R. 
405 ; West v. Swinburne, 14 Jur. 360 ; and see the 
earlier cases collected in the note to Jackson v. Leaf, 1 J. 
& W. 229, 232). The practice in this respect remains 
substantially the same under the Judicature Act and 
Rules ; see R. S. C. Ord. LI. r. 2a (June, 1876). 

Where an order nisi to sign judgment had been obtained 
in a creditor's action in the E.xcheqner Division, but before 
judgment was signed a decree for administration was 
obtained by another creditor in the Chancery Division, 
the action was transferred under this rule, and the 
proceedings in it stayed, the plaintiffs being allowed to 
prove for their claim and costs in the administration {In 
re Stuhhs' Estate, Hanson v. Stuhhs, 8 Ch, D. 154). If 
the personal representative admits assets, and does not 
dispute the debt, the creditor's costs are payable at once 
{Cole v. Burgess, Kay, app. i. ; Davey v. Plestoiu, 14 Jur. 
388 ; West v. Sivinhurne ; Canham v. Keale, 26 Beav. 
200). But if the executor does not admit assets, he must 
make an affidavit as to the moneys in his hands, which 
should be forthwith brought into Court {Bookless v. Crum- 
raack, C. P. C. 125), and the creditor's costs will be added 
to his debt {Paxton v. Douglas ; White v. Leatherdale ,- 
Laivton v. Laivton; West v. Sivinburne ; Canham v. 
Neale) ; and see the form of the order in Seton, p. 322. 
An order for payment by the executor of the costs of the 





194 COSTS IN PARTICULAR ACTIONS. 

creditor does not give them any priority over the costs of 
the second suit ; they must be paid " in a due course of 
administration;" see In re Claii; Cumberland v. Clark; 
4 Ch. 412 ; 17 W. R 524. If, on the other hand, the 
executor admits assets, but docs not admit the debt, the 
order will generally be that, imniediatuiy on the creditor 
establishing his debt, the costs be taxed and paid to him by 
the executor {King v. King, 4 N. R. 474 ; and see Daveg v. 
Plestoiv; Mathew v. Mathcw, W. N. (1870), 47 ; 33 L T. 
804). In Re Molyneiix, Pimhley v. Molgneux, W. N. 
(18G7), 250, the conduct of a creditor's suit was given to 
a residuary legatee on payment of tlie plaintift''s debt and 
costs. The rule applies equally to a creditor suing in a 
foreign country {Graham v. Maxu'cU, 1 Mac. & G. 71 ; 
Beauchamp \. Marquis of 11 antic g, Jac. 54(1). It was 
formerly doubted whether the creditor was (.'Utitled to liis 
costs of the application to restrain his action at law, or 
stay proceedings in his suit {Jones v. Jones, 5 Sim. G7<S ; 
Anon. 2 S. & S. 424 ; Curre v. Bouyer, 3 Mad. 450 ; 
Anon. 3 L. J. Ch. 227; Earl of Portarlington v. Damer, 
2 Ph. 2G2) ; but the point was ultimately decided in 
favour of the creditor (see the Registrar's certificate in 
White V. Leathcrdale, and the other cases cited above). 
Where a creditor's suit w\as stayed upon an order that he 
should have his costs out of the estate, this includo<l the 
costs he had paid to a trustee properly made a party, but 
who had disclaimed {Rees Jones v. Fivkslay, W. N. (1868), 
2(i). But if a creditor institutes a suit after notice of decree 
in a former suit, it will be dismissed with costs if prose- 
cuted to a hearing {Menzies v. Connor, 3 Mac. & G. 048), 
even though the first suit is only a next of kin's suit, 
and the decree does not provide for the administration of 
the real estate {ibid.) ; and as to the last point, see also 
Bush V. Windey, 13 Jur. 273. Where a second suit was 
improperly instituted, the plaintitT in it was ordered to 
pay the costs of the order to transfer and of the motion to 
stay proceedings {Salter v. Tildesley, 13 W, R. 370). So 



ACTIONS FOR ADMINISTRATION OF ASSETS. 195 

where the plaintiff at law had notice of the decree before 
he issued his writ, he was not allowed any costs 
either of the action or of the motion {Jones v. Brain, 2 
Y. & C. C. C. 170). And he had to pay the costs of the 
motion where he proved under the decree, and refused 
to discontinue his action or suit, after having been re- 
quested to do so {Graliam v. Maxwell ; Beaucliamp 
V. Marquis of Huntley). And in Gardner v. Garrett, 
20 Beav. 469, it was held that mere notice of the decree 
was sufficient ground for making a creditor pay the costs 
of the application to restrain him, if he prosecuted his 
action after notice ; but he was allowed to set them off 
against his costs at law up to notice of the decree. So • 
where the plaintiff in the action at law was the solicitor of 
the defendants in the suit, and prosecuted his action after 
decree, he Avas ordered to pay the costs of the executors 
of such subsequent proceedings and the costs of the mo- 
tion to restrain his action, the former costs to be set off 
against his debt, and the latter to be paid at once {Boston 
V. Richardson, 3 W. R. 432). On the other hand, it was 
the duty of the executor or administrator to apply at once 
to restrain the action at law {Tlierry v. Henderson, 1 Y. 
& C. C. C. 481 ; Packwood v. Maddison, 1 S. & S. 232) ; 
and if he appeared to, or defended the action after decree 
{Cooke V. Tamer, 1-5 Sim. 620), or merely omitted to 
apply to restrain the creditor's proceeding with it {Bear v. 
Smith, 10 Jur. 708), the creditor would be entitled to all 
his costs of so doing {ibid.) ; but semhle, not as against 
other creditors, if the estate was insolvent {Sharrod v. 
Winjield, 1 Jur. N. S. 1154; 2.5 L. J. Ch. 176); though 
possibly in that case against the personal representative 
personally {ibid.). 

But the second or less-advanced suit will be allowed to Uutif tlio 
proceed if the first is so constituted as to bo likely to ^'^'jo^'^ 
become ineffective {Coyscjarne v. Jones, Amb. 613 ; Laiu more ok- 
V. Rirjby, 4 Bro. C. C. 00 ; and see Hosklns v. Campbell, Sl.ro- 
2 H. & M. 43) ; or if the plaintiff in the second suit ceedinss 

o 2 



19G COSTS IN rARTICl'LAH ACTIOXS. 

in it raises a case of breach of trust, or wilful neglect and 

sta7e°d.^^ default against the executors, or in other respects seeks a 
different relief [Taylor v. Southgate, 4 My. & Cr. 203 ; 
Shepherd v. Toivgood, T. & R. 379). And if the plaintiff 
in the less-advanced suit ultimately succeeds in obtaining 
a decree, the costs of that suit are payable out of the 
assets in the first suit {Costerton v. Costerton, - Ko. 774 ; 
Illlngivorth v. Nelson, ibid. 770, n.). But the circum- 
stance of the second suit praying for relief against the real 
estate, which is not directed by the decree made, is not by 
itself a reason for not staying proceedings in it {Menzies 
V. Connor, 3 Mac. & G. G48 ; Bush v. ]V'indey, 13 Jur. 
273). On the other liand, if the plaintiff in tlic second 
suit abandons the special relief, or fails to obtain a decree 
at the hearing, he must pay the costs of liis suit since 
notice of the decree in the lirst suit, but the costs up to 
that time will be paid out of the funds in the first suit 
{Taylor v. Southgate). As to the proper course to be 
adopted where a party claims his costs out of a fund paid 
into Court in an old suit, and a second suit, which after- 
wards abates, is instituted with respect to the fund, see 
Harris v. Rich, 43 L. J. Ch. 440. 
Costs in a In tlic same way, if a legatee's suit be prosecuted after 
suit where ^^^ administration decree in another suit in which the 
a previous legatee mioht have obtained his object by petition, the 

adminis- ® 1,1 i- / ,. , , 

tration executor should move to stay proceedings {racku-uod v. 
decree has Maddisou, 1 S. & S. 232; and the suit having, in tiiat 

been made. ' ®' 

case, been brought to a hearing, neither the plaintiff nor 
the executor was allowed any costs). Where a legatee's 
suit is restrained after an administration decree, the costs 
of it up to notice of decree and the costs of tlie appli- 
cation will be paid out of the funds in Court {Jackson 
V. Leaf, 1 J. & W. 229), but without prejudice to the 
creditors {ibid.). 
Costs of a In Armstrong v. Storer, 14 Beav. .535, it was held that 

mortgagee .~ . • ,^ ^ r . t • ■>■ ^ , • 

instituting 11 ^ mortgngee, instead ot takmg proceedings to enforce his 
a suit for securitit s, institutes or adopts a suit for a fjeneral administra- 

adminis- "■ o 

tration. 



ACTIONS FOR ADMINISTRATION OF ASSETS. 197 

tion, he is seeking a relief beyond that given by his contract, 
and the costs of the suit are to be paid out of the proceeds of 
the estate comprised in the security, in priority to the mort- 
gagee's principal and interest ; and see Dighton v. Withers, 
31 Beav. 423 ; Wnght v. Kirb}/, 23 Beav. 4(53 ; Sheppaixl v. 
Burhage, 22 L. T. O. S. 94 ; In re Spensley's Estate, Spensley 
V. Harrison, 15 Eq. 16 ; 42 L. J. Ch. 21 ; 21 W. R. 95; 
27 L. T. 600 ; and the dictum of V. C. Stuart in Macrae 
V. Ellerton, 6 W. R. 851 ; 4 Jur. N. S. 907. On the other 
hand, in Aldridge v. Westbrook, 5 Beav. 188, 193, it was 
held that Avhere a creditor's bill was filed by a mortgagee, 
who was also a creditor by simple contract, he was entitled 
to payment of liis mortgage money out of the mortgaged 
estate, before the payment of any part of the costs of the 
suit ; and see Pinchard v. Fellows, 17 Eq. 421 ; 43 L. J. Ch. 
227; 22 W. R. 012; 29 L. T. 882, which was a suit by a 
legal mortgagee for a sale and general administration, 
Cook V. Hart, 12 Eq. 459 ; 19 W. R. 947 ; 24 L. T. 779, 
Avhere Macrae v. Ellerton is commented on. In Tipping 
V. Poiver, 1 Ha. 405, which was a suit b}'^ an equitable 
mortgagee by deposit to have his security realised by sale 
and to administer the general real and personal estate, 
V. C. Wigram held that the plaintiff was entitled to the 
proceeds of the mortgaged premises, which were insuffi- 
cient, towards satisfaction of his debt ; and that the 
general assets should then be applied, (1) in retainer by 
the executors of a debt due to them, (2) in payment of 
the costs of the executors as between solicitor and client, 
(3) in payment of the plaintiff's costs, including those of 
the purchaser, (4) in payment of the other defendants' 
costs ; and sec Walter v. Stanton, 10 W. R. 570, where, 
however, the plaintiff was a creditor by simple contract as 
well as on equitable mortgage. The true rule would seem 
to be that a mortgagee will lose his right to payment of 
his mortgage debt out of the security in preference to all 
other claims thereon, if he adopt or carry on proceedings 
which are inconsistent with that right. By thus seeking 



198 



C( STS IN PAirriCT'LAR ACTIONS. 



Where 
claim for 
admini- 
stration is 
only in 
event of 
security 
being in- 
sufficient. 



a new ri<;lit, which is not included in his contract, he 
brings himself within that rule of administration suits 
which makes the costs of suit costs of administration, and 
payable in the first instance out of a deficient estate in 
preference to debts. It was formerly held, however, that 
an equitable mortgagee, being entitled by his contract to 
sell the estate and recover the ditTerence by proof against 
the mortgagor's assets, might seek administration and sale 
of the mortgagor's estate and yet preserve his right to full 
payment in priority to the costs of suit ; but it being now 
settled that foreclosure and not sale is the remedy of an 
equitable mortgagee {Pryce v. Bury, 2 Dr. 41 ; IG Eq. 
153, n. ; 2 \V. R. 210 : l.S Jur. 007 ; James v. James, 
IG Eq. l.-)3 ; 42 L. J. Ch. 38G ; 21 W. R. 522, where the 
cases are collected ; Backhouse v. Charlton, 8 Ch. D. 444 ; 
secus as to a pledge of personal chattels, Carter v. Wake, 
4 Ch. I). 6*05), the reason for this distinction has ceased ; 
see Fisher on Murt<jages, 3rd Ed. p. S2(». However, in 
York Union Banking Co. v. Artlcy, 11 Ch. D. 205, 
Jessel, M.R., said that an equitable mortgagee by deposit 
of deeds, accompanied by an agreement to execute a legal 
mortgage, was entitled to either sale or foreclosure. 

The old rule was that a mortgagee was entitled to prove 
in an administration suit for the full amount of his debt and 
then realise his security for the balance (Mason v. Bog<j, 2 
My. & Cr. 443) ; and therefore, in Tuckley v. Thompson, 1 
J. & H. 126, (but see S. C. on app., 29 L. J. Ch. 54.S), where 
an equitable mortgagee filed a bill to realise his security 
by sale in the first instance, and praying that any balance 
should be paid in due course of administration, and that, 
" so far as necessary," the real and personal estate of the 
mortgagor might be administered, V. C. Wood held that 
the plaintiff was entitled to his principal, interest, and 
costs in priority to the costs of the executors, the course 
pursued by the plaintiff being for the benefit of the estate. 
And it made no difference in such a case whether the 
mortgage was legal or equitable. Now by Judicature Act, 



ACTIONS FOR ADMINISTRATION OF ASSETS. 11)9 

1875, s. 10 (substituted for Judicature Act, 1873, s. 25, 
(1) ), in the administratiou by the Court of the assets of any 
person dying after the 1st of Nov. 1875, wliose estate may 
prove to be insufficient for the payment in full of his debts 
and liabilities the same rules are to prevail as to the 
respective rights of secured and unsecured creditors, and 
as to debts and liabilities provable, and as to the valua- 
tion of annuities and future and contingent liabilities 
respectively as may be in force for the time being in bank- 
ruptc3\ See further as to the costs of a mortgagee bring- 
ing an action for sale of his security, post, sec. YII. 

If an estate is sold in an administration action with the Costs of a 
concurrence of the mortgagee, he is entitled, whether he ^nStfn" 
is a party to the action or not, to his principal, interest, ^ » sale 
and costs incurred in the sale out of the proceeds, in mortgaged 
priority to all other parties {Brace v. Duchess of Mad- property, 
borough, Mos. 50 ; Hepivorth v. Heslop, 3 Ha. 485 ; Berry adminis- 
v. Hehblethivaite, 4 K. & J. 80 ; Crosse v. General Bever- ^'f'''' 

' action. 

sionary Co., 3 I)e G. M. & G. GD8 ; and see BeMacl-'inhuj, 
2 De G. J. & Sra. 358 ; 10 Jur. N. S. 1003 ; 34 L. J. 
Ch. 54; Threlfall v. Harrison, W. N. (1877), 192; 
Bighton v. Withers, 31 Beav. 423); but if he is a 
defendant, the plaintiff's costs of the sale will have priority 
over the mortgagee's general costs of the action, which 
will be payable out of the general assets {Berry v. 
Hehblethivaite). In Carr v. Henderson, 11 Beav. 415, 
the costs of parties properly appearing on the mort- 
gagee's petition for the payment out to him of the purchase 
monies were postponed to his principal, interest, and costs. 
In Wickenden v. Bayson, 4 W. R. 443, ^Yhere the estate 
was sold under the mortgagee's power of sale, the mort- 
gagee, who had unsuccessfully set up two other mortgages, 
was held entitled to retain all his costs incurred by liim 
as a mortgagee, as in taking the accounts, &c., but not his 
other costs of the suit. And in White v. Gudgeon, 
SO Beav. 545, where the assets consisted almost entirely of 
the mortgaged premises, and the debt of the mortgagee 



200 COSTS IN PARTICULAR ACTIONS. 

(a defendant) had been reduced from £1,492 to £924:, the 

costs of all parties were directed to be paid out of the 

mortgaged premises in priority to the mortgage debt. 

Costs of The costs of a petition for payment of iuconic to the 

petition by petitioner, if in an administration suit, arc payable out of 

tenant for ^ _ tt- j i -• ^ t rn -,,,r, u 

life. the corpus {Lonrjud v. llocldcy, 'I'l L. 1. 198; bcrivcncr 

V. Smith, 8 Eq., 310) ; but see Eady v. Watson, 12 W. R. 
682 ; 33 Beav. 481, contra. As to cases under the 
Trustee Relief Act, see post, Ch, V., sec. III. 
Where tlio If the personal estate not specifically bequeathed is not 
rnsuffident. sufficient for payment of pecuniary legacies after paynient 
of debts and the costs of the suit, the legacies abate 
rateably ; and if the general assets arc insulhcient for the 
payment of debts and costs, the specific legacies must con- 
tribute to the deficiency rateably {Bristov: v. BrUtow, 5 
Beav. 289 ; Covlson v, Bbujlunn, 17 Beav. 2GG ; Neiuhegin 
V. Bell, 23 Beav. 286). 
Executors Executors and administrators are entitled to their costs 
•niminis- out of the cstatc in priority to tho.se of all otiier parties, 
trators whether as plaiiititfs or defendants (Tanner v. Ihmrey, 

entitled to ^ . 

costs in 9 Beav. 339 ; and see also Wetcnhall v. Dennis, \- W. It. 

iu parties, ^^5 33 Beav. 285; In re Spensleys Estate, SptnsUy v. 

and to Harrison, 1.3 Ei[. 16); and even to the payment of debts, 

where the estate is insolvent (Fo«H^ v. i^t'e?'es^ 1 R. &- M. 

426; Gauntv. Taylor, 2 Ha. 413; Sanderson y.Stoddart, 

11 W. R. 275; Sutton \. Winstanley, 1 Smith's Ch. Pr. 

1069), though it was formerly held that the executors of 

an insolvent estate could not have costs, as they need not 

have administered (Adair v. Shaiv, J Sch. & Lef. 380 ; 

IIumplLrey v. Morse, 2 Atk. 408; and see Uvedale v. 

Costs of Uvedale, 3 Atk. 119). So an heir at law, where the real 

where real estate is exhausted by creditors, will be entitled to costs 

estate is {Humphrey v. Morse ; Tardrev: v. Howell, 2 Giti'. 530 ; 7 

exhausted 1. -»y -, t_ , ,,.,.. 

by Jur. JN. S. 537) ; and as between solicitor and client being in 

creditors. ^|^^j position of a trustcc, whether he is plaintitf or defendant 

{Tardreivy. Howell; Shittler v. Skittle r, ^ N. R. 475). 

Where an order had been made on further directions for 



ACTIONS FOR ADMINISTRATION OF ASSETS. 201 

the payment of the costs of all parties out of a fund in 
Court, which proved insufficient for the purpose, it was 
held that, notwithstanding the order, the executors were 
entitled to be paid their costs in priority (Gaunt v. 
Taylor, 2 Ha. 413 ; Blenk'msop v. Foster, 3 Y. & C. 
205) ; but see contra, Swale v. M liner, G Sim. 572. 
Where the plaintiff was the administrator de bonis non of 
an intestate and the defendant was the executor of a de- 
ceased administratrix, and each had a balance in his hands, 
the plaintiffs being sufficient to pay his costs but the defen- 
dant's being insufficient for payment of his costs, the plaintiff 
was allowed to retain his costs in full, but the defendant was 
only allowed to retain his balance, and lost the remainder 
of his costs (Rice v. Orgies, 25 L. T. 2C3; W. N. (1871) 177). 

The plaintiff in a legatee's action, and a residuary Resiiluary 
legatee, whether as plaintiff or defendant, if they have ^^^^^'^^ 
enabled the estate to be distributed, are also entitled to plaintiff in 
their costs out of an insufficient or insolvent estate. See action 
Wroughton v. Cohiahoun,! De G. & S. 357, where the entitled to 
estate was msumcient to pay legacies ; and II eston v. of an 
Clowes, 15 Sim. 610; Sutton v. Winstanlei/, 1 Smith's |."^J.';['^^"* 
Ch. Pr. 106.9; Xeivnian v. ILitch, Seton, 875; Wetenludl 
V. Dennis, 12 W. R. 6G ; 33 Beav. 285; where the estate 
was insolvent. Where legacies were made payable out of 
residue which was insufficient, the fund being in Court, 
the legatees were held entitled to their costs out of the 
residuary fund (In re Jannans Trusts, 1 Eq. 71). But 'S'fr».9 next 
next of kin can have costs only out of uudisposed-of per- entitled to 
sonalty, and therefore, where the next of kin filed a bill, residue. 
and the residue, which was undisposed of, was exhausted 
in the payment of debts, they got no costs (Newhegin v. 
Bell, 23 Beav. 380). 

If, however, there is a surplus after payment of creditors, Plaintiff 
but it is insufficient for the payment of legacies in full, "ctioji"^ '^'^ ^ 
the plaintiff in a Icfratee's action will jjet costs as between ^^'I'^n 

... 1 1- ^ ,, . " -r. entitled 

solicitor and client (Cross v. Aennington, 11 Beav. 89 ; to costs as 
Waldron v. Francis, 10 Ha. App: x. ; Thomas v. Jones, ^o^,*^'j^^" 

and client. 



202 



COSTS IN PARTICULAR ACTION: 



Where the 
plaintiff 
in a 

creditor's 
action 
will have 
costs as 
between 
solicitor 
aud client. 



1 Dr. & S. 134; 29 L. J. CIj. 570); but as between party 
and party only if there is no surplus (T/umias v. Jones ; 
Wetenhall v. Dennis). And the iket of one of the plaintiff 
legatees being a large creditor does not entitle him to 
solicitor and client costs {Home v. Home, 14- W. R. 957). 
A residuary legatee plaintiff, where there is no residue, 
will not be entitled to costs as between solicitor and client 
{Weston V. Cloives, 15 Sim. GIO, overruling contra, Burkitt 
V. Ransom, 2 Coll. 536) ; except so far as the estate lias 
been increased by his exertions {Wrouf/lifon v. Colquhoun, 
1 De G. & S. 357), and as to sales of real estates con- 
ducted by him (Xeirnnin v. Hutcli, Set. <S75). In In re 
BurrtU, BarreU v. Smith, 9 E(i. 443 ; 39 L. J. Cii. 544; 

22 L. T. 2(J3, however, he was allowed costs as between 
solicitor and client, sal qu. See B'uliardson v. Richnrd- 
son, 14 Ch. D. 611 ; 49 L. J. Ch. 612 ; 2.S W. 11. 942. 

Similarly in a creditor's action, if the fund is insutticient 
for the payment of all the creditors in full, the plaintiff 
will be entitled to costs as between solicitor and client 
{Stanton v. Hatfidd, 1 K, 35JS ; Toohd v. S])lcer, 4f Sim. 
510; Hood V. ivilson, 2 R. & M. 687; Bissett v. Burgess, 

23 Beav. 278; Gold^^rnlth v. RussrlJ, 5 De G. M. & G. 
550 ; Thomas v. Jones, 1 Dr. & S. 134 ; 29 L. J. Ch. 570) ; 
and the sufficiency of the estate for the payment of debts 
is to be looked at after allowing the plaintiff costs as 
between party and party {Sutton v. JJoggett, 3 Beav. 9). 
The rule applies ctjually to the case of a creditor who 
obtains the conduct of an action originally commenced by 
a legatee or next of kin (Rirh<irdson v. RicJiorddou ; aud 
see Joseph v. Goode, 23 W. R. 225). But the insufficiency 
of the estate is the only case in which costs as between 
solicitor and client are allowed to a plaintiff in a creditor's 
action {Brodie v. Bolton, 3 M}'. & K. 168), In Hender- 
son v. Dodds, 2 Eq. 532, which was a suit by creditors to 
administer the realty, there being no personalty and the 
realty proving deficient, the Court ordered the costs of the 
plaiutitfs and of the defendants, who were beneficial 



ACTION'S FOR ADMINISTRATION OF ASSETS. 203 

devisees, to be taxed as between party and party, and paid 
pari ixi.ssu out of the fund, and the baU^ncc of the fund 
then remaining to be applied in payment of the plaintitf s 
extra costs as between solicitor and client, and then in 
payment of debts ; and this case was followed in Ferguson 
V. Gibson, 14 Eq. 379. In Young v. Everest, 1 R. & M. * 
426, and Rowlands v. Tucker, ibid. 635, it was held that, 
if the assets were insufficient for the payment of the 
specialty creditors, a plaintiff, simple contract creditor, was 
not entitled to any costs. But those cases were disap- 
proved of in LarJcins v. Paxton, 2 My. and K. 320, where 
it was held that the plaintiff, under such circumstances, 
was entitled to his costs ; and, semble, as between solicitor 
and client {Barker v. Wardle, 2 My. & K. 818 ; Richard- 
son V. Jenkins, 17 Jur. 447). But the phiintiff has no 
right to withhold the order for payment of the creditors 
from them for the purpose of enforcing a contribution 
towards his extra costs from them (Shortley v. Selby, 
5 Mad. 447 ; Lechmere v. Brazier, 1 Russ. 72). Creditors, Where 
who had come in, but through association with the ad- contribute 
ministrator obtained payment in full, were nevertheless *'' . .„, 

, , .; '' 1 1- • <. plaintiffs 

held bound to contribute, under the (hrection lor that costs. 
purpose, towards the i)lain tiff's costs, the fund having 
proved insufficient to pay tliom {Thompson v. Cooper, 
2 Coll. 87). A direction to contribute to the phiintiff's 
costs did not extend to costs occasioned by a claim unsuc- 
cessfully raised by him {Dunning v. Hards, 2 Ph. 
294). However, the direction for contribution, which was 
formerly inserted in every decree made in a creditor's 
suit, is now omitted (Set. 882). 

But if the plaintiff in a creditor's suit, after information If piaiutiff 

,,,,•, Til (' ^ • perseveres 

that there are no assets applicable to the payment ot his after notice 
debt, persists in prosecutino; his suit, he does so at his own t''-'^*' t''^ 

^ ... . assets are 

risk ; and if the information turns out to be correct, he insufficient 
will have to pay the costs of it {Bluett v. Jessop, Jac. [°^y,'ucnt. 
240 ; King v. Bryant, 4 Beav. 460 ; Fuller v. Green, 24 
Beav. 217 ; King v. Hamiiiett, U L- J, Ch. 14 ; 5 Jur, 



204 CObTS IN PARTICULAU ACTIONS. 

1052). But in Sullivan v. Bevaa, 20 Beav. 399, where 
the plaintiff did not receive notice of the state of the 
assets and the claim of a superior creditor until after 
decree, he was allowed his costs up to notice. And in 
Robinson v. Elliott, 1 Russ. .'^99, the bill was dismissed 
without costs, as the executrix was charged with more 
than she admitted by her answer, but there were not any 
assets applicable to payment of the plaintiff's debt. 

So also in a legatee's suit {Ottleyv. Gilbij, 8Bc&\: 002) ; 
and see further, ante, sec. 1. 

Where an administration action is brouglit in a County 
Court, taxation as between solicitor and client can be 
obtained in the Chancery Division (In re Woifh, LS Ch. D. 
521 ; 50 L. J. Ch. 262 ; 29 W. R. 371 ; 4 1 L. T. 4(32). 



Sect, III. — Act ions rclathi>j to Charities. 

Where the The Court may order defendant.s to a charity suit, 
Attorney- instituted bv the Attorney-General cj- officio without a 

General j j .v 

sues relator, to pay the costs of the Attorney-General {Attonierj- 

relaton '"^ G^^^cral V. Ashhumham, 1 S. & S. 394). A charity suit 
is not within the provisions of 18 & 19 Vict. c. 90, and the 
Attorney-General cannot be made to pay costs in such suits 
{Attorney-General v. Dean & Canons of Windsor, 8 H. L. 
C. 369, 385 ; and see j^ost, ch. VI., s. II.) ; and see before 
the Act, Attorney-General v. Lord Chesterfield, 18 Beav. 
596 ; IS Jur. 686. Where the Attorney-General sued 
without a relator, the. Court would, even under the former 
practice, make a decree for payment of costs between co- 
defendants {Attorney-General V. Mercers' Co., 18 W. R. 
450 ; 22 L. T. 222; Attorney-General v. Corporation of 
Chester, 14 Beav. 338). In the case last cited, the Court 
gave the trustees, defendants, their costs as between 
solicitor and client out of the estate, and directed that such 
costs as between party and party should be repaid by the 
corporation. 



ACTIONS RELATING TO CHARITIES. 205 



Where there is a relator, a brief to the Attorney- Where 

there is 
relator. 



General, as well as to two other counsel, will be allowed ^^^""^ ^^ * 



on taxation as between party and party {Attorney-General 
V. Drapers' Co., 4- Beav. 305). But if the Attorney- 
General attends the proceedings under the decree by a 
separate solicitor, without an order of the Court for so 
doing, he will not be allowed a separate set of costs 
{At tome}/- General v. Dove, T. & R. 328). In the case 
cited this course was taken at the request of the Master, who 
suspected collusion between the relator and the defendants. 

It was formerly held that an information respecting a Costs of 
charity established by the Crown should be dismissed with '^^'-'^t"'^- 
costs, if it failed ; but the Court would not dismiss one 
respecting a private cliarity, but would make a decree to 
establish it (see Attorney-General v. Smart, 1 Ves. 72) ; 
and the case of Attorney-General v. Gleg, 1 Atk. 356, is 
said to have been the first instance of an information of 
the latter kind being dismissed witli costs. But such dis- 
tinction has long since been lost sight of in practice. 
Where the Court sees that some relief is required for the 
charity, it will make the proper decree, whatever be the 
frame of the suit ; but with reference to the costs will 
look at the pleadings {Attorney-General v. Hartley, 2 
J. & W. 3G9, where so much of an information as 
contained unproved charges of misconduct against trustees 
was dismissed with costs) ; and see Attorney-General 
V. Holland, 2 Y. & C. G83 ; Attorney-General v. 
Cullum, 1 Ke. 118. And if the whole of the relief 
given might have been obtained bv a petition under 
Sir S. Romilly's Act (^ Geo. III., c. SS) no costs will be 
given to the relators up to the hearing {Attorney -General 
V. Holland ; Attorney -General v. Cullum ; Attorney- 
General V. Berry, 11 Jur. 114). In Attorney- General v. 
Bolton, 3 Anst, 820, the principal part of the relief prayed 
was abandoned at the hearing, but the Court, holding that 
the information had some foundation, said that the relator 
should not pay costs. But where the information appears 



206 COSTS JN PARTICULAR ACTIONS. 

to proceed from a feeling of private revenge in the relator, 
it will be dismissed with costs {AUoniey-General v. 
Middleton, 2 Ves. 32G). In Attoniey-General v. Leivis, 8 
Beav. 179, where a defendant who had been ordered to 
pay costs proved insolvent, the Conrt, on a subsequent 
application, gave the Attorney-General and trustees their 
costs out of the estate. 
Where tlic Where the suit was by information and bill, and the 
?"I*' ^^'^^ ^'^' relator in the former, was also plaintiff in the latter, the 

inrorma- ... 

tion and bill might be dismissed with costs, tliough relief for the 

• benefit of the charity was given on the information 

{Attorney-General v. Vivian, 1 Russ. 22(5) ; but see 

Attorney-General v. Oglender, 1 Ves. Junr, 240. 

Solicitor Where the costs of all parties arc given out of the 

and client, charity fund, they arc frequently directed to be taxed as 

quentiy between solicitor and client {^Iog<jri(hje v. TlmckweU, 7 

allowed ; y^^^ gg^ gg . ^i^^^^ ^j Hereford v. Adanu, 7 Ves. 331 ; 

Attorney-General y. Carte, 1 Dick. 113, Beamcs, app. 2; 
Mills V Farmer, 19 Ves. 491 ; Gaffney v. Ilevcy, I Dr. 
& Walsh, 25) ; and see Attorney-General v. Stewart, 14 
Eq. 17; 26 L. T. 419. But there is no rule that in suits 

but no . . 1 11 1 11 1 

rule to that relatmg to chanty property costs shall be allowed as 

effect. between solicitor and client {Aria v. Emanuel, 9 W. R. 

306 ; and see Carter v. Green, 3 K. & J. 608). In WilHn- 

son V. Barber, 14 Eq. 96, next of kin who appeared in 

oj)position to a charitable bequest and failed were not 

allowed costs as between solicitor and client. 

Eelator The relator, however, if the suit was a proper one, is 

usually rrenerally entitled to costs as between solicitor and client. 

entitled to '^ *' . , . . _ . 

solicitor "The relator m a charity information, where there is 
costs^- °*^ nothing to impeach the propriety of the suit, and there 
are no special circumstances to justify a special order 
is, upon obtaining a decree for the charity, entitled to his 
costs as between solicitor and client, and to be paid the 
difference between the amount of such costs and the 
amount of the costs which he may recover from the de- 
fendants, out of the charity estate" Q)^r Lord Langdale, 



ACTIO.S'S RELATING TO CHARITIES. 207 

M. R, Attorney-General v. Kerr, 4 Beav. 297, 303) ; but 
see Attorney-General v. Drumrnond, 3 Dr. & War. 102. 
In Attorney -General v. Fishmongers' Co., 1 Ke. 492, 
where the defendants had technically been guilty of a 
breach of trust, but no loss whatever had resulted to the 
charity, the Court made a decree and g-ave the relators 
costs against the company, but refused them their extra 
costs out of the funds, as the information was not for the 
benefit of the charity. The relator is also sometimes and, in 
allowed his charges and expenses, in addition to his costs ^^^^^^ t^ 
of suit as between solicitor and client {Osborne v. Denne, costs, 
7 Ves. 424 ; Attorney-Generalv. Corporation of Winchester, ank " ' 
3 L. J. Ch. (0. S.) C4 ; C. P. C. 502 ; Attorney-General v. o-^pen^es. 
Skinners Co., Jac. 030). In the case last cited the costs of 
all parties, including the costs of appeal, to be taxed ais 
between solicitor and client, were ordered to be paid out of 
the rents together with "any costs, charges, and expenses 
reasonably and properly incurred by the relators to enable 
them to institute and prosecute the suit." And in Attoraey- 
General v. Tyler, C. P. C. 358, the relator being changed 
before the cause was at issue, was allowed out of the fund 
his "costs, charges, and expenses preparatory to, and of 
and relating to the suit and of that application." And 
see the unreported cases cited in Attorney-General v. 
Kerr, 4: Beav. 297. But it is only in special cases, depend- 
ing on their peculiar circumstances, to be brought forward 
and established by evidence, that such additional charges 
and expenses ought to be allowed {Attorney-General v. 
Kerr, 4 Beav. 297, where Lord Langdale refused to allow 
them). 

The relator should not take any proceeding in the Costs of 
cause after decree without the authority of the Court • P™*^*^*^^: 

"^ ' ings under 

see Attorney- General v. ironmongers' Co., 10 Beav. 194, a decree, 
where the Court refused the relator his costs of issuino- ^.'^m".,* 
advertisements and collecting information with a view to tjie sanc- 
the scheme, without the authority of the Master ; but court. 
as the proceeding was beneficial to the charity, allowed 



20S COSTS IN I'ARTlCl'LAU ACTIuXS. 

Costs of his costs out of pocket. The costs of ohtaining au Act 
an*Act"of ^^ Parliament for the reguLation of a charity were allowed, 
Parliament though the Sanction of the Court to the application was 
t"oVofa^' not previously obtained {Atfornpy-Geneml v. Vi[jor, 2 
charity. Kuss. 519 ; Bou'ii tiifj College Case, ibid.) ; but secus, where 
the application was unsuccessful, though not ou the merits 
{Attorney-General v. Eorl of Maufijield, 2 Russ. 501, 
518). But where an unsuccessful application to Parlia- 
ment had tlie previous sanction of the Court, the costs of 
it were allowed (Re Bedford Charity, 29 L. T. (0. S.) 5) ; 
and also the costs of a subsequent application for leave to 
introduce a fresh bill, which was refused {ibid.). The 
costs of proceedings before the Attorney-General to obtain 
his fiat for an information, rendered necessary by the con- 
duct of the defendants, are costs in the cause payable by 
the defendants under a decree directing payment to the 
plaintiffs of their costs of the suit and of the information 
{Attorney-General v. Corporation of Hal if ox, 12 Eq. 2G2) ; 
and so also are the costs of proceedings before the Attorney- 
General, pending an appeal, to induce him to withdraw his 
fiat {ibid.). 
Where Where a relator refused to proceed further with an 

chan^ecr information, new relators who offered an indemnity for all 
before the past and future costs were substituted {Attorney-General 
issue. V. Corporation of Cashel, Sau. & So. 333). And in 
Attorney-General v. Tyler, C. P. C. 358, the relator 
being changed before the cause was at issue was 
Where the allowed his costs, charges, and expenses out of the 
not burnt fund. Where the solicitor had given the relator an 
f^^^^- indemnity against the costs, the information was ordered 

to be taken off the file with costs against the 
relator and solicitor {Attorney-General v. Skinners' 
Co., C. P. C. 7). As to security for costs to be 
given by a relator on the ground of poverty, see ante, 
p. 15. 
Heir at As to the costs of the heir at law and next of kin in 

hiw and charitv cases, see post, ch. YI., s. YI. 

next of " > jr ' ' 

kin. 



ACTIONS RELATING TO CHARITIES. '209 

The costs of persons appearing, in piu'suance of public Other 
notice, on an application for the appointment of new i-^'"^""^' 
trustees under the provisions of the Municipal Corpora- 
tions Act, for the purpose of aiding the Attorney General 
in securing fit appointments, are not allowed out of the 
charity estate {Re Glouccstei' Cluh-'ities, 10 Ha. app. iii.) 

The general principles, on which the costs of trustees in Costs of 
charity suits are disposed of, do not differ from those ob- ch^rity^ * 
served in other cases, and will be more conveniently discussed c^^ses. 
hereafter (see ch. YI., s. XIII.). However, in Attorney- 
General V. Dnimmond, 3 Dr. & War. 1G2, Sir E. Sugdeu, 
L. C. drew a distinction between private trustees and the 
trustees of a charity, and observed that to refuse the latter 
costs might be to make them pay for the errors of their 
predecessors ; and in that case he allowed the trustees 
their costs, though held to be guilty of a breach of trust. 
It should be observed, however, that the trustees had 
derived no personal advantage from the breach of trust, 
which consisted merely in the admission of persons not 
objects of the charity to the benefit of it ; but see Lady 
Hewley's case {Shore v. Wilson, 9 CI. & F. 355), on the 
authority of which Attorney-General v. Drummond was 
decided, and where the trustees were not allowed their 
costs. In Attorney- General v. Stroud, 19 L. T, 545, 
trustees were ordered to pay the costs up to the hearing, 
their conduct having been vexatious ; and see Attorney- 
General V. Webster, 20 Eq. 483 ; 44 L. J. Ch. 7G6, where 
trustees defending a suit after being advised by counsel 
that the property they claimed was held for charitable 
purposes were allowed no costs, the Attorney-General not 
pressing for costs against them personally. Where 
trustees Avho had been ordered to pay the costs of a suit 
personally paid them out of the charity funds, they were 
ordered to refund with four per cent, interest {Attorney- 
General \. Daiujars, 33 Beav. G21 ; 12 W. R. 3G3). In 
Attorney-General v. Mercers' Co., 18 W. R. 448 ; 22 L. T. 
222, charity trustees were held not entitled to charge the 



210 



COSTS IN PARTICULAR ACTIONS. 



Where a 
Corponi- 
tioa are 
trustees. 



costs of a suit dismissed without costs against tlie charity 
estate ; but a trustee who had severed in his defence and 
supported the information was allowed his costs. The 
trustees of a charity ought not to be visited with costs 
because of the misapprehension of the Charity Commis- 
sioners as to the construction of a public statute {Moore v. 
Clench, 1 Ch. D. p. 450). 

A Corporation, as trustees for a charity, may be charged 
with the costs of the suit, payable out of their corporate 
funds (see Haberdashers Company v. Attorney -General, 
2 Bro. P. C. 370, where they had mismanaged the charity; 
and ^alop v. Attorney-General, ibid. 402, where the Cor- 
poration had appointed a .schoolmaster contrary to the 
particular tenor of their charter). It is the duty of a 
Corporation to examine their documents before putting in 
their defence ; and having alleged ignorance as to facts, 
which were afterwards discovered from the scheduled 
documents, they were, therefore, charged with the costs 
of the suit {Attorney-General v. East Retford, 2 My. & 
K. 35) ; and see Borough of Hertford v. Poor of Hert- 
ford, 2 Bro. P. C. 377, where the Corporation concealed 
evidence. A new Corporation as altered by the Munici- 
pal Corporations Act (5 »It 6 Will. IV. c. 7()j, is a con- 
tinuation of and succeeds to the rights and liabilities of 
the old {Attorney-General v. Kerr, 2 Beav. 420 ; Attorney- 
General v. Corporation of Leicester, 9 Beav. o4i6). In 
the former case, the present Corporation received no costs 
of a suit to set right a breach of trust committed by their 
predecessors ; in the latter case they were visited with 
costs. But see Attorney -General v. Corporation of Kew- 
bury, cited in Shelford on Mortmain, 473, n. ; and Attorney- 
General V. Caius Colleye, 2 Ke. 150, as to the difficulty of 
charo-ing Corporations with the defaults of their prede- 
cessors. Where the charity had fallen into desuetude, 
and the Corporation funds had benefited by the non- 
application, the Corporation were ordered to pay the costs 
of the suit, except of settling a new^ scheme (Attorney- 



lere a 



ACTIONS HELATING TO CHARITIES. 211 

General v. Mercers' Company, 2 My. & K. 654). In Whe 
Attorney -General v. Caius College, the Court, notwith- t,^,^g\^haf 
standing long misap}Dropriation, there being a large accu- been bene- 
mulated fund through the economical management of charity, 
the college, gave them their costs out of it. But in 
Solicitor-General v. Corporation of Bath, 13 Jur. 866 ; 
18 L. J. Ch. 275, where the Corporation had con- 
founded the bouDdaries of the charity lands with their 
own, but the charity had benefited by the lands being let, 
in breach of trust, on building leases, V, C. Wigram 
thought it was not a case for following Attorney-General 
V. Caius College, and held that the Corporation ought to 
pay the costs of that part of the suit, but instead of so • 
directing gave them no costs of the suit generally, to 
avoid the necessity of apportioning and setting off the 
costs. Although the breach of trust is in the result 
beneficial to the cestui que trust, he is nevertheless en- 
titled to the costs of an enquiry respecting it, as until 
then he does not know whether it be so or not {ibid.). 
As to the costs of an information to restrain a Corpora- 
tion from illegally promoting a bill in Parliament, see 
Solicitor-General for Ireland v. Lord Mayor and Cor- 
poration of Dublin , 1 L. R. Ir. 166. 

In Attorney-General v. Grainger, 7 W. R. 684, certain Wl.cre the 
charity lands were held to have been lost through breach ^^^^^^^ 
of condition ; the Attorney-General, in an ex officio in- is lost to 
formation, appealed unsuccessfully, and it was held that Hty,''th"e 
the trustees, defendants, could not have costs either from trustees 
the Attorney-General or out of the estate, which was no havrcosts 
longer in their possession. ""* "^ '*^- 

Trustees filing exceptions similar to those filed by the Trustees 
Attorney-General were not allowed the costs of them ; except "°* 
and the principal defendants, though charged with costs, J^^'': 
received their extra costs, occasioned by the double sets of Gen°em7" 
exceptions, out of tlic estate {Attorney-General v. Ward, exLted 
11 Beav. 203). ' 

Where one parish had been formed out of another sub- Tlie costs 

P 2 "^ °"^ 



212 COSTS IN PARTICULAR ACTIONS. 

pavish seqiientiy to a charitable gift to tlio original parish, the 
oTt of second parish was treated as an incumbrancer on the 
another, original one, and the two were allowed one set of costs 
only { Attorney -Oeneral v. Earl Craven, 7 March, 18(50, 
A. 508, cited in Seton, p. 553). 
Cosis how The costs, if necessary, will be directed to be raised by 
payable mortgage of a portion of tlic charity estates {Attorney- ■ 
funds or General v. Bishop) of St. Dai'iiVs, Set. 555, where the 
csiate-s of ^qyvh of Order is given ; Attorney-General v. Atherstone 
charity. School, cited in Shelf, on Mortmain, 478 ; Re Lamheth 
Charities, 8 Nov, 1850, B. 58, Set, 553) ; but semhle, the 
Court is unwilling, except upon a very special case, to 
. order a sale of charity estates {Attorney -General v. Mayor, 
ct'C, of Keivarlc-upon'Trcnt, 1 Ha. 395). It is more 
regular and proper, in the first instance at least, to 
charge the costs on the fund recovered by the informa- 
tion ; but the Court will, it' justice to the relator or the 
interests of the charity require it, direct the costs to be 
paid out of the funds of the charity generally {Attorney- 
Where General v. Kerr, 4 Beav. 2.97). In Attorney- General v. 
several Skiiiuers' Comixiny, 2 Russ. 407, 446, the costs were 
charities, apportioned between two estates as to one of which the 
company failed, and as to the other of which they suc- 
ceeded in their claim to the surplus income, except the 
costs of a scheme relating only to one estate. The costs 
of settling a scheme for all the charities in a town were 
ordered to be ultimately borne by all rateably, but for the 
present to be paid out of an existing fund belonging to 
three of the charities only {Re Stafford Charities, 26 
Beav. 567; and see Re Saffron Walden Charities, Set, 
555). 
Where the The Court has power, under Sir S. Romilly's Act (^39-«5'^ 
exercises a ^®^- "^^^^ ^- ^^' ^° dismiss a petition Avith costs ; see 
statutory Chertsey Market Case, 6 Price, 261, where the application 
tioif-' " ^^'^s \\^\il to be vexatious ; and in re Poplar d: Blachvxdl 
Free School, 8 Ch. D. 543, where trustees were not allowed 
the costs of an abortive petition. But the Court had no 



ACTIO^•S KELATING TO CHARITIES. 213 

power to award the costs of proceedings under the Bed- 
ford Charity Act (53 Geo. III. c. 101) {Re Bedford 
Charity, 2 Swans. 532 ; see now R. S. C. Ord. LV. r. 1). 
On an appeal to the Lord Chancellor, as visitor of a chari- or 
table foundation on behalf of the Crown, he can award chancellor 
costs: see Queens Collene Case, Jac. 19, where they Avere i^earsan 

P 1 p 1 / 1 1 1 appeal as 

given out of the funds of the college. visitor. 

Commissionei's of charitable uses, under 43 Eliz. c. 4, Commis- 

11 1 /(7i T\ T 1 c\ K ^ slouers of 

had no power to award costs [Aylet v. IJodd, I Atk. charitable 
238) ; but the Lord Chancellor could do so on appeal "'^^t,""''^'" 
from their decision {ih'id. ; and see Biirford, v. LenfhaU, c. 4. 
2 Atk. 550). 

The lessees must pay the costs of a suit to set aside an Costs of 
improvident lease of charity land {Attorney -General v. aside**im^* 
Lord HotJtam,T. & R. 220; Attorney-General v. Owen, woper 
10 Ves. 562). In the latter case the decree was under 
special circumstances made without costs, but Lord Eldon 
said it should not be a precedent. In Attorney-General 
V. GreenhiU, 3 N. E. 230, where the lease had been 
made in pursuance of a direction which the Court held to 
be void as tending to a perpetuity, the Master of the 
Rolls thought that the relators, the lessors, should pay all 
the lessee's costs. 

The Court has no authority to make an order adversely 
with regard to the costs of proceedings before the Attor- 
ney-General not under its direction or sanction {Attorney- 
General V. Harper, 8 L. J. Ch. 12). 

When the Attorney-General, upon making an applica- 
tion to the Court in the matter of a charity, desires an 
order for taxation and payment of his costs, charges, and 
expenses relating to tlie charity, not being costs in the 
matter, the summons must contain a statement of the 
matters in respect of which payment of such costs is 
desired {In )-c Didwlch Colleye, 15 Eq. 294). 



214 COSTS IN rAiniciLAR action's. 



Sect. IV. — Actions for Discovery or Perpetuation of 
Testimony. 

Actions Under the present practice actions for discovery, though 

for (lis- j.^^j.Q niav still be neccs.sary in certain cases, e.n., -with a 

CO very. ^ »/ ^ *^ 

view to intended proceedings ; see Orrx. Diaper, 4 Ch. D. 
Under the ^^- ^^^ ^^^^ Court of Chancery the rule in suits for di.scovery 
former -^^-as that uulcss the bill was a cross bill, in which case the 
the plain- costs "Nvere costs in the original cause unless the Court 
tiff paid should otherwise direct (Cons. Ord. XL. r. 14), the plaintiff 

lilG COSi/S Oi . -•••■« 

the suit, paid the costs of the suit (Sinimowh v. Lord Kninaird, 
4 Vcs. 785 ; Firkins v. Loive, l^ YlVX^). The suit was 
never brought to a hearring, and the only order made in it 
was that the plaintiff pa}^ the defendant the costs of the 
suit {Woodcock v. King, 1 Atk. 2<SG). On putting in a 
full answer the defendant was entitled to this order as an 
order of course (Rhodes v. Hayne, 9 Jur. 17-5 ; Coventry 
V. Bentley, 3 Mer. 677). It is presumed that the old 
chancery practice in relation to suits for discovery will be 
followed whenever it is found applicable, and that the 
plaintiff will generally be ordered to pay the defendant's 
costs ; but that the defendant will no longer be able to 
obtain them by an order of course. 

Under the former jnactice it was held that the defendant's 
right to his costs was not waived by his subsequently ac- 
cepting the costs of an amendment, nor by his neglecting 
to serve the plaintiff with the order for payment of costs, 
until after service of the order to amend {Coventry v, 
Bentley). And an order for payment of costs by the plaintiff 
was regular, though he had become bankrupt {Hihherson 
V. Fielding, 2 S. cl S. 371). Semhle the plaintiff must 
pay the costs though no interrogatories were sensed, the 
defendant having given the discovery required Avithout 
answer {Fitzgcrcdd v. Bidt, 9 Ha, app. Ixv.). A prayer 
that " such further order may be made as the nature (jf the 
case may require," did not convert a bill, otherwise for 



ACnOKS FOR DISCOVEfvi', &c. 215 

discoveiy only, into one for relief (South-Eastern Ry. Co. 
V. Siihmarine Telegraph Co., 17 Jur. 1044) ; and, there- 
fore, a motion by defendant for dismissal was refused as 
unnecessar}'', but without costs on account of the unusual 
form of the prayer {Ihid.). The defendant was entitled to 
costs only as between party and party (Beames, 33). 

If the discovery required was in aid of the defence to an Where bill 
action at law, and the bill prayed an interim injunction, anln^ermi 
the defendant, if he filed affidavits and unsuccessfully injunction 

1 1 • • • 1 1 1 T 1 1 i 1 1 r> *° restrain 

resisted the injunction, was held liable to pay the costs oi an action 
the motion (Lovell v. Galloiuay, 19 Beav. G43); though "•* '^^^'' 
the contrary seems to have been held in Kohle v. Garland, 

1 Mad. 344. Where the bill also prayed a commission to oracom- 
examine witnesses, the costs could not be obtained until '"i^^'?" ^^ 

examine 

the return of the commission {Anon. 8 Ves. 69 ; Banhiiry witnesses; 

v. , 9 Ves. 103). And it seems that the defendant 

will be entitled to his costs of discovery, though he has 
examined witnesses in chief under the commission {London 
Assurance Go. v. Hankey, 1 Anst. 9) ; so also in a suit for or to 
discovery and to perpetuate testimony, where the de- testimoiV 
fendant examines witnesses {Shrine v. Poivell, 15 Sim. 
81) ; notwithstanding Anon. 8 Yes. 69. 

In a suit to perpetuate testimony the defendant is en- Costs of 
titled to his costs from the plaintiff, if he has not examined ''""*"'' *" , 
witnesses of his own, or only cross-examined the plaintiff's testimony. 
witnesses ; but if the defendant examines witnesses in 
chief no costs are given on either side {Bliiihehome v. 
Feast, 1 Dick. 153; Bidvlph v. Bididpli, 2 P. W. 285; 
Berney v. Eyre, 3 Atk. 387; Earl of Abergavenny v. 
Powell, 1 Mer. 434) ; and the costs of perpetuating testi- 
mony merely are never given against the defendant {Clifton 
v. OrcJiard, 1 Atk. 610). In Lady Codrington v. England, 

2 Atk. 160, Lord Hardwicke seems to have thought that 
no costs on either side were given in such suits, but he 
afterwards admitted the general rule (see Berney v. Eyre). 
The defendant is entitled to his costs immediately after 
the commission i.s executed upon an allegation that he 



216 



COSTS IN I'AKTICULAR ACTIONS. 



has not examined witnesses in chief {Fouhh v. M'uljlcy, 
1 V. & B. 138). The order under the former practice was 
always made ex parte, and, therefore, where it was made 
upon notice, the costs of service were disallowed on taxa- 
tion {Watldns v. Atchison, 10 Ha. app. xlvi.). The 
defendant was entitled, on a bill to perpetuate testimony, 
to his costs of answering, though no answer was required 
(Lecky V. Murray, 1 B. & B. 301). The costs of a bill to 
perpetuate testimony to a will were allowed though the 
defendant had filed a cro.ss bill to set aside the will 

( V. Andrei'js, Barn. 333). Wiicre a domuircr 

to the bill was allowed after the plaintiff liad obtained 
nn ex parte order to examine witnesses de hcne esse, 
the plaintiff paid the costs of tlie examination in chief, 
but not of the cross-examination (Dew v. Ch'rke, 1 S. 
& S. 115). 
Suits to A suit to perpetuate testimony, like one for discovery, 

perpetuate ouo-ht not to bo broui^dit to a hearing (Cons. Ord. IX. r. 7) ; 

testimony ,.„... .,,i^t • i -.i .ix i.x 

not brought and if it is, it Will be dismis.sed with costs, but so as not to 

^^^ ])rejudice the plaintiff in perpetuating the witnesses' 

testimony {Anon., Amb. 236 ; 2 Ves. 497 ; Hall v. 

Hoddesdon, 2 P. W. 161 ; Mach-ell v. Hind, 2 Mad. 

34, n.). In the anonymous case just cited, it was said 

tliat the bill might be dismissed for want of prosecution at 

any time before replication and examination of witnesses : 

sed qu., see Barton v. Bud; 22 J'^eav. 81 ; Bmvan v. 

Carpenter, 11 Sim. 22. Instead of dismissal, an order will 

bo made that the plaintiff proceed within a certain time or 

in default that he pay to the defendant the costs of the suit 

(Beavan v. Carpenter ; Wright v. Tathara, 2 Sim. 459 ; 

Barham v. Longman, ibid. n.). But if the bill prayed 

also for relief, as that a certain copy of a will might be 

established as a true copy, it might be dismissed for want 

of prosecution {Vaughan v. Fitzf/erald, 1 Sch. Sc L. 316, 

where an order was made to amend by striking out so 

much of the bill as prayed for rulief, and then for payment 

of costs according to the usual course). 



hcarin;^ 



Order 
where 
pliiintiff 
floes not 
procecil. 



ACTIONS FOR DOWER. 217 

As to the costs of suits to establish a Avill, see post, 
ch. YI., sec. VI. 

The principle that the jDlaiutiff paid the costs of dis-Costsofa 
covery applied where a person was made defendant merely defendant" 
for purposes of discovery to a bill seekino- relief asainst *° action 

. - ^ * for dis- 

other parties (Cons. Ord. XL. r. 16) ; but such defendant covery 
could not, upon putting in his answer, move for his costs ^^^^^i' 
at once {Attorney-General v. Burch, 4 Mad. 178 ; but see 
Williams V. Williams, 2 Bro. C. C. 87). 

If a person who is a mere witness is made a defendant, A witness 
he will be dismissed with costs, but as between party and feiuiant^' 
party only (De Co)nbe v. De Combe, 3 Jur. N. S. 712; entitled to 
Attivood V. Small, 6 CI. .1- F. 232; Cockell v. T(^?/^or, pSy col 
15 Beav. 128). °"'^^'- 



Sect. V, — Actions foi* Dower. 

No costs are given of a suit simply for assignment of No costs 
dower where the right is admitted {Lucas v. Ca.lcraft, for assign- 
1 Bro. C. C. 133), in analofry to the practice at law on a ?°"* °^ 

°'' ■"■ . dower. 

writ of dower {Mundy v. Mtuidy, 2 Ves. junr. 128). But Unless 
the plaintiff will be entitled to her costs where the de- defendant 
fendant has vexatiously kept her out of her dower {Wor- dowress 
(jan V. Ryder, 1 V. l^ B. 20) ; or where the plaiutiff's title '^"t- o'' 

^ / -rt ^r 1 disputes 

IS unsuccessfully resisted {r ry v. JSoble, i De G. M. k G. her title. 
G87 ; 4 W. R 145, aflfg. S. C. 20 Beav. 606). So a defendant 
Avho did not admit the plaintiff's title until after the bill 
WHS filed, and then without tendering costs, was ordered 
to pay costs up to the hearing {Harris v. Harris, 1 N. R. 
43 ; 11 W. R. 62). However, in Bamford v. Bamford, 
5 Ha. 203, where the defendant disputed the title on 
information as to the death of the plaintifi"s husband, 
wlio was a convict, derived from the returns of the 
Secretary of State, but which proved to be incorrect, the 
decree was made without costs. Where a bill for dower 
was dismissed ou the ground of the lapse of time, it 



•218 COSTS IN PARTICULAU ACTION'S. 

was with costs, although the right was admitted (MarshaU 
V. Smith, 5 N. R. 161 ; 10 Jur. N. S. 1174). Where the 
defendant set up an assignment of rent which he failed to 
prove, and entered into evidence as to the improvement of 
the lands since the title of the dowress accrued, he was 
ordered to pay so much of the costs of the suit as was 
thereby occasioned (Stonnont v. Widens, 14 W. R. 192 ; 
1.3 L. T. 533). 



Sect. VI. — Interpleader Actions. 

Where no proceedings liave been taken against the 
stakeholder, an interpleader action may now, it would 
seem, be brought in any division of the High Court. 
Where such an action is brought in the Chancery Divi- 
sion, the practice of the old Court of Chancery and the 
rules of that Court as to the costs of interpleader suits 
Avill, it is conceived, be followed wherever they are 
applicable. 

On a sheriff's application for interpleader, however, the 

Common Law practice must be followed, even where no 

action has been brought against the sheriff; see Scton, 

p. o(Jl. The sheriff's costs of an appeal must be paid by 

the party who is decided to be in the wrong {Ex imrte 

Streeter, in re Morris, 19 Ch. D. 219). 

Tlic losing In Chancery the rule in interpleader suits has always 

pavTthe ^"^^^^ ^^^^^ ^^^® defendant against whose claim the Court 

costs. decides pays the costs of the plaintiff and of the other 

defendants (Dowson v. Hardcastle, 1 Yes. junr. 308; 2 

Cox, 278 ; and the cases cited in Beames, p. 37). But in 

Meux V. Bell, 1 Ha. 73, the plaintiff had his costs out of 

the fund, but no costs were, under the circumstances, given 

to any of the defendants (a). If an action at law were 

(rt) The effect of this woukl scum to be that the successful ilcfendant 
rni<l the plaiutilf's costs, 



IXTERl'J.KADER ACTIONS. 219 

directed by the decree, the result of it was tjonclusive, and 
the failing defendant paid the costs of the suit though the 
equitable rights were not determined (Luscombe v. Calla- 
ghan, 1 Mol. 204). So a defendant who occasioned the where a 
suit by making a claim which he withdrew after bill filed '^la\™ ^^ 

, ° withdrawn 

paid the costs of it {Mason v. Hamilton, o Sim. 19). after 
But the plaintiff should not bring the suit to a hearing lfQ°\^ 
when all claims but one are withdrawn, but should apply 
to stay proceedings {Symes v. Magnay, 20 Beav. 47) : and 
a plaintiff, having brought the suit to a hearing in such 
case, was allowed no costs subsequent to the Avithdrawal 
of the claim (ibid. ; and see Glynn v. Locke, 3 Dr. & W. 
11). So a decree was made with costs against a defendant or one 
who did not appear (Hodges v. Smith, 1 Cox, 357). does'not 

If a stakeholder, instead of seeking his remedy by inter- ''^rrear. 
pleader, litigates with rival claimants separately, he loses 
his right to costs against the successful claimant [Laing v. 
Zeden, 9 Ch. 736). 

If the subject of dispute is a fund, which has been The phiiu- 
brought into Court, the plaintiff is entitled, at the hearing:, ^''^. ''■^'^ 

o _ . . . _ =" a lien on 

to have his co.sts out of it in the first instance without the fund, 
prejudice to the question by which defendant they should hijfcosts-^ 
ultimately be borne {Campbell v. Solomaus, 1 S. & S. 402; 
Hoggart v. Cutis, Cr. & Ph. 197; Secretary of State for 
India, v. Kelson, Set. 359); or if the fund is not in Court, 
the order will be for retainer of his costs out of it by the 
plaintiff {Coiutan v. Williams, 9 Ves. 107 ; Hodges v. 
Smith, 1 Cox, 357). And the plaintiff is entitled to costs 
out of the fund, though an immediate order is made for 
their payment by one of the defendants (Hodges v. Smith, 
Campbell v. Solomans). But the plaintiff is not entitled bnt cannot 
to move for his costs before the hearing (Jones v. Gilham, ti,^ef,|" 
G. Coop. 49) ; but secus, if all claims but one are with- hefore the 

^ hearing. 

drawn (Symes v. Magnay, 20 Beav. 47). In Glynn v. Set-oif" 
Locke, 3 Dr. & W. 11, part of the bill was dismissed with ^vhe'-c part 
costs, and the plaintiff had co-sts only up to the withdrawal dismis.•5cd^ 
of his claim by one defendant ; and the costs payable to 



220 COSTS IN i'AUTlCULAn ACTIONS. 

tlie plaiutiffs were set off against the costs payable by 
tliem to the successful defendant, and the latter had his 
costs so set off and his other costs over from the other 
defendant. 
Where the The plaintiff, though it is a proper case for interpleader, 
Lr'no^ may lose his costs by misconduct {Bnjmer v. Buchanan, 
costs, or 1 Dick. 2i)2, n. ; and see Beames, 38. n. .5), and will have 
po&cos,. ^^ pay the costs of unnecessary evidence, such as of an 
affidavit verifying tlic bill on motion for injunction, or of 
obtaining an injunction where no action or proceedings 
are threatened (Craivford v. Fisher, 1 Ha. 436). " Vexa- 
tious conduct or culpable negligence on the part of the 
plaintiff in an interpleading suit, wdiereby needless ex- 
pense is occasioned, ought, in my opinion, to be visited 
in all cases with costs against the plaintiff" (per V. C 
AVigram, 1 Ha. 444) ; and see Button v. Fiwness, 14 W. 
R GOO; 35 L. J. Ch. 403 ; 12 Jur. N. S. 386; 14 L. T. 
319, wliere a .sheriff had hastily filed a bill of interpleader, 
and being clearly in the wrong, was ordered to pay all the 
Collusion costs. Where the plaintiff was colluding with one of the 
plaintiff defendants, the bill was dismissed, and the plaintiff and 
and one j^jg solicitor wcrc Ordered to pay all the innocent defend- 

dcfeuilant. , \ "^ i i- 

ants costs and expenses as between solicitor and client 
wiicrc {Dungey v. Angove, 2 Ves. junr. 304). If the plaintiff' 
cise for raises no case for interpleader as against all or some of the 
niter- defendants, the suit will be dismissed with costs as against 

pIcAucr. 

such defendants (see ex. gr. Hoggart v. Cutts, Cr. & Ph. 
197; G/gnn v. Locl-e, 3 Dr. & \V. 11); but in Cochrane 
V. O'Brien, 2 Jo. & Lat. 380, the bill Avas dismissed with- 
out costs as to the defendants whose misconduct had occa- 
sioned the suit. Although one defendant submits to a 
decree against him with costs, the plaintiff will not, if it 
was not a proper case for interpleader, be allowed a lien 
on the fund for his costs ( Watts v. Hammond, 3 W. R. 
312). However, the old rule as to defendants losing their 
costs by not demurring applied to interpleader suits (Cook 



ACTIONS RELATING TO MORTGAGES. ^21 

v.Earl ofRosshjn, 1 Giff. 167; 3 Giff. 175 ; 7 W. R. 537; 
see now as to this rule, ante,i^. Ill) ; and semhle, notwith- 
standing Lord Eldon's dictum in Hyde v. Warrei}, 19 
Ves. 322, that a defendant could not demur after tlie 
fund was in Court ; a dictum which rests on no principle, 
and was disapproved of in Hoggavt v. Cutis, Cr & Ph 
197. 

The plaintiff will be entitled to costs as between party Costs as 
and party only {Dunlop v. Hubbard, 19 Ves. 205) • and ^^^^'^^u 

. , , , , , ^ ' party and 

not to any charges and expenses dehors the suit (Hale v. party only 
Saloon Omnibus Co., 4 Drew. 492), but his costs were ;"'ehi^ges 
under the old practice held to include the costs at law, if a"^l ° 
any (Dowson v. Hrrdcastle, 2 Cox, 278 ; 1 Ves. junr. 308). cEHiie 
The lower scale of costs applies to an interpleader suit ^"^^' 
where the matter in dispute is under the value of £1 000 
{G'lbbs V. Gibbs, 6 W. R. 415). 

In a suit by the owner of an estate, subject to a charge. Suit in the 
against couflicting claimants to the money raisable, the f„\e"'^ "* 
plaintiff was allowed his costs against those defendants pleader. 
Avho failed in their claim (Vyvi/an v. Vyvyan,9 \V. R. 
869, affd. on appeal, 10 W. R. 179). A defenda!nt in the A defen- 
position of an interpleading plaintiff, as a debtor whose ^'•^".^'" *''® 
debt is claimed by the plaintiff and by one of the defen- a'l^ake" °* 
dants, is entitled to retain his costs out of the debt ^°^^'''^'' 
(AppUn V. Gates, SO L. J. Ch. 6); and an auctioneer 
being ordered to pay a deposit into Court in a specific 
performance suit was allowed to retain his costs and ex- 
penses out of it {Annesleij v. Muggridge, 1 Mad. 593 ; 
Yates V. Farebrother, 4 Mad. 239). 



Sect. VII. — Actions relating to Mortgages, 

By R. S. C. Ord. LV., r. 1, any right of a mortgagee to General 
costs out of a particular estate or fund to which he would ^^^^ ^^ ^° 
be entitled according to the rules of equity is preserved, between 
The rule of equity as between mortgagor and mortgagee ^°[*fe'''^«^'" 

mortgagee. 



'2-2:2 COSTS m PARTtClLAn AOTIOKS. 

Actions to is, that tlie latter is entitled to aJJ all his costs properly 
or'enforce incurred to his security, and that the mortgagor or sub- 
a security, sequent incumbrancers can redeem only on payment of 
principal, interest, and costs ; see Cotterdl v. Stn'tfon, 8 
Ch. 21)5; Cottrell v. Finney, 9 Ch. o41. But a mort- 
gagor, if foreclosed, does not pay costs personally, though 
the estate in insufficient to pay tlie plaintiff's debt 
{Iloivard v. Queens Trustees, 2 Mod. 173; Frazer v. 
Jones, 5 Ha. 47-3, 4S3), unless he unsuccessfully disputes 
the validity of the security {Tihlesley v. Lodye, 3 Jur. N. S. 
1000; Sharpies v. Adxms, 32 Beav. 213; 1 N. R. 4G0 ; 
and see Taner v. Ivie, 2 Yes. 467). And where, by set- 
tling an estate ■without notice of a charge upon it, the 
owner rendered a suit to enforce the charge necessary, he 
had to pay the costs of it {Wise v. Wise, 2 J. cl- L. 403). 
Equitable An cquitablc mortgagee by deposit is entitled to his costs 
mortgagee, ^^ against the mortgagor [Aherdecn v. Chitty, 3 Y. & C. 
879); or his personal representative (Gonnell v. Hardie, 
3 Y. & C. 582) ; or in equity as against his trustee in 
bankruptcy {The Queen v. Chambers, 4 Y. & C. 54), though 
the deposit was made without a memorandum {ibid.). Y,\\t 
in bankruptcy the rule is, that an equitable mortgagee by 
deposit U'ithout memorandum, seeking to enforce liis 
security, pays costs {Ex parte Barclay^ ,'> De G. M. and G. 
407 ; Anon. 2 Mad. 281 ; Ex parte Warry, 19 Yes. 472) ; 
though not if the trustee raise a frivolous opposition {Ex 
parte Home, 1 Mad. 022 ; Ex parte Garbutt, 2 Rose 78) ; 
or if the deposit was made under circumstances in which 
it is not customary, according to the course of business, to 
give a memorandum {Ex parte Moss, 3 De G. t^ S. 599). 
If there is a memorandum, the costs are added to the 
security {Ex parte Barclay, 5 De G. M. & G. 407 ; Ex parte 
Trew, 3 Mad. 372 ; Ex jmrte Brightens, 1 Swans. 3). And 
where an agreement for a lease had been deposited with 
a memorandum, and afterwards the lease was deposited 
without one, the costs were allowed {Ex parte Anderson, 
3 De G. & S. ()00). In a decree for foreclosure, in case of 



ACTIONS RELATING TO MORTGAGES. 2-23 

an equitable mortgage, the practice is to direct a convey- Costs of 

11 , . 1 , . ,1 conveyance 

ance by the mortgagor without saying at whose expense of the legal 
{Ball V. Harris, 8 Sim. 485). In Pryce v. Bury, 2 Drew. ^^^""^^^^^^ 
41 ; affirmed, on appeal, 16 Eq. 153, n. ; 18 Jur. 967 ; 2 able mort- 
W. R. 216, Y. C. Kindersley seems to have thought tliat S'''°^^' 
where the property consists oi freeholds or leaseholds the 
mortgagee must bear the costs, because he prepares the 
conveyance and tenders it to the mortgagor ; but he 
decided that, in the case of copyholds, the mortgagor must 
pay the costs of surrender, because there he takes the 
initiative. But qucere the soundness of this distinction ; as 
between vendor and purchaser of copyholds, for instance, 
the latter must bear the expense both of the surrender to 
him and of his own admission (Sugd. V. & P, 562). Where 
the defendant had acquired the legal estate with notice of 
an equitable charge, but disputed the validity of it, he 
was ordered to pay personally so much of the costs as the 
security was insufficient to satisfy {Sharpies v. Adams, 1 
N. R. 400 ; 32 Beav. 213). 

Again, the plaintiff in an action for redemption, accord- RoJemp 
ing to the general rule, pays the costs of it {Detillin v. aXons 
Gale, 7 Ves. 583). And it is so far a matter of principle 
that an appeal for costs will lie where a mortgagee is 
refused his costs {Owen v. Griffith, 1 Ves. 250 ; Norton v. 
Cooper, 5 De G. M. & G. 728 ; Cotterell v. Stratton, 8 Ch. 
295 ; In re Rio Grande do Sid Steamship Co., 5 Ch. D. 
282; 40 L. J. Ch. 277; 25 W. R. 328; 30 L. T. GOSj.^o ^^^^ ^^y' ' 
There must be something of positive misconduct to^?" '"t^^T^^'^'ei^^ 
deprive a mortgagee of his costs {Loftus v. Sivift, 2 Sch."^^^^*!^^''^'"^^"^''^ 
& L. 642) ; the fact of his merely extending his claim 
beyond what the Court decides that he is entitled to is 
not sufficient {ibid.; and see Cotterell v. Stratton). Where 
a bill was filed for redemption of two estates, and one was 
held not to be redeemable, the plaintiff was allowed to 
redeem the other only on payment of principal and interest 
and the whole costs of the suit {Batchelor v. Middleton, 6 
Ha. 75). In default of redemption the action is dismissed 



2*24 COSTS IN IWKTICM LAI; ACTIONS. 

with costs. -And see /t'/% v. Croydvn,^) N. R. 160; 13 
W. R 223 ; 11 L. T. 59.1, where a bill by the assignee of 
the tenant for hfe to redeem a mortgage on the inlierit- 
ance, the tenant for life having died 2'>endente life, was 
dismissed with costs. 
Actions by In an action 1 v a ^9i(is)R' incumbrancer for redemption 
puisne ^j^j fQi-eclosure merely, the costs of each party are added 

incum- *' . • • 1 1 • 

brancevs to his security and paid with his principal and interest 
ciosu^' according to his priority {Wright v. Kirhy, 23 Beav. 463 ; 
and re- wihJ V. Lochhavt, 1 Bcav. 320 ; 16 L. J. Ch. 519 ; Barnes v. 
deniption. ^^^^^.^^^.^ 1 Y. & C. C. C. 401 ; and see Winiham v. Mxchin, 
10 Eq. 447). But where the suit is instituted to ascertain 
priorities upon an estate or fund, the plainiiftMias costs in 
the first instance, and the costs of other parties are added 
to their securities (Wright v. Kivb//, 23 Beav. 463; 
White V. Bishop of Peterborough, Jac. 402 ; Brace v. 
Duchess of Marlborough, Mos. 50-; Ford v. Lord Chester- 
field, 21 Beav. 426 ; and see Johnstone v. Cox, ID Ch. 
D. 17). 
Wliere We havc already seen (ante, p. 19!)), tliat a first inort- 

conseiits to g^g^^ ^ocs not losc liis priority in respect of costs by 
a sale. consenting to a sale of the mortgaged property in an 
action to administer the mortgagor's estate. Nor will ho 
do so by consenting to a sale in a puisne incumbrancer's 
action {Wild V. Loclharf, 10 Bcav. 320; 16 L.J. Ch. 
519) ; and he is entitled to his principal, interest, and 
costs in priority even to the costs of the sale (ibid. ; and 
see Crosse v. Genercd Reversionai^ Co., 3 De G. M. & G. 
698 ; Ward v. Macldnlay, 2 De G. J. & S. 358 ; 5 N. R. 28). 
So in a suit for foreclosure, where the plaintiff consented 
to a sale, and the fund proved insufficient to pay him his 
principal, interest, and costs, the whole fund was ordered 
Where to be paid to him (Upperton v. Harrison, 7 Sim. 444) ; 
subsequent .^^^j SCO Wonham V. Mcichin, 10 Eq. 447; 18 W. R. 
brancers 1098, In Kcncbel V. Scrafton, 13 Ves. 370, it was held 
TaaXe. that where, in a suit for foreclosure, the mortgaged pro- 
perty had been sold with the concurrence of the subsC' 



ACTIONS KELATIKG TO MORTGAGES. 225 

qnent mortgagees, the costs of all parties wore payable 
out of the proceeds in priority to the principal and inte- 
rest of the first incumbrancer. But that case has not 
been approved or followed in practice (per V. C. Wigram, 
Hepivorth v. Heslop, 3 Ha. 485) ; and see Wonham v. 
Machin, and Barnes v. Racster, 1 Y. & C. C. C. 401, where 
V. C. Knight Bruce held that the mere circumstance of 
there being a decree for sale instead of foreclosure did not 
primd facie change the rights of the parties ; if a decree 
for sale was conceded on terms in order to prevent the 
operation of the general rule, the terms must appear in 
the decree itself. In Wonfner v. Wright, 2 Sim. 543, 
which is often cited on this point, the mortgagee had lost 
his deeds, as to which see 2^ost, p. 228. In Cidfiehl v. Where 
Richards, 26 Beav. 241, where the plaintiff being a mort- seeks forc- 
gagee of a term only filed a bill for foreclosure or sale, closure or 

sale. 

and by consent the fee simple was sold in the suit, he was 
held entitled to his costs in priority to other parties. 
"A mortgagee, by amending his pleadings and consenting 
to a sale of the estate instead of insisting upon his original 
claim to foreclose, does not forfeit his right to his costs 
in priority to the costs of the sale ; and, until his claim is 
satisfied, nothing can be taken from the estate by the 
mortgagor or subsequent incumbrancers " (Set. p. 1061 ; 
and see Cook v. Hart, 12 Eq. 459). In Macrae v. Eller- 
fon, C) W. R. 851, where the bill prayed foreclosure or 
sale, the plaintiffs being legal mortgagees with a power of 
sale as to part and equitable mortgagees by agreement as 
to other part of the mortgaged property, V. C. Stuart held 
that the real and personal rej)resentatiyes of the mort- 
gagor were entitled to costs, as between solicitor and 
client, out of the proceeds of sale of the property in 
priority to the plaintiffs' principal and interest. His 
Honour placed much reliance on the circumstance that 
the plaintiffs had ineffectually attempted to sell without 
the concurrence of the mortgagors' representatives. V. C. 
Stuart followed his own decision in FiiUer v. Morgan, 

Q 



226 



COSTS IN PARTTCT-LATl Af'TTONS. 



Where 
legal 

mortgagee 
seeks a 
sale onlv. 



Or avails 
himself of 
a trust 
for sale 
of the 
equity of 
redemp- 
tion. 



Right 
of an 
equitable 
mortgagee 
to sale or 
fore- 
closure. 



unreported, Set. 380, 8rd ed. ; Init it Avas disapproved 
of by V. C. Kindersley in Wade v. Ward, 4 Drew. 602, 
and forms an exception to the general rule ; see Cool- v. 
Hart, 12 Eq. 459. Where a legal mortgagee with a 
power of sale filed a bill for a sale, it was formerly held 
that the subsequent incumbrancer and mortgagor con- 
curring in the sale were entitled to costs in priority to the 
plaintiii's principal and interest {Cooke v. Broivn, 4 Y. 
& C. 227; Alston v. Parker, 5 L. J. Ch. 3). But in 
Hatton V. Sealy, G W. R. 350, a decree was made for sale 
and payment of the plaintiff's principal, interest, and 
costs out of the proceeds, on the apparent grounds that 
the mortgagee had a right to have the trust of the pur- 
chase monies administered by the Court. Where the 
mortgaged property had been sold by the first mortgagee 
under his power of sale, and the second mortgagee filed a 
bill for an account, the first mortgagee was expressly 
charged as a trustee {Tanner v. Heard, 23 Beav. 555). 
But where the eijuity of redemption was settled in trust 
for sale to pay off the mortgage and then hold the surplus 
upon certain trusts, and a judgment creditor of the mort- 
gagee filed a bill to charge the mortgagee's interest under 
the deed, it was held that the trustees were entitled to 
their costs in the first instance {Clare v. Wood, 4 Ha. 81) ; 
and this seems to have been the point decided in Si f ken 
v. Davis, Kay, app. xxi., though the report is not very 
intelligible. 

There has been considerable difference of opinion 
whether the strict right of an equitable mortgagee by 
deposit is to foreclosure or sale ; see the cases collected in 
Tuckleij V. Thompson, 1 J. & H. 126, where V. C. Wood 
inclined to the opinion that a sale was the proper remedy. 
But it seems that the balance of authority, at least as 
respects the more recent cases, is clearly in favour of fore- 
closure ; see Fryce v. Bury, 16 Eq. 153 n. ; 2 W. R. 216 ; 
2 Drew. 41 ; 18 Jm\ 967; Cox v. Toole, 20 Beav. 145; 
and the cases cited ante, p. 198. An equitable mortgagee 



ACTIONS RELATING TO MORTGAGES. 227 

seems to be in the same position with respect to costs 
as a legal mortgagee ; see Lewis v. John, 9 Sim. 366 ; 
and Wa<h v. Ward, 4 Drew. 602, where the Court di- 
rected a sale, and held that the plaintiff was entitled to 
his principal, interest, and costs in priority to the infant 
heir of the mortgagor. In Tvcldey v. TJwmpson, 1 J. & 
H. 126 (but see S. C. on app. 29 L. J. Ch. 548), an equi- 
table mortgagee filed a bill to realise his security by sale 
and prove against the mortgagor's estate for the balance, 
and V. C. Wood gave him his costs in priority to all 
other claims, because by seeking only to prove for the 
balance against the estate he was asking less than his 
just rights ; but the Vice Chancellor, following his own 
decision in Bevry v. HehhletJnuaite (4 K. & J. 80), thought 
the costs of the actual sale should come out of the pro- 
ceeds of the mortgaged estate. 

As to the costs of a mortgagee instituting or adopting 
an administration suit, see ante, p. 196. 

The Court will not, on light grounds, deprive a mort- Excep- 
gagee of his costs or make him pay costs {Loftus v. tio"^ t,o 
Sivift, 2 Sch. & L. 642 ; DetUlin v. Gale, 7 Ves. mortgagee 
583); but will do so in a proper case. A mortgagee [.^^^.g "" 
resisting the right to redeem, and relying on the trans- i. whero 
action as an absolute purchase, was allowed no costs in ^° resists 

the right 

Sevier v. Greenvxi.y, 19 Ves. 413; Lav:ley v. iToopc?', to redeem. 
3 Atk. 278 ; and had to pay the whole costs in Baker 
V. Wind, ] Ves. Sen. 160 ; England v. Godrington, 
1 Eden, 169 ; and see National Bank of Australasia 
V. United, d-c, Co., 4 App. Cas. 391 ; Graham v. Horn, 
W. N. (1866), 166. In Harvey v. Tehbutf, 1 Jac. & W. 
197, where the mortgagee relied on a foreclosure decree 
which had been collusivoly obtained, he had to pay only 
so much of the costs as were thereby occasioned, which 
were set off against the money payable by the plaintiff; 
and so in Perkins v. Bradley, 1 Ha. 219 ; Wheaton v. 
Graham, 24 Beav. 483, where the right to redeem was 
disputed ; and see Credland v. Potter, 10 Ch. 8 ; 44 L. J. 

Q 2 



228 COSTS IN PAniKfLAR ACTIONS. 

Ch. 169; 23 W. K 36; 31 L. T. 522; Tomlinson v. 
Gregg, 15 W. R. 51 ; W. N. (1866), 339 ; Shannon v. 
Casey, Jr. R. 8 Eq. 307. In Cowdry v. Day, 5 Jur. N. S. 
1199, the defendant resisted the right to redeem ; but as 
the bill contained injurious charges struck out by amend- 
ment, the usual decree was made. In Wicks v. Scrivens, 
1 J. & H. 215, where the equity of redemption was 
in settlement, and the mortgagees had refused to be re- 
deemed by the tenant for life, they had. no costs up to 
the hearing, but did not pay costs, as the tenant for life 
had the advantage of liaving the account taken in the 
presence of the trustees of tiie settlement. Where the 
question -whetlier the estate was redeemable or not in- 
volved a difficult point of real property law, the decree 
was made without costs {KirlJiam v. Smith, 1 Yes. 258). 
Wlicrc , As between two mortgagees when the question in dis- 
qiiestion oi P"te is as to their respective priorities, the one in whose 
priorities ^ favour the Court decides is entitled to his costs from the 

between : i • i o ^ 

two mort- other one, the latter not havmg them over irom the mort- 
giges. I gagor (Mocatta v. Murgatroyd, 1 P. W. 392; and see 
] Banks V. Whittall, 1 De G. & S. 536 ; Hiorns v. Uoltom, 
16 Jur. 1077); but where the question had arisen from the 
j acts and conduct of the mortgagor himself, the plaintiff fail- 
ing, was allowed the costs over {Pclly v. Wathen, 7 Ha. 351). 
ii. Where A mortgagee who had lost some of the title deeds had 
gagee lias ^'^^ P^J ^^^^ costs of a foreclosure suit in Sfulve v. Rohson, 
lost his ly Ves. 385 ; Shelmardine v. Hairop, Mad. 39 ; so of 

deeds. . . , , r~>- 

a redemption suit (Lord Midldoii v. Eliot, 15 Sim. 531). 

In the case last cited the mortgagee had refused to give 
any indemnity for the loss of the deeds. AVliere a mort- 
gagee, who had lost his deeds, came to the Court for a 
sale, the subsequent incumbrancers were allowed their 
costs out of the proceeds, though insufficient to pay the 
plaintiff's debt {Wontner v. Wright, 2 Sim. 543). "Where 
the mortgagees' solicitor, to whom the deeds had been 
delivered, fraudulently deposited the most important of 
them with a stranger to secure a debt of his own, the 



ACTIONtS EELATING TO MORTGAGES. 229 

mortgagees had to Lear all the costs of the consequent 
proceedings by tlie mortgagor to assert his title (James v. 
RuDuej, 11 Ch. D. 39» ; 48 L. J. Ch. :3-15 ; 27 W. R 
617) ; but no compensation Avas allowed for the loss of 
the deed. In Hornby v. Matcham, 16 Sim. 325, where 
the mortgagee had destroyed the deeds in a fit of insanity, 
a decree for redemption was made on payment of prin- 
cipal and interest only, the amount of compensation for 
the loss of the deeds to be set off against what was found 
due on the mortgage ; and see Broivn v. SeiceU, 11 Ha. 
41). However, V. C. Knight Bruce said (in Woodman v. 
Higfjlns, 14 Jur. 846) that a mortgagee who took the 
same care of the deeds forming his security as of his own, 
ought not to be hardly dealt Avith ; and the deeds having 
been found, he made a decree for redemption on payment 
of principal and costs, the defendant waiving his claim for 
compensation, and electing to have interest stopped from 
the date of his tender. 

On the simple fact that something was due to the i'ii. Wlicre 
mortfra<:^cc when the mortgatjor came to redeem, the ™°^*'" 

o o ^ o o > gagee is 

mortgagee is entitled to the costs of the suit, though he ovei-paid. 
is in possession and the account is directed with annual 
rests {Barlow v. Gains, 23 Beav. 244); but if the mort- 
gagor alleges, and proves, that nothing was due when the 
action, whether for redemption or foreclosure, was brought, 
the mortgagee must pay the costs {ibid.; and see Bin - 
nington v. Harwood, T. & R. 477 ; Wilson v. Cliier, 4 
Beav. 214 ; Archdeacon v. Boives, M'Clel. 149, 167; 
O'Neill V. Inaes, 15 Ir. Cli. R. 527). Where over- 
payment is alleged, the usual course is to reserve the 
costs until the result of the account is certified. After a 
decree for redemption on payment of principal, interest, / 
and costs witho ut any r e servati on, it was hold that the 
Court could not deprive the mortgagee of his costs, 
although it turned out that he was overpaid {Lord Trim- 
leston v. Hamill, 1 B. & B. 377 ; and see Gilbert v. 
Golding, 2 Anstr. 442). Where the defendant by answer 



230 



COSTS IN pai;ticulae actions. 



iv. Where 
principal, 
interest, 
and costs 
have Leon 
tendered. 



claimed a balance due to him, and by the accoimt.s it 
aj)pcared that a sum was due to him Avheii the bill was 
filed, but he was overjDaid when the answer was put in, he 
■svas allowed the costs up to putting in his answer but no 
subsequent costs {Montgomcria v. Calland, 14 Sim. 7D); 
but in Snagg v. Frizell, 3 J. & L. 385, his conduct having 
been vexatious, he had to pay the costs suUsequent to 
answer. If a mortgagee in possession refuses to account, 
he must pay the costs of the suit up to the hearing 
{Poivell V. Tmiter, 1 Dr. c^ S. 388). 

The general principles Avitli regard to the effect of 
tender on the costs of the suit have been stated, ante, 
p. 102. In addition to the cases there cited, see as to 
tender between mortgagor and mortgagee, Shuttlev.'orth 

V. Lovjther, 7 Ves. oSO ; v. Trecvthich, 2 V. & B. 

181; Williams v. Sorrell,4' Ves. 38!); Huberts v. Willioms, 
4 Ha. 129; Mvrhg v. Bridges, 2 Coll. 021; Lylew Scarlh, 
W. N. (1874), 62, 82;. Lewis v. Wchhrr, W. N. (187G), 
187. In Harmer v. Priestley, 10 Beav. aOU, where an 
unconditional tender of a certain sum had been made 
before suit, a decree was made for an account at the date 
of the tender, and directions were given that if the 
amount found due should not exceed the amount tendered, 
the mortgagee should pay the costs ; but if otherwise, the 
usual decree should be made. But in Thomas v. Cooper, 
18 Jur. 688, where the plaintiff claimed more and the 
defendant offered loss than was ultimately found due, 
V. C. Stuart gave no costs. There were other points in 
that case, which, perhaps, might take it out of the general 
rule, Avhich is very precise, that in the absence of a tender 
of the whole amount due to him the mortgagee is entitled 
to his costs of suit, although he demands more than is 
due {Loftus v. Swift, 2 Sch. & L. 642). "There are 
several cases of foreclosure in which, though very reason- 
able proposals may be made, yet, if there is no proof of an 
actual tender, the Court, on a bill to foreclose, never 
refuses costs " {yer Lord Hardwicke, Gammon v. Stone, 1 



ACTIONS HELATING TO MORTGAGES. 231 

Ves. 339). If the tender is not snch as would, according What is 
to the rule of the Court, stop interest, it will not deprive teiuier''* 
the mortgagee of his costs (Garforfh v. Bradley, 2 Ves. 
678). A notice by second mortgagee of his intention to 
redeem will not save the costs of a foreclosure suit by the 
first mortgagee up to the time when an actual tender is 
made (Smith v. Green, 1 Coll. .555). In Hodges v. 
Croydon Camd Co., 3 Beav. 86, where the question in the 
suit was as to the number of years for which arrears of 
interest could be claimed, the mortgagor, though ho 
succeeded in reducing the amount to six years, had to pay 
the whole costs because no actual tender had been made. 
But a mortgagee may reasonably refuse a tender, if, at 
the same time, a deed of reconveyance containing cove- 
nants is presented to him for his immediate execution, 
and such refusal will not stop interest or deprive him of 
costs (Wilhhire v. Smith, 3 Atk. 89). A tender, even 
after the account has been taken under the decree, will 
save the subsequent costs (Sentance v. Porter, 7 Ha. 
426) ; and the tender may be proved on motion, or by 
petition at the hearing on further consideration (ihid.). 
In Clif v. Wodsvorlh, 2 Y. ct C. C. C. 598, where a 
mortgage was vested in three trustees, an innocent trustee 
got his costs ; a second who had omitted to attend per- 
sonally at the time and place appointed for settlement got 
no costs ; a third, who by an untenable claim to the 
interest beneficially had prevented the settlement, had to 
pay the plaintiff's and the innocent trustee's costs. As to 
dismissal of a foreclosure action by the defendant on pay- 
ment of principal, interest, and costs before the hearing, 
see ante, pp. 84, 85. 

A mortgagee may also lose his costs of a redemption v. Vexa- 
suit, or a part of them, by vexatious conduct ; see DeiUlin fraudulent 
V. G(de, 7 Ves. 583, where the defendant was a solicitor o}' oppres- 
and agent Avho took a mortgage for sums due to him with- duct. 
out any .settlement of accounts, and having put every 
impcdimcut in the way of the account being taken in the 



282 COSTS IN rAliTICULAU ACTIOKS. 

Master's office, had to pay the costs of those pj-oceedings 
and got costs down to the ans\Yer only. And so where 
the plaintiff seeks to be relieved against the mortgagee's 
fraudulent or oppressive conduct, on payment of the 
amount fairly owing ; see Mijronij v. O'Dea, 1 B. & B. 
109, where the defendant had no costs ; ThornkUl v. 
Evans, 2 Atk. 330; Cochell v. Taylor, 15 Beav. 103, 
where the mortgagee paid costs up to the hearing. In 
the case last cited it was held that an innocent equitable 
sub-mortgagee had no equity ogainst the plaintiflf, and a 
defendant in that position had to pay the costs of insist- 
ing on his security. But tlie right of the mortgagee to 
costs rests substantially upon contract, and can only be 
lost or curtailed by such inequitable conduct on his part 
as amounts to a violation or culpable neglect of his duty 
under the contract; see Cvttcrcll v. »SY/'affo7i, 8 Ch. 29.5, 
i^v^i-^^v' Wci^c^cf-u where the principle is laid down by Lord Selbornc, L.C. 
wK.(i>»v:2\<,7. ir^ Rider v. Jones, 2 Y. .1- C. C. C. 32<S, the mortgagei,' 
was insolvent, and as he would have paid costs if solvent, 
neither he nor his assignee got any costs. And see the 
other cases collected in 1 Hov. Supp. 355, and tlie notes 
to Harvey v. Tehhutt, 1 J. & W. 197 ; and as to suits to 
set aside securities on reversionary interests, see 2"^'^^> 
sec. XL Where, however, the mortgagor unsuccessfully 
impeaches a security, it is almost of course that he should 
pay costs {Taner v. Ivle, 2 Ves. 4G7). 
The mort- The mortgagee must not introduce extraneous or im- 
noMmt the pi'opci" uiattcrs iuto a foreclosure action. Therefore, where 
mortgagor the plaintiff, by amendment, changed his bill from one for 
necessary an account against a bailiff into a foreclosure bill after an 
expenses issue finding that he was a mortiracfee, he was allowed 

by his ° ^ . . 

action. costs Only as if the bill had originally been one for fore- 
closure (Smith V. S7nitJi, G. Coop. 141). The devisee of 
a mortgagee, plaintiff in a foreclosure suit, will not be 
allowed the costs of the heir at law made a party to 
establish the will against him (Skipj) v. Wyatf, 1 Cox, 
353). So where the plaintiff attempted to tack a bund 



. ACTIONS RELATING TO MORTGAGES. 233 

to his mortgage debt, his bill was dismissed with costs to 
this extent {Hamcvton v. Rogers, 1 Ves. Junr. 513) ; and 
in a suit to establish a mortgage, the plaintift' had his 
costs generally, but had to pay the costs of unproven 
charges of fraud against his co-trustee who was made a 
defendant {Wed v. Junes, 1 Sim. N. S 205) ; and the 
plaintiff must pay the costs of defendants not necessary 
parties {Coles v. Forrest, 10 Beav. 552). But the mort- 
gagor's trustee to bar dower is a proper party to a fore- 
closure suit, and will not be allowed any costs from the 
plaintiff {Hoirocks v. Ledsam, 2 Coll. 208). The plain- Costs of 
tiff was held entitled to add to his own costs the costs of gagee's 
a trustee of a term for better securing the plaintiff", made trustee. 
defendant to the bill {Broivne v. Lockhart, 10 Sim. 420 ; 
and see BartJe v. Wdhln, 8 Sim. 238). And where one of 
two mortgagees filed a bill for foreclosure and made the 
other one a defendant, the decree directed foreclosure on 
default in payment of the whole debt and the costs of both 
mortgagees {Davenport v. James, 7 Ha. 249). But should 
not the trustee and co-mortgagee in these cases have been 
co-plaintiffs, and ought tlie mortgagor to ])far the extra 
expense occasioned by their being defendants ? The 
practical effect of the decisions seems to be, to throw on 
the mortgagor the onus of proving the willingness of the 
defendant to have joined as plaintiff' if he had been asked 
(see ante, p. 120). As to the costs of persons made de- 
fendants to a foreclosure action and disclaiming, see ante, 
pp. 114, 115, seq. In a suit by a tenant for life to redeem 
a mortgage on the inheritance the plaintiff" paid the costs of 
the remaindermen made defendants, with liberty to add 
them to his own {RUeu v. Croydon, 5 N. R. 160; 13 W. 
R. 223; 11 L. T. 5!)1). 

The mortgagor, in a redemption action, must pay the Where 
costs of all persons claiming an interest in the equity of i"i,^' as-°^° 
redemption under tlie mortgagee (WetJierell v. Collins, 3 signeil 

nctorc 

Mad. 255) ; " up(m this principle, — that at law, after a action. 
mortgage is forfeited, the estate is the absolute property of 



2o4 COSTS IN rAirncuLAR actions. 

the mortgagee, and he may deal with it as his own ; and 
that if the mortgagor comes for tl»e redemption which the 
equity of this Court gives him, it must he upon the terms 
of indemnifying the mortgagee from all costs arising out of 
his legal acts" (ihlJ.). This reasoning applies as well to a 
foreclosure suit {Bartle v. Wilkin, 8 Sim. 238; Bennett 
\. Partridge, W. N. (1877), 1G5); and, therefore, where 
the mortgagee had put the mortgage into settlement, and 
the cestui que trust filed a bill and made the trustee a 
defendant, the plaintiff was held entitled to add the 
trustee's costs to his own {Bartle v. Wilkin). Any number 
of sub-mortgngees will be entitled in a foreclosure suit by 
the original mortgagee to their costs from iiim, and he 
will have them over with his own (Smifli v. Cldchestcr, 2 
Dr. & W. 'iOo). So if the mortgage becomes divided in 
various shares {Cane v. Brouitrigg, 2 Ir. E{{. 11. 41o). 
And it has even been held that the mortgagor must 
pay all the costs of a redemption suit, where the 
right to receive the mortgage money was in dispute 
between two defendants {Drew v. Harman, .'> Pr. 
319). 
Costs On the same principle, an application to have out of 

respectin*' ^'^"-^it deeds relating to mortgages become absolute at law, 
the niort- properly deposited in the course of an administration suit, 
'° ' was at the costs of the mortgagor {Burden v, Oldakcr, 1 
Coll. 105). But where the mortgage has been assigned 
Avith other property by one deed, the mortgagor redeem- 
ing is entitled to the deed on entering into a covenant for 
the production of it at the costs of the mortgagee {Capj)er 
v. Terrington, 1 Coll. 103 : 13 L. J. Ch. 231)); or if the 
mortgagees are allowed to retain it, they must give an 
attested copy and covenant for its production at their 
own expense {Bubson v. Land, 4 De G. & S. .57o). 
Assign- But if the mortgagee assigns after decree, or, it seems, 

pendente ^^ '"^"^ ^^^^^ pending the suit {Coles v. Forrest, 10 Beav. 
fite ; oo2), and his assignees are brought before the Court, 

Di' ti tcr 

({cprqe. ^"^J i^^^i^t bear the extra costs thereby occasioned {Barry 



ACTIOKS EELATIKG TO MORTGAGES. 235 

V. Wrey, 3 Russ. 465 ; James v. Hanlivg, 24 L. J. Cb. 
749; Coles v. Forrest, 10 Beav. 552). And where, a 
decree for redemption and foreclosure having been ob- 
tained in a former suit by a second mortgagee, one of 
the subsequent incumbrancers sub-mortgaged, and the 
sub-mortgagee filed a bill to redeem all prior to him- 
self, the bill was dismissed with costs as against all the 
defendants, except the plaintiff's transferor, against 
whom a decree for foreclosure was made in default of 
his paying principal and interest and the plaintiff's 
costs, including what he should pay to the other defen- 
dants (Booth V. Cresivicke, 8 Sim. 352). However, in 
Mhy V. Sclhy, 2 Jur. 106, where a tenant for life paid 
off charges on the inheritance and then filed a bill to 
have them raised, he was held entitled to his costs of 
assigning the charges after decree, on the grounds that 
the suit was in the nature of a family suit. The first 
mortgagee, plaintiff in a foreclosure suit, is entitled to 
the costs of taking a transfer pending the suit of a second 
mortgage {Coles v. Forrest, 10 Bcav. 552). 

But where the interest on a mortgage is regularly paid, Costs on 
and the mortgagor is never called on to pay the prnicipal, „f ,„o,t. 
the costs of a transfer of the mortgage will not be allowed S'^t't;«- 
against the mortgagor, if made without his concuricnce 
(Be BadcUffe, 22 Beav. 201) ; or a /orf/ori iiga in st mesne 
incumbrancers. A mortgagee is not bound to transfer his 
mortgage to a nominee of the mortgagor after payment, 
if he have notice of an equitable claim on the estate by 
another person ; and having agreed to transfer on the re- 
presentation that he was bound to do so, and having after- 
wards refused, he was allo^v'ed against the mortgagor and 
his nominee the costs of a suit to compel such transfer 
{Banks v. Whittal/, 1 De G. & S. p. 541). The mortgagor 
is not liable for the costs incurred by the mortgagee's 
solicitors in an abortive negotiation fur a transfer of the 
security (Edwards v. Smith, W. N. (1869), 24). 

" The Court, in settling accounts between mortgagor wiiat ex. 

penscs aHj 



236 



COSTS IN PARTICULAR ACTIONS. 



allowed to ^^^'^ mortgagee will give the latter all that his contract, 
inortgagee ^j^. i\^q legral and oouitablo conseuuences of it, entitle him 

in settling • i ,, , , • 

accounts, to receive, and all the costs properly incurred m ascertain- 
ing or defending such rights, whether at law or in equity " 
(per Lord Cottenham, C, Dryden v. Frost, 3 My. & C. 
670, 675) ; or in recovering the mortgage money (Lllisoit 
V. Wright, o Russ, 458; but see Merrimnn v. Bonnei/, 
12 W. R. 461). And the same rule applies in the case of 
a person substantially in the position of a mortgagee (hi 
re Bio Grande do Sid Steamship Co., 5 Cli. 1). 2(S2 ; 46 
L. J. Ch. 277 ; 2o W. R. 828 ; ;3(J L. T. 603) ; and to 
the costs of a successful appeal (Addison v. Coj-, 8 Ch. 
76). In Hunt v. Fovncs, 9 Ves. 70, the mortgagee was 
allowed the costs of taking out administration, in the 
course of the suit, to an annuitant under the mortgagor's 
will, the annuity being in arrear at her death ; and see 
Costa Rica. V. Strousherg, W. N. (1880), 155. And the 
costs of taking out administration to the morts:a<jor will 
be allowed {Ramsden v. Langleg, 2 Vern. 536); but not 
if before suit and the bill did not state such costs to 
have been incurred (Want v. Barton, 11 Sim. 534; 
Millard v. Magor, 3 Mad. 433). On a bill by the mort- 
gagor's heir to redeem, the mortgagee was allowed the 
full expenses of an action at law brought by the heir 
alleging an entail (Ramsden v. Langlen, 2 Vern. 53(5). But 
the mortgagee Avill be entitled to the costs of defending 
his title to the mortgage only as against such of the 
persons entitled to the equity of redemption as concurred 
in the litigation (Parl-er v. Watlins, Johns. 133). In the 
case last cited, the equity of redemption being in settle- 
ment, a decree was made for redemption by the tenant for 
life on payment of principal, interest, and costs, including 
the costs of an action by him, but as against the remain- 
dermen the usual costs only were allowed. But the mort- 
gagee is entitled to add to his security the costs of 
defending the title to the estate against strangers, that 
being in the interest of all parties (Godfreg v. Watson, 



Costs of 
actions 
at law 
against, 



ACTIONS RELATING TO MORTGAGES. 2B7 

3 Atk. 517; Parker Y. Wafklns). A party iu the posi- 
tion of a mortgacree, defending an action on a bill of ex- 
change on which he was clearly liable, was only allowed 
6s. Sd. costs {In re Rio Grande do Sul Steamiship Co., 
5 Ch. D. 282; 25 W. R. 328). The costs of an action of or by 
ejectment by the . mortgagee to recover the mortgaged °'° 
premises, the interest being in arrear, will be allowed 
{Sandon v. Hooper, 6 Beav. 2-16 ; and see Horloch v. 
Smith, 1 Coll. 298, where the principle was recognised, 
tliough the Court, being bound by a former decree, re- 
fused to allow the costs). In Blackford v, Davis, 4 Ch. 
304 (where the mortgage deed provided that it should be 
a security for all costs incurred by the mortgagee in 
selling the property, or in any actions or suits relating to 
it), the mortgagee was held entitled to the costs of ac- 
tions by and against himself as "just allowances." 
In Ellison v. W rigid, 3 Russ. 458, the mortgagee was 
held entitled to the costs of an action against a surety 
who had joined the mortgagor in a bond, the surety 
having proved insolvent ; but in Lewis v. John, 9 Sim. 
366, the mortgagee was not allowed, as against the 
devisees of the mortgagor, the costs of proceeding on 
the mortgage bond against the personal estate. And in 
Merriman v. Bonney, 12 W. R,. 401, it was doubted 
whether the costs of an action against the morto-ao-or 
on Ids covenant for payment of interest should be 
allowed. Where the mortgagee contracted to sell under 
his power of sale, and by the advice of counsel filed a bill 
for specific performance, Avhich was dismissed with costs, 
he was not allowed to add his costs of that suit to 
his security {Peers' v. Ceelcj/, 15 Beav. 209). And an 
equitable mortgagee was not allowed the costs of an 
unsuccessful defence to an action at law to recover the 
mortgaged premises {Dry den v. Frost, 3 My. & Ca. 670). 
The Court, on making a foreclosure decree, refused to give 
the costs of a cross suit to redeem which was then pending 
{AnoD., Mos. 45). Where the mortgagee was a solicitor, Costs of 



S38 



fOSTS IN PAnTirrLAT! Ar'TIOX>5. 



preparing 
the mort- 
gage deed. 



Other 

costs. 



Inquiry 
as to 
mort- 
gagee's 
costs, &c. 
not of 
cour.se. 



"Just al- 
lowances." 



Costs of 
reconvey- 
ance 
generally ; 



it was lield that the hill of costs of his firm for preparing 
the mortgage deed were not covered by the security 
{Gre<j<j V. tilater, 22 Beav. 314) ; and see MorIey_JU 
BndQeSj_2i--C^Q^LJ32X, where the mortgagee had taken 
£85 out of Court in an action for the costs of preparing 
the morto-a^e deed, and having refused to receive his 
mortgage money without the full amount claimed for such 
costs, had to pay the costs of a redemption suit; Wyatt v. 
Cook, W. N. (1868),_2:37. And where, after accounts had 
becn"taEen under a foreclosure decree, the plaintiffs in- 
curred costs in another suit by prior incumbrancers re- 
specting other property mortgaged to them, it was held 
that they coidd not on petition add such costs to their 
costs of suit {Barron v. Lancejiehl, 17 Beav. 208). 

In a proper case an inquiry will be directed as to 
costs, charges, and expenses properly incurred in relation 
to the mortgage security, but such inquiry is not of 
course, and some case for it must be made by the plead- 
ings {Merriman v. Bonney, 12 W. R. 4C1 ; and see Ward 
v. Barton, 11 Sim. 534; and Millard v. Magor, 3 Mad. 
433). 

By Cons. Ord. XXIII. r. 10, "just allowances" are im- 
ported into every decree directing an account without any 
direction for that purpose ; as to what is included under 
this head, see Wilkes v. Sannion, 7 Ch. D. 188 ; 47 L. J. 
Ch. 150, where it was held to include expenses incurred 
by mortgagees of a ship in taking and holding possession 
of it, advertising it for sale, and effecting insurances ; 
Tipton Green Co. v. Tipton Moat Co., 7 Ch. D. 192; 47 
L. J. Ch. 152 ; 26 W. R 348, where it was held to in- 
clude " necessary repairs ; " and Bees v. Metropolitan 
Board of Works, 14 Ch. D. 372. As to accounts against 
a mortgagee in possession, see generally Fisher on Mort- 
gages, 935 et seq.; 2 W. & T. L. C. 1092, 5th ed. 

The costs of reconveyance must be borne by the mort- 
gagor, eveu in a case where the mortgagee has to pay the 
costs of the suit generally {Lord Midleton v. Eliot, 



AC'TIO^rs RELATING TO ]\tORTGAGRs. 2.S0 

15 Sim. 531; Wilson v. Glmr, 4) Beav. 214). So the from infant 
mortgagor pays the costs of the proceedings necessary to ^^^^' 
obtain a reconveyance from the infant heir of the mort- 
gagee {Ex ixu'te Ommaney, 10 L. J. Ch. 315; 10 Sim. 
298) ; or from his devisees in trust, where a petition is 
necessary (King v. Smith, 6 Ha. 473 ; 18 L. J. Ch. 43). 
In like manner in He Marrow, Cr. & Ph. 142 ; 10 L. J. from 
Ch. 340, it was held that the costs of obtainincr a re- ^"""'1*^° 
conveyance from a lunatic mortgagee, not found so by in- gagee ; 
quisition, must be borne by the mortgagor. But in an 
earlier case of Ex ixirte Richards, 1 J. & W. 264, the 
costs of the committee necessarily incurred to enable him 
to convey, including the costs of the reference, were given 
out of the lunatic's estate ; and that decision having been 
acted on, has been followed in preference to Re Marrow, 
though not considered satisfactory (Re Toiunsend, 2 Ph. 
348 ; 16 L. J. Ch. 456 ; Re Thomas, 22 L. J. Ch. 858 ; 
1 W. R. 155 ; Re Biddle, 23 L. J. Ch. 23 ; 2 W. R. 50 ; 
Re Rowley, 1 De G. J. & S. 417 ; 1 N. R 251). This 
rule, however, will not be followed where the mort^aoor 
applie.s, unless the committee has declined to act {In re 
Wheeler, 1 De G. M. & G. 434 ; 21 L. J. Ch. 759), nor 
where the mortgagee appears on the face of the mort- 
gage deed to be a trustee only {Re Lewes, 1 Mac. & G. 
23 ; 1 H. & T. 123 ; Re Towmend, 1 Mac. & G. 686). In 
that case the mortgagor pays the costs {ibid.) ; but if the 
mortgagee is a trustee, but does not appear to be so in 
the deed, the cestwi que trust pays the costs {Re Jones, 2 
Ch. D. 70 ; 45 L. J. Ch. 688 ; 24 W. K. 377 ; 34 L. T. 470). 
Where the committee makes the application, the mort- 
gagor should not be served, and whether served or not, 
will not be allowed his costs of appearance {In re Phillijjs, 
4 Ch. 629 ; 17 W. R. 904). The Court has no juris- 
diction to order the costs of a vjstiug order occasioned by 
the lunacy of the mortgagee to be paid out of the mort- 
gage debt {Re S^Mu-l-s, Ch. D. 361; 25 W. R. 869; 
(ovci-riiling Re Biddle), where each party was ordered to 



240 COSTS IN PARTICULAR ACTIONS. 

from _ bear his own costs). But the costs of obtaining a recon- 
lieir of veyance from the hmatic heir of a mortgagee must be 
mortgagee borne by the mortgagor {Re Jones, 2 De G. F. & J. 554 ; 
9 W. R 175 ; 7 Jur. N. S. 115 ; 30 L. J. Ch. 112 ; Be 
Stuart, 4 De G. & J. 317). In In re Viall, Hnirkins v. 
Perry, 8 De G. M, & G. 439, the petition was presented 
by a purchaser of the property and the plaintiffs in an 
administration suit, and a portion only of the costs was 
ordered to be paid out of the mortgage money, the re- 
mainder to be costs in the cause. It makes no difference 
that the hinatic is not found so by inquisition (ibid.). 

A power in trustees to raise by mortgage a fixed sum 
impHes a power to raise also the incidental costs of the 
mortgage {ArmstroiKj v. A rrast ronrj , 18 Eq. 541). 

Sect. VIII. — Actions for Partition and to Settle 
Boundaries. 

Former Prior to the Partition Act, 18G8, 31 & 32 Vict. c. 40, 

costs'Tf*" the rule in suits for partition was that no costs were given 
partition to Cither party up to the issuing of the commission, in 
analogy to the rule of law on writ of partition. The costs 
of issuing, executing and confirming the commission, were 
borne by the parties in proportion to the value of their 
interests (Agar v. Fairfax, 17 Ves. 533; Calmad}/ v. 
Cidmady, 2 Ves. junr. 568 ; Bariraj v. Nash, 1 V. & B. 
554 ; Jones v. Eobinson, 3 De G. M. & G. 910, 913 ; 
Elton V. Blton, (1) 27 Beav. ()32). 
Costs By sect. 10 of the Partition Act, 18G8, the Court may 

Partition make such order as it thinks just respecting costs up to 
Act,^i8G8, ii^Q tijjjQ Qf ^ijg hearing. In Landell v. Baker, 6 Eq. 2G8, 
Lord Romilly, M. E,., said the Act was not intended to 
alter the practice with regard to costs ; but this is in- 
All costs correct, and tlie decision has not been followed. The rule 
h\Mhe°™^ now is that all the costs of the action, both the costs up to 
].arties in the hearing, and the subsequent costs must, in the absence 

jnoportion ... , , , , . . 

to their ' 01 special circumstances, be borne by tlie parties in pro- 



ACTIONS FOR PAIITITIOK. 241 

portion to their several interests {Cannon v. Johnson, interests, 
11 Eq. 90 ; 40 L. J. Ch. 4G ; 19 W. R. 175 ; 23 L. T. 583 ; '^^^lf-^\ 
Oshorn v. Oshorn, Eq. 338 ; 18 L. T. 679 ; Miller v. sak or V^ 
Marriott, 7 Eq. 1 ; 17 W. R 41 ; 19 L. T. 304 ; Sim^yson i'^^-^'^'''"- 
V. Ritchie, 16 Eq. 103; Leach v. Westall, 17 W. R. 313 ; 
Thompson v.Hichardson, Ir. R. 6 Eq. 596 ; Ball v. Kemp- 
Welch, 14 Ch. D. 512 ; 49 L. J. Ch. 528; 43 L. T. 116, 
where a sale was directed ; Bowes v. Marquis of Bate, 
27 W. R. 750, where there was a partition). 

The Court may, however, in the exercise of its discre- Exceijtious. 
tion, give no costs up to and including the hearing ; see 
Wilkinson v. Juherns, 16 Eq. 14; 42 L. J. Ch. 663; 
21 W. R. 644 ; 28 L. T. 734, where the owner of one 
moiety unsuccessfully resisted a sale under s. 4 of the 
Partition Act, 1868. In Wilkinson v. Castle, 37 L. J. 
Ch. 467; 16 W. R. 501; 18 L. T. 100, the defendant 
contested the plaintiff's title and was ordered to pay so 
much of the costs -as was thereby occasioned, no order 
being made as to the other costs ; and a defendant Avhose 
conduct has rendered the suit necessary may be ordered to 
pay his own costs {Gro.hani v. Cole, L. J. Notes of Cases, 
1873, 102). In Porter v. Lopes, 7 Ch. D. 367, Jessel, M. R, 
says : " If this had been a frivolous contest I should have 
made the party who had incurred the unnecessaiy costs 
pay the costs, but when there is a fair ground for discus- 
sion, and a reasonable ground for asking for the decision 
of the Court, then I think the proper course is to give no 
costs on either side up to the trial." Where husband and 
wife defendants to a partition action severed in their 
defence, the costs occasioned by the severance were ordered 
to be borne by the wife's share {Mildinay v, Quicke, 
46 L. J. Ch. 667). 

Where the defendant set up an agreement as a bar to 
partition and failed, he was ordered to pay such portion 
of the costs as were thereby occasioned {Morris v. Tivi' 
'niins, 1 Beav. 411). And where the bill prayed for 
partition and account of the rents and profits against the 

R 



242 COSTS IX ]\vi;ticulai{ actions. 

defendant, "wlio was in possession, and the defendant dis- 
puted the plaintiff's title, he had to pay the costs thereby 
occasioned, and of taking the accounts {Hill v. Fidlhroohj 
Jac. 574). But where the defendant questioned the 
plaintiff's title as heir at law to one tenant in common, 
and an inquiry was directed which found for the plaintiff, 
the defendant paid no costs of the inquiry except so far 
as they might have been increased by any act of hers, and 
it was held that mere cross-examination of the plaintiff's 
witnesses would not be within the exception (Li/ne v. Lyne, 
21 Beav. 318). 
Costs Where a partition is ordered, the costs of all parties 

a*ciian'c. ^^*^^ ^^'■^ j^iris may be declared a charge upon their 
i^hares of the property ; see Seton, p. 1020. In Cal- 
Formcr mady V. Ccdmady, 2 Ves. junr. 508, the costs of the 
practice .IS fi-^igtees of a settlement of the plaintiff's share were 

to sales lor . • ^ 

the inirpose Ordered to be raised by sale or mortgage according to the 
the cost^° trusts of the settlement. And in Smgleton v. Ihyplcins, 
4 W. R. 107 ; 25 L. J. Ch. 50 ; 1 Jur. N. S. 1190, V. C. 
Stuart directed that the costs of the third tenant in tail 
who was made a defendant, the first two being respectively 
a lunatic and an infant, should be a charge on the 
'undivided share in which he was interested. On the 
authority of that case, Y. C. Wood made the costs of infiint 
defendants a charge upon their shares {Cox v. Cox, 3 K. & 
J. 554) ; and subsequently it became the practice to charge 
the costs of parties under disability upon their shares, and 
then, declaring it to be for their benefit that a sale should 
take place for the purpose of raising the costs, and the 
parties sui juris desiring a sale, to order a sale of the 
entirety. In this circuitous way a jurisdiction Avas esta- 
blished to sell the estate and divide the purchase-money 
without the expense of a partition ; see now the Partition 
Acts, 1808 and 1870, SI & 32 Yict. c. 40, and 89 & 40 
Vict, c, 17; and France v. France, 13 Eq. 173; Young 
V. Young, ibid. 175, n. ; Davey v. Wietlishach, 15 Eq. 
268. In Fleraing v. Armstrong, 5 N. R. 181; 11 



ACTIONS FOR PARTITION. 243 

L. T, 470, the costs of a married woman were charged 
on her share, notwithstanding a restraint on antici- 
pation. 

Where an undivided share is in settlement, the first Tarties to 

• 1 • T rv • ,1 J. J.1 a partit.on 

tenant ni tad, m orelmary cases, sutnciently represents trie guit. 
inheritance ; but where the first tenant in tail was a Tenant in 
lunatic, and the second an infant, Y. C. Stuart declared *'^^'- 
the third not to be an improper party, and gave him his 
costs out of the share in which he was interested {Singleton 
V. HopJdns, 4 W. R 107; 25 L.J. Ch. 50; 1 Jur. N. S. 
1199). A purchaser of the plaintiff's undivided share Piuclmser. 
made a defendant by amendment is entitled to his costs 
from the plaintiff {WiUiams v. WilUams, 10 W. R. 609). 
Where one tenant in common had made a lease of his un- Lessee. 
divided shave, the lessee .was a necessary party to a suit for 
partition, and his costs were rccpiired to be borne by the 
lessor {Cornish v. Gest, 2 Cox, 27 ; but see Herbert v. 
Hedges, 10 Ir. Eq. R. 479). Legatees whose legacies were Legatee?. 
charged on one undivided share had to bear their own 
costs {Green v. fiercer, 4 Ir. Eq. R. 705). Li the same case 
it was held that a tenant for life of an undivided share had 
no equity to call on the tenant in tail to contribute to his 
costs : sed qiL See now as to parties, the Partition Act, 
1868, s. 9, and the Partition Act, 1876, s. 3; Set. 
lOlG. 

Where two tenants in common agreed to partition. Agreement 
each to take a moiety of the premises in severalty, and ^jq^ '^Qg^s 
both died before a deed of partition was executed, the "^ canying 
survivor specifically devising his moiety but allowing the 
legal estate in half the other moiety to descend to his heir- 
at-law, it was held that the costs of carrying the agree- 
ment into effect (including the costs of getting in the out- 
standing legal estate) must be borne by the devisees of the 
survivor and not by his personal estate {In re Tann, 
Gravatt v. Tann (1), 7 Eq. 434). 

Where a solicitor was employed to conduct a partition Liability 
suit on the joint retainer of two co-plaintiffs with equal 



241 COSTS IN PARTICULAR ACTIOKS. 

may bo ilalits as tenants in common, there being no special con- 
tract, it was held that the liability for costs was several as 
well as joint (Furlonr/ v. Scallan, Ir. R. 9 Eq. 202). 
Costs, how The costs of a partition action can be taxed as between 
^^"^ ' solicitor and client only by consent of the parties ; other- 
Avise they must be taxed as between party and party 
(Ball V. Kemp-}Yelch, 14 Ch. D. 512; 49 L. J. Ch. 528; 
43 L. T. IIC). 
Actions for In NorHs V. Leneve, 3 Atk. 83,* the costs of a com- 
boiin-°° mission to ascertain boundaries, and separate freeholds 
diuies. fiorn copyholds, were ordered to be borne by the plaintiff 
and defendant equally, though their interests were un- 
equal. But in Habei'fjham v. Stansfeld, Set. 1034, the 
costs, up to the hearing, were ordered to be paid out of the 
testator's estate, rateabl}', according to the values of the 
freeholds and copyholds. Where, however, a bill was filed 
to settle the boundaries of plaintiff's and defendant's 
manors, and the question was agreed to be tried by a 
feigned issue, the plaintiff, having failed in three succes- 
sive trials, was ordered to pay all the costs, both at law and 
in equity (Metcalfe v. Beclacith, 2 P. W. 377). 
Costs of The commissioners have no lien on the commission for 

their charges and expenses (Young v. Sutton, 2 V. & B. 
8G5). 



commit, 
sioners. 



Sfxt. IX. — Actions for Dissolution of Partncvsliip. 

Costs iu The general rule as to costs in a partnership action is 

shiiiactions ^^'*^' samo as in any other administration action, that is, 
are payable thov are pavablo out of the assets, " partnership assets " 

out of the -^ . \ " . . ' -^ ^. „ , 

assets, meaning tlie assets remannng after payaieut ot all the 

partnership debts, including balances due to any of the 

partners ; if the assets are insufficient for payment of the 

costs of the action, then such costs must be borne by the 

* This seems to be tlie ease referred to iu rarlxi- v, Gerard, Amb. 236, 
as Xevis v. Levine, 



ACTIONS KELATING TO PATENTS. 245 

partners in proportion to their shares in the profits {Hamer 
V. Giles, 11 Ch. D. 942; 27 W. K. H^-^ ; Austin Y.Jackson, 
11 Ch. D. 942, n. ; Potter v. Jackson, 13 Ch. D. 845 ; 28 
W. R 412 ; Bon ville v. BonviUe, 35 Beav. 129). The rule 
established by Hawkins v. Parsons, 10 W. R. 377 ; 8 
Jur. N. S. 852, that the Court made no order as to costs 
up to tlie hearing, is no longer in force. 

If, however, the action has been rendered necessary by Partner 
the negligence or misconduct of one partner, he may be f"iseonduct 
ordered to pay the costs of the action so fur as they have ™''^y 'i^^e 
been occasioned by his misconduct, including the costs up costs. 
to the trial (Hamer v. Giles). Where the executors of a 
deceased partner filed a bill against the surviving partner, 
who was bound to pay them annually half the profits of 
the business, alleging that no accounts had been rendered 
though application had been made for some years, and the 
defendant by his answer admitted the allegations in the 
bill and submitted to account, it was held that he must 
pay the costs up to the hearing (Xorton v. Russell, 19 Eq. 
348 ; 23 W. R 252). If a decree for dissolution were 
made on the ground of the defendant's insanity, the costs 
came out of the estate, even under the former practice 
(Jones V. Welch, 1 K. & J. 705 ; and see RovjlctncU v. 
Evaiw, 14 W. R. 882). 

Where the matters in dispute were referred to arbitration, ^o^^-^ o^ 
the costs of suit, reference, and award were borne by 
plaintiff and defendant in proportion to their shares in the 
partnership profits and losses (Xeuion v. Tajjlo)-, 19 Eq. 
14 ; 23 W. K. 330). 



Sect. X. — Actions relatlnrj to Patents. 

The 43rd section of the Patent Law Amendment Act, J'^^^'^* 
1852, 15 & 16 Vict. c. 83, provides as follows : — Amond- 

In taxing the costs in any action fur infringing letters "g^!,* ^^'^^' 
patent, regard shall be had to the iiaiticulars dulivered in 



246 COSTS IN rAHTItULAK ACTIONS. 

such action, and the phiintiff and defendant respectively 
shall not be allowed any costs in respect of any particular 
unless certified by the judge before whom the trial was had 
to have been proved by such plaintiff or defendant re- 
spectively, without regard to the general costs of the cause. 
Tlie judge before whom any such action shall be tried may 
certify on the record tliat the validity of the letters patent 
came in question ; and the record, with such certificate, 
being given in evidence in any suit or action for infringing 
the letters patent, or in any proceeding by scire facias to 
repeal the letters patent, shall entitle the plaintiff in any 
such suit or action, or the defendant in such proceeding 
by scire facias on obtaining a decree, decretal order, or 
finaljudgment, to his full costs, charges, and expenses, taxed 
as between solicitor and client, \inless the judge making 
such decree or order, or the judge trying such action or 
proceeding, shall certify that the plaintiff or defendant re- 
spectively ought not to have such full costs.* 
Costs as to III an action for the infringement of a patent, the judge's 

particulars. . 1^11 • 1 f 1 • ■ 

certincate that tlic defendants particulars of objections 
have been proved, is a condition precedent to his right on 
taxation to any costs in respect of such particulars, even in 
the case of a non-suit {Huniball v. Bloomer, 10 Ex. 538). 
But it was held that this rule did not apply to the case of 
a plaintiir who dismissed his own bill before the hearing; 
sec R(tle>/ v. K>jnod; '20 Eq. 032, Y. C. B. 
Costs must Notwithstanding the above section, the decree or order 

be ordered , , i . t • p • r ^ 

to be taxed sliould coutam an express direction for taxation of the costs 
as between j^g between solicitor and client (Lister v. Leather, 4 K. & 

solicitor ^ ' 

and client. J. 425 ; and see Hill v. Evans, 4 De G. F. Sc J. 288 ; 
Necdham v. Oxley, 11 W. R 852). 

The object of the section is to prevent patentees being 
put to the necessity of bringing repeated actions to deter- 
mine their rights after the principle has been once es- 
tablished ; see i^er Wood, Y. C, in Dovtnport wRi/lands, 

* See a similar provision in the " Mordiaiuli^c Marks Act, 1862," 
25 & 26 Vict, c. 88, s. 23. 



ACTIONS RELATING TO PATENTS. 247 

1 Eq. 302 ; 35 L. J. Ch. 204. It does not apply to the 
costs of a first trial (whether before a judge and jury, or of 
issues of fact before a judge of the Chancery Division), but 
only to the costs of a subsequent trial, upon production of 
the record of the first trial, with the certificate endorsed 
(Penn v. Bibby, 3 Eq. 308 ; 3G L. J. Ch. 277). 

As to what is a sufficient certificate to enable tlie Court Certificate. 
to direct the costs to be taxed as between solicitor and 
client, see Bettsw. Be Vitre, 11 Jur, N. S. 9 ; Bovlll v. 
Hadleij, 17 C. B. N. S. 435 ; 10 L. T. 650. 

Where in a suit to restrain the infringement of a patent 
four issues were found for the plaintitf, but the fifth, as 
to infringement, for the defendant, and the bill was accord- 
ingly dismissed with costs, the Court gave the defendant 
the general costs of the motion for an injunction, but the 
plaintiff was allowed the costs of the issues found in his 
favour (ParJces v. Stevens, W. N. (1809), 269). Where 
the defendant infringed the patent in ignorance, submitted 
immediately on complaint being made, and offered before 
suit to account for all profits, which were very trifling, the 
plaintiff, though he got a perpetual injunction, got no costs 
(Nunn V. U Albuquerque, 34 Beav. 595). 

Directors of a company who infringe a patent may 
be made personally liable for the costs of a suit to restrain 
the infringement {Belts v. De Vitre, 11 Jur. N. S. 9). 

A defendant will not be allowed to amend his particulars Terms on 
of objection at the last moment so as to raise a new case, defendant 
except upon the terms of the plaintiff having a given time allowed to 

T . , ,1 , .,,,.. , , . . amend Ins 

to elect wlietlier he will discontmue his action m conse- particulars 
quence, and payment by the defendant, in the event of °[ °'^'''*^*^' 
discontinuance, of all costs incurred by the plaintiff since 
delivery of the original particulars ; and the defendant 
must of course pay the costs of the application for leave to 
amend [Edison Telephone Co. v. India Rubber Co., 17 Ch. 
D. 137, where the form of the order is given). In Penn 
V. Bibhy, 1 Eq. 548, however, the costs occasioned by the 
introduction of new particulars of objection were reserved. 



248 COSTS IN rARTICULAR ACTIO^^S. 



Sect. XL — Actions to set aside Sales, dc, of Reversions. 

Former The old I'ule of tlie Court in suits to set aside convey- 

that'costs ^'^ccs of reversions was, that where inadequacy of value 
were given was the solo ground for the interference of the Court, and 
principle the dccrcc was that the conveyance should stand as se- 
of redenip- curitv for the price, or money actually advanced, the suit 
was to be considered in the nature of a bill for redemption, 
and the plaintiff must pay the costs of it (Baivtree .v. 
Watson, 3 My. & K. 330, 34-1 ; Ginjnne v. Heaton, 1 B. 
C. C. 1 ; Twisleton v. Grl^^th, 1 F. W. 310 ; Peacock v. 
Uimis, 16 Ves. 512; Goiriaml v. Dc Faria, 17 Ves. 20, 
2G) ; and so in a suit to set aside post obit bonds {M<t.rsack 
v. Rervcs, 6 Mad. Ill ; Bovcs v. Heaps, 3 V. & B. 117) ; 
but in Clicstc-rpchl v. Jansscn, 2 Yes. 12.'), the decree was 
made without costs. But when fraud or oppression formed 
part of the equity, the case was altered ; see Lord Fort- 
more V. Taylor, 4 Sim. 1S2 ; Xeicton v. Hunt, 5 Sim. oil ; 
Wood V. Ahrey, 3 Mad. 417, where no costs were given up 
to the hearing ; and Barnardistonw Lingood , 2 Atk. 133 ; 
Crowe v. Ballard, 1 Ves. Junr. 215 ; Baugh v. Price, 1 
Wils. 320 ; Baivtree v. Wcdson, 3 My. &K. 339 ; Wharton 
v. Mag, 5 Ves. 27, where the defendant liad to pay costs. 
So, if the transaction was one which — if the property liad 
been in possession — would have come within that degree 
of inadequacy of consideration which has been considered as 
evidence of fraud (Davie.'^ v. Coofcr, 5 'My. S: C. 270, 277). 
In Boothhy v. Boothhg, 15 Beav. 212, the Court being 
bound by the decree made at the hearing, which dismissed 
so much of the bill as charged fraud with costs, refused, 
on further consideration, to treat very gi-oss inadequacy as 
fraud, and gave the defendant the remainder of the costs, 
except of the inquiry as to value. 

In some later cases, however, it was laid down that the 
costs of such suits should not be disposed of on the prin- 
ciple of redemption ; and that even where the cquit} was 



ACTIONS TO SET ASIDE SALES, ETC., OF KEVERSIONS. 249 



5 i.i-<^.j 



inadequacy of value only, the defendant was not en- 
titled to costs {EdiLXirds v. Burt, 2 De G. M. & G. 55 ; 
Foster v. Roberts, 29 Beav. 467 ; St. Alhyn v. Harding, 
27Beav. 11,13; TaJhot v. Staniforth, 1 J. & H. 484). 
In Salter v. Bradshaiu, 26 Beav. 161, a decree was made, 
but without costs, on account of the lapse of time ; so in 
Foster v. Roberts, Avhere the inadequacy was only £30 ; 
and in Talbot v. Stani forth, on account of the bona, fides 
of the transaction, and the purchaser having acted from a 
desire to keep the estates in the family; and see Edwards 
V.Burt; Bromley v. Smith, 26 Beav. 644, 675, where, 
under the circumstances, no costs were given. In 
St Alhjn V. Harding, the defendant had to pay costs. 

Now by the Sales of Reversions Act, 31 Yict, c. 4, no Plaintiff 
purchase of any reversionary interest, made bond Jide and redeem *° 
without unfair dealino-, is to be set aside merely on the generally 
ground of undervalue ; and the general rule at the present ^"''^ ''"^' 
day as to the costs seems to be that first above stated, viz. 
that they must be paid by the plaintiff. "Generally 
speaking, if a man comes to redeem, he must pay the costs 
of redemption ; and if a man comes to get rid of his own 
deliberate act, he must also, generally speaking, pay the 
costs of his own folly in being obliged to come and ask the 
Court to undo what he has deliberately done;" per Stuart, 
V. C, in Tyler v. Yates, 11 Eq. 276 (affirmed on appeal, 
6 Cb. GQo), where, however, under the circumstances, 
neither .side had co.sts ; and see also Miller x. Cook, 10 
Eq. 641. In Earl of Aylesford v. Morris, 8 Ch. 484, an 
expectant heir succeeded in obtaining relief against an 
unconscionable bargain with a money lender, but Lord 
Selborne, L. C, said he thought it not unjust that he 
should obtain it at his own expense, and no costs were 
given, affirming the decision of the Court below ; and see 
Croft V. Graham, 2 De G. J. & S. 155; 5 Giff. 1. 

It the defendant has refused a proper offer before action Defendant 
brought he will be ordered to pay the costs of the suit ^ffe^J^ayr' 
(Beynon v. Cook, 10 Cb. 389; 23 W, R. 413; Benyon v. cost«- ' 



250 



COSTS IN I'AHTICULAH ACTIONS. 



Where tlic 
suit is dis- 
inissod on 
account of 
lapse of 
time. 



Costs of 
assignees 
of tiic 
2)roi>erty. 



Fitch, 35 Beav. 570; Wyatt v. Cook, 16 W. R 502 
Iloidey V. Cook, Ir. R. 8 E<i. 570 ; Tottenham v. Emmet, 
13 W. K 123 ; 14 W. R. 3 ; 11 L. T. 404 ; 12 L. T. 838 ; 
10 Jur. N. S. 1093; Xevill v. SneUing, 15 Ch. D. G79). 
But the plaintiff must in all cases, according to the rule 
stated ante, p. lUC, pay the costs occasioned by unproven 
charges of fraud or oppression {Edwards v. Burt, 2 De G. 
M. & G. 55; ,S^ Alhyn v. Hard'imj, 27 Beav. 11, 13; 
Jones V. liicketts, 10 W. R. 57G). 

Where the suit is dismissed on the ground of lapse of 
time alone, the Court not being satisfied as to the trans- 
action itself, the dismissal will be without costs {Lord. 
Clanricarde v. Henn'mg, SO Beav. 175 ; but see Sibber- 
ing V. Earl of Balcarras, 3 Do G. & S. 735). 

Innocent assignees for value of the property have no 
equity against the plaintiff, as knowledge that the properly 
was acquired when reversionary is notice of all the kgal 
incidents of such transaction ; sec Tottenliam v. Green, 
1 N. R. 400, where a decree was made against sub- 
mortgagees, but they were allowed to add their costs to 
their securities as against their mortgagor ; and Cockell v. 
Taylor, 15 Beav. 103, 119, where the sub-mortgagees had 
to pay the costs of insisting on their securities. But in 
Wharton v. May, 5 Ves. 27, the plaintiff had to pay the 
costs of innocent holders of post-obit bonds, and recover 
them from the principal defendants with his own. 



Where the 
(juestion is 



Sect. XII. — Actions for Specific Performance. 

Specific performance being in every case discretionary 
Avitli the Court, it is cxtremel}^ diflicult, as observed by 
Mr. Beames (p. 58, n.), to extract rules with respect to the 
costs of suits for that purpose ; and see the remarks of 
Malins, V. C. in Cruikshank v. Dupin, 13 Eq. p. 503. 

Where there is a fair objection to a title, on which the 



ACTION;? FOK SPECIFIC PERFe>IiMANCE. 251 

purchaser is justifietl in taking the opinion of the Court, one of 
though he fails in substantiating it, the decree for specific the*'titlc"is 
performance will in most cases be without costs {Aislabie gooa. 
V. Rice, G Mad. 256 ; Thor2)e v. Freer, 4 :Mad. 4GG ; Cox 
V. Chamberlain, 4 Ves. 631 ; Cruikshanh v. Dii^n). So 
if the purchaser insists on inquiry as to a matter of fact 
respecting which there is a fair doubt {Thorpe v. Freer). 
And tlie same princij)le applies, though the question is one 
of conveyance, and not of title (Staines v. Morris, 1 V. & 
B. 8, 16). But the rule is not invariable (Bishop of Win- 
chester V. Faine, 11 Ves. 194) ; and it may help the title 
to make the purchaser pay costs (M'Qiieen v. Farquhar, 
11 Ves. 467). In Osborne to Roiulett, 13 Ch. D. 774, the 
Master of the Rolls, Sir G. Jessel, said : — " Upon the 
question of costs, I do not consider that because a parti- 
cular title may be one which a conveyancer would not 
recommend a purchaser to accept without a decision of the 
Court, the purchaser ought not to pay costs if the Court is 
of opinion that a good title can be made : on the contrary, 
the general rule is to order the purchaser to pay the costs, 
so as to assure his title and show that the Court enter- 
tains no doubt upon it." In that case no order was made 
as to costs, the difficulty having arisen entirely from con- 
flicting decisions. See also Hall v. May, 3 K. & J. 590. 
Counsel's opinion is no protection to a purchaser unsuccess- 
fully objecting to a title against costs (dialing v. Hill, 1 
Cox, 186 ; Thomas v. Toiunsend, 16 Jur. 736). And 
where the purchaser had notice of a previous decision in 
favour of the same title, the decree was made with costs 
(Biscoe V. Wilks, 3 Mer. 456). If the purchaser's objection 
is futile or frivolous the decree will be with costs (Morris 
V. Debenham, 2 Ch. D. 540 ; Thorpe v. Freer) ; and see 
Hood V. Oglander, 6 N. K 57 ; Forster v. Abraham, 17 
Eq. 351. 

On the other hand, there is no rule that a vendor failing Where the 
for want of title pays the costs of the suit (Vancouver v. ^^^^ ^\. 
Bliss, 11 Ves. 45b). It makes only a prima facie case for iioubtfui., 



252 COSTS IN PARTICULAR ACTIOKS. 

costs, which may be outweighed by circumstances (Edtvanh 
V. Harvey/, Coop. 40). In White v. FoJjamhc, 11 Ves. 
837, 463, where the question involved a point of law of 
great difficulty, the vendor's bill was dismissed without 
costs. And where the Court of Exchequer had pronounced 
against the point, but in Lord Eldon's opinion wrongly, 
he dismissed the bill witliout costs {Rose v. Calland, 5 Ves. 
18C). So in Willcox v. Bellaers, T. & R. 491, where the 
Master reported in favour of the title, but the Court dis- 
missed the bill without costs, without either allowing or 
disallowing the exceptions. But in Bruce v, Bainbriilge, 
Sugd. V. & P. 64.S, where tlie Master reported in favour 
of the title, but tlic ComnK>n Pleas, on a case sent to 
tliem, certified against it, the bill was dismissed with costs 
from the date of the report. And, in general, if the title 
is clearly bad, the action will be dismissed with costs {Play- 
fun I v. Hoare, 3 Y. & J. 175 ; Vancouver v. Bliss, 11 
Ves. 458) ; which may be done on motion after a reference 
on the title {Walters v. Pynaiii, 19 Ves. 351). AVhere the 
title deeds Avere burnt before the title was accepted, and 
the vendor was unable to give secondary evidence, his 
bill was dismissed with costs {Bryant v. But>k, 4 Rnss. 1). 
In IIcf<clti)ie V. Simmons, 6 W. R. 268, where a claim 
was raised by a person not a party to the suit, on which 
the Court thought there wiis a reasonable doubt, the 
vendor's bill was dismissed without costs. Where also 
the contract was for a lease determinable on notice, 
and the defendant gave notice to determine it, the bill 
was dismissed without costs {Western x. Perrin,S V. & B. 
197). In Mullings v. Trimler, 10 £q. 449; 18 W. R. 
1186, specific performance was decreed at the suit of the 
vendor, but no costs were given, the Court considering the 
suit in the nature of a special case. It is immaterial 
on the question of costs that the vendor is only a trustee 
for sale {Edirards v. Harvey, Coop. 40). 
Costs of Where the action is dismissed against a purchaser with 

an^ued*^ costs, he is uot entitled to the costs of objections argued 



ACTIONS FOR SfECIFiC PERFORMANCE'. 253 

in chambers, but abandoned at the hearing {Hayes v. and aban- 
Bailey, Sugd. V. & P. 647). '^""'''• 

If the title is found to be bad, unless some other party Where the 
will concur, the vendor, though he obtains the concurrence ^°"^"^"f „ 
of such party, must pay tlie costs of the suit {Freer v. third 
Hesse, 4 Dc G. M. & G. 497 ; Ashley v. Waugli, 9 L. J. reVureJ. 
Ch. 31 ; 4 Jur. 572) ; and see Sidebotham v. Barington, 

5 Beav. 261, where, however, the decree was made without 
costs, as the defendant had not raised the objection till after 
the filing of the bill. But in Collard v. Roe, 4 De G. & J. 
525, where the purchaser insisted on the concurrence of 
the vendor's dower trustee, the Court held the objection 
tenable but vexatious and frivolous, and gave no costs up 
to the hearing. 

But if the purchaser brings an action and it turns out Coats in 
that the vendor cannot make a good title, the practice is ci^aser's 
to dismiss the action without costs {Lewis v. Loxha.m, 3 Mer. s"it, when 
429 ; Maiden v. Fyson, 9 Beav. 347 ; Thomas v. Bering, bad. 
1 K. 729 ; and see Sugd. V. .1- P. 646). But it seems that 
if the purchaser on the face of his bill [statement of claim] 
insists that the vendor cannot make a good title, he must 
pay costs whether he accepts or refuses the title (Sugd. V. 

6 P. loc. cit, citing, but with a query, Kicloson v. Words- 
vjorth, 2 Swans. 365). The purchaser cannot recover his 
costs of the suit as damages in an action at law against the 
vendor {Maiden v. Fyson, 11 Q. B. 292) ; but in Wood 
V. Scarth, 2 K. & J. 33, 44, V. C. Wood dismissed the 
bill without costs, but without prejudice to an action at 
law for damages, and the costs of the suit being included 
in such action. 

It is very material on the question of costs whether the Where the 
purchaser knew of the objection when he entered into the ^_j(.jg j^" 
contract {Cox v. Chamherlain, 4<\es. 631). If a purchaser known bc- 

1 • • -11 11 PI 1 • , • 1,1 fore suit. 

brings an action with knowledge oi the olyections, and, the 
report being against the title, he waives the objections, 
he must pay the costs of investigating the title, but the 
vendor the other costs {Bennett v. Fowler, 2 Beav. 302). 



'254 COSTS IN I'AUTICULAU ACTIONS. 

But sr'cus, where no abstract is produced till the parties 

arc in chambers, thongh the only defect is one previously 

known to the purchaser, for he is entitled to inquiry 

{Wilson V. WilUams, 3 Jur. N. S. 810). 

Vemlor If the vcndor, on the other hand, has not shown a good 

pays costs ^j^g before he brinijs his action, he must pay the costs of 

time of liis the suit up to tlic time when a good title is first shown 

''•'"V?:/^ (Tlarfordv.Purrier, 1 Mad. 532 ; Wilson v. Allen, 1 J. & 

gooil title. •' ' ' 

r-q 7 ri ^^^' ^^^' ^^^ ' ^^'^^^''^ ^- ^i^<^^^ 1 Russ. 325 ; Townscnd v. 

T/^L'T^^r Ch.amx)ernov:nc, 3 Y. & C. 505 ; Fvecre v. Hesse, 4 De G. 
' ^ ■ -^"^ j^j ^ ^ ^^^ . p^^iiiipg^y,^ y Gihhon, G Ch. 428 ; 40 L. J. 

Ch. 40G; 10 W. R GGl ; 24 L. T. G02 ; and see the 
earlier cases of Wynn v. Morrjan, 7 Ves. 202 ; Seion v. 
ShiAe, ihi,l 2G5 ; Fiddcr v. Iligfjiason, 3 V. & B. 142 ; 

V. CoUinge, 3 V. & B. 143, n. ; Wilson v. Ckq^ham, 

1 J. & W. 36). And it seems that if the purchaser takes 
no step inconsistent with the finding in chambers, the 
vendor pays the wdiole costs of the suit (Sugd. V. & P. 
G48) ; but if the purchaser raises unsuccessful objections 
to the title, no costs of the reference will be given, or the 
purchaser Avill pay costs according to circumstances 
{Wilson V. Allen, 1 J. & W. Gil, G23 ; Toiunsend v. 
CJuinipernoirne, 3 Y. i^ Coll. 505). Where the vendors 
had not made a good title until the production of a certain 
document in chambers, but the purchaser occa.sioned costs 
by unsuccessfully disputing the construction of the docu- 
ment, the decree was made without costs {Weddall v. 
jS-ixon, 17 Beav. 170). The costs of the reference as to 
title in a purchaser's suit are thrown on the vendor if the 
abstract is not produced till the parties are in chambers, 
though the only defect was known to the purchaser 
(Wilson \. Williams, 3 Jur. N. S. 810). But of course 
the rule will not apply, although additional deeds are 
furnished after action brought, if the Court thinks the 
deeds not essential to the title {Litchfield v. Broum, 23 
L. J. Ch. 176). Where the suit was occasioned by the 
vendor's refusal to produce documents insisted on by the 



ACTIONS FOR SPECIFIC PRiiFOliMANCE, 255 

purchaser, to some of which only he ^^'as entitled, no costs 
were given (Newall v. Smith, 1 J. & W. 2G3). In Grove 
V. Bastard, 1 De G. M. & G. GO, after the title was 
approved the heir at law gave notice of his intention to 
dispute the will and brought an action at law, in which he 
failed ; Lord Cottenhara thou, at the purchaser's request, 
allowed the cause to stand over till the Avill was estab- 
lished ; the heir at law having again failed, the vendor 
was allowed the costs from the time of the first verdict 
against the heir at law, though Lord Truro seems to have 
thouofht that it shoukl be from the time when the title 
was originally approved. 

In WilJdnson v. Hartley, 15 Beav. 183, it was said r>ut the 
that the rule stated in the last paragraph ought to be j^^^ .^y|,]y 
strictly adhered to. But the fiict of a title having been ^^'life ih ; 
first perfected in the course of the suit does not determine tion in the 
the costs, if the real contest in the suit was on some other ^'^j"^J: JJ^^^^ 
question or claim, and not the mere question of title. The the one of 
costs in that case, including the costs of investigating the ' °' 
title, will follow the event of the suit (Scoones v. Morrell, 
1 Beav. 251 ; Croo7)ie v. LecUard, 2 My. & K. 293 ; 
Abbott V. Svjorder, 4 De G. & S. 400 ; Peers v. Sneyd, 17 
Beav. 151 ; Carrodus v. Sharp, 20 Beav. 56 ; Bridges v. 
Longman, 24 Beav. 27 ; Lyle v. Lord Yarhorough, Johns. 
70 ; Murrell v. Goodyear, 29 L. J. Ch. 425 ; G Jur. N. S. 
35G ; 8 W. R. 398 ; Nene Valley Commissioners v. Dunldey, 
4 Ch. D. 1 ; and see Hyde v. Dallaway, 4 Beav. GOG). 
But in Woodicard v. Miller, IG L. J. Ch. IG ; 10 Jur. 
1027, the defendant paid the costs of investigating the 
title, which the Court thought under the circumstances 
unnecessary. The Court looks to the real subject-matter 
of the litigation, and where it is manifest that, if the 
further abstract or particular evidence which completed 
the title had been furnished, the suit would not have been 
avoided, will not throw costs on the vendor (Monro v. 
Taylor, 8 Ha. 51 ; S. C. affirmed on appeal, 3 Mac. & G. 
713). So if the reason \\hy the title was not completed 



250 



COSTS IN' PAIlTlcrLAU AcTIOXS. 



or the 
purchaser 
insisted 
on other 
objections 



or the 

particular 

objection 

was not 

tiiken 

before 

action 

brought. 



was because the defendant insisted on other objections to 
the title on which he failed, especially if it appears that 
the vendor offered before suit the further evidence re- 
' quired in chambers {Long v. Collier, 4 Russ. 2G7 ; Hol- 
luood V. Bailey, ihid. 271) ; but where the purchaser's 
objection is frivolous, the vendor is not warranted in con- 
sidering it unnecessary to make out further title {Wilkin- 
son V. Hartley, 15 Beav. 183 ; and see Lyle v. Lord 
Yarhorov fjh , Johns. 70). Again, if a purchaser having 
made various objections to the title, all of which have 
been removed before action brought, afterwards raises an 
objection which he might have taken but did not take 
before, the mere circumstance of an objection so taken 
not having been removed until after the suit was instituted 
will not determine the question of costs {Lyle v. Lord 
Yarborough ; Freer v. Hesse, 4 De G. M. & G. 497). In 
Fhillipson V. Gibbon, G Ch. 428; 40 L. J. Ch. 406; 19 
W. R. G61 ; 24 L. T. 602, a fatal objection was taken by 
the purchaser late in the suit ; the vendor ought to have 
known of the defect but did not ; the purchaser would 
have discovered it if he had inspected the property before 
he bought. There was no question whatever between the 
parties except as to title, but the plaintiff had refused an 
offer by the defendant to have a common reference to 
chambers as to title. The Court made the vendor pay 
such costs as had been unnecessarily occasioned by him, 
and gave no other costs to either party. Where a 
purchaser took a fatal objection very late he was refu.sed 
his costs {Uppcrton v. Nicholson, 6 Ch. 436; 40 L. J. 
Ch. 401 ; 19 W. R. 733 ; 2-5 L. T. 4j. In Badford v. 
Willis, 7 Ch. 7 ; 41 L. J. Ch. 19 ; 20 W. R 132 ; 25 L. 
T. 720, the Court was clearly of opinion that the defen- 
dant's objection was unsustainable, but as he had con- 
curred in raising the question in the simplest and cheapest 
way no costs were given. 

In McXicJiol V. Kay, 4 W. R. 801 ; 28 L. J. Ch. 20, 
where the purchaser had failed in disputing the contract 



ACriOK.S FOR SPECIFIC PERrORMANCE. 257 

as not hand fide, it was held that he must pay the costs of 
the title being investigated in cliambers, but two attend- 
ances only Avere allowed, because a good title was not 
shown (apparently) until five fresh abstracts had been 
delivered. ^Yhere the suit was originally occasioned by 
the purchaser resisting his liability under the contract, but 
he submitted after the bill was filed, and the suit went 
on the question of title, the plaintiff having refused 
evidence which he afterwards produced paid costs up to 
that point from the time of the defendant's submis- 
sion, but the defendant, having then unnecessarily forced 
the suit on to a hearing, paid the subsequent costs 
{Parr v. Lovegrove, 4 Jur. N. S. 600). The Court is 
not concluded from giving the vendor all the costs, by 
the fact of an inquiry having been directed when a 
good title was first shown, though it turns out to be 
after action brought {Ahhott v. Sivordcr, 4 De G. & S. 
460). 

If a purchaser by taking possession has waived investi- Wheie tho 
gallon into the title, a decree for specific performance will b7t!!kin.r 
be made against him with costs irrespective of the title possession 
(Fleetwood v. Green, 15 Ves. 594 ; Margravine of Aiis- Zhl^^hi, 
pack V. Noel, 1 Mad. 310 ; Ilall v. Laver, 3 Y. & C. 191 ; ^'^i^'^^^ the 
Peter v. NicoUs, 11 Eq. 391 ; 19 W. R. 018 ; 24 L. t! *'^^°* 
381, where he had been in possession upwards of twenty 
years) ; especially if he takes possession after delivery of 
an abstract, on the face of which an objection appears 
(Burnell v. Broivn, 1 J. & W. 108). But if the purchaser 
takes possession at the vendor's instance he is relieved 
from the ordinary consequences {Vancouver v. Bliss, 11 
Ves. 463), On the other hand, where the vendor unsuc- 
cessfully insisted that the purchaser had accepted the title, 
but his title proved good, the decree was made without 
costs {M'Queen v. Farquhar, 11 Ves. 407). Where the 
purchaser had retained possession for several years without 
paying the purchase money, and refused either to accept 
the title or give up the agreement, a decree to have the 

R 



or some 
nollater 
matter. 



258 COSTS IN PARTICULAr. ACTIONS. 

agreement cancelled was made against him with costs 

{King v. King, 1 My. & K. 442). 
Where Where tlie real contention in the cause is not a ques- 

tionTrthe ^^^n of title, but one affecting the contract itself, or some 
suit is one collateral matter, the costs usually folhjw the event, 
the con- Thus, whcre the defendant insisted that the contract had 
tract itself, ^^qq^ abandoned (Taylor v. Broini, 2 Beav. 180 ; Bennett 

or some . . , . , 

collateral V. Fowhi', ibid. 302) ; or where the purchaser resisted 
specific performance on the ground of overvalue and mi.s- 
rcpresentation {Abbott v. Su'orJer, 4 De G. & S. 4G0) ; or 
misdescription {Nene Valley Commissioners v. Dmihley, 
4 Ch. D. 1) ; but in Bnrrovsx. Lock, 10 Ves. 470, a contract 
for purchase at an undervalue was executed at the pur- 
chaser's instance, it not amounting to fraud, but without 
costs. So again, where the vendor has been guilty of mis- 
representation, though without fraud {Vancouver v, Blias, 
11 Ves. 458; Buxton v. Lister, 3 Atk. 382). And the 
Court will exercise its discretion in dismissing an action, 
and with costs, on the ground of circumstances which 
would nevertheless not be sufficient to cancel the 
agreement on the ground of fraud {Davis v. Symonds, 
1 Cox, 402). In Salev. Lambert, 18 Eq. l,the defendant, 
the vendor, set up the Statute of Frauds ; but specific per- 
formance was decreed, and he was ordered to pay the costs 
up to the hearing. In Potter v. Dupiehl, 18 Eq. 4, the 
statute was successfully pleaded, and the purchaser having 
refused a reasonable offer, his bill was dismissed witli 
costs. Unproven charges of fraud, according to the ordi- 
nary rule {ante, p. lOG), will be visited with costs ; see 
Wright V. Howard, 1 S. & S. 190, 205, where the vendor's 
bill for specific performance was dismissed with costs on 
the ground of bad title and delay, except as to so much of 
the costs as were occasioned by the defendant's charges of 
fraud, which the defendant had to pay, and relief was 
granted on the defendant's cross bill to have the agree- 
ment delivered up to be cancelled, but without costs, 
because it charged fraud. But where the evidence was 



ACTIOKS FOR SPECIFIC PERFORMANCE. 259 

unsatisfactory as to the circumstances under which a con- 
tract was signed by a deceased vendor, a bill against his 
heir-at-law and administratrix was dismissed without costs 
(Valentine v. Dickinson, 9 W. R 625). Where there has 
been a mutual misunderstanding, the action will be dis- 
missed without costs (Strafford v. Bosworth, 2 V. & B. 341) ; 
and so where parol evidence of mistake was admitted in 
opposition to specific performance (Marquis of Town- 
shend v. Stanr/room, G Ves. 328). And if the defendant 
does not raise his objection to specific performance till he 
puts in his defence, he will get no costs {Winch v. Win- 
chester, 1 V. & B. 375). If parol evidence to vary the 
contract is introduced by the defendant, the action should 
strictly be dismissed, and therefore if the Court makes a 
decree, at the plaintiff's desire, for the specific performance 
of the contract according to the defendant's evidence, the 
plaintiff must pay the costs {Fife v, Clayton, 13 Ves. 5-4G ; 
Mortimer v. Orchard, 2 Ves. Jun. 243). But the Court 
will not receive parol evidence to vary the contract from 
the plaintiff, and, therefore, a bill for specific performance 
of a contract with parol variations, though left out by 
fraud, was dismissed, but without costs (Wollam v. Hearn, 
7 Ves. 211). In Deller v. Simonds, 5 Jur. N. S. 997, 
specific performance was decreed, but without costs on 
account of the difficulty of the construction of the con- 
tract. But the Court requires the parties to be active in 
asserting their rights, and will punish delay by refusing 
costs (Grover v. Hugell, 3 Russ. 428 ; Biirhe v. Smyth, 
3 J. & L. 193 ; Barrettv. Pearson, 2 B. & B. 189 ; Deane 
V. Lord Waterford, 1 Sch. & L. 451 n. ; Nunn v. Fahian, 
1 Ch. 35). Where there had been great delay on the part 
of the defendants the costs were reserved {Qunston v. 
East Gloucestershire Ry. Co. 18 L. T. 8). And where 
both parties had slept on their rights until recourse to the 
Court was unavoidable, no costs were given on either side, 
though the plaintiff succeeded on the only real question in 
the suit {Wallis v. Bastard, 4 De G. M. & G. 251). In 

9 2 



2 GO 



COSTS IN PARTICULAR ACTIONS. 



Whero 
specific 
perform- 
ance with 
compensa- 
tion is 
sou''ht. 



Cuivell V. Watts, 2 H, & T\v. 224, specific performance of 
a parol agreement was refused, on the grounds of the 
plaintiff's delay and acquiescence, with costs generally, 
but the defendant was disallowed the costs of setting up 
the Statute of Frauds, and denying part performance. 
Where one of two defendants claimed under an alleged 
prior contract, a decree was made with costs in favour of 
the plaintiff, but a declaration was inserted that as 
between the defendants the costs should be borne by the 
one who made the claim {Wilson v. Thomson, 20 E(|. 
450 ; 23 W. R. 744). Negotiations after the'contract, with 
a view to an amicable compromise, do not affect the right 
to specific performance, but may affect the costs (Bunninr/ 
V. Bimning, 1 L. J. Ch. (O. S.) 56 ; Poicell v. Martyr, 8 
Ves. 14G) ; but see on this point, a)ite, p. 105. Where the 
plaintiff filed his bill after an appointment had been made 
for completion of the purchase, and the only question 
between the parties was as to costs, he was ordered to 
pay all the costs of the suit {Cheater v, MetropoJltan Ry. 
Co., 13 W. R 333 ; 11 L. T. G(39 ; 11 Jur. N. S. 214). 

Where the plaintiff claims specific performance with 
compensation, and foils on that point, he must pay costs, 
though a decree is made for specific performance generally 
{Feirster v. Turner, 11 L. J. Ch. 101, where the question 
of compensation was the only one in the cause, and the 
plaintiff" paid all the costs ; Lyie v. Lord Yarhoroiujli, 
John. 70, Avhcre the bill was dismissed so far as related 
to compensation, with the costs of so much of the suit as 
related to that claim) ; and so also where the action is 
dismissed altogether {Williams v. Edwards, 2 Sim. 78). 
Where a claim for compensation failed because the Court 
thought the representation in the particular likely to mis- 
lead, but that being indefinite it should have put the pur- 
chaser on inquiry, no costs were given {Fenton v. Brown, 
11 Yes. 144). But where a purchaser obtains specific 
performance with compensation, it will be in general Avith 
costs {Leyland v. Illingivorth, 2 De G. F. & J. 24S ; 



ACTIONS F01{ SPECIFIC PERFOKMANCE. 261 

Gedge v. Duhe of Montrose, 1Q> Beav. 45). In Powell v. 
Elliot, 10 Ch. 424; 23 W. R. 777; 33 L. T. 110, the 
vendors sued for specific performance; the purchasers 
alleged misrepresentation as to value, and instituted a 
cross suit for rescission of the contract on this ground. 
Specific performance was decreed, ])ut with a considerable 
abatement, and it was held that the vendors must pay all 
the costs of the suits. Where the purchaser claimed to 
have comprised in the agreement a piece of land which 
was covered by the description, but was not in the 
contemplation of either party, the bill was dismissed with 
costs {Calverley v. Williams, 1 Yes. Junr. 210). So 
costs will follow the event, Avhere the question is as to the Where the 
payment of interest on the purchase money (Fludyer v. ^"«^*'o° i^ 
Cocker, 12 Ves. 25 ; Williams v. Glenton, 1 Ch. 200; but menVof' 
see Poirell v. Martyr, 8 Yes. 146 ; Sherunny. Shakspeare, '"*°'''*- 
17 Beav. 267 ; 5 De G. M. & G. 517). 

It is now settled that if a vendor dies before the com- costs of 
pletion of the contract intestate, and leavino- an infant '^^^^^^ 
heir, no costs of the necessary action for specific perform- by"" vendS 
ance are given to the purchaser or the legal personal P^""^ ^'^" 
representative of the vendor, but the costs of the infant rktion^" 
heir will be paid' out of the purchase money (Barker v. IXn?''" 
Venahles, 34 L. J. Ch. 420; 13 W. R. 803 ; 11 Jur. N. heir; 
S. 480 ; Scott v. Scott, 11 W. R. 766 ; 13 W. R. 803, n. ; 
Hanson v. Lake, 2 Y. Sc C. C. C. 328 ; Armitage v. 
Askham, 1 Jur. N. S. 227 ; Hodson v. Carter, 1 N. R. 
] 79 ; Loinjinotto v. Morss, 26 L. T. 828). The earlier 
cases of Prytharch v. Havard, 6 Sim. 9, Midland 
Counties Rail. Go. v. Westcomb, 11 Sim. 57, and Eastern 
Counties Rail. Co. v. Tufnell, 3 Ry. Ca. 133, where the 
costs were allowed out of the purchase money, are over- 
ruled. So where the vendor became a lunatic before or becom- 
completion {Cresswell v. Haines, 8 Jur. N. S. 208). But ju^atic • 
where the vendor has devised the estate to an infant, or or deviling 
in such a manner that a suit is necessary, his estate must [^^^" 
bear the costs, at least if the will be made after the '" '''' * 



262 COSTS IN PARTICULAR ACTIONS. 

contract (Purser v. Darhj, 4 K. & J. 41 ; Sanderson v. 
Chadiuid; 2 N. K. 414) ; but if the will was made before 
the contract, no costs, it seems, should be given (Murdin 
v.Patey, 1 N. R. 506; London I- South Western Rail 
Co.v.BrkJger, 12 W. R. 948; 4 N. R 261). But this 
distinction does not appear to have been taken in the 
older cases, the decisions in which, however, are not 
always consistent : see Farrar v. Lord Winterton, 4 Y. Sc 
C. 472 ; Wortham v. Lord Dacre, 2 K. c*^-. J. 437, where 
the vendor's estate paid the costs, though it does not 
appear when the will was made ; and Hinder v. Streeton, 
10 Ha. 18 ; Bannernuin v. Clarke, 3 Prcw. 632, where no 
costs were given. See also H7a7c v. Bech; Ir. R. 6 Eq. 63 ; 
20 W. R. 275 ; and Hall v. BusJiill, 14 W. R. 405, where 
Bannennan v. ClarJcewas followed. In WiUianisy. Glen- 
ton, 1 Ch. 200, the vendor by will dated after the contract 
devised the estate to infants, two of whom were his heirs. 
Great delay took place, and at length the vendor's repre- 
sentatives filed a bill for specific performance, the pur- 
chaser being willing to complete but not to pay interest. 
The Master of the Rolls decreed specific performance and 
ordered the defendant to pay interest and all the costs* 
On appeal, however, it was held that the purchaser 
should not have been ordered to pay all the costs, but 
only the costs of so much of the suit as related to the 
interest ; as to the costs of the suit so far as it related to 
frettins: in the lesral estate from the infants, the Lords 
Justices differed in opinion, L. J. Knight Bruce thinking 
they should fall entirely on the vendor ; L. J. Turner that 
under the circumstances no costs should be given ; and 
therefore d£50 was allowed to the purchaser in respect of 
these costs. The costs of the infants came out of the 
Purchaser purchase monev. Where the purchaser died before com- 
dyins nletion intestate, leaving an infant heir, the costs of a 
suit by the vendor against the heir and administratrix for 
a resale, including the costs of the heir to be paid by the 
plaintiff in the first instance, were ordered to be paid by 



ACTIONS FOR SPECIFIC PERFORMANCE. 263 

tlie administratrix (Popple v. Henson, o De G. & S. 31S). 
But where the non-completion in the vendor's lifetime has 
been caused by the purchaser's delay, he must pay the 
costs {Barrett v. Pearson, 2 B. & B. 189). The costs of 
a suit against a vendor's infant heir or devisee are costs 
occasioned by adverse litigation within the meaning of 
the 80th section of the Lands Clauses Consolidation Act 
(Armitage v. AsJdunn, 1 Jur. N. S. 227 ; .and see 2'>ost, 
p. 28.5, n.). 

Where the trustee for the vendor refused to convey, Where 
and was made defendant to a bill for specific performance, J^^^^^J^^ 
filed by the vendor, he was ordered to pay all the costs, or heir at 
including those of the purchaser (Jones v. Leiuis, 1 Cox, IXses to 
199) ; but if the purchaser insists on inquiries as to title, convey. 
he must pay the costs subsequent to the hearing (Allen 
V. Ciwrie, 1 L. J. Ch. (0. S.) 135). The heir at law of a 
deceased vendor had in like manner to pay the costs of 
a suit for specific performance by the executor, he having 
refused to convey and being a bare trustee (Hoddel v. 
Piujh, 12 W. R. 782). 

A public company Avill not be entitled to the costs of a Public 
suit for specific performance, if they could have derived <^°?n^auy 
the same advantages by proceedings under their Act 
(Regenfs Canal Co. v. Ware, 23 Beav. 575). 

Where a purchaser's action is dismissed with costs, an Deposit 
api^lication to set off the deposit will be refused ( Williams J^°" J' ^^ 
V. Edwards, 2 Sim. 78) ; although a refusal by the vendor against 
to return it may influence the costs (Gee v. Pearse, 2 De ^°''*^" 
G. & S. o25) ; and see as to the return of the deposit, 
Sugd. V. & P. 55 ; Dart, V. & P. 1122; and Rede v. Oakes, 
2 De G. J. & S. 518 ; 5 N. K 209 ; 11 L. T. 549. Where 
the auctioneer was ordered to pay the deposit into Court, Costs of 
he was allowed to jleduct all his costs, charges, and -"^"ctioneer. 
expenses (Annesley v. Miiggridge, 1 Mad. 593 ; Yates 
V. Farehrother, 4: Mad. 239). But it is now settled that 
no person not a party to the contract should be a party to 
a suit for specific performance (TasJcer v. ^mall, 3 My. & 



264 CObTS IN PARTICULAR ACTIONS. 

C. G3 ; De Hogldon v. Money, 2 Ch. 164). Where, how- 
ever, a bill Avas filed for specific performance against a 
railway company which had leased its line to another 
railway company who were working it under a Parlia- 
mentary title, the lessee company were held to be neces- 
sary parties, and were ordered to pay their own costs 
(Goodford v. Stonehouse Ry. Co., 20 L. T. 137 ; Bishop 
of Winchestei' v. Mid Hants R>/. Co., 5 E(i. 17 ; 17 L. T. 
161). 
Other In Macl-reU v. Hunt, 2 Mad. 34, n., the purchaser was 

^°^ ^' allowed the costs of a suit to perpetuate the testimony to 
the execution of a will. Where the misstatement of the 
vendors that a will had been proved occasioned a suit to 
secure it, the vendors had to pay the costs of the suit 
{Harrison v. Cqfpard, 2 Cox, 318). Where after a suit for 
specific perform.Mncc the vendor opposed several bills in 
Parliament to protect his rights, and then nn arrangement 
was made for payment by the company of his " principal 
interest and costs," the parliamentary costs were held to 
be included {Cooper v. London, Chatham and Dover Ry, 
Co., 17 L. T. 283). 
Costs Where the vcmdor brought an action claiming a declara- 

from tion that the contract was at an end, and the purchaser 

purchase- counterclaimed for specific i)crformance of the contract, 
money. . . i • i 

and had judgment with costs on hoth chum and counter- 
claim, it was held that he might deduct his costs from his 
purchase money in priority to a mortgage of the plaintiff, 
■whose mortgafre had been created after the contract but 
before the action {Green v. Scvin, 13 Ch. D. 589). 



CHAPTER V. 

COSTS UNDER PARTICULAR ACTS OF PARLIAMENT. 

The combined effect of the Judicature Act, and of 
R. S. C. Ord. LY. r. 1, is to repeal, with certain specified 
exceptions, all previous Acts directing costs to follow certain 
rules, without leaving the Court a discretion ; and, where 
a previous Act contains no provision as to the costs of 
proceedings under it, to supply the omission by leaving 
the costs in the discretion of the Court (Garnett v. 
Bradley, 3 App. Cas. 944 ; 48 L. J. Ex. 186 ; 26 W. R. 
698; 89 L. T. 261 ; Ex parte Mercers Co., 10 Ch.D. 481; 
48 L. J. Ch. 384; 27 W. R. 424; Morris v. Freeman, 3 
P. D. 65 ; 47 L. J. P. D. & A. 79 ; 27 W. R. 62 ; 39 L. T. 
125). No doubt the Court will, as a general rule, follow 
the rules as to costs prescribed by the particular Act 
under which the proceedings are taken, as explained and 
illustrated by the decided cases; but there is no obliga- 
tion upon it to do so. The right of a trustee, mortgagee, 
or other person, according to the old practice in Chancery, 
to costs out of a fund, is, however, preserved (R. S. C. 
Ord. LV. r. 1). 

Sect. I. — Costs ander the Companies Acts. 

By s. 86 of the Companies Act, 1862 (25 & 26 Vict. Costs of 
c. 89), the Court, upon hearing a petition for windinr-- up ^"itl'Dg- 

T--^-,i •,,'' , * J^ ' up petition. 

may dismiss it with or without costs, or make any other 
order it deems just. 

The general rules with respect to the costs of a wind- 
ing up petition are as follows : — 

Where the Court makes the order, the costs of the Where the 



266 COSTS UNDER PARTICULAR ACTS. 

order is petitioner and of the company are given out of the estate ; 
^ sliarebolders who appear and support the petition have 

one set of costs among them (of course out of the estate), 
and creditors have another set, which Lord Westbury 
stigmatised as "a very bad practice indeed" {Gardiner's 
Case, L. T. Eur. Arb. GO) ; persons who appear and oppose 
have no costs (Re Humher Ironiuorks Co., 2 Eq. 15 ; Re 
European Banldwj Co., ibid. 521 ; Re Oriental Com- 
mercial Bank, U L. T. 755 ; W. N. (1806), 283, 312 ; 15 
L, T. 8, where, however, all parties served had their costs). 
Where the Where the petition is dismissed with costs, the peti- 
refuseci. tioner pays the costs of the comjoan}- opposing the peti- 
tion, and also the costs of any persons who appear and 
successfully refute unfounded charges made against them 
personally ; and (though a different rule was laid down 
on this point in Re Humher Ironworks Co. and Re 
Anglo-Gi'eek Steam Co., 2 Eq. 1), shareholders who ap- 
pear and oppose are entitled to one set of costs between 
them, and creditors who appear and oppose are in like 
manner entitled to another set (Re Humher Iron- 
tvorks Co. ; Re European Banking Co. ; Re Marlborough 
Club Co., I Eq. 21 G; Re Anglo-Greek Steam Co.; Re 
Anglo-Egyptian Navigation Co., 8 Eq. 660). Whether 
the petition is by a shareholder or a creditor makes no 
difference {Re Kew Gas Co., 5 Ch. D. 703 ; 25 W. R. 643 ; 
Re Diamond Fuel Co., W. N. (1878), 11). See also Re 
European Life Assurance Society, 10 Eq. 403 ; 22 L. T. 
785 ; Re London c& Suburban Bank, 19 W. R. 88 ; 23 
L. T. 447 ; Ex parte Fox, 6 Ch. 176 ; Re Carnarvonshire 
Slate Co., 40 L. T. 35 ; Re Bosworthon Mining Co., 26 L. 
J. Ch. 612 ; Re London Permanent Benefit Building 
Share- Society, W. N. (1869), 51. But these rules are not in- 
crc'iUors" flexible, and the Court will be guided by the circum- 
iiot entitled gi^ances of eacli particular casc ; see Re Anglo-Egyptian 
costs as of Navigation Co., 8 Eq. 660; Re Albion Bank, 15 W. R. 
j-ii^ht. ^^g . 15 L. T. 346 ; W. N. (18GG), 388 (where three sets 
pf costs were allowed to shareholders) ; Re City Glass Co., 



COSTS UNDER THE COMPANIES ACTS. 267 

W. N. (1874), IIG (where no costs Avere allowed to credi- 
tors and shareholders who unnecessarily appeared sepa- 
rately) ; Re Star d; Garter Hotel Co., 28 L. T. 258 ; W. 
N. (1873), 74. And in Re Hull & County Bank, 10 Ch. 
D. 130 ; 27 W. R. 377, the Master of the Rolls said he by 
no means assented to the proposition that creditors ap- 
pearing on a petition to wind up were entitled to their 
costs as of right, and refused costs to a creditor who ap- 
peared without any sufficient reason ; see also Re Mili- 
tary Tailoring Co., 47 L. J. Ch. 141 ; 26 W. R. 75 ; W. N. 
(1877), 248. In Re Alliance Contract Co. W. N. (1867), 
218, no order was, under the circumstances, made on the 
petition except that the company should pay the costs. 

Secured creditors are entitled to share in the set of Secured 
costs allowed to creditors who support the petition with- cre^litors. 
out first electing whether to give up or rely on their se- 
curities {Re Carmarthenshire Coal Co., 45 L. J. Ch. 200 ; 
W. N. (1875), 243 ; see Judicature Act, 1875, s. 10). 

A provisional liquidator, although served, is not in Provisional 
general entitled to his costs of appearing upon the peti- ^iq"i'l''^toi"' 
tion {General International Agency Co., 36 Beav. 1 ; 34 
L. J. Ch. 337; 5 N. R. 625 ; 13 W. R. 363). See, how- 
ever, Re European Banking Co., 2 Eq. 521, where, under 
the circumstances, he was allowed his costs ; and see also 
Re Times Life Assurance Co., 9 Eq. 382. 

The petitioner's costs, including the costs of establishing Petitioner's 
his debt, where disputed {Re Universal Insurance Co.,''^^^.^^!''''^ 
W. N. (1S75), 54 ; 19 Eq. 485), are the first charge upon 
the estate, and must be paid in full in priority to the costs 
of the official liquidator {Re Audley Hall Cotton Co., 6 
Eq. 245) ; and, where he is a debtor to the company in Without 
respect of unpaid calls, without any set-off of such calls ^^^"°''' 
against the costs {Re General IJxchange Bank, 4 Eq. 138). 
But no one else is entitled to priority over any other 
person to whom costs are also ordered to be paid merely 
because his order is dated first {Re Marlborough Club Co. 
6 Eq. 519; and see /S'/a'p'i' Case, 13 W. R. 1016). 



2G8 • COSTS UNDER PARTICULAR ACTS. 

Petitioner Where a creditor, who has presented a petition, dis- 
Jetition!"^ misses it at the hearing, the dismissal will be with costs, 
and creditors (not served) who appear to oppose, are en- 
titled to their costs of appearance {Re Patent Cocoa Fibre 
Co., 1 Ch. D. 617; Re Marlborough Club Co., 1 Eq. 216; 
Re Home Assurance Association, 12 Eq. 59 ; Re Here- 
ford Waggon Co., 17 Eq. 423 ; Re Flagstaff Co. of Utah, 
20 Eq. 268). A creditor proceeding with his petition 
after an otler to satisfy his debt and costs, will be allowed 
no costs subsequent to the offer {Times Life As^-urance 
Co., 9 Eq. 382 ; Re Imperial Assurance Society, ibid., 
447). Where the petition was properly presented in the 
first instance, though subsequently withdrawn, the costs 
were allowed (Re Railway Finance Co., 14 W. R. 78o). 
AVandoned If the petition is advertised in the usual way, and then 
pc 1 lou. y^lDandoncd, creditors who appear are entitled to one set of 
costs (Re Anglo-Virginian Lond Co., W. N. (1880), 
155). But where the petition was never served on the 
company, and both the company and a creditor, who ap- 
plied for a copy of the petition, were informed of the 
abandonment, and an undertaking was offered that there 
should be no further proceedings upon the petition, no 
costs were allowed cither to the company or the creditor 
{In re Quartz Hill Co., W. N. (1882), 27). 

Where a shareholder'.s petition had been dismissed with 
costs, to be paid by the petitioners to the company, and 
before payment the company was ordered to be wound 
up on a creditor's petition, but in consequence of a liqui- 
dator not having yet been appointed, no discharge could 
be given for the costs, the company's solicitor was ap- 
pointed provisional liquidator to receive the costs, on his 
making an affidavit that they had not been paid to him 
(Re Langham Skating Rink Co., 6 Ch. D. 102). 
Petition A petition for winding up a company may of course be 

wHhoiiT' dismissed without costs; sec Re Albert Life Assurance 
costs. Co.,Q Ch. 381, where a beneficial scheme of reconstruction 

was proposed, which, however, it was held the Court had 



COSTS UNDER THE COMPANIES ACTS. 269 

no jurisdiction to sanction ; Re Great Korthern Copper 
Mining Co., 14 W. R. 705, where the petitioner had a 
bond fide case at the time he presented the petition ; Re 
London Suburban Bank, 15 Eq. 274. So where a credi- 
tor's petition was dismissed because opposed by the, great 
mass of the creditors, but the latter had stood by and 
made no sign till the actual hearing of the petition when 
they came forward and opposed it, the dismissal was with- 
out costs {Re Horbury Bridge Coal Co., W. N. (1879), 51). 

The following rule has been laid down as to costs where 
there are two petitions : 

Where a creditor has presented a winding up petition, Coats of 
and another creditor, being aware of the presentation of petitions 
the fii'st petition, chooses to present a second, he does so tycredi- 
at his own risk as to costs. If it turns out that the first 
petition was not bond fide, but presented only with the 
object of protecting the company against the claims of the 
other creditors, it is a matter of course that that petition 
should be dismissed with costs, and a winding up order 
made on the second. But if the first petition is bond fide, 
then the second petition is dismissed with costs ; per 
Jessel, M. E.., in Re Xortoii Iron Co., 47 L. J. Ch. 9 ; and 
see also Re Accidental Co., ex parte Rasch, 30 L. J. Ch. 
75 ; 15 L. T. 173 ; Re Joint Stock Coal Co., 8 Eq. 146 ; 
Re Empire Assurance Corporation, 16 L. T. 341 ; ex 
parte Turner, 3 De G. & Sm. 127; Re Northfleet Brick 
Co., W. N. (1880), 83. 

In Re Commercial Discount Co., Coopers Case, 1 N. R. 
416 ; 32 Beav. 198 ; Re Humber Ironworks Co., 2 Eq. 15 ; 
Re Marron Paper Co., 38 L. T. 140 ; W. N. (1878), 12, 
(where a petition after being advertised and coming on for 
hearing stood over generally, and six months afterwards a 
creditor presented a second petition in ignorance of the 
first) ; Re Owen's Wheel Co., 22 W. R. 151 ; 29 L. T. 672 ; 
and Re London and Australian Agency Co., 22 W. R, 
45 ; 29 L. T. 417, the costs of successive petitions were 
allowed. See ix\^o Re European Banking Co., 2 Eq. 521). 



270 COSTS UNDER PARTICULAR ACTS'. 

"Where an appeal, nominally that of the company but 
really that of the directors, against a winding-up order was 
dismissed, the order was that the respondent should have 
his costs out of the estate, no order as to the costs of the 
appellants ; inasmuch as the simple dismissal of the 
appeal with costs would have given the directors their 
costs out of the estate {Re Katiomd Savings Bank 
Association, 1 Ch. 547; 14 \V. R 1005; lie Diamond 
Fuel Co., 28 W. R 309 ; 41 L. T. 373). 
Costs of By s. 110 of the Companies Act, 1862, the Court may, 

tn'j'whure "^ ^^^^ event of the assets being insufficient to satisfy the 
assets are liabilities, make an order as to the payment out of the 
* estate of the company of the costs, charges, and expenses 
. incurred in winding up any company in such order of 
priority as the Court thinks just. This applies to costs 
incurred by the liquidator in the course of the winding 
up ; the Court has no jurisdiction to order payment out of 
the assets of costs incurred by shareholders not repre- 
senting the company who have commenced an action on 
their own responsibility and continued it without obtaining 
leave in the winding up {Be Hull Drapery Co., 15 Ch. D. 
326; 29 W. R 164). 
Order of As to the Order in which the costs incurred in relation 

costs'" * °^ ^^ ^^^^ winding up of a company are payable out of the 
assets, the general rule is that in the first place the costs 
of the petition for winding up must be paid ; next, the 
general costs of the winding up (which includes the solici- 
tor's bill of costs) ; and thirdly, the remuneration of the 
official liquidator ; but no remuneration can be given him 
until all the costs of the winding up are paid, including 
the costs of any provisional liquidator who may have been 
properly appointed {Re Massey, 9 Eq. 367 ; and see Re 
Official Trueman's Estate, \-^Y>i\. 278). The official liquidator is 
hiuKhitor. -^^ ^^ ^^,^y personally liable to his solicitor for the co.sts 
{Re Anglo-Moravian Ry. Co. (C. A.), 1 Ch. D. 130) ; nor, 
it would seem, is a voluntary liquidator {Re Trueman's 
Estate). Where the official liquidator changes his solicitor 
and the assets are not suffxient to pay the whole of the 



COSTS UNDpm THE COMPANIES ACTS. 271 

costs, the different solicitors are entitled to be paid jjcn'i 
■passu (He Audley Hall Spinnhig Co., 6 Eq. 245 ; 37 L. J. 
Ch. 904). As to the solicitor's lien on a fund recovered 
by him, see Re Massey, 9 Eq. 307. An official liquidator 
who has incurred costs in litigation will have them out of 
the estate, if they have been properly incurred {ex jxirte 
Bentley, 12 Ch. D. 850 ; 49 L. J. Ch. 240 ; 28 W. R. 165); 
but an order on him to pay costs simply, without more, 
means that he is to pay them out of his own pocket in the 
first instance {Grand Trunk Ry. Co. v. Brodie, 3 De G. 
M. & G. 146 ; Consols Insurance Co. v. }Yood, 2 Dr. & 
Sm. 353 ; and see Caldivell v. Ernest, 27 Beav. 39 ; 
Ferrao's Case, 9 Ch. 355). If they have been properly 
incurred he will have them over out of the assets. In the 
absence of any special direction, an official liquidator is 
not entitled to have his costs taxed as trustee's costs (i?e 
East Holyford Mining Co., Ir. R. 10 Eq. 361). 

An official liquidator who omits to furnish the Court 
with the necessary documents will lose his costs {Drmn- 
mond's Case, 21 L. T. 317). 

A liquidator is not entitled to make any payment to his 
solicitor without the sanction of the Court, and the solici- 
tor cannot set off his costs against funds recovered through 
his own exertions {Re Union Cement Co., 20 W. R. 361 ; 
26 L. T. 240). 

The practice as to the costs of official liquidators on Costs of 
appeals has not been uniform, but the present rule has i^qu||iator 
been stated to be as follows : — "The result, therefore, of the o" appeals. 
authorities appears to be that the Court of Appeal will 
now never order payment of the official liquidator's costs 
out of the estate when he is unsuccessful, and if costs are 
given against him, will order him personally to pay them ; 
the effect, of course, being to leave it to the judge below 
who has charge of the assets, to say whether costs incurred 
in unsuccessful litigation ought to be borne by the estate 
or not ; " Buckley on the Companies Acts, Srd Ed., p. 217; 
see Ferrao's Case, 9 Ch. 355 ; Wescomh's Case, 9 Ch. 553 ; 



272 COSTS UNDER rAnTlCUL.VU ACTS. 

Ex i^avte Angerstela, ibid. 479; OrgilVs Case, 21 L. T. 
221 ; Ex ijarte Camhrktn Steam Packet Co., 4 Ch. 112 ; 
contra, Robinson's Case, 4 Ch. 322 ; Stringer's Case, ibid. 
475; aud see also Shu>s Case, 13 W. R. 59U ; 12 L. T. 
25G ; 11 Jur. 831 ; SichelVs Case, 3 CIi. 110 ; BvsKs Case, 
6 Ch. 24G. 
Costs in- Where a company in course of liquidatlou is ordered to 

curred by pj^y costs, such costs are not to be proved as a debt in the 
JiiiuiJation. winding-up, but arc payable in full out of the assets of the 
company {Madrid. Bank v. Pell^, 7 Eq. 442 ; Ex x>arte 
Smith, 3 Ch, 125 ; Bailey and Leetham's Case, 8 Eq. 94 ; 
Re Home Investment Society, 14 Ch. D. 107; 28 W. R. 
570 ; Mays Case, W. N. (1871), 18) ; and execution for them 
will not be restrained, at any rate where the action is 
commenced by the liquidators in the name of the company 
(Ex jKirte Lcviclc, 5 Eq. 09). A company in liquidation 
is, in fiict, to be treated like any other litigant, and failing 
in litigation, must pay costs {Bailey and Leetham's Case). 
The Court, however, in giving leave to any person to com- 
mence an action against a company in li(|uidation, may 
impose terms as to costs ; see Re Joseph Peace <t Co., W. N. 
(1873), 127, where leave was given to proceed Avith an 
action, but any costs to be recovered by the plaintiti' in the 
action were not to be paid by the company in full, but were 
only to be provable in the usual way. In re Dimson's 
Fire Clay Co., 19 Eq. 202, where judgment was obtained 
a<^aiust a company after presentation of the petition, but 
before the order for winding-up, leave to issue execution 
was refused, but the costs of the application and of the 
action were given after the costs of the official liquidator, 
p f "Where, after the commencement of a voluntary winding- 

creditor's up, a creditor brings an action and recovers judgment, 
action. execution will be stayed upon the terms of the creditor 
being admitted to prove in the winding-ui^ for the debt, 
the costs of the action at law, and the costs of the applica- 
tion to stay execution, the costs are a mere appendage to 
the debt {Re Poole Firebrick Co., 17 Eq. 208, following 



COSTS UNDER THE COMPANIES ACTS. 273 

the decisiou of Lord Romilly ia Re Keijnsliam Co., 33 
Beav. 123; Re Life Association of England, 34 L. J. Ch. 
64 ; 10 Jur. N. S. 762 ; 12 W. U. 10G9 ; 12 L. T. 43 ; 
Re Peninsular Banking Co., 35 Beav, 280). The deci- 
sion in Re East Kent Shipping Co., 18 L. T. 748 ; W. N. 
(1868), 206; does not seem consistent Avith these authorities. 
Where, however, a creditor went on Avith an action after 
an offer to allow him to prove for his debt and costs, if he 
would undertake not to proceed further, he was not 
allowed to add to his debt his costs of appearing on an 
application to stay proceedings (Rose c& Co. v. Gardden 
Lodge Coal Co., 3 Q. B. D. 235). 

Where a claim against a company in liquidation is ad- ^^o^ts of 
journed into Court, and allowed with costs out of the estate, meiit into 
only the costs of the adjournment into Court are meant to be ^'^"rt. 
given, and the costs incurred by the claimants in Chambers 
must be added to the amount of the claim {Re General 
Estates Co., 8 Eq. 123 ; Holden's Case, ih., 444). Creditors 
proving their debts are allowed costs of proof, in the same 
manner as in the case of debts proved in a cause (r. 27, 
Gen. Ord., Nov., 1862 ; and see r. 13, Gen. Ord., March, 
1868). 

Where in a winding-up a creditor makes a claim which 
is partly successful, and the liquidator makes a claim against 
him in return which is entirely unsuccessful, the costs 
incurred by the creditor in proving his debt will be added 
to his debt ; the costs he has incurred by reason of the 
liquidator's claim will be paid in full out of the company's 
assets (Re The Lombard Deposit Banl', 45 L. T. 346 ; 
Morshead v. Reynolds, 21 Beav. 638). 

Where property Avhich is being realised in a winding-up Costs of 
is subject to incumbrances, the general rule is that the ?"<="'"" 

"' . . ' o brancers. 

costs of realisation must be paid first ; subject thereto, the 
incumbrancers are entitled to their principal, interest, and 
costs ; and the general costs of the winding-up come last. 
The liquidator's costs of preservation are, as between the 
incumbrancers and the company, payable by the company ; 

T 



274 COSTS 1 NDER PAIiTICULAR ACTS. 

but the liquidator is entitled to be indemnified against so 

much of such costs as are not paid him out of the assets {Re 

Marine Mansions Co., 4Eq. 601 ; Ee Oriental Hotels Co., 

12 Eq. 126 ; In re Regent's Canal Iromvorks Co., ex 'parte 

Grissell, 3 Ch. D. 411). In Re Bonelli's TelegrajyJi Co., IS 

Eq. 656, liquidators were hold not entitled to their costs, 

charges, and expenses of investigating claims of creditors 

upon a fuud paid into Court in the winding-up, or of an 

abortive attempt at arrangement. As to mortgagee's costs 

of attending winding-up proceedings, see Re Hamilton's 

IromvorJcs Co., 27 W. R. 827 ; 39 L. T. 658. 

Calls for As to the liability of members to contribute to the costs 

'^°^*'- of winding-up, see s. 38 of the Companies Act, 1862. By 

s. 102 the Court may make calls for the costs, charges, 

and expenses of winding-up, subject, of course, to the 

qualifications in s. 38, limiting the liability of members. 

Costs of The costs of winding-uj) an unregistered mutual insur- 

^''"'l'"S, ance association must, on general principles and indepeu- 

III) illc^Ml <J X L J. 

associat dently of the Companies Acts, be met by calls upon the 
contributories, although the winding-up order was made 
under a mistake in law {Re Arthur Average Association, 
8 Ch. D. 522 ; Re Queen Average Association, 26 W. R. 
432 ; 38 L. T. 90 ; W. N. (1878), 27) ; in Re London 
Marine Insurance Association, 8 Eq. 176, the costs were 
divided jJ7'o ratd among the receivers and payers, and 
according to the amount which they respectively had to 
receive and pay. See also Preece and Evans' Case, 2 De 
G. M. & G. 374. 

A call for costs may be made before all the assets are 
got in and before the exact amount of the costs payable 
has been ascertained by taxation {Gay's Case, 1 De G. M. 
& G. 347 ; 5 De G. & S. 122 ; Bale's Case, 1 De G M. & 
G. 513 ; Exixuie Woolmer, 2 De G. M. & G 665). The 
right to have a call made for costs may be lost by laches 
{Ex 'parte A'Beckdt, 2 Jur. N. S. 684). 

It is the duty of the judge in the winding-up, to ascer- 
tain to what costs each contributory or set of contributories 



tions. 



COSTS UNDER THE COMPANIES ACTS. 275 

is liable, and to make the call for their liquidation accord- 
ingly. It is, however, to be observed, that "where costs 
have been incurred in proceedings, for the benefit of all 
the contributories as a body, they are all rateably charge- 
able with the costs of those proceedings, although they 
may have been taken unsuccessfully, and although some 
of the contributories may have already paid more than 
others towards the discharge of the company's debts. Any 
temporary injustice resulting from this last circumstance 
must be set right afterwards (Lindley on PartnersJiip, 
vol. ii., p. ]455, 4th ed. ; and see cases there cited). 

The rule as to the liability of past members to con- Past mcm- 
tribute to the costs of winding-up seems to be as follows : liability for 
if there are no debts in respect of which they can be made °°^*^- 
liable, then they are not liable for any costs at all. If 
there are any such debts this may perhaps involve some 
costs ; and perhaps also some adjustment of mutual rights 
of past members inter se, in respect of which past members 
may be called upon for further contributions. But this is 
no ground for including in the measure of their total 
liability any costs to Avhich they are not justly liable to 
contribute, or any sums necessary for the adjustment only 
of the rights of present members {Clarices Case, IG S. J. 
(Alb. Arb.) 554; Michael Broivn's Case, (Eur. Arb.) L. T. 
21 ; Reil. 32 ; 17 S. J. 310 ; BreWa Case, Morris' Case, 8 Ch. 
800 ; 43 L. J. Ch. 47 ; 22 W. R 22). In Marsh's Case, 
13 Eq. 388, past members were held liable to pay the 
costs of settling the B. list unless the liquidator had 
money in his hands sufficient to pay them. And see 
further as to the liability of past members, Webb v. 
Whiffin, L. R. 5 H. L. 711 ; Burgess s Case, 15 Ch. D. 
507. 

In Daviess Case, (Eur. Arb.) L. T. 80 ; 17 S. J. G70, a 
contributory, though discharged from all liability to calls 
upon his shares, was under the circumstances retained 
on the register in respect of his liability to costs of 
winding-up. 

T 2 



27C COSTS UNDER PARTICULAR ACTS. 

Costs of In winding-np unlimited insurance companies, wliere 

^mUinited^ ^^^^ policies are payable only out of the funds of .the 
insurance company, the costs of winding-up, the costs of settling the 
list of contributories, and the costs of recovering calls from 
shareholders unwilling or unable to pay, must be borne by 
the company, that is, must be met by further calls (Ee 
Agriculturist Cattle Insurance Co., 10 Ch. 1 ; 44 L. J. 
Ch. 108; 23 W. R 219; 31 L. T. 710; Re State Fire 
Insurance Co., 34 L. J. Ch. 43G ; 13 W. R. 152; Be 
Professional Life Assurance Co., 3 Ch. 167). Where the 
liability Avas limited as regarded policy holders but un- 
limited as regarded other creditors, and the company was 
wound up and some contributories compromised under 
s. 160, and others did not, the latter alone were held 
liable for the costs of liquidation {lie Accidental Death 
Insurance Co., 7 Ch. D. 568 ; 47 L. J. Ch. 396 ; 26 \V. R. 
473). 
Prosecution If the Court orders dclintiuent directors to be proso- 
?^ *^^" ^ cutcd it may order the costs and expenses to be paid out 

Iinciucnt •' ^ ^ 

dircctuis. of the asssts of the company (s. 167) ; and as to the costs 
of li(iuidators in a voluntary winding-up incurred in such 
prosecution, see s. WS, j^ost, p. 277. 

Indemnity. Where the A. company on taking over the business 
of other companies covenanted to indemnify the latter 
against all actions, S:c., and all costs and charges, and the 
companies were wound up, it was held by Lord Cairns 
that as the winding-up in each case Avould settle many 
questions with which the A. company would have nothing 
to do, each company must pay the costs of its own 
winding-up, and was not entitled to any indemnity in this 
respect from the A. company (Albert Arbitration, Reil. 17; 
16 S. J. 141). In Be British Nation Indemnity Claims 
(Eur. Arb.) L. T. 4; Reil. 8, however, Lord Westbury 
considered that a part of the costs of winding-up the 
amalgamated company were attributable to a breach of 
covenant on the part of the other company, and gave leave 
for a future npplication for the purpose of proving such 



CO«TS UNDER THE COMPANIES ACTS. 277 

part of the costs when ascertained ; and see Royal Naval 
Society's Indemnity Case (Eur. Arb.), L. T. 165 ; 18 S. J. 
879. As to the liability for the costs of Avinding-up of a Retiring 
shareholder who retires under s. 161, see Re Marine i^^i^^^^ 
Investment Co., 8 Ch. 702 ; and as to the costs of an 
arbitration under s. 162, see Re Imjierial Mercantile 
Credit Association, 12 Eq. 504. 

By s. 144 all costs, charges and expenses properly Costs of 
incurred in a voluntary winding-up, including the remunc- ^"-jl'l-u^^ 
ration of the liquidators, are j)ayable out of the assets of up. 
the company in priority to all other claims. This means 
in priority to all claims upon the company where the order 
to wind up was made {Re Home Investment Society, 14 
Ch. D. 107; 28 W. R. 570). There is no difference in 
principle between the costs in a voluntary and a com- 
pulsory winding-up ; see 2>^'' Lord Cairns, in Wchh v. 
Whiffin, L. R 5 H. L. p. 735. 

A liquidator under a voluntary winding-up is not 
personally responsible to his solicitor for the costs of the 
liquidation {Re Trueman's Estate, 14 Eq. 278; 41 L. J. 
Ch. 585 ; 20 W. R. 700). 

The costs of the liquidators in a voluntary winding-up Costs of 
incurred in prosecuting delinquent directors are entitled prosecuting 

.... . delinquent 

to priority over all other liabilities ; see s. 168, Companies directors. 
Act, 18G2. 

If a liquidator in a voluntary winding-up desires to Appeal 
appeal, he ought first to obtain leave from the judge jatohV 
below ; otherwise, if his appeal fails, his costs may be voluntary 
refused out of the estate {Re City and County Investment up. 
Co., 13 Ch. D. 475 ; 28 W. R. 933 ; 42 L. T. 303). 

The costs of a contest by a person disputing his Contri- 
liability to be a contributoiy, and failing, must, except unsuccess- 
under very special circumstances, bo paid by such con- ^"^'7 ''f : 

, y~i 7 . • 1 puting his 

tributory [Crowers Case, 6 Eq. 77 ; Re Harnpshire Milk liability. 
Co., W. N (1880), 194 ; Barry's Representatives Case, 2 
Dr. & Sm. 321 ; 13 W. R. 380 ; 5 N. R. 299 ; Ritso's Case, 
W. N. (1870), 203 ; Musfjrave and Hart's Case, 5 Eq. 193; 



278 COSTS UNDEK PARTICULAR ACTS. 

Andreio's Case, 3 Ch. 161) ; even though the case is one 
of extreme hardship {Ex parte Oakes and Peel; 3 Eq. 576). 
But in MaUories Case, 36 L. J. Cb. 40 ; 15 W. R. 52 ; 
15 L. T. 23G ; aud Fletchers Case, 37 L. J. Ch. 49 ; 16 W. 
R 75 ; 17 L. T. 136 (where the apphcation was by tlic 
liquidator to have the name placed on the list), and in 
Grerjgs Case, 15 W. R. 82 ; and Furdcys Case, 16 W. E. 
660 (where the application was by the alleged contribu- 
tory to have it removed) no costs were given ; and see 
ClelamVs Case, 14 Eq. 387, where all parties had their 
costs out of the estate, the decision turning on the con- 
struction of a new statute. 

The rule seems formerly to have been applied with less 
strictness than at present, and many cases are cited in 
Lindley on Partnership, vol. ii., p. 1451, 4tli edition, where 
persons unsuccessfully resisted being made contributories 
and still were not visited with costs. It may be doubted 
whether many of these dccisious would be followed at the 
present day ; as the tendency of the Courts is now very 
strongly in favour of making persons who fail in liti- 
gation pay the costs, Avhatever the reason of their 
failure. 
Costs of Where the case is taken as a representative one, the 

reprcsenta- ^^^^^ ^^f .jjj parties will be allowed out of the estate 

tive case ^ r t t-< 

will come {Walkcvs Case, 2 Eq. 554; Ex parte Jea^reson, 11 Eq. 

estate. *^'^ 109 ; see, however,^c imrte Walton, Ex 2W.rte Hue, 3 Jur. 
N. S. 853) ; but only as between party and party (Re 
Mutual Society, Grimivade v. Mutual Society, 18 Ch. D. 
530; 50 L. J. Ch. 400; not following Farfs Case, ]0 Eq. 
622, where solicitor and client costs were allowed). But 
this practice does not extend beyond the Court of first 
instance (Sicheirs Case, 3 Ch. 119 ; Be Cork and Youghal 
Ry. Co., 4 Ch. 748). 

An alleged contributory who successfully disputes his 
liability will have his costs in the Court below out of the 
estate (Xafion's Case, 3 Eq. 77 ; Coates' Case, 17 Eq. 
169 ■; Emmerson's Case, 2 Eq. 231 ; 1 Ch. 433 ; ^7a_2>'s 



COSTS UNDER THE COMPANIES ACTS. 279 

Case, 13 W. R. 450; Loiue's Case, 9 Eq. 689) ; but costs 
of appeal will be paid by the liquidator personally, see 
ante, p. 271. 

By s. 35 of the Companies Act, 1862, upon an applica- Costs of 

• • • rGCtlfiPA" 

tion for rectification of the register, the Court may refuse tion of 
the application, with or without costs, to be paid by the register, 
applicant, or may make an order for rectification and 
order the company to pay the costs and any damages the 
party aggrieved may have sustained. Where the appli- 
cant had been most unjustifiably placed on the register he 
had his costs as between solicitor and client by way of 
damages (TroocZ's Case, 15 Eq. 236; Pontifex's Case, 36 
L. J. Ch. 903 ; 15 W. E,. 955, where he was allowed his 
preliminary expenses as well ; and see Anderson'' s Case, 
17 Ch. D. 373). Where an application is made under this 
section and in the winding-up of a company to substitute 
one person for another on the list of contributories and, 
both parties being solvent, it is a matter of indifference to 
the creditors and other contributories, the unsuccessful 
party should pay the liquidator's costs {Musgrave and 
Hart's Case, 5 Eq. 193). 

Where A., claiming under a legal title, successfully Jmisdic- 
applied to have the register rectified by the substitution of ^|j°"g^"^^j'^^ 
his name for that of B., it was held that there Avas no 
jurisdiction under this section to make B. pay the costs; 
but the company, having chosen to side with him, were 
ordered to pay them {Ex parte Sargent, 17 Eq. 273). Bat 
see, contra, Davies' Case, 33 L. T. 834, and see now 
R. S. C, Ord. LV., r. 1. See also Ex parte Kintvea, 
5 Ch. 95, where the application was made in a winding- 
up, and therefore there was jurisdiction under the 
Act. The section does not apply to the costs of an appeal 
from a judge at chambers {Ex 'parte Shaw, 2 Q. B. D. 
463). 

Where a company engaged in a business not authorised What 
by its deed of settlement, and the solicitors to the com- ^Se^ut^of 

pany, knowing that the business was unauthorised were company's 

assets. 



280 



COSTS VShER PARTICULAR ACTS. 



Creditor's 

rcpre- 

Bcntativc. 



employed by the directors to biirg an action, and to de- 
fend other actions in respect of claims arising out of the 
unauthorised business, and the defence to tlie hitter 
actions was on the merits, and not by a plea of ultra vires, 
it was held that the solicitors must be considered with 
respect to such actions as the solicitors of the directors, 
and not of the company, and that they couhl not prove for 
their bills of costs against the company's assets, and that 
the solicitors could not appropriate monies of the company 
paid to them on account generally to the payment of such 
bill of costs {Re Phwnix Life Assurance Co., 1 IT. k M. 
433 ; 2 N. R 54^>). 

Where a company liad l)cen finally dissolved, .share- 
holders who appeared on a summons by a creditor against 
the former licpiidator were not allowed their costs of 
appearance {lie Wcstbourne Grove Drape nj Co., 27 W. R. 
37; 39 L. T. 30). 

The costs of the appearance of a creditor's representa- 
tive Avill not be allowed except in special cases {Mclvers 
Claim, 5 Ch. 424) ; in Ex j^'rtc Oakes and Peake, 3 E(i. 
576, his costs were allowed out of the estate. In lie 
Beariz Tin Co., W. N. (1868), 207, an order was made 
appointing a creditor's representative and giving him 
leave to attend the proceedings?, but the question of how 
his costs and expenses should be borne was reserved. As 
to the costs of contributories and creditors attending the 
proceedings in the winding-up, see r. (lO, Gen. Ord., 
November, 1862 ; tlie rule is that they may attend the 
proceedings and have notice thereof, but only at their own 
expense. 

By s. 12 of the Companies Act, 1867, 30 & 31 Yict. c. 
131, the Court may in any proceedings under that Act 
make such order as to costs as it deems fit. 

As to security for casts to be given by a limited com- 
pany, see ante, p. 15 ; and as to security for costs to be 
given by a petitioner, ante, p. 17. ["As to security for costs 
of appeal from a County Court judge to a judge of the 



LANDS CLAUSES COKSOLIDATION ACT. 281 

High Court, and the costs of the appeal, see s. 43 of the 
Companies Act, 18G7. 

On an application under the Companies Arrangement Companies 
Act, 1870, the costs of all parties, except dissentient ment Act, 
creditors, have been ordered to be paid out of the estate ^^''^• 
(TiLiiis Rijs. Co., W. N. (1874), 121). 

As to taxation of costs, see Gen. Ord., r. 72, November, Taxation 
1862. The solicitor's bill of costs must be taxed by the ^ 
liquidator in a winding-up, notwithstanding more than 
twelve months has elapsed since delixery (Ex jiarte Evans, 
11 Eq. 151 ; 40 L. J. Ch. 197) ; the effect of the winding- 
up order being to suspend the operation of the twelve 
months' rule. In Re James, 4 De G. & Sm. 183, taxation 
was refused, but in that case the bill had been delivered 
twelve months before the winding-up. 



Sect. II. — Costs under Lands Claxises Consolidation 

Act. 

The Lands Clauses Consolidation Act, 1845 (8 Vict. Lands 

^ „. . , ,. . , Clauses 

c. 18), gives to public companies compulsory powers to Consoli- 

take, upon certain terms, land belonging " to parties having jgV?" •^*^*' 
limited interests, or prevented from treating, or not making 
title." Sect. 69 of the Act provides that the purchase Section 69. 
or compensation money payable for such lands, if amount- 
ing to or exceeding £200, is to be paid into the Bank in 
the iiaino of the Accountant-General,* to his account, ex 
parte the promoters of the undertaking in the matter of 
the special Act, and is to remain so until applied " In 
the purchase or redemption of the land tax, or the dis- 
charge of any debt or incumbrance affecting the land in 
respect of wliich such money shall have been paid, or 
affecting other lands settled therewith to the same or the 
like uses, trusts, or purposes ; or, In the purchase of other 

* Xow " Paymaster General." Sec 35 & 36 Vict. c. ii, a. 4. 



282 COSTS UNDER PARTICULAR ACTS. 

lands, to be conveyed, limited, and settled upon the like 
uses, trusts, and purposes, and in the same manner, as the 
lands in respect of which such money shall have been paid 
stood settled ; or, If such money shall be paid in respect of 
any buildings taken under the authority of this or the 
special Act, or injured by the proximity of the works, in 
removing or replacing such buildings, or substituting others 
in their stead, in such manner as the Court of Chancery 
shall direct ; or, In payment to any party becoming ab- 
solutely entitled to such monc}-." 

Trustees with a power of sale are persons "becoming 
absolutely entitled " under this section (In re Gooch's 
Estate, 3 Ch. D. 742 ; Tn re Hohson's Trusts, 7 Ch. D. 
708 ; 47 L. J. Ch. 310 ; 26 W. R. 470 ; 38 L. T. 365). 
Section 80. The 80th section of the Act provides that " In all cases 
of monies deposited in the Bank under the provisions of 
this or the special Act, or an Act incorporated therewith, 
except where such monies shall have been so deposited by 
reason of the wilful refusal* of any party entitled thereto 

Wilful * A " wilful n-fiisal " is a refn<ial arising from an cxeroise of mere will or 

refu.sal. caprice, and not from an exercise of reason — per Vicc-f-'hancellor of 
y.uglixnd in Ex jHoir Lradslunr, 16 Sim. 174, where a landowner having 
refused to accept purchase-money awarded to be paid to him by a railway 
company, because he believed the award (which was afterwards decided to 
be valid by the Queen's Bench, Imt only after a long argument and after 
judgment reserved) to be invalid, was held not to have been guilty of a 
" wilful refusal " within the section, and see Ex parte Lairson, 17 W. K. 
186. A similar decision was come to by Y. C. Kindersley in Ex parlc 
Jiailslo)), 15 Jur. 1028. In that case, a railway company having sum- 
moned a jury, the landowner, being advised that notice had not been pro- 
perly served on him, did not appear, and the damages having been assessed 
in his absence were paid into Court ; it was held that the landowner was 
entitled to the costs of an application to have them paid over to him. 
See, too, Re JFindsor, Stahics, «t South Wcsta-n Jlailicaij Act, 12 Bcav. 
522, and Ex parte Dashicood, 3 Jur. N. S. 103, where a landowner, being 
advised by counsel that certain companies had no right to take his land, 
refused to sell, and was nevertheless held entitled to his costs. "Where a 
vendor cannot make a clear title by reason of his not having paid off in- 
cumbrances of a larger amount than the land taken, he is clearly not 
guilty of a "wilful refusal" {Ex parte Divers, 1 Jur. N. S. 995). Js^or is 
the failure of the veydor to procure his incumbrancers to concur in a 



LANDS CLAUSES CONSOLIDATION ACT. 283 

to receive the same, or to convey or release the lands in 
respect whereof tlie same shall be pa3'able, or by reason 
of the wilful neglect* of any party to make out a good title 
to the land required, it shall be lawful for the Court of 
Chancery in England or the Court of Exchequer in 
Ireland to order the costs of the following matters, 
including therein all reasonable charges and expenses 
incident thereto, to be paid by the promoters of the 
undertaking ; (that is to say), the costs of the purchase 
or taking of the lands, or which shall have been incurred 
in consequence thereof, other than such costs as are 
herein otherwise provided for, and the costs of the 
investment of such monies in government or real securi- 
ties, and of the reinvestment thereof in the purchase of 
other lands, and also the costs of obtaining the proper 
orders for any of the purposes aforesaid, and of the orders 
for the payment of the dividends and interest of the 
securities upon which such monies shall be invested, and 
for the payment out of Court of the principal of such 
monies, or of the securities whereon the same shall be 
invested, and of all proceedings relating thereto, except 



petition to the Court for the investment of the fund " a wilful default " 
{Ibid.). See, too, cases cited ^ws^. 

But where a vendor insisted upon payment, not only of the purchase- 
money, but of his costs also, before he gave up possession, and the com- 
pany consequently paid the purchase-money into the bank under the 76tli 
section of tlie Act, V. C. AVood, on a petition to obtain payment out of 
the money, held that the vendor had been guilty of "wilful refusal," and 
had thus disentitled himself to receive costs {Kc Turner s Estate, 10 W. R. 
128). The vendor Avas also ordered to pay the costs of calling in the 
sheriff to give possession {ibid.). In another case where the money was, by 
reason of the vendor's " wilful refusal " to convey, paid into Court under 
the 76th section, a petition by the vendor praying costs against the 
company was dismissed with costs {Ex parte Hyde, V. C. K. B. , March 
27, 1851, cited in Seton on Decrees, 4th ed., 1443). 

* Where the title was doubtful and the Company objected to it, they were wiiful 
ordered to pay the costs, there having been no wilful neglect or delay on neglect, 
the part of the owner (& Woodhurn's Trust, 13 L. T. 237). But where 
the difficulty had been created by the owner granting leases after receipt of 
the notice to treat, he wag refused his costs {Re Marylebonc Improvemeni 
Act, 10 W. R. 1058). 



284 COSTS UNDER PARTICULAR ACTS. 

sucli as are occasioned by litigation between adverse 
claimants." * 

" Except * The words " except such as are occasioneJ," &c., refer to " costs " not 
such as are ^^ << proceedings " {^vr Lord Justice Turner, in Ec Cant's Estate, 1 De G. 
bv liti^a- ^' ^ ^' ^^^^- "Adverse litigation arises where diflferent parties set up 
tion."*' adverse titles to the estate" {Askew v. JVoodhcad, 14 Ch. D. 27, jicr 
Jessel, M. R. ). The usual form of order (on which sec Seton on Decrees, 
1441, 4th cd., and see Ex iiorte Ilnoju'r, 1 Drew. 269), directs the com- 
pany "to pay the costs of obtaining this order, &c., and of all the pro- 
ceedings relating thereto." " Notwithstanding what is stated in He Cant, 
1 D. F. & J. 159, and Re Courts of Justice Commissioners, ^V. N. (68), 
124, it is not and has not been, the practice to insert the exception as to 
the costs of litigation between adverse claimants, unless it appears or is 
suggested that some litigation has taken place ;" Seton, ubi sup. In a 
simple case the order should specify what costs fall within the exception 
{ReLonfjvorlh's Estate, I K. & J. 1 ; lie Toolri/'s Estate. 16 Jur. 608 ; Ex 
imrte Collins, 15 L. T. 0. S. 362). And see further as to form of order 
Re IlayicanVs Estate, 9 L. T. 320 ; Ex jxtrtt Great Southern d: Wcstrrn 
Ry. Co., Ir. K. 11 E(i. 497. 
What costs The exception only aii2ilies where there is an actual litis contestatio {Re 
are within Sjwoncr's Estate, 1 K. & J. 220; Re Ilunrjer/ord's Trusts, Id. 413; Ex 
exception, parte Hooper, I Drew. 264). Costs incident to the ordinary administration 
of a fund by the Court, e.g., the costs of an inquiry how much of a fund 
belongs to a mortgagor, and how much to a mortgagee, must be borne by 
the company {In re Bareham, 17 Ch. D. 329 ; Eden v. Thompson, 2 H. k 
M. 9). "Where the land belonged to a devisee for life with remainder to 
the testator's heirs, it was held that the company must pay the costs 
of two petitions by two co-heirs, and also the costs of investigating 
the title of other parties who claimed to be heirs, in answer to adver- 
tisements ordered to be issued by the Court, except such costs as 
were occasioned by affidavits of the petitioners in answer to such claims 
{Re Spooner's Estate, 1 K. & J. 220). A contest between tenant for life 
and remainderman as to how much of a fund belonged to one of them, and 
how much to the other, was held by Y. C. Bacon to be within the excep- 
tion, but this decision was disa])proved of by Jessel, M. R. {Askeic v. Wood- 
head, 14 Ch. D. 27 ; 41 L. T. 070; 42 L. T. 567). 

It was said by Y. C. Kindersley in Re Toolry's Trusts, 16 Jur. 708, that 
the exception was not intended to apjdy to a question of constniction 
decided by the Court upon petition, but to a case where an action at law 
was necessary to decide the rights of the parties. See, too, Ex jMrte 
Falmer, 13 Jur. 781, where V. C. Shadwell laid down that "the excfp- 
tion in the Act was intended to ajjply to such a case as where an action of 
ejectment has been brought by one claimant of land against another ;" 
Re Singletoyi's Estate, 11 W. R. 871, where it was said that the mere fact 
of difticulties occurring in ascertaining who were the parties entitled to the 
money in^Court, did not bring the case within the exception ; Re Wilson, 
W. N. (1867), 110. But where the petitioner, although there was no 
actual hostile litigation, was obliged to bring parties before the Court to 



LANDS CLAUSES CONSOLIDATION ACT. 285 

la cases of doubt, the Court, having regard to the large General 

lies ; 
ists 1 
80. 



compulsory powers given to the Company by the Act, ^^^^^ ^j^^ 



contest questions with him he paid their costs, though the general costs 
were borne by the company {Ex parte Cooper, 13 W. K. 36 i ; 2 Dr. & Sra. 
312 ; 34 L. J. Ch. 373 ; 11 Jur. N. S. 103 ; 11 L. T. 661). 

Where a question arising on the construction of a will relating to the 
property taken was argued by the petitioner and the respondents, the 
company was only ordered to pay one set of costs [Ex jxirtc Styan, Johns. 
387 ; Eximrtc Yates, 17 W. R. 872 ; 20 L. T. 940 ; W. N. (1869), 150). 
Tn another case, an additional application having been rendered necessary 
by litigation, no order as to costs was made thereon [Re JolUffe, 3 Jur. N. 
S. 633). But in Oarpmacl v. Proffitl, 23 L. J. Ch. 165, it was held that 
the fact of a second petition being rendered necessary by the investment 
of the purchase monies in other lands sold in a pending suit did not bring 
the case within the exception in the Act (see cases cited, post). 

When a company has, by virtue of two difterent Acts, taken two pieces 
of land held under the same title, with knowledge that such title is dis- 
puted, and taken a conveyance from both claimants, it must pay the costs 
of two petitions for investment, including the costs in each case of the 
appearance of the adverse respondents {Re ButtcrficJd, 9 W. R. 805). But 
where two parties claimed the money and the company paid it into Court, 
and one of them abandoned his claim, the company were held not liable 
for the costs of paj-ment in or of the petition by the other for payment out, 
the Court doubting indeed whether the company were not in strictness en- 
titled to have their costs paid by the claimant {Re. English, 13 W. R. 932 ; 
12 L. T. 561 ; see, however, I)id-e of Xorfulk's Estates, 22 W. R. 817). In 
Ee Bagot, 10 W. R. 607, V. C. Kindersley, upon a special Act containing 
clauses as to costs substantially the same as those in the Lands Clauses Con- 
solidation Act, decided that the company must pay all the costs of a 
petition to obtain payment of money out of court, involving a question of 
disputed conversion, except the costs of the petitioner and of a res])ondent, 
both of whom had failed in their contentions. 

The costs of a suit rendered necessary by the death of a vendor leaving Costs of 
an infant heir or devisee, are Avithin the exception (Armitagc v. Askham, suit, &c., 
1 Jur. N. S. 227 ; Eastern Counties Railway Company v. Tufncll, 3 Rly. rendered 
Ca. 133). See, too. Purser v. Darhy, 4 K. & J. 41 ; Cresswcll v. Haines, necessary 
8 Jur. N. S. 208 ; and Scott v. Scott, 11 W. li. 766, where no costs were o[Yen^,}or 
given ; Lomlon <k South Western Railway Company v. Bruhjer, 4 N. R. leaving 
261 ; Ex parte Cave, 26 L. T. (0. S.) 176. In the earlier case oi Midland infant^heir 
Counties Railway Company v. Wcstcomb, 11 Sim. 57, the costs of a suit by or devisee. 
a company for specific performance occasioned by the death of a vendor 
intestate and leaving an infant heir, were ordered to be paid out of the 
purchase-money. Comp. Midland Counties Railway Comjmny v. CaldC' c^stg of 
cott, 2 Rly. Ca. 394. So where the legal right of admittance to copy- proceed- 
holds taken by the company was outstanding in the heir of an infant ings under 
trustee, the company was held not to be liable to pay the costs of a poti- Trustee 
tion under the Trustee Act to obtain a conveyance from the heir {Re '^ ' 
South Wales Railway Company, 14 Beav. 418 ; but see la re Liverpool 



28G COSTS INDER K\RTIcrLAK ACTS. 

leans towards making the company pay the costs (see 
observations of Lord Lyndhurst in Ex 'parte Marshall, 
1 Ph. oGO ; of V. C. Stuart in Re Jones' Settled Estates, 
4 Jur. N. S. 581 ; and of Lord Langdale in Re Hull and 
Selhy Ry. Co., 5 Ry. Ca. 458). The section applies 
■whether the money is deposited under the earlier or the 
subsequent clauses {Ex parte £ lower, 1 Ch. 599) ; but 
does not authorise an order for payment of costs out of 
any particular fund {Re Keatk cO Brecon Ry. Co., 9 Ch. 
203). 

What costs The following costs have been held to be payable by 

CWpanv. ^ ^''C Company under this Act. 

The costs of a petition to invest the j^urchase-monies of 
glebe land in the erection of a new parsonage house {Re 
Incumhent of WhUfidd, 9 W. R. 7G4 ; IJ. & H. 010), or 
in improviug and adding to an old one {Ex parte Rector of 
Claypole, 16 Eq. 574) ; or in tlie drainage of glebe lands 
{Re Vicar of Queen Camel, 11 W. R. 503) ; or in the 
erection of farm buildings on the remainder of the glebe 
\ixYn}i {Ex parte Rector of Bhipton , 19 W. R. 549 ; Ex parte 

Im2:rovcment Act, 5 Eq. 2S2, where Lord Roniilly liimself ovemilccl this 
decision, and made the company pay the costs of taking out administration). 
"Where, however, freehokl lands had been taken hy a railway company from 
the transferee of fi deceased mortgagee, whose heir conld not be found, it 
was held that the company were, under this section, bound to pay the 
costs of a petition by the vendor for the appointment of a person to convey 
under the Trustee Act, 1850 [Re Nash's Estate, 4 AV. K. Ill; and see 
E( Manchester tC- Sonthport Raihcay Company, 19 Beav. 365 ; Re Lowrys 
Will, 15 Eq. 78) ; seciis if there has been a special agreement that the 
company should pay all costs and expenses " of and incidental to the con- 
veyance " {Lakcv. Eastern Counties Railway Company, 19 L. T. (0. S.) 
323). 
Costs "Where an estate was limited to "B. for life, with remainder to his first 

occasioned ^^^^ other sons in tail, with remainder to B. in fee, and B. devised all his 

, ■ • real estate in strict settlement, and after the date of the will a company 

uevisiiig ' c , i 

lands in purchased part of the estate from him under the powers of the Act, it was 

strict held on B.'s death without issue, that the company must pay the costs of 

settlement, investing the purchase-money in real estate to be settled to the uses of the 

will {Re Be Reauvoirs Settled Estates, 2 De G. F. k J. 5, reversing S. C. 8 

W. R. 625, Y. C. K.). A doubt was expressed as to whether if B. had died 

intestate his heir-at-law would not have been entitled to an investment in 

land at the expense of the company. 



LANDS CLAUSES CONSOLIDATION ACT. 287 

Redo,' of Gamston,! Ch. D. 477; Ex im He Rector of 
Holywell, 27 W. R. 707) ; the costs of an application to 
lay out the money in rebuilding {Re Thorner's Charity, 
12 L. T. (0. S.) 266 ; Ex imrte Dean and Chapter of 
Canterbury, 10 W. R. 505; comp. Re Partington's Trusts, 
11 W. R. 160); or of erecting temporary accommodation 
buildings (Re St. Thonms's Hospital, 11 W. R. 1018 ; but 
see contra, Re RudyercVs Trusts, 2 Giff. od-i, and other 
cases cited below) ; the costs of an application by trustees 
of a charity for payment to them of the fund to be 
applied in improving the water supply of their town (Re 
Lathropps Charity, 1 Eq. 467) ; the costs of a petition to 
enfranchise copyholds, and of the proceedings connected 
therewith {Dixon v. Jackson, 25 L. J. Ch. 588); of a 
power of attorney to take the money out of Court (Re 
Godley, 10 Ir. Eq. R. 222 ; Ex parte Incumbent ofGwilden 
Sutton, 8 De G. M. & G. 380 ; 2 Jur. N. S. 793) ; of an 
application for payment out to the trustees of a settlement 
of a sum for advancement {Re Curwens Settlement, \V. N. 
(1880), 83); of redeeming the land tax (Re London d- 
Brighton, dx., Ry. Co., 18 Beav. 608 ; 23 L. T. (0. S.) 
216 ; Re Vicar of Queen Camel, 11 W. R. 503; Ex parte 
Beddoes, 2 Sm. & G. 406 ; In re Bethlem Hospital, 19 
Eq. 457 ; 44 L. J. Ch. 406 ; 23 W. R. 644, where the 
cases are discussed by Jessel, M. R. ; Ex parte Hosjntal of 
St. Katharine, 17 Ch. D. 378) ; the brokerage payable to 
the Accountant-General on the investment of the purchase- 
money in stock (Ex parte Braifhivaite, 1 Sm. & G. App. 
XV. ; Ex parte Earl of Ha rbo rough, 22 L. T. (0. S.) 115 ; 
Ex ixvrte Corporation of Trinity House, 3 Hare, 95) ; the 
costs of and incident to orders for obtaining payment to 
an incumbent or bishop of the dividends of stock in which 
the purchase-money had been invested (Ex parte Incum- 
bent of Guilden Sutton, 8 De G. M. & G. 380 ; 2 Jur. N. S. 
793 ; Expiarte Ecclesiastical Commissioners, 39 L. J. Ch. 
623) ; and the costs of the half-yearly sales of stock, 
representing the purchase-monies of leaseholds taken by 



^88 ■ COSTS UKDER rAHTlCULAn ACTS. 

the Company, which became necessary for the purpose of 
distribution between the tenants for life and remainder- 
men {Re LoiHjs Estoic, 1 W. R. 22G ; 20 L. T. (0. S.) 
305). 

Under an order for half-yearly sales of stock in which 
the purchase-money of leaseholds has been invested and 
payment of the proceeds and of the dividends of the rest 
of the stock to a tenant for life, and for taxation and 
payment according to the Act, the taxing master may, 
without a fresh order, tax the costs of each such sale as it 
occurs {Re Edmunds, 35 L. J. Ch. 538 ; 14 W. R. 507; 
W. N. (18GG), 111). It seems that the company are, 
under this section, liable to pay the costs of apportioning 
ground rents between houses taken by a railway company 
and those left {Ex parte Bud; 1 H. Sc M. 519, 2'>ost, 
p. 309; Ex parte Flower, 1 Ch. 599); and the costs of 
proceedings to summon a jury where the money has been 
deposited in the bank under tlie 85th section, although 
the proceedings have in the end been abandoned {Ex parte 
Morris, 12 Eq. 418). 

Where by arrangement a landowner was to be paid 
principal, interest, and costs, the taxing master was directed 
to allow all reasonable costs incurred by the vendor before 
the Parliamentary Committee {Cooper v. London, Chatham 
and Dover Ry. Co., 17 L. T. 283). 
Iiisdlvent When a company was insolvent and the vendor was 
coiniuny. (,jj^j|.|gj f^j. j^fg Qj^jy g^g rector, his costs were ordered to be 

paid out of the purchase-money {Re Glebe Lands of Great 
Yeldham, 9 Eq. G8). 

The costs of obtaining an order for investment of the 
purchase-moneys in the erection of new farmhouses {Ex 
parte Mehcard's Devisees, 27 Beav. 571), and in the 
alteration of almshouses {Re Bucks Ry. Act, 14 Jur. 10G5) 
were held not to be payable by the company ; but these 
Costs of re- decisions have not been followed. 

in^hui!! are "^^^^ Company is liable to pay the costs of a re-invest- 
p:\i.i by the ment in land, though the re-investment is asked for by a 

coinpauy. 



LANDS CLAUSES CONSOLIDATION ACT. 289 

person who has become absokitely entitled to the money 
{Re Jones, 39 L. J. Ch. 190 ; 18 W. R. 312 ; Re Dodd, 
W. N. (1871), 83; and see Re De Beauvoh-'s Settled 
Estates, 2 De G. F, & J. 5) ; or proceeds of leaseholds are 
to be invested in freeholds {Re Parkers Estate, 13 Eq. 
495 ; 26 L. T. 12) ; or in the purchase, under 14 & 15 
Vict. 0. 104, of leaseholds where the petitioners are the 
reversioners in fee {Ex parte Dean and Canons of Man- 
chester, 28 L. T. 184 ; Ex pa.rte the Bishop of London, 
2 De G. F. & J. 14 ; 2 L. T. 8G5 ; and see S." C. 3 L. T. 
224, as to form of order) ; or though the lands to be 
purchased are to be conveyed to the uses of a will {Re 
De Beauvoirs Settled Estates, 2 De G. F. & J. 5 ; and see 
Re Lyes Estates, W. N. (18G6), 20). But the company 
only pays such costs as would be purchaser's costs in an 
open contract, not costs thrown upon the purchaser by 
special agreement {Ex parte Governors of Christ's 
Hospital, 20 Eq. 605 ; Re Temple Church Lands, Bristol, 
26 W. R 259 ; and see Re Mason's Trust Estate, W. N. 
(1872) 77). The fines payable on a re-investment in 
copyholds do not fall on the company {Ex parte Vicar of 
Sawston, 6 W. R. 492 ; 4 Jur. N. S. 473). 

The costs occasioned by the application of the purchase- Costs of 
monies in the discharge of incumbrances affecting other ::^i'*'^^^'irgiiig 

- , ° o mcum- 

lands belongmg to the vendor are not mentioned in the brances. 
80th section, and in Ex jictrte The Corporation ofSheffiAd, 
21 Beav. 162 ; Ex parte Sheffield Town Trustees,8W. R. 
602 ; Ex ixirte Hardwiche, 1 De G. M. & G. 297 ; Re 
Yeates, 12 Jur. 279 ; and Re Marl's Trust,W. N. (1877), 
63, were held not to be payable by the company. See, 
however. Ex parte Trafford, 2 Y. & C. 522 ; Ex parte 
the Bishop of London, 2 De G. F. & J. 14 ; and Re 
London d- South- Western Railway Act, 2 J. & H. 390, 
where, under special circumstances, the company Avere 
ordered to pay the costs of a petition presented to obtain 
the discharge of an incumbrance. In Re Mark's Trust, 
the M. R. declined to follow Ex jiarte Trafford, but he 

u 



290 



COSTS UNDER PARTICTLAR ACTS. 



Costs of 
discntail- 
in:; deed. 



Costs 

occasioned 

by land 

taken 

being 

subject of 

suit. 



ordered the company to pay the costs of the petition and 
consequent order. 

A question frequently arose upon the construction of 
special Acts as to the liability of the company to pay the 
costs of a disentailing deed executed for the purpose of 
enabling persons entitled as tenants in tail to the land 
taken to obtain payment of the purchase or compensation 
monies to themselves. In Re jS^icholas Brooking's Devisees, 
2 Giff. :31; Ex iDarte Marshall, 1 Phil. 560; 4 Rly. Ca. 
58 ; and Ex ixirte Slaters, 5 Ry. Ca. 700, such costs 
were held to be payable by the company; and in Ex 
parte Thoroton, 12 Jur. 130 ; 17 L. J. Ch. 167, they were 
held not to be so payable. In some cases, however, it 
seems to have been thought that no disentailing deed was 
necessary {Re Watson, 4 N. R. 528; 10 Jur. N. S. 1011; 
Re Tijhlen, 11 W. R. 809 ; Re Hohlen, 1 H. & M. 445 ; 
Re South-Eastern Ry. Co., 80 Beav. 215 ; Re Tyler's 
Estate, 8 W. R. 540 ; Sowry v. Sowry, 8 W. R. 339 ; Re 
Wood's Settled Estates, 20 Eq. 372 ; Xotley v. Palmer, 1 
]<]q. 241 ; Re Rovj, 17 E(|. 300) ; but these cases must 
now be considered overruled ; see Re Reynolds (C. A.), 3 
Ch. D. Gl ; Re Butlers Will, IG Eq. 479 (Lord Chancellor 
Selborne) ; Re Korcop's Will, 31 L. T. 85 (V. C. B.) ; Re 
Broadwood's Settled Estates, 1 Ch. D. 438 (Jessel, M. R.) ; 
Ex parte Smyth, Ir. R. 10 E(|. GG, Avhere the cases are 
discussed. In Re Watson, Re Tyhlen, and Soivry v. 
Soivry, the fund was under £200, but the principle would 
appear to be the same whatever the amount. It follows, 
therefore, that the company must pay the costs of a disen- 
tailing assurance {Ex pa rte Vaudrey's 7'riists, 3 Gitf. 224). 

It often happens that lands taken by a railway com- 
pany are the subject of a suit pending in the Chancery 
Division. In such cases a question arises as to how far 
the company are bound to pay such additional costs as 
may have been occasioned by the pending of the suit. 
There can be no doubt that, subject to the rules here- 
after laid down as to costs of unnecessary services and 



LANDS CLAUSES CONSOLTDATlON ACT. 291 

appearances, the compaii}' are bound to pay all such 
costs. 

Thus, in the leading case of ILnjnes v. Barton, 1 Drew. 
& Sm. 48.3 ; 9 W. R. 777, where land which formed the 
subject of a suit was taken by a railway company, and a 
petition was presented in the suit and also in the matter 
of the Act for the reinvestment of the purchase-money 
(which had been paid into Court), the company were 
ordered to pay the costs of the tenant for life and of the 
persons interested in remainder in the land taken by them 
who were parties to the suit and served with the petition ; 
and they were also ordered to pay the costs of former pro- 
ceedings in the suit which had been occasioned b}' the 
company's taking the kind ; and see S. C. 1 Eq. 422 ; 35 
L. J. Ch. 2.33 ; 14 W. R. 257 ; 1.3 L. T. 787. Again, in 
Dinning v. Henderson, 2 De G. & Sm. 485, on a petition 
presented by the plaintiff in the cause, asking that the 
fund might be transferred to the credit of the cause, the 
company were ordered to pay all the costs of the applica- 
tion, including the costs of the parties to the cause who 
had been served and appeared. See, too. Ex i^arte Baroness 
of Braye, 11 W. R. 333. The same course was pursued 
by Lord Langdale in Re the Hull d' Selhy Rij. Co., 5 Rly. 
Ca. 458 ; and comp. Carpmael v. Froffiit, 23 L. J. Ch. 1G5 ; 
Re Long's Estate, 12 W. R. 460; Henniker v. Chafy, 28 
Beav. G21. See, however. Re Pictons Estate, 3 W. R. 
327 ; and Hove v. Smith, 14 Jur. 55, where V, C. Knight 
Bruce is reported to have said that the company must pay 
only such costs as they would have paid if the petition had 
been presented in the matter of the Act and not in the 
cause. This decision, as pointed out by V. C. Kindersley 
in Ha.ynes v. Barton, 1 Drew, k^ Sm. 491, seems opposed 
to Dinning v, Henderson, cited above. The cases of 
Melting v. Bird, 22 L. J. Ch. 599 ; 17 Jur. 155 ; and Re 
Picton's Estate, 3 W. R. 327, are no exceptions to the rule 
laid down in Dinning v. Henderson, as all that was de- 
cided in those cases was, that the company were not bound 



292 COSTS UNDKR PARTKUI-AR ACTS. 

to pay the costs of parties who had l)eon ! m j > mjie rh/ ■served. 
As to this, see infra. 
Costs of I>^ ^ case before V. C. Wood, E<Jeu v. Thompson, 2 H. & 

references, M. 6 ; 4 N. R. 87 ; 12 W. R. 7o0, it was stated that in future 
it would be unnecessary for a plaintiff moving to transfer 
a fund paid into Court under the Act to the credit of a 
cause to serve the defendants, and it was intimated that 
the costs of serviniif them would not be allowed against 
the company. But where a petition was presented for 
transfer of the fund to the credit of a cause, all the costs of 
the petition, including the costs of the appearance of 
the respondents, the defendants in the suit, were ordered 
to be paid by the company (7^^' A</tims' Estate, W. N. 
(1871) 1.59). 

In Pint I'd v. M'ltchcU, 12 Beav. 48C, where the lands 
taken were_tlie subject of an administration siik, in Avhicli 
persons under disability were interested, and a reference 
Avas directed to the Master as to which course would be 
most beneficial for the parties interested, the company- 
were ordered to pay all the costs of the j)etition and the 
reference. The case oi Pi card \. Mitchell was followed in 
Henniher v. Chafy, 28 Beav. 821. In that case, land, the 
subject of an admini.'?tration suit, having been taken by a 
com^Dany under their compulsory powers, several proceed- 
ings and applications were taken and made in the suit 
with reference to the propriety of the sale, to which proceed- 
ings and applications the company were not parties. The 
Court held that the company were bound to pay the costs 
of all parties of obtaining the several orders in the suit, 
including all reasonable charges and expenses incident 
thereto and the costs of an application to transfer the fund 
into the suit. See also an unreported case of Lord Egre- 
mont\. Thompson, before V. C. Kindersley, Nov. 1858, 
cited 28 Beav. 625, where the costs of a reference in the 
cause to ascertain whether the purchase was proper, and 
the costs of the appearance of all parties to the suit and of 
a mortgagee on an application to invest the purchase- 



LANDS CLAUSES COXSOLIDATIOX ACT. 293 

money in bank annuities, were ordered to be paid by the 
company. In Pa.terson v. Paterson, 3 N. K 657 ; 10 L. 
T. 183, the company were ordered to pay the costs of the 
remaindermen not parties to the suit, but served with a 
copy of the bill. See, too, Brandon v. Brandon, .5 N. R. 
214; Ex parte Cooper, 5 N. R 233. 

In another case, the committees of a lunatic contracted Costs of 
with the company under the Act for a sale of part of the &e.*^ir'^'*" 
hmatic's land, and a reference was directed to the Master lui^acy. 
to enquire into the propriety of the contract. The Master 
having reported in favour of the contract the committees 
presented a petition to confirm the Master's report. It 
was held that the company were liable to pay the costs 
both of the petition and the reference {Re Taylor, 1 Mac. 
& G. 210). See, too, Re W<dker, 7 Ry. Ca. 129, where 
the costs of the appearance of the lunatic's heir were 
allowed against the company ; Re Brhcoe, 2 De G. J. & S. 
24.9 ; 4 N. R. 311, where the costs of the next of kin were 
allowed ; and Re Mllnes, 1 Ch. D. 28. 

The rule which requires the compan}^ to pay all the Costs of 
costs occasioned by the fact of the lands taken beiucj the flj^'^^ 

•' o geiieraJly. 

subject of a suit, has entailed considerable hardship upon 
Companies, who, in cases where the parties to the suit have 
been numerous, have frequently been called upon to pay 
costs to an amount tar exceeding the value of the land 
taken. To renied}^ this hardship, certain salutary rules 
have been laid down with regard to service and appearance 
on petitions under the Act. 

Thus, when the plaintiff's who were entitled to one-tenth 
of a testator's estate presented a petition for a transfer of 
the fund to the credit of the cause and served the trustees 
and the parties entitled to the other nine-tenths, who 
appeared by four separate solicitors, the Court, on the 
ground that such appearance was oppressive, refused to 
make the company pay any costs except those of the peti- 
tioner and the trustees {Melling v. Bird, 22 L. J. Ch. 599 ; 
17 Jur. loo ; see, too, Halre v. Ler'dt, 12 L. T. O. S. 307j. 



294 COSTS INDER PARTICULAR ACTS. 

In another case {Sidney v. Wilmer, 31 Beav. 338) on a 
petition to transfer the fund into the cause and to accu- 
mulate the dividends, the company were held only bound 
to pay the costs of the petitioners and the costs of serving 
the i-espondents, but not the costs of their appearance, on 
the ground that although served they ought not to have 
appeared. See, however, Be Lung's Estate, 12 W. R. 4G0 ; 
and Re Prebend of St. Margaret, Leicester, 10 L. T. 221. 
In the latter case a respondent who had refused to join in 
the petition, was ordered to pay his own costs. 
Costs of Upon a petition by a tenant for life for investment of 

reinaincler- purchase mouies paid into Court by the company, and 

men, tnis- payment to him of the dividends, the remaindermen need 
tees &c. 

not be served {Ex parte Sta plcx ; Re Browne^ 1 De G. M. 

& G. 294) : and if a remainderman is served and appears, 
the costs of his appearance will not be allowed against the 
company {Re Bowl lug's Trusts, 45 L. J. Oh. 5(j8 ; 24 W. R. 
729 ; Wilson v. Foster, 20 Beav. 398; and see Re Legges 
Estate, 8 W. R. 559; but compare Re Baroness of B rage, 
9 Jur. N. S. 454) ; imless perhaps an extraordinary invest- 
ment is asked for {Be Doiding's Trusts), or the remain- 
dermen are " parties interested " under s. 74 {Re Crane's 
Estate, 7 Eq. 322 ; Re Brailey, W. N. (186G), 109) ; and 
see Be Bomney, 3 N. R. 287. When the petition is for 
reinvestment, not in land or hereditaments, but in improve- 
ments, the remaindermen should be served {Be Leigh, 6 
Ch. 887). As to trustees, the rule seems to be different 
(see Ex ^:)«r^e The East Norfolk By. Co., cited and fol- 
lowed by V. C. Kinderslcy in Be The Duke of Cleveland's 
Harte Estates, 1 Drew. & Sm. 48, overruling, on this 
point, Wilson v. Foster, ante, where the costs of the 
trustees were disallowed against the company, comp. Be 
Burneirs Estate, 12 "W. R. 568) ; and the company must 
pay their costs if they have been properly served and have 
appeared {Be Find/, 14 W. R. 472 ; Henniher v. Chafy, 
85 Beav. 124 ; and see Ex parte Metropolitan By. Co., 16 
W. R. 997; \V. N. (1868), 204). But as a general rule 



LANDS CLAUSE.S CONSOLIDATION ACT. 295 

where the trustees' interests are not affected, and their 
appearance is unnecessar}^, 428. only will be allowed, which 
should be tendered as directed by R S. C. (Costs) Sched, 
r. 17, see ante, p. 68. In Re Pidti^on's Estate, 4 Ch. 
D. 207, on a petition for payment out of a fund in Court 
three guineas were, under the circumstances, allowed to- 
wards the costs of trustees. See also Ex parte London 
l^ South Western Ry. Co., 38 L. J. Ch. 527, where the 
company were petitioning for payment out, Wilson v, 
Foster, 2(3 Beav. 398. Where the money might have been 
paid out of Court on the petition of the tenant for life, 
but for the convenience of persons entitled under a settle- 
ment it was wished to deal with the money in a special 
manner under the provisions of a private Act of Parlia- 
ment, it was held that the costs of the trustees and 
remaindermen under the settlement, who had been served, 
were not payable by the company (Re Boives Estate, 4 N. 
R 315 ; 12 W. R 929). 

A distinction was taken by V. C. Kindersley in Brad- Distiuction 
skaiv V. Fane, 1 N. R 159; 9 Jur. N. S. 1(36, between a f^^J^^j 
fund standing to the credit of the matter of an Act of standing to 
Parliament, and a fund standing to the credit of the cause, of a cause. 
whether generally or to a separate account, as well as to 
the credit of the matter of the Act. In the latter case it 
was said that all the parties to the cause must be before 
the Court on a petition to reinvest the fund, and the com- 
pany must pay their costs. See, too, Re Brandon's 
Estate, 2 Dr. & Sm. 162 ; 32 L. J. Ch. 20 ; 9 Jur. N. 
S. 11; but comp. Eden v. Thompson, 2 H. & M. 6 ; 4 N. 
R 87 ; 12 W. R 759. Where the purchase-money has 
been paid into the usual account, and afterwards trans- 
ferred to the credit of a suit to an account not intituled 
in the matter of the Special Act, there is no jurisdiction 
to make the company pay the subsecpient costs of payment 
out {Fisher v. Fisher, 17 Eq. 340; Brown v. Feniuick, 35 
L. J. Ch. 241 ; W. N. (1866), 7; 14 W. R 257) ; and if the 
petitioner serves the company in such a case the service is 



296 



COSTS UNDEIl PARTICULAR ACTS. 



Costs of 
teiiiint fur 
life which 
are not 
pnya^ile 
by the 
company. 



Costs of 
Bcrving 
mort- 
ga^'ccs. 



improper, and he will be ordered to pay the company's costs 
{Pre.scott V. Wood, 37 L. J. Ch. 691 ; W. N. (1868), 123). 
In a recent case {Xock v. Xod; W. N. (1879), 125), the 
money was paid into Court to the general credit of the 
suit, and to an account not intituled in the Lands Clau.ses 
Act or the special Acts of the company, it being agreed 
that the company should pay the costs of obtaining the 
order for payment in, but no further costs, except such as 
they might be liable for \mder the Lands Clauses Act. 
On a petition in the suit for dealing with the purchase- 
money in Court, a.skiug that the company might, pursuant 
to the agreement, pay the petitioner's costs of the petition 
as under the Lauds Clauses Act, and the costs of the 
jDurchase and conveyance, Fry, J., held that he had no 
jurisdiction to make any order against the company, and 
dismissed the petition as against them with costs. 

Where a tenant for life has incurred costs and expenses 
which the company is not bound to pa}?-, they may be ordered 
to be paid to him out of the purchase money in Court 
(Be Stndhrnore E.^to.t(?s, 18 Eq. 338 ; lie Aubrey, 17 Jur. 
874 ; 1 W. R. 404 ; Re Earl of Berkeley s Wdl, 10 Ch. 
56 ; Be Ohlharas Estate, W. N. (1871), 190). ;, 

The following rules seem to be now established as to 
service upon mortgagees and incumbrancers, and the costs 
of such service. Where there are incumbrancers who as a 
matter of form arc necessary parties but who have no 
interest in opposing the petition, the proper course is to 
serve them with a copy of the petition, and tender them 
42s. for costs of obtaining advice as to whether their 
appearance is necessary ; if they subsequently appear it is 
at their peril as regards costs. The rule applies equally to 
petitions for re-investment in land and to petitions for 
payment out of Court to jDcrsons entitled subject to the 
incumbrances ; and the petitioners will be entitled to add 
to their costs of the petition, in addition to the 42s., a 
sum sufficient to cover the costs of an affidavit of service, 
for which purpose 23^. has been considered a fair sum ; 



LANDS CLAUSES CO^'SOLIDATION ACT. 297 

see In re Gore Langfon's Estates, 10 Cli. 328 ; 44 L. J. Ch. 
405, 23 W. it. 842 ; 32 L. T. 785 ; In re Hahtead 
United Charities, 20 Eq. 48 ; Ex parte Jones, 14 Ch. D. 
624; a case under the Artizans Dwelliugs Act, 1875 ; 
R. S. C. (Costs) Sched. r. 17; and cases cited aiite, 
p. 68. These are the only costs (in addition to the costs 
of the petitioners) which the company can be required to 
pay. In Be Hatfield, 29 Beav. 370 ; 32 Beav. 252, the 
company was held not to be liable to pay any of the mort- 
gagee's costs ; but that is not the rule now [E:c parte Jones; 
and see Re Brook, 30 Beav. 233 ; 10 W. K 35; Me Thomas, 
12 W. R. 546). The earlier cases were conflicting. 

The company are not bound to pay the costs of incum- 
brancers on the interest of a tenant for life {Ex parte 
Smith, 6 Ry. Ca. 150), unless they are served at the 
instance of the company (Re Hungerford, 1 K. & J. 413), 
or their interests arc affected (Re Kash, 1 Jur. N. S. 
1082 ; and see Re Thomuis). Where the mortgagees were 
not in possession and consented to the petition the costs 
were disallowed {Re Bingham, W. N. (1868), 244 ; Re Lord 
Bexley, W. N. (1872), 188). Nor is it necessary on a 
petition for interim investment and payment of dividends 
to serve persons having charges on the inheritance 
prior to the life estate, and the costs of such parties, if 
served, will not be allowed against tlie company {Re 
Morris Settled Estates, 20 Eq. 470 ; 23 W. R. 851). It 
is clear that when a mortgage only affects part of the land, 
but not the part taken by the company, the coraitany will 
not be ordered to pay the costs of the mortgagee, if served 
{Re Yeates, 12 Jur. 270). So where a small portion of 
the estate ouly was in mortgage, and it became necessary 
to apply to the Court in a pending suit to obtain a release 
frunl the mortgagee, it was held that the company were 
not liable to pay the costs of the application {Ex parte 
Phillips, 11 W. R. 54, reversing S. C. 2 J. & H. 392). 

The costs of a mortgagee, whose incumbrance has been 
created after the lauds were taken and the money paid 



293 COSTS UNDER rARTICULAR ACTS. 

into Court are not payable by tlic company {Re Middle 
LcL'el Drainage and Xavig(diou Cummissioners, June 23, 
1864, Y. C. K. ; Re Jones's Trust, 39 L. J. Ch. 190 ; 
18 W. R. 312.) 
Other Where the mortgagee of a tenant for life of lands taken 

persons. ^y ^ railway company dies, and the mortgagor and the 
executors of the mortgagee petition for payment of the 
dividends to a transferee of the mortgagee, the company 
are not liable to pay the costs of the petition {In re 
Byrom, 5 Jur. N. S. 201 ; 7 W. R 3(57). 

Where the purchase monies of leaseholds were ordered 
to be carried to the account of two lessees, and the divi- 
dends weio ordered to be paid to one of them and the 
executrix of the other, it was held that the company, 
having been unnecessarily served with a petition for pay- 
ment of the dividends to the husband of the executrix, 
who had married, wore entitled to their costs from the 
petitioner {Kx parte Jfordrrn, 2 De G. & S. 203). Again 
if the husband of a married woman entitled for her 
separate use, who petitions by her next friend, is made a 
respondent instead of a co-petitioner, the company will 
not be ordered to pay his costs {Re OsJ)ornes Estate, 
AV. N. (1878), 170). So when the dividends of a sum in 
Court had been ordered to be paid to the trustees of a 
charity, of which new trustees were appointed, it was held 
that the company were not liable to pay the costs of a 
petition for payment of tlie dividends to the new trustees 
{Re Audenshaiv School, 1 N. R. 255). Secus, where the 
change of interest was caused by the reconstitution of the 
charity {Re Shal-esjieare Walk School, 12 Ch. D. 178). 
In Re Midland Rij. Co. 11 Jur. 1095, a party 
entitled to an aliquot share of purchase money was held 
entitled to payment out of such share, without service on 
the other persons interested, the Court holding that the 
company must be considered as protecting their interests. 
On a petition for reinvestment of the purchase monies of 
J^nd.s taken by the company in other lands; the vendors of 



LANDS CLAUSES CONSOLIDATION ACT. 299 

the second lands, having been served with, and appearing 
ou the petition, were ordered to have their costs as against 
the petitioners, but the petitioners were not to have such 
costs over again against the company {Re Dylar's Estate, 1 
Jur. N. S. 975). Again, where the purchase monies were 
invested, and the dividends paid to the tenant for life, and 
on her death her husband resettled the property, and 
presented a petition for payment to himself, it was held 
that the company were not liable to pay the costs of the 
petition {Re Pick, 31 L. J. Ch. 495 ; 10 W. K 3(35). 

But, as a general rule, where there has been a trans- TJ^^^X 

, , there has 

mission of interest, and a new order becomes necessary, beeu a 
the company must j)ay the costs {Re Jolliffes Estate, Q^igs^o„ „£ 
9 Eq. 668 ; Re Shakespeare Walk School, 12 Ch. D. 178) ; interest. 
and see Re Lye's Estates, W. N. (1866), 20 ; 13 L. T. 
664 ; Ex parte Manchester Burial Board, W. N. (1866), 
117. Where the petition was for payment of the divi- 
dends to new trustees of a settlement, the original petition 
having been defective, no order was made as to costs {Re 
Fryors Settlement, W. N. (1876), 141 ; 35 L. T. 202) ; but 
see Re Goe, 3 W. E. 119; and In re Metropolitan Ry, 
Co. and Maire, W. N. (1876), 245, and post, p. 305, as to 
costs of unnecessary and defective petitions). 

The company are not liable to pay the costs of a jjeti- 
tion to pay money to a party who by arrangement between 
the parties only has been nominated as the hand to receive 
it {Ex parte Baroness of Braye, 11 W. R. 333). 

As to the costs of serving the ordinary, and of his Ordinary. 
appearance on the petition where his consent is required, 
see Ex parte Vicar of Creech St. Michael, 21 L. J. Ch. 
677, where such costs were allowed ; but compare Ex 
parte Bishop of London, 2 De G. F. & J. 14, where the 
costs of the Ecclesiastical Commissioners, whose consent Ecdesias- 
was necessary to the investment, and Re Incumbent of ■ 



imssioners. 



Whitfield, 1 J. & H. 610 ; 9 W. K 764, where the costs of Governors 
the governors of Queen Anne's Bounty were disallowed AnueT" 
against the company. In Ex parte Dean and Canons bounty, 



30O COSTS UNDER PARTICULAli ACTS. 

Church of Manchester, 28 L. T. 184, tlie costs of the Church 
Estates J^^tatcs Commissioners were ordered to be paid out of the 

missicner.«. funds in Court. 

Tenants in Tenants in common interested in money paid into 
common. Q.Qyxvi by a company are entitled to their costs of appear- 
ing separately on an application l)y one of them for pay- 
ment of the money to an incumbrancer of the whole {Re 
Braye, 9 Jur, N. S. 454). 
Attorney- The costs of the Attorney-General on a petition entitled 
aencrai. under Sir S. Romilly's Act, .52 Geo. III., c. 101, are pay- 
able by the company {Re London and Brighton, d-c, 
Ry. Co., 18 Beav. 008). 

,,r, Where lands are taken bv several companies, the costs 

\\ here -^ ^ . 

severai of a petition fur payment out of the jHirchase monies 
costs^oT^^ ' must be borne by the companies, or, if any of them have 
payment |)Gen amalgamated, by sucli of them as are subsisting at 

out borne . .... ,, ,^ , 

equally. the time of the application in equal shares {±^x parte 
Co.sts of Ga^Ml, 2 Ch. D. 360 ; 45 L. J. Ch. 368 ; 24 W. R. 752 ; 
meutr'*' ^^ V^^'>'f^ Ecclesiastical Commissioners, W. N. (1873), 
as a general 173). And the same rule applies in general to the costs 
iiorne of a petition for re-investment in land, except that the 
equally, costs of the od valoreni stamp on the conveyance must be 
borne by the companies rateably, according to the amount 
contributed by each to the purchase monies {E.v parte 
Bishop of London,'! De G. F. & J. 14 ; Re Maryportand 
Carlisle Ry. Co., 1 N. R. 506; 11 W. R. 410 (S. C. 32 
Beav. 397; 1 N. R. 545; 11 W. R. 507, contra, is over- 
ruled) ; Ex parte Corpus ChHsti College, Oxford, 13 Eq. 
334 ; Re Leigh's Edate, Ch. 887 ; Ex parte Governors 
of Christ's Hospital, 27 W. R. 458 ; Re Byron's Settled 
istates, 1 De G. J. & S. 358 ; 2 N. R. 294 ; 8 L. T. 562 ; 
Re Merton College, 1 De G. J. & S. 361; 3 N. R. 598; 
10 Jur. N. S. 223 ; 12 W. R. 503 ; 10 L. T. 8 ; Ex parte 
Governors of Christ'^ Hospital, 2 H. & M. 166 ; London 
and Brighton Ry. Co. v. The Shropshire Ry. Co. 23 
Beav. 605) ; and a surveyor's fee will be apportioned in 
the same way us the costs of the ad valorem stamp 



LANDS CLAUSES CONSOLIDATION ACT. 301 

{Ex parte Corporation of London, b Eq. 418; Re Power, 
W. N. (1876), 205). 

Where, liowever, there is great inequality in the but may 
amounts, such as would produce extreme hardship and ^° ^^^' , 

. . . , . •■ portioned 

injustice, tiie costs may be apportioned {Ex parte Governors where 
of Bartholomeivs Hospital, 20 Eq. 869; Ex parte ^^^\^^^^^ 
Christ Church, 9 W. R. 474 ; Ex parte Governors (f St. 
Thomas's Hospital, 7 W. R 425 ; Re Byron's Settled 
Estates, 1 De G. J. & S. 358 ; 2 N. R 294 ; Ex parte 
Dean of Christ Church, W. N. (1872), 201 : but see Ex 
}xirte Governors of Christ's Hospitid, 2 H. & M. 166). 

Where part of tlie monies to be invested was already in 
tlie hands of trustees for investment the costs of the peti- 
tion were borne by the corporation and the trustees in 
moieties, and the costs- for stamps and surveyor's fees in 
proportion to the funds invested {RePoiver, W. N. (1876), 
205). Where there were originally three companies and 
one leased its line to another the costs were borne in 
thirds {Re Carlisle and Silloth Ry. Co., 33 Beav. 253). 

Where lands, settled in the same manner, have been 
purchased by different railway companies and the purchase 
monies paid into Court and invested, and the tenant for 
life afterwards dies, the orders directing payment of the 
dividends of the several funds to the person next entitled, 
may all be obtained upon the same petition ; and the 
railway companies will not in future be required to pay 
the costs of more, than one petition {Re Lord Brokers 
Estate, 11 W. R. 505 ; 1 N. R. 568). The point being a 
new one, however, the petitioner was not deprived of his 
additional costs out of pocket {ibid.). 

The provisions of the Lands Clauses Act as to costs Where 
have been lield to be incorporated with all subsequent cj^"^jl,gg 
Acts authorising the taking of lands {Ex parte Vicar o/ -A-ct incor- 
St. Sepulchre's, 4 De G. J. & S. 232 ; 12 W. R. 499 ; 33 IT"'^ 
L. J. Ch. 372 ; 9 L. T. 819 ; 10 Jur. N. S. 298 ; 3 N R ^^ecM 

' Acts 

594); unless such subsequent Act contains provisions in- 
consistent with such incorporation {fn re Cherry'.s Settled 



1^02 COSTS UXDER PAnTlCTLAR ACTS. 

Estates, 4 De G. F. & J. 332 ; 10 W. R. 305 ; Re St. 
Kathf vine's Dock Co., 14 W. R 978). 

Where the company was amalgamated with another 
company by an Act which incorporated the Lands Clauses 
Act, it was held that the right of the landowner as to 
costs was governed by the earlier Act {RcHoldeii's Estate, 
1 Jur. N. S. 995 ; Re KeachelVs Trusts, 3 W. R 634 ; Re 
Doncaster's Settled Estates, V. C. Wood, cited in note to 3 
W. R 635 ; and Ex parte Molyneux, 2 Coll. 273). But in a 
later case, before the Lords Justices, where monies had been 
deposited under a special Act which did not provide for 
the costs of obtaining payment out of Court of the de- 
posited monies, but which was re-enacted by a subsequent 
Act incorporating the Lands Clauses Act, the Court of 
Appeal held that the right of the landowner to costs was 
governed by the Lands Clauses Act {Re Ellison's Estate, 
8 De G. M. & G. 62, following Ex j^^trfe Eton College, 15 
Jur. 45 ; and see Re Derrimans Settlement, W. N. (1866) 
269). Where a railway company under the compulsory 
powers of the Lands Clauses Act took lands which had 
been settled by a private Act of Parliament and could 
only be conveyed to them under the powers in the latter 
Act, it was held that they were liable to costs under the 
Lands Clauses Act {Re Shuttleivorth's Estate, 4 GifF. 87 ; 
8 Jur. N. S. 1090). 
Ccsts On a petition for the payment out of Court of monies 

Comrais- ' P^i^ i^^o Court by the Commissioners of Public Works 
sioneis of q^ a purchase made under the provisions of the 9 & 10 

Works 

Vict. c. 34, which incorporates the provisions of the 3 & 4 
Vict. c. 87, the commissioners, as promoters of the under- 
taking, were held, on appeal, not to be liable, under the 
80th section of the Lands Clauses Consolidation Act, 1845, 
to pay the costs of such application {In re Cherry's Settled 
Estates, 4 De G. F. & J. 332 ; 10 W. R 305, overruling 
S. C. 10 W. E. 54 ; 31 L. J. Ch. 351). 

A transfer of a fund in Court standing to the credit of 
trustees of a charity from the trustees to "The Official 



LANDS CLAUSES CONSOLIDATION ACl'. BOB 

Trustees of Charitable Funds " in trust for tlie charity, is 
treated as a payment out of Court for the purpose of 
making the corporation who took the lands pay the costs 
of the application to transfer (Ke Bristol Free Grammar 
School, W. N. (1878), 26 ; and see Ex parte Trustees of 
Bishop Monk's Horficld Trust, AY. N. (1881), 16). 

In cases where the Special Act was dated before, and 
had not been incorporated with the Lands Clauses Act, it 
was the practice of the old Court of Exchequer to make 
the company pay costs, whether they were given by the 
Special Act or not ; see Be Bohertson, 23 Beav. 433 ; Be 
Tiverton Market Co. (No. 2), 26 Beav. 239 ; Be Gould, 24 
Beav. 442 ; Ex parte Bishop of Durham, 3 Y. & C. Exch. 
690. But the Court of Chancery was more strict, and 
held that the company could only be ordered to pay such 
costs as were provided by their Special Act {Be Land's 
Trust, 4 K. & J. 81, and cases there cited; Ex parte 
Ecclesiastical Commissioners, 13 W. E. 575 ; Be Metford, 
8 W. R. 634 ; Be Musgrave, 6 Jur. N. S. 797 ; Be Acker, 
11 W. R 182; Mitchell v. Feiuell, 3 Ry. Ca. 315; Be 
Cooke, 7 Jur. 639 ; Be Allen, W. N. (1867), 11 ; Ex parte 
Molyneux, 2 Coll. 273 ; Be Ballinrove Workhouse, 15 W. R. 
978 ; Be Strachen's Estate, 9 Ha. 185). See also Be Harri- 
son's Estate, 10 Eq. 532 ; 18 W. R. 1065 ; Be Williams 
Estate, 12 Eq. 488 ; Be Lord Stanley of Alderley's Estate, 
14 Eq. 227 ; Be St. Dunstan's Charity Schools, 12 Eq. 537 ; 
19 W. R. 887 ; Be Merceron, 7 Ch. D. 184. The cases 
of Be Tofts, 2 Jur. N. S. 131, and Ex parte Slaters, 5 
Ry. Ca. 700, turned on the special wording of the Act ; and 
the decisions in Be Saunders, 8 Eq. 681 ; Be Spitalfields 
Schools,!^ E(i. 671 ; Be Cosmi Truppo' s Estate, 18 W. R. 
800 ; and Be Edmeade, 6 Jur. N. S. 986, which were 
opposed to a long line of decisions, have not been followed. 

All costs being now in the discretion of the Court, how- Present 
ever, there seems no reason why the company should not be '"'^.'^^ ^^ 
ordered to pay them in any proper case, whether the 
special Act contains any provision to that effect or not ; 



304 



COSTS UNI>ER PARTKULAR ACTS, 



Costs of 
unneces- 
sary 
matter. 



see Ex parte Mercers' Co., 10 Ch. D. 48J ; 48 L. J. Cli. 
384 ; 27 W. R. 424, a case under the Metropolitan Paving 
Act, 57 Oeo. III., c. 29 ; and having regard to the regTets 
formerly expressed by some of the judges that they had no 
power to make the company pay the costs, it seems very 
probable that now the Courts have this power they will 
avail themselves of it. In ReMerceron, 7 Ch. D. 184, the 
M. K held that he had jurisdiction under the Metro- 
politan Paving Act itself to order payment of the costs 
of an interim investment in consols, including the costs of 
a petition for the purpose ; and see Ex parte Hospital of 
St. Katharine, 17 Ch. D. 378. 

But the Court will take care that the company are not 
put to vexatious and unnecessary costs. Thu.s, the setting 
out of the sections of the Lands Clauses Act at length in 
a petition is unnecessary and improper (JS'^.-^ko'^j Oshaldis- 
ton, 8 Hare, 31) ; and, in general, where additional expense 
has been incurred b}' the setting out of unnecessary matter 
in the petition, such expense will be made the subject of 
a reference to the Taxing M.a,ster (Ha i re v. Levitt, 12 L. T. 
(0. S.) 807; and see R S. C. (Costs) Sched. r. 18, 
ante, p. 39 ; Cons. Ord. XL. r. 9, as to costs of unne- 
cessary matter generally). It seems, however, that the 
introduction into a petition of clauses of Acts, of w'hich, 
being public Acts, the Court is bound to take judicial 
cognizance, is not necessarily impertinent (Me LiUcy's 
Tmsts, 17 Sim. 110). 

Where the purchase-money sought to be invested ex- 
ceeds the sum paid in, the Court will take care that the 
costs of the company are not increased by that circum- 
into Coui-t. stance {Re Branmer's Estate, 14 Jur. 236 ; followed in Re 
' LovehancVs Settled Estates, 9 W. R 12 ; 30 L. J. Ch. 94 ; 
overruling, it Avould seem, Ex parte Lord Palmersfon, 4 
Ry. Ca. 57 ; and Ex parte Vicar of CI a rho rough, 12 Jur. 
239); see also Ex parte Hodge, 10 Sim. 159 ; Attorney- 
Genercd v. Mayor of Rochester, 15 W. R. 765 ; W. N. 
(1867), 142; Ex parte Tetlnj, 4 Ry. Ca. 55; Ex parte 



Where 
liurohase 
money 
exceeds 



LANDS CLAUSES CONSOLIDATION ACT. 305 

King's Collecje, 5 De G. & Sm. 621 ; and Ex parte Newton, 
4 Y. & Coll. (Exch.) 518. In Ex parte Mayor, l-c, of 
Carlisle, 1 W. R 103 ; 20 L. T. (O. S.) 1G6, in which all 
costs, except the stamp duty, were ordered to be paid by 
the company, the order was made by consent. As to the 
form of an order under the section, see ante, p. 284, note, 
and Seton on Decrees, there cited. It was said by V. C, 
Kindersley, in Ex parte Eton College, 7 W. R 710, that 
the company were entitled to have the words " upon the 
approval and execution of the conveyance " inserted in the 
order. See, however, cases as to abortive investments 
cited, post, p. 308. 

The company must pay the costs of an interim invest- Costs of 
ment in stock {Re Liverpool, <tc., Raihvay Company, 17 j"terim 
Beav. 392) ; of an interim investment on real security ments. 
{Re Flemons Trusts, 10 Eq. 612 ; Re Seiuarfs Estate, 
18 Eq. 278 ; Re William Smith's Estate, 9 Eq. 178) ; and 
of an application for sale of the stock in which the fund has 
been invested and reinvestment on mortgage {Re Blytlts 
Trusts, 16 Eq. 468; 21 W. R 819 ; Reading v. Hamilton, 
5 L. T. 628). And the company must pay such costs 
without any condition as to the costs of any future per- 
manent investment {Re Blyth's Trusts (Lord Chancellor 
Selborne) ; Re Seiuarfs Estate ; the cases of Re Lomax> 
34 Beav. 294 ; Re Wilkinson, 16 W. R 537 ; and Re 
Flemon's Trusts (on this point) must be considered over- 
ruled). See also Ex 'jiarte Eton College, 15 Jur. 45; 3 
Rly. Ca. 271. 

The Court will always take care that the company are Several 
not saddled with the costs of a second unnecessary ap- petitions. 
plication {Re London d- Brighton, dc. Railway Com- 
pany, 18 Beav. 608, 612, where the Master of the 
Rolls required an affidavit to be filed explaining and justi- 
fying the presentation of a second petition). See, too. 
Re Leigh, 6 Ch. 887 ; Ex imrte Jolliffe, 3 Jur. N. S. 633 ; 
In re Byrom, 5 Jur. N. S. 261 ; Ex parte Winder, 6 Ch. 
D. 696, where two petitions liad already been dismissed 

X 



800 COSTS UKDER PARTICl'LAR ACTS. 

without costs, and the Court declined to make the company 
pa}' any costs of the third. Where two portions of a settled 
estate had been taken by different corporations and the 
purchase-money had been paid into two different branches 
of the court, and two petitions Avere presented for reinvest- 
ment of the two funds together in one purchase, the Court 
only allowed the costs of one as costs under the Act {lie 
Gore Lcmgton's Estates, 10 Ch. 328 ; 44 L. J. Ch. 405 ; 
23 W. R. 842 ; 32 L. T. 785). In Re Goe's Estate, 3 W. R. 
119, where a second petition was rendered necessary by a 
defect in the order on the first petition, the company were 
ordered to pay the costs of the second petition ; and seei^e 
Bazett, IG L. T. 279, and In re Metropolitan Ry. Co. and 
Maire, W. N. (187G), 245 ; but see Re Pryors Settlement, 
W. N. (1876), 141 ; 35 L. T. 202, where no order was made 
as to costs. Where a fresh petition is rendered necessary 
by the laches, both of the petitioner and the company, in 
not taking care that a former order was i)roperly drawn 
up, each party may be left to pay their own costs {Ex 
jKirte the Governors of Askham S Uppingliani Grammar 
Schools, 23 L. T. (0. S.) 521). Where petitioners entitled 
under a will and a settlement to the moneys paid into 
court presented two petition.s, it was held that the com- 
pany was bound to pay tlie costs of the first petition and 
five guineas only towards the petitioner's costs of the 
second petition, and three guineas for the costs of each set 
of trustees {Re Pattison's Estate, 4 Ch. D. 207). Where 
several petitions were presented for payment out by the 
different persons entitled, the costs of all the petitions 
were allowed but only one set of costs for the petitions 
presented by parties employing the same solicitor {Re 
A'icholls's Trust Estates, W. N. (1866), 93). 
Costs of With regard to the costs of several investments in land 

several ^j-^g gQ^]^-^ section of the Lauds Clauses Act contains the 

luvest- 

luents in foUowiuii" provisions : — 

'^" ■ " Provided always, that the costs of one application only 

for reinvestment iu land .shall be allowed, unless it shall 



LANDS CLAUSES CONSOLIDATION ACT. 307 

ai^pear to the Court of Chancery in England or the Court 
of Exchequer in Ireland, that it is for the benefit of the 
l^arties interested in the said monies that the same should 
be invested in the purchase of lands in different sums and 
at different times, in which case it shall be lawful for the 
Court, if it think fit, to order the costs of any such invest- 
ments to be paid by the promoters of the undertaking." 

Where the purchase-money paid in was large, the costs of 
three investments were allowed {Be St. Catherines Dock Co., 
3 Ely. Ca. 514, and see p. 513). So in Re Trustees of 
St. Barfholomew's Hospital, 4 Drew. 425, where the third 
reinvestment was of a very small sum ; and comp. Ex parte 
Eton College, 3 Ely. C. 271, but see p. 272 ; Re Brandon's 
Estate, 2 Dr. & Sm. 162 ; 9 Jur. N. S. 11 ; Ex parte 
Bouvevie, 4 Ely. Ca. 299 ; Ex parte Trustees of Boxmoor, 

3 Ely. Ca. 513 ; Ex parte Woolley, 17 Jur. 850 ; and Jones 
V. Leivis, 2 M. & G. 163; and Re Merchant Tailors Com- 
pany, 10 Beav. 485, decided under special Acts, from which 
it would seem- that the costs of more than one investment 
will always be allowed if it can be shown to be "for the benefit 
of the parties interested." See, too. Re Trustees of St. Bar- 
tholomeiv's Hospital, cited above, -Re Apperleys Estate, 11 
L. T. 335 ; Re Paddon's Trusts, W. N. (1878), Qo. In 
Ex p)avte Rector of Loughton, 3 Ely. Ca. 592, it was held 
that the fact of a second investment being for £,Q only 
would not prevent the Court from making the company 
pay the costs thereof See, too, Re Brandon's Estate, 2 
Dr. & Sm. 162; 11 W. E. 53 ; Ex parte The Fishmongers' 
Company, 1 N. E. 85. "Where the purchase-money 
amounted to £125,000 the Court did not consider six appli- 
cations for reinvestment, still leaving £38,440 uninvested, 
to be unreasonable {Ex parte Hospital of St. Katltarine, 
17 Ch. D. 378). 

The costs of an abortive enquiry or attempt to sell Where 
will not necessarily fall on the company {Ex parte Copley, n^t^can-^ed 

4 Jur. N. S. 297; Re MacdonaUVs Will, 2 L. T. 16S;0"t- 
Ex parte Stevens, 15 Jur. 243); see, too. Re Hardy's 

X 2 



308 COSTS UNDER PARTICt'LAR ACTS. 

Estate, 18 Jur. 870, where, on a petition for investment, 
Avhich was not approved by the Court, the company re- 
ceived their costs out of the fund, but no order was made 
as to the petitioner's costs. But, as a general rule, the 
costs of a hondjide attempt at investment which fails, are 
payable by the company {Re WooUeys Edate, 17 Jur. 
8.50 ; 1 W. R. 407, 465 ; Ex ixirte Vaudrey's Trusts, 3 
Giff. 224, where the title had been reported good, but the 
contract was afterwards rescinded in consequence of the 
expense of making a good title ; Ex parte Rector of Holy- 
well, 2 Dr. & Sm. 468; 18 W. R. 960; 11 Jur. 579 ; 12 L. 
T. 726, Avhcre the title was bad ; Re Carney, 20 W. R. 
407; W. N. (1872) 58 ; 26 L. T. 808). It seems that an 
order for payment of costs by a company under sec. 80 
cannot be varied in their favour unless they appeal {Re 
Gregson's Trusts, 13 W. R. 198; 10 Jur. N. S. 1138). 
S"s. 81, 82. The 81st section of the Lands Clauses Consolidation 
Act provides that lands to be j^urchased under the provi- 
sions of that or any special Act or any Act incorporated 
therewith may be in the forms specified in the schedules, 
and that such conveyance shall have the effect of vesting 
the land in the undertakers, of merging attendant terms, 
and of barring estates tail. With respect to the costs of 
Costs of such conveyance, the 82nd section provides that " the costs 
ance^^titl ^^ ^^^ sucli conveyances shall be borne by the promoters of 
&c. the undertaking, and such costs shall include all charges 

and expenses incurred, on the part as well of the seller as 
of the jDurchaser, of all conveyances and assurances of 
any su.ch lands, and of any outstanding terms or interests 
therein, and of deducing, evidencing, and verifying the 
title to such lands, terms, or interests, and of making out 
and furnishing such abstracts and attested copies as the 
promoters of the undertaking may require, and all other 
reasonable expenses incident to the investigation, deduc- 
tion, and verification of such title." Under this section all 
vendor's costs of making out the title and of the convey- 
ance are payable by the company {Re S/)ooner's Estate, I 



LANDS CLAUSES CONSOLII^ATION ACT. 309 

K. & J. 220 ; Ex parte Marquis of Bath, 4 Ely. Ca. 567 ; 
and see Ex parte Eeoffees of Ad dies' Charity, 3 Hare, 22, 
under a special Act). 

The costs of a conveyance prepared but not used bv Costs of 

... • T> ri- " unexecuted 

reason of incumbrancers reiusnig to join were in Me Divers, convey- 
1 Jur. N. S. 995, held to be payable by the company. ''^"'^^• 

Where there is a bargain between the ground landlord 
of houses let at a gross ground-rent, and a railway com- 
pany who have taken some of the houses, for the payment 
of compensation at so many years' purchase on the rents 
of the houses, taken, the costs of apportioning the ground 
rents between the houses taken and those left are not 
payable by the company under this section {Ex imrte 
Buck, 1 H. & M. 519). 

The costs incurred in investi seating the title to land Cost« in- 
before the Conveyancing Counsel of the Court are within ^"{^^g 
sections 82 and 83 of the Act, and as they are liable to conyey- 

1 1 • DO • 1 J. J. ancing 

taxation, the company have, under section 83, a right to counsel. 
require a proper bill thereof to be delivered to them {Re 
Spooner's Estate, 1 K. il- J. 220). Where an estate was 
purcha.sed witli the monies arising from the sale of lands 
taken by a corporation under the compulsory powers of 
their Act, the costs of laying the abstract of title before 
the purchaser's counsel, as well as before the counsel of 
the Court, were allowed as against the corporation {Re 
Jones's Settled Estates, -1 Jur. N. S. 887). But tlie Lords 
Justices on appeal (27 L. J. Ch. 706; 6 W. R. 762), 
refused to allow the whole costs of the private counsel, 
though they thought that some allowance should be made 
towards such costs. 

There is a distinction between the costs payable by Distinction 
the Company under section 82 and under section 80, costs under 
supra, the reason being that the earlier section refers ^- ^^^ =^"^^ 
to cases Vv-here the Company uses its comjndsory 
powers and therefore has to pay all the costs arising out 
of the transaction ; but section 82 relates to purchases 
by agreement wh^iva the vendor can make liis own terms; 



310 COSTS UNDER TARTICULAR ACTS. 

or, if he goes before a jury, can urge any incidental ex- 
penses before the jury as a ground for increase of com- 
pensation. This section, therefore, deals only with the 
legal expenses of making a title and conveying the pro- 
perty, taking those expenses in their largest sense, e.g., 
including the taking out of administration for purposes 
ot conveyance {Re Liverpool Improvement Act, 5 Eq. 
282 ; overruling Re S. Wales Ry., 14 Beav. 418), but not 
with any costs of ascertaining what that is which is to be 
put into the document {Ej: parte Bud-, 1 H. & M. 519, 
where the costs of apportioning ground rents between 
houses taken and houses not taken were disallowed against 
the company on taxation) ; and sec Ex parte Tncumhent 
of Alsager, 2 W. R. 324; Ex parte Feoffees of Addles' 
Charity, 3 Hare, 22 ; Re Woodhurn's Trust, 13 L. T. 237. 
The costs of conveyance under section 82 do not, it seems, 
include costs of a collateral agreement with the vendor, 
which, though part of the consideration for the purchase, 
forms no part of the conveyance {Re Lietch andKeivney, 
15 W. R. 1055). 

The cases as to the costs of suits and other proceedings 
rendered necessary by the death of tlie vendor leaving an 
infant heir or devising the lands sold to an infant have 
been already considered, ante, p. 285, note. 
S. S3. The 83rd section provides that " if the promoters of the 

undertaking and the party entitled to any such costs shall 
not agree as to the amount thereof" (see Re Rhodes, 8 
Beav. 224 ; Lahe v. Eastern Counties Raihvay Company, 
19 L. T. (0. S.) 323), " such costs shall be taxed by one of 
the taxing masters of the (/ourt of Chancery, or by a 
Master in Chancery in Ireland, upon an order of the same 
Court, to be obtained upon petition in a summary way by 
either of the parties ; and the promoters of the under- 
taking shall pay what the said Master shall certify to 
be due in respect of such costs to the party entitled 
thereto, or in default thereof, the same may be recovered 
in the same way as any other costs payable under an 



COSTS UNDER TRUSTEE RELIEL'^ ACT. 311 

order of the said Court, or the same may be recovered 
by distress in the manner herein-before provided in 
other cases of costs ; and the expense of taxing such 
costs shall be borne by the promoters of the under- 
taking, unless upon such taxation one-sixth part of the 
amount of such costs shall be disallowed, in which case 
the costs of such taxation shall be borne by the party 
whose costs shall be so taxed, and the amount thereof 
shall be ascertained by the said Master and deducted by 
him accordingly in his certificate of such taxation." See 
Re Bpooners Eshite, 1 K & J. 220, cited ante, p. 308, 
and as to taxation and costs of taxation, see j^ost, ch. VIII. 

The deposit, which, under the 85th section of the Act Lien for 
the company are required to make before entering on deposit. 
any land, is not subject to any lien for the costs of the 
vendor ; but upon due performance of the condition of 
the bond mentioned in the same section, the company are 
entitled to have the money paid out to them, notwith- 
standing the pendency of a question between them and 
the vendor with respect to such costs {Ex parte Stevens, 
2 Phil. 772 ; 5 Ry. Cas. 269 ; Re Neath and Brecon Ry. 
Co., 9 Ch. 263 ; see, too, Ex. parte Great Northern Rail- 
way Company, 12 Jur. 885 ; 16 Sim. 169 ; Ex parte Lon- 
don, Chatham, and Dover Ry. Co., W. N. (1868), 75 ; Re 
Wimbledon and Dorking Ry. Act, 9 L. T. 703 ; Ex parte 
Birmingham, dr., Ry. Co., 1 H. & M. 772). Where the 
land had been sold and the purchasers presented a petition 
for payment out of the deposit, the vendors, who had 
refused to join as co-petitioners, were not allowed any costs 
of appearing as respondents on the petition (Re HolmoM's 
Settlement,\Y. N. (1877), 272). 



Sect. III. — Costs under Trustee Relief Act. 

the 10 & 11 Vict. c. 96 (usually called the I 

Act) all trustees, executors, administrators, oi 

persons having in their hands any moneys belonging to 



By the 10 & 11 Vict. c. 96 (usually called the Trustee lo ^t 11 
Relief Act) all trustees, executors, administrators, or other 



312 COSTS UNDER PARTICULAR ACTS. 

any trusts whatsoever, or the major part of them, are 
empowered to pay the same into the Bank to the account 
of the Accountant-General* of the Court of Chancery,! in 
the matter of the particular trusts, and all trustees or 
other persons having any annuities or stocks standing in 
their name in the books of the Governor and Company 
of the Bank of England, or of the East India Company, 
or South Sea Company, or any Government or Parlia- 
mentary securities standing in their names, or in the 
names of any deceased persons of wliom they shall be 
personal representatives, upon any trusts whatsoever, or 
the major part of them, are empowered to transfer or 
deposit such stocks or securities into or in the name of the 
Accountant-General* in the matter of the particular trust, 
in trust to attend the orders of the Court. 

Tlie 2nd Section of the Act empowers the Court to 
make such orders as it shall think fit in respect of the 
trust monies, stocks, or securities so paid in, transferred, 
and deposited as aforesaid, and for the investment and 
payment of any such monies, or of any dividends or in- 
terest on any such stocks or securities, and for transfer and 
delivery out of any such stocks and securities, and for the 
administration of any such trusts generally upon a petition 
to be presented in a summary way by such party or parties 
as to the Court shall appear to be competent and neces- 
sary in that behalf, and service of such petition shall be 
made upon such person or persons as the Com-t shall see 
fit and direct. For the general practice under the Act, 
see Morgan's Chancery Acts and Orders, p. 63 et seq., 
5th ed. Tlie Act makes no mention of costs, but this 
omission is now of course supplied b}" the Judicature Act 
and Rules ; see R S. G, Ord. LV. r. 1, which leaves the 
costs of and incident to all proceedings in the High Court 
in the discretion of the Court. And even before the 
Judicature Act, it was held that as the fund paid in by the 

* Kow the Paymaster General, 35 & 36 Vict. c. 4i, s. 4, 
t See Judicature Act, ISrS, s. 34 (2). 



COSTS UNDER TRUSTEE RELIEF ACT. 313 

trustee was to be paid in in trust to attend the orders of 
the Court, it became subject to the general jurisdiction of 
the Court, which inchided a power to order the payment 
of costs {Re Woodhurn's ^Ym, 1 De G. & J. 83.3 ; Re 
Armstons Trusts, 4 De G. J. iS: S. 454; 4 N. R. 450; 
10 Jur. N. S. 715). 

In the older cases it seems to have been thought that a Old rule as 
trustee was always justified in paying money in his hands ti-^g^^go 
into Court under this Act, and that he ought in all cases P^'-J'^^s . 

. . , money into 

to be allowed his costs of appearing on a petition to have Court. 
it paid out again, see Re Croydens Trusts, 14 Jur. 54; 
Mitchell V. Cobb, 17 L. T. (0. S.) 25. 

But thoucrh as a oreneral rule such costs will be allowed Trustee 
(Re Ershines Trusts, 1 K. & J. 302), it is now settled tious'iy 
that a trustee vexatiously paying money into Court under iwing 

. . money 

the Act will not be allowed any costs on a petition to get into Court 
it out again {Re Heminc/s Trusts, 3 K. & J. 40 ; Re '''f ^^ , . 

o ^ u ' ' refused liis 

Covington's Will, 25 L. J. Ch. 238; 1 Jur. N. S. 1 1 57) ; costs of ap- 
and may even be ordered to pay the costs of a petition to ^ oniere'd 
get the money out again {Re Woodburn's Will, 1 De to pay 
G. &J. 333; Re Coder's Trusts (No. 1), 25 Beav. 361 ; p°etition. 
Re Kniyhfs Trusts, 27 Beav. 45). It seems, however, But not to 
that if the trustee deducts his costs of paying the money gost"of 
into Court from the fund before doing so, the Court has payment 

. ■.. . 1 1 • f 1 • • 1 i^to Court 

no jurisdiction, upon tlie liearing ot the petition, to make 
any order as to these costs {Re Bloye's Trusts, 1 Mac. & G. 
488, 504 ; Re Leake s Trusts, 32 Beav. 135 ; 1 N. R. 417 ; 
Re Barber's Trusts, 2 N. R. 571; Re Fortune's Trusts, 
Ir. R. 4 Eq. 351). But on ordering payment out and 
taxation of costs, the trustees' costs of paying in may be 
included, and the sum then deducted by them set off 
{Re Hue, 27 Beav. 337 ; 5 Jur. N. S. 1235 ; 7 W. R. 562 ■ 
Re Bullass, V. C. M. 27 Jan. 1871 ; A. 251 ; Re Williams, 
V. C. B., 11 March, 187G ; B. 781 ; cited in Seton, p. 498; 
and see also Re Sweepers Trusts, 19 W. R. 793 ; 24 L. T. 
413). 

Where there is a dispute as to the amount of costs to Where 

there is a 



oil COSTS UNDER PARTICULAR ACTS. 

Jispute as Avhich lie is entitled, the trustee ought to pay in the whole 

to the fund, and let the Court decide the question ; and where a 

of the trustee deducted an excessive amount for his costs he was 

costs/ ^ ordered on bill filed to make good the entire trust fund, 

and pay the costs of the suit ; but he was to be allowed 

such costs as he was properly entitled to when the fund in 

Court came to be dealt with {Beaty v. Curson, 7 Eq. 194 ; 

38 L. J. Ch. IGl ; 17 W. R 132 ; 20 L. T. Gl). 

What IS ^|^(^ question what constitutes vexatious conduct on the 

a vex- '■ 

atious" part of the trustee so as to disentitle him to costs, or make 
into Ct"ut ^^^"^ liable to pay them, is one of some difficulty. In Re 
Ilemiiig's Trusts, 3 K. & J. 40, a trustee who paid an 
alleged balance into Court on the ground that his cestui 
que trusts declined to sign an ac(|uittance in respect of all 
demands against him as trustee, was disallowed his costs. 
In Be Woodburn's Will, 1 De G. & J. 333, the fact that 
the trustee had paid the money into Court without wait- 
ing for evidence of title, which the cestui que tnists were 
engaged in procuring, and without stating what evidence 
he should require, was held a ground for making him j^ay 
costs. The same order was made in Be Caters Trusts 
(No. 1), 25 Beav. 361, where the ground of paying the 
money in Avas an alleged refusal, on the part uf the other 
trustees to whom the fund was payable, to give a release 
by deed ; in Be Fortune's Trusts, Ir. 1\. 4 Eq. 351, where 
executors refused to pay a simple pecuniary legacy unless 
the legatee would give a release (which he agreed to do), 
and pay the costs of it (which he refused to do), and see 
Be Boherts Trusts, 17 W. R. 639 ; and Be Elgar, 11 L. T. 
415 ; in Be Elliot's Trusts, 15 Eq. 194 ; 42 L. J. Ch. 289 ; 
21 W. R. 455, where there seems to have been no reason 
whatever for paying the money into Court, except a wish 
to get rid of it; in Be Glendennlncj, W. N. (1867), 191, 
where the trustees stated in their affidavit that they were 
going to pay in the capital of the fund and then paid in 
only a small dividend ; in Be Folhjnos Mortgage, 
32 Beav. 131, where the money was paid in by mort- 



COSTS UNDER TPvUSTEE RELIEF ACT. 315 

gagees wlio had sold under tlieir power, and who refused 
to pay over the surpUis monies to a person to whom the 
mortgagor had assigned his interest by way of indemnity, 
with power to sell and give receipts, unless the mortgagor 
concurred and executed a release to them ; in Re Wise's 
Truds, Ir. R. 3 Eq. 599, where the executors of a surviv- 
ing trustee refused to pay the fund to new trustees 
properly appointed, and see Re Ahhofs Trusts, 38 L. T. 
442 ; and in Re Knighfs Trusts, 27 Beav. 45 ; 5 Jur. 
N. S. 326, where the trustee, before paying the money in, 
neglected to make any enquiries as to whether the persons 
entitled were alive or dead. 

In Re HosJdn's Trusts, 5 Ch. D. 229, a married woman, 
under a general power, appointed a fund among five 
persons by wall, and appointed executors ; the trustees 
paid the money into Court. Upon a petition for pay- 
ment out by the appointees, it was held that the trustees 
ought to have |)aid the fund to the executors for distribu- 
tion, and they were therefore ordered to pay the costs ; 
but as the executors were the proper persons to present 
the petition, the trustees were relieved from so much of 
the costs as had been occasioned by the appointees proving 
their title. 

A trustee who insists upon the petition being served Trustee 
upon unnecessary parties, will be disallowed his costs {Re ^^^ ^^^^^° 
Metcalfe, 2 De G. J. & S. 122 ; 3 N. E. 657). necessary 

A trustee who pays money into Court under the Act ,„ 
in order to prevent an action being brought against him paying in 
{Re ^Yariag, 21 L. J. Ch. 784 ; Re Fagg, 19 L. J. Ch. 175), '^^/J^ 
and trustees who act with unreasonable caution {Re action 
Wartvkk Pearson's Trusts, 17 W. R. 365 ; 20 L. T. 8 ; £'"'* 
Re Thakeham Monies, W. N. (1871), 172), will be dis- 
allowed their costs. 

On the other hand, where a trustee, having bond fide where 
doubts as to the persons entitled to the money in his trustees 

... costs 
hands, pays it into Court, the Court will allow him his allowed, 

costs {Re Wyllgs Trusts, 28 Beav. 458). Thus, a trustee 



CIG COSTS UNDER PARTICULAR ACTS. 

of a fniid subject to a power of appointment, has, of course, 
a right to " satisfactory evidence " that no appointment 
has been made before paying the money to the persons 
entitled in default (ibid.). This means such evidence as 
a conveyancer would require ; a letter from the solicitor 
of the donee of the power, would be (juite sufficient ; and 
trustees who arc not satisfied Avith the ordinary evidence 
and in their excessive caution pay the money into Court 
will liave to pay the costs (JRe CuWs Trusts, 20 Eq. 561 ; 
23 W. R. 850 ; 32 L. T. 853). In general a trustee who 
pays the money into Court, because being in failing health, 
or of advanced years, he wishes to be discharged (Re 
Wyllys Trusts^ 28 Beav. 458), or because he wishes to 
avoid being associated with a new trustee to whose ap- 
pointment he objects {Re WiUiams Trusts, 6 W. R. 218), 
will be alU)wed his costs. So when a married woman, 
entitled to a legacy, and her husband were abroad, and 
the executor declined to pay the legacy under a power of 
attorney, and paid it into Court, he was held to be justified 
in so doing, and was allowed his costs of paying it in, and 
of appearing on the petition to have itj^aid out {Re Jones, 
3 Drew. 079). A fortiori, a trustee is justified in paying 
his money into Court when he has received actual notice 
of different claims thereon {Re Hendington's Trusts, 
27 L. J. Ch. 175 ; 6 W. R. 7), and he is not bound to 
decide as to the validity of such chiims {ibid.) ; and see 
Re Maclean, 19 Eq. 282, where the claim was brought 
forAvard bond fide by a responsible solicitor, and supported 
by learned counsel. And, where a husband wished to 
have a sum of money which was in the hands of a trustee 
for his Avife, settled, and a settlement was accordingly 
prepared, but disputes arose respecting it, and it was not 
executed, and the husband and wife required the trustee 
to pay the money to them, it was held that the trustee 
was justified in paying the money into Court instead, and 
that he was entitled to his costs {Re Bendjjshe, 3 Jur. 
N. S. 727 ; 5 W. R. 816). Again, in Re Brocklesb>/> 



COSTS UKDEll TRUSTEE RELIEF ACT. Bl7 

29 Beav. (352, the late Master of the Rolls refused to make 
trustees, who had paid into Court the ascertained share of 
a residue belonging to a married woman, pay any costs, 
observing, that except on a petition there could bo no 
affidavit of a settlement, which the Court always required. 
So it has been held, that where the person entitled claims 
by representation, the trustees will be allowed their costs, 
as the possibility of a disposition by the deceased person 
is not excluded {Re Lanes Trusts, 24 L. T. (0. S.) 181). 

The above decisions must be regarded as iiomQ\v\\?it Re Birlctf. 
qualified by a recent decision of the Master of the Rolls, 
in which his Lordship said, that when it is doubtful to 
whom a legacy is payable the better course is not to pay 
it into Court under the Trustee Relief Act but to take 
out an administration summons, waiving accounts, simply 
to obtain the decision of the judge; or, after taking out 
such a summons, where both parties agree, to submit a 
statement of facts in the nature of a special case for the 
opinion of the judge. If the executor does pay it in he 
will be left to take his costs out of the residuary estate, 
and will not have them out of the legacy [Re Birhett, 9 
Ch. D. 576 ; 47 L. J. Ch. 846 ; 27 W. R. 164 ; 39 L. T. 
418). 

Prior to the Judicature Act, 1873, s. 25 (6), money due Costs 
on a policy of assurance could not properly be paid into T^^^^ 
Court under the Trustee Relief Act, unless it was subject monieslre 
to some trust (Mattheiu v. Northern Assurance Co., 9 Ch. }^^^'* '"^^ 
D. 80 ; 47 L. J. Ch. 562 ; 27 W. R. 51 ; 38 L. T. 468). °"'*' 
But the objection to the jurisdiction could not be taken 
upon the hearing of a petition under the Act {Re Haycock's 
Policy, 1 Ch. D. 611, where the payment in having been 
proper in other respects the company had their costs ; and 
see Re Sutton's Trusts, 12 Ch. D. 175 ; 48 L. J. Ch. 350 ; 
27 W. R. 429, where a banking company paid money into 
Court, the payment in not being justified either by the 
Trustee Relief Act or the Judicature Act, and were held 
entitled to their costs). If the payment in were proper, 



318 COSTS UNBEK PARTICULAR ACTS. 

the company would be entitled to tlieir costs as betAveeu 
solicitor and client, but not to any charges and expenses 
{Re WcUy.s PoVtcij, 2 Eq. 456). Now by s. 2-5 (6) of the 
Judicature Act, 1873, a debtor, trustee, or other person 
liable in respect of an assigned debt or chose in action, 
having notice that such assignment is disputed, or of any 
conflicting claims to such debt or chose in action, is em- 
powered to pay it into Court unJer the Act ; see Re 
Sutton s Trusts. A company properly paying money into 
Court, but appearing on the hearing of the petition and 
raising a question on which they fail, will lose their costs 
of appearance (Rf Rosier's Trusts, W. N. (1877), 225). 

Wiierc a fund belonging to a married woman was paid 
into Court under the Trustee Relief Act, in order that she 
might have the benefit of a settlement, the trustees were 
allowed their costs, notwithstanding repeated expressions 
by her that she did not desire a settlement (Re Swan's 
Settlement, 2 H. & M. 35; 4 N. R. 53; 12 W. R. 738; 
which, hoAvever, Y. C. Malins declined to follow in Re 
Roberts' Trusts, 17 W. R. 039; \V. N. (18(39) 88). 
Where In a case before V. C. Wood (Re Eyre, 3rd July, 1858, 

persous j-j^^j, j.gpQj-ted on this point), that learned Judge expressed 
siveiy an opinion that wherever the fund was settled on one 
person for life and others in remainder, the trustee had a 
right to pay the money into Court. See, however, Re 
Leahe's Trusts. 32 Beav. 135, where trustees who, having 
accepted a trust of this nature, had, without the occur- 
rence of any change in the nature of the trust, paid the 
money into Court under this Act, were disallowed their 
costs of appearance on a petition for payment of the divi- 
dends to the tenant for life. 
Where The fact that trustees have, under a misapprehension,. 

paidTo P^i"-^ ^ i\\xn\. to an account wrongly entitled, is no ground 
wrong fop depriving them of their costs {Re Jenkins' Trusts, 3 
"^^""' N.R.408). 

Costs of Where a creditor of a party interested in a fund in 

trustees on ("Jourt Under the Act presents a petition for a stop order 

petition for '■ 

stop order 



COSTS UNDER TRUSTEE RELIEF ACT. 819 

and serves the trnstees, he must pay the costs (Re Blunt's 
Trusts, 10 W. R 379) ; but where the neglect of the 
trustee to file a supplemental affidavit had made the appli- 
cation necessary he himself had to pay them {Re Aliens 
Trmts, 27 W. R 529; 40 L. T. 456). 

The costs allowed to a trustee Avill not include the costs wii.at costs 
of copies of affidavits of persons claiming beneficial in- trustees ^ 
terests {Re Lazarus, 3 K. & J. 555). And where a peti- Trustees 

tion was presented by the trustees without the consent of petitioning 

. . 1 . . only 

the beneficiaries, and no cause was shown for their moving allowed re- 
in the matter, the Court allowed them only respondent's cS'^^"^*'^ 
costs {Re Cazneau's Legacy, 2 K. & J. 249 ; Re Hutchin- 
son s Trusts, 1 Drew. & Sm. 27). See, however, Re Trovjers' 
Trusts, 1 L. T. 54. 

In Ireland £8 is the sum ordinarily allowed for costs of Costs 
payment in {Re Boyd, Ir. R. 1 Eq. 489). If the trustees ireTaud/" 
deduct more they may get no costs of appearing on the 
petition {Re Blayneys Trust, Ir. R 9 Eq. 413). 

It was said by V. C. Wood, in Mountain v. Young, 18 Where 
Jur. 770, that trustees are always justified in not paying declines or 
money into Court, as it may turn out that there was no °™it*^ t° 
occasion for doing so. In a later case, the plaintiffs, who into Court. 
Avere entitled to the investment of a pecuniary legacy, had 
by letter requested the defendants, their trustees, one of 
whom was also the residuary legatee, to pay the legacy 
into Court under this Act, but the trustees declined to do 
so, and stated that they had invested the money as 
directed by the will, and that they did not wish to divest 
themselves of the trusts. The trustees by their answer 
objected to pay the money into Court, but at the bar 
admitted the plaintiffs' right to have it so paid in. It 
was held by V. C. Stuart that the costs of the suit, which 
might have been rendered unnecessary by payment of the 
money into Court under the Act, must be borne by the 
residuar}"- fund to which one of the trustees was entitled 
{Handley v. Davies, 28 L. J. Ch. 873). But as a rule 
where a trustee, who has money in his hands, instead of 



320 COSTS UNDER fARTlCULAR ACTS. 

paying it into Court under the Act, institutes a suit toad- 
ministerthe fund, he will only be allowed the costs to which 
he would have been entitled if he had paid it in under 
the Act {Wells v. Mulhon, 31 Beav. 48) ; and see ^Yeller\. 
Fitz Hugh, W. N. (1870), 144, and Gunnell v. WhUear, 10 
Eq. C64 ; 18 W. K 883 ; 22 L. T. 645, where the trustee, 
the defendant, was ordered to pay all the costs of the suit, 
deducting only such costs as he would have been entitled 
to if he had paid the money into Court, and the costs of 
appearing on the petition ; secz/.s', where the trustee has a 
right to claim to be discharged from the trusts {Barker v. 
Piele, 2 Dr. & Sm. 340). 
Costs of re- The general rule is that all persons mentioned in the 
spoiirleiits. t, ^;^tQ^.'g affidavit must be served. But the parties served, 
if they claim no interest, ought not to appear ; and, if they 
do, will not be allowed their costs {lie Smtf/t, 3 Jur. C59 ; 
D<i>j v. Croft, 19 Beav. olS ; and lie Blrc/rs Lefjucy, 2 K. 
& J. 3G9 ; and under another Act, Re Justices of Coventry, 
19 Beav. 158 ; but see contra. Ex parte Queen's College, 
f) W. R 9, where V. C. Stewart held that the case differed 
from that of ^(^((r^/es to a cause served with a petition). 
So incumbrancers appearing upon a petition by a prior in- 
cumbrancer, whose debt exhausted the fund in Court, in 
spite of a notice by the petitioner's solicitor, that, if they 
appeared, the payment of their costs would be resisted, 
were held disentitled to costs {Roberts v. Ball, 24 L. J. Ch. 
471). And a party, Avho, although not mentioned in the 
affidavit, makes a claim, in consequence of which he is 
served, but which he afterwards at the hearing of the 
petition withdraws, will not bo allowed his costs {Re Parry, 
12 Jur. 615). Solicitors who give notice of possible claims 
whereby money is paid into Court, are not proper respon- 
dents to the petition, and are entitled to their costs {Re 
Provident Clerks' Association, 18 W. R. 126; 21 L. T. 
384 ; where, to save taxation, £S were allowed). And see 
^ ^^^^ / generally as to costs of unnecessary appearances, a nte, p. 68. 
a^y^ULls^i Out of The costs of paying the money into Court, as a general 



COSTS UNDER TRUSTEE RELIEF ACT. 321 

rule, ought to be deducted out of the general trust estate, what fund 
if there be one {Re Cairtlwvne, 12 Beav. oQ ; Re Jones, payintr 
3 Drew. 679). But if there be no general residue, or if money in. 
the fund paid in has been completely "severed therefrom 
and appropriated," they must come out of the fund itself 
{Re Lorimer, 12 Beav. 521). Such costs, if not deducted, 
will be ordered to be paid out of the corpus of the fund 
{Re Bayers, Seton, 498, -Ith ed.) And see Re BirJcetf, 9 
Ch. 1). 576, cited ante, p. 317. 

The costs of payment out generally come out of the ^'o**^^ °f 

obtainin'T 

fund itself {Re Dickson, 1 Sim. N. S. 37 ; Re Ross, ibid, payment' 
196 ; Re Jones, 3 Drew, 679 ; Re Robertson's Trusts, 6 °'^*- 
W. R. 405). But as leave may be given to bring an action, 
which would have the effect of throwing such costs upon 
the general estate {Re Shar2)e, 15 Sim. 470; Re Feltham, 
1 K. Sc J. 528), so the Court can, uj)on petition, order the 
costs to be paid out of the residue {Re Trick, 5 Ch. 170 ; 
39 L. J. Ch. 201 ; 18 VV. R. 123 ; 21 L. T. 739 ; overruling 
Re Bartholomew, 13 Jur. 380 ; and Re Hodgson, 18 Jur. 
786 ; 2 Eq. Rep. 1083). In Re Feltham, 1 K. & J. 533, 
534, the costs of the executors who had j)aid the fund 
into Court were ordered to come out of the general 
residue ; and see Re Birkett. 

Where a sum of stock representing sixteen shares in a 
legacy, five of which were held to have lapsed, was trans- 
ferred into Court, Lord Cran worth, V. C, held that the 
lapsed shares ought to bear the costs of the petitioners and 
respondents {Re Ham's Trust, 2 Sim. N. S. 106). 

Where a feme covert appeared on a petition for distribu- 
tion of a fund in Court under this Act, and together with 
her husband opposed the distribution, the Court ordered a 
part of the fund to which she was entitled for her separate 
use to be applied in payment of tlie costs of such opposi- 
tion {Newton v. Ricketts, 9 H. L. C. 262; affirming Re 
Ricketts, 1 J. & H. 70). 

In Mutlow V. Mutloiu, 4 De G. k J. 539, a fund paid 
into Court under the Act was ordered to bear the costs of 

Y 



income. 



32*2 COSTS UKDER PARTICULAR ACTS. 

a suit which had been instituted to administer the estate 
of which it formed part. On an application for payment 
out, the trustees will not get any costs, charges, or ex- 
penses incurred before the payment in, but only those pro- 
perly incurred since : Re Behrens, M. R 5 Aug., 1874, A. 
2309 (Seton, p. 498). 
Oostd of It is now settled that upon a petition by the tenant for 

for'im" ^^^® ^^^ payment to him of the dividends on a fund in 
mont of Court all the costs of the petition, both those of the 
tenant for life and of the trustees, are payable out of the 
income {Re Marner's Trusts, 3 Eq. 432 ; 36 L. J. Ch. 58 ; 
15 W. R 99 ; 15 L. T. 237 ; Re Evans Trusf.^, 7 Ch. 609; 
41 L. J. Ch. 512; 20 W. R 695; 26 L. T. 815; Re 
Whitton's Trusts, 8 Eq. 352 ; Re Smith's Trusts, 9 Eq. 
374; Re Buttrll, 21 W. R 138; Re Cameron, Ir. R 1 Eq. 
258; Re Mantoas Trust, 22 L. T. 293; \V. N. (1870), 
106; Re Mason's Tmists, 12 Ki[. Ill); but the costs 
incurred by the trustee in and about and preliminary to 
the jwi/ment into Court are payable out of the corpus 
Avliere not previously deducted {Re Whittons Tnists). 

" It is said that a diftorence ought to be made with 
respect to the appearance of the trustees, and that this 
difference has been recognised in some cases. But I think 
that In re 3[arne)''s Trusts was intended to apply to all 
the costs of the petition ; and I am the more disposed to 
follow that construction, because the reasonable course for 
a tenant for life to pursue, Avhen about to petition for 
payment of his income, would be to write to the trustee 
and tell him that he did not seek to affect the corpus, but 
only wanted his income, and therefore that there would be 
no occasion for the trustee to incur costs by appearing. 
In such a case, if the title of the tenant for life is clear, 
the trustee ought not to appear. I am of opinion, there- 
fore, that in this case all the costs ought to come out of 
the income ;" ^:)^>' James, L. J., in Re E>-(i-iij<' Trusts, 7 Ch. 
p. 609 ; see now R S. C. (Costs), Sched., r. 17. In Re 
Battell, 21 W. R. 138, the trustees had been told tliat the 



COSTS UNDER TRUSTEE RELIEF ACT. 323 

petition related to income only, and "VVickens, V. C, said 
they wonld have no costs out of income, whatever right 
they might have to be paid out of capital. 

In Re Wood's Trusts, 11 Eq. 155; Re Gordon's Trusts, 
6 Eq. 835 ; and Re Knight's Tnists, 37 L. J. Ch. 409, the 
costs of the trustees relating to the petition were held to 
be payable out of the corpus; but these cases and also 
Re Tanner, 14 L. T. 589, and Re Turnley, 1 Ch. 152, 
where the tenant for life's costs came out of the corpus, 
are now overruled. Where the money was paid into 
Court in a suit and not under the Act, Malins, V. C, 
declined to follow Re Marner {Scrivener v. Smith, 8 Eq. 
310; and see Longuet v. Hocldeij, 22 L. T. 198); and 
where an annuity was given free of <laty the costs of a pe- 
tition for payment thereof were given out of the surplus 
of the fund {Re Apthorpe, W. N. (1869), 84). The earlier 
cases were conflicting. 

Where two petitions are bond fide separately prepared Costs of 
for obtaining payment out of Court of a sum paid in ^^^^°'^ ^^' 
under the Trustee Relief Act, and both raise the same 
issue, the Court will in general allow the costs of the 
preparation of the second petition ; but where solicitors 
had been informed that a petition was presented, and they 
persisted in presenting another for the same object, the 
costs of the" preparation and presentation of the second 
petition were disallowed {Re Cluiplin's Trusts (2), 3 N. R. 
289; 33 L.J. Ch. 183). 

A respondent whose unsuccessful claim was the cause of Costs 
the payment into Court, will be ordered to pay the costs by^respon- 
of an application for payment out {Re Armston's Trusts, ^^ents. 
4 De G. J. & Sm. 454; 4 N. K 450 ; 10 Jur. N. S. 715, 
where Turner, L. J., said the case must be dealt with as if 
a bill of interpleader had been filed by the trustees as 
stakeholders, in which case the unsuccessful claimant 
would of course have to pay the costs) ; and see Re United 
Kingdom Assurance Co., 34 Beav. 493 ; and Re Webb's 
Policy, 2 Eq. 456. 

y 2 



324 COSTS rxnKu pautK'itlar acts. 



Sect. IV. — Costs under the Trustee Acts, 1850-2. 

Trustee By tlie olst section of the Trustee Act, 1850, it is 

s "^M. ' enacted that " the Lord Chancellor, intrusted as afore- 
said " {i.e., intrusted by virtue of the Queen's sign-manual 
with the care of the persons and estates of lunatics), " and 
the Court of Chancery may order the costs and expenses 
of and relating to the petitions, orders, directions, convey- 
ances, assignments and transfers to be made in pursuance 
of this Act, or any of them, to be paid and raised out of or 
from the lands or personal estate, or the rents or produce 
thereof, in respect of which the same respectively shall be 
made, or in such manner as the said Lord Chancellor or 
Court shall lliink proper." In Ex ^xo'^e Davies, 10 Jur. 
882, V. C. l*arker, upon appointing a new trustee and 
making a vesting order under tlic 'i^nd and 84th sections 
of the Act, by consent ordered the new trustee to pay tlio 
costs of the proceedings, and directed that such costs, with 
interest thereon at £4 per cent., should form a charge on 
the inheritance. And see Be Crahtree, 14 W. R 497, 
where the costs were directed to be raised by mortgage to 
be settled by the Court. 
Costs of As a general rule the costs of an application under this 

application ^ j. ^yi^gtij^i. occasioned by the lunacy (Be Fulham, 15 

occasiouca ' J J \ ' 

by lunacy, Jur. 09 ; Ex parte Pearse, T. & R. 325; and see Be Lewes, 

trustee to 1 M. & G. 23), infancy {Ex parte Cant, 10 Ves. 554), or 

i^e ^;^^i"e i^y bankruptcy (£'a; parte Painter, 2 Deac. & Ch. 584), of 

generally, a trustee, must be borne by the trust estate or the cestui 

que trust. As a general rule the costs of such applications, 

being applications for the benefit of the estate generally, 

will be ordered to be borne by the estate generally {Be 

Parhy, 29 L. T. O. S. 72; Be Fulham, 15 Jur. 09; Be 

Fellows' Settlement, 2 Jur. N. S. 02 ; and see ante, 

p. 322) ; but may be ordered to be borne by the petitioner 

{Be Brachenhurys Tnist, 10 Eq. 45; 22 L. T. 409). 

Apportion- Where new trustees of copyholds were appointed, the 



COSTS UNDER TRUSTEE ACTS. 325 

fines payable on the admission of the neAV trustees were mcnt of 
ordered to be borne by the tenant for life and remainder- '^°^*'^" 
men in proportion to their respective interests {Carter v. 
Sebright, 26 Beav. 374). On a petition to appoint new 
trustees of two trust funds of different amounts, the costs 
Avere ordered to be paid rateably (Be Graiifs Trivsts, 
2 J. & H. 764). As to the costs where two petitions are Two 
presented, see Be Privgs Ti-usts, 42 L. J. Ch. 473 ; 28 petitions. 
L. T. 467. 

The costs of trustees served and appearing on a petition Costs of 
to appoint new trustees under the Act will generally bo *™^^^^^- 
allowed as between solicitor and client (see Turner v. 
Mullineux, 9 W. R. 252 ; 3 L. T. 687, where a bankrupt 
trustee was allowed his costs as between solicitor and 
client). But Avhcrea trustee, on a petition to appoint new 
trustees, disclaimed at the bar, the Court only allowed him 
party and party costs {BulMey v. Earl of Eglinton, 1 
Jur. N. S; 994 ; see Konvay v. Nvrivag, 2 M. & K. 278). 
Failing health, where the trusts are of a formal character, 
does not justify a trustee in presenting a petition for 
appointment of new trustees [Rwhardson v. Grubh, 16 
W. R. 176, where the trustee had to pay all the costs). 

It has been held that the Court has no jurisdiction to Trustee 
make a respondent trustee pay the costs of an application ^^"^g';^ 
under the Act rendered necessary by his misconduct (Re pay costs. 
Primrose, 23 Beav. 590 ; and see Be Sparks, 6 Ch. D., 
p. 363, per L. J. James). But see the remarks on the 
former case in Be Woodbuni's Will, 1 Be G. & J., 
p. 346 ; and see also Be Adam's Trust, 12 Ch. D. 634, 
where a bankrupt trustee who refused to retire was 
removed and ordered to pay the costs of the petition; 
Be Wisemans Trusts, 18 W. R. 574 ; Be Wills, 12 W. R. 
97. 

The Court can, however, dismiss a petition with costs 
(s. 42) ; and may order any of the parties to any suit 
concerning any lands or contingent right as to which an 
order has been made under the Act, to pay any costs " 



326 COSTS UNDEIl PARTICULAK ACTS. 

occasioned by the order under the Act, when the same 

shall appear to have been improperly obtained (section 44). 

Costs Where a petition is rendered necessary by the fact that 

occasioned -^ ^ j ^ 

by infancy, the mortgagee's representative is an infant {Ex 'paiie 

mortgLee ^"^''^^«'^<^^. 10 Sim. 298), or cannot be found {King v. 
Smith, 6 Hare, 473), the costs are payable by the mort- 
gagor. 

By lunacy The practice as to the costs of a petition under the Act 

of mort- 11 p 

gagee. rendered necessary by the lunacy oi a mortgagee appears 
to be somewhat unsettled. In Be Jonesi, 2 ])e G. F. & J. 
554, where a petition was presented by the mortgagor for 
a reconveyance or vesting order, the legal estate being out- 
standing in the lunatic heir of the mortgagee, the costs 
were ordered to be paid by the mortgagor (comp. lie 
Marrow, Cr. & Ph. 142 ; Re Stanrt, 4 De G. & J. 317; 
and Fx ixirte Chiy, cited in " Shelford on Lunatics," ed. 
1847, p. 510, there cited ; but see contra, under the former 
Act, Ex ixirte Ridiards, 1 J. & W. 264; Re Toiunsend, 
2 Ph. 348). Where, however, the petition is presented by 
the committee or other person representing the lunatic, 
the costs will be ordered to come out of the lunatic's 
estate: see Re Wheeler, 1 De G. M. & G. 435; Re Biddle, 
23 L. J. Ch. 435 ; Re Roidey's Legacy, 1 N. R 251 ; Re 
TJioiiwx, 22 L. J. C*h. 858. But the mortgagor, it seems, 
even if served, is not entitled to his costs {Re Phillips, 4 
Ch. G29). In Re Thomas the cost of the stamp imposed 
by tlie 15 & 16 Vict. c. 55 (the Trustee Act, 1852) was 
ordered to be borne by the mortgagor. In Re Viall, 
Halcldns v. Perry, 8 De G. M. & G. 439, the petition Avas 
presented by a purchaser under a decree for the adminis- 
tration of the mortgagor's estate for an order vesting in 
him the legal estate outstandins: in a lunatic mortoao-ee, 
and a portion of the costs were ordered to be paid out of 
the mortgage money. 
Where the Where it clearly appeared from the mortgage deed that 
isatrufkc. ^^^® lunatic was only a trustee (see Re FidJann, 15 Jur. 
09), the costs of obtaining a reconveyance under the 



COSTS UNDER TRUSTEE ACTS. 327 

1 Will. IV. c. 60, the older Act, were directed to be borne 
by the mortgagor {Re Lewes, 1 M. & G. 23 ; but see report 
of Re Townsend, 1 M. & G. G86). Where a surviving 
trustee mortgagee became lunatic and a petition was 
presented by his committee and the new trustees and not 
served on any one, the costs came out of the trust estate 
{Re Jones, 2 Ch. D. 70 ; 45 L. J. Ch. 688 ; 24 W. R. 377 ; 
34 L. T. 470, where the mortgagor had no notice of the 
trust). Where a mortgagee became of unsound mind not 
so found, and the mortgagor applied for a vesting order on 
payment into Court of the mortgage debt, making the 
mortgagee a respondent, it was held that the Court had no 
jurisdiction to make an order for the costs to be paid out 
of the mortgage debt, but each party must bear his own 
costs {Re Sparks, 6 Ch. D. 361 ; 25 W. K 869). 

"Where land is contracted to be sold, and the state of In cases 
the title is such that an application to the Court becomes vendor ami 
necessary, the costs of the application must be borne by purchase)-. 
the vendor {Bradleij v. Afanton, 16 Beav. 294 ; Heard v. 
Cuthherf, 1 Ir. Ch. Rep. 369), even when, by the con- 
tract, the costs of a surrender, in respect of which the 
application had become necessary, were to be borne by 
the purchaser {Bradley v. Munton). The fact that the 
sale is under the direction of the Court {Ayles v. Cox, 
17 Beav. 584), or that a Railway Company are the pur- 
chasers {Re South Wales Ry. Co., 14 Beav. 418 ; but see 
In re Liverpool Iriiprovement Act, 5 Eq. 282), makes no 
difference. Where the sale is in lots, the costs should be 
paid out of the purchase-money of the particular lot as to 
which the order is asked, and not out of the fund in court 
generally {Ayles v. Cox). 

Where a vendor dies intestate, leaving an infant heir, Where suit 
and an action is brought to make him a trustee under the "^'^^'^^^^y- 
Act, each party will be ordered to pay his own costs 
{Scott V. Scott, 11 W. R. 766; and see Purser v. Darby, 
4 K. & J. 41 ; and the other cases cited, ante, p. 285, 
note). 



328 COSTS UNDER PAKTICULAR ACTS. 

Costs Where a person, instead of proceeding under this Act 

person ^^ obtain the appointment of new trustees, filed a bill for 

proceeded that purpose, he was ordered to pay all the costs of the 

instead of suit {Thomcis V. Wtilkev, 18 Beav. 521). 

petition 
under the 
Act. 

Sect. V. — Costs under other Acts. 

Costs By the 30th section of the 22 & 23 Vict., c. 35 (the 

wt'23 ^^^^' ^^ Property Amendment Act), which authorises any 
Vict. c. sf), trustee, executor, or administrator, without the institution 
^* ■ of a suit, to apply by petition to any Judge of the Court of 
Chancery, or by summons upon a written statement to any 
such Judge at chambers, for the opinion, advice, or direc- 
tion of such Judge on any question resi)ecting the manage- 
ment or administration of the trust property or the assets 
of any testator or intestate, it is provided that the costs of 
such application shall be in the discretion of the judge to 
whom the said application shall be made. As a general rule, 
such costs will be ordered to come out of the corpus of the 
trust property {Re Fhiore's Will, 9 W. R 66 ; 6 Jur. N. S. 
1325 ; 3 L. T. 359 ; Be Thompson's Trusts, W. N. (1871), 
190; Be Leslie's Trusts, 2 Ch. D. 185; Be Lees Trusts, 
W. N. (1875), 61) ; and see Be iWVeagh, cited in Setun 
on Decrees, 491, 4th edition ; Be Ehves, ibid. But where 
the question arose as to the application of incorue, the 
costs of a petition presented under the Act were ordered 
to be borne by the income {Anon., 8 W. R 333 ; 2 L. T. 

71 ; 6 Jur. N. S. 386 {nom. Be Spiller); Ln re T , 15 

Ch. D. 78 ; see ante, p. 322). xVnd in Be Stuart and Be 

Sivetannof, cited in Seton, p. 492, no order was made as 

to the costs of the application. 

23 k 24 The costs of an application under the Order of 1st 

^'*^*j '^^ ''^' February, 1861, to vary an investment are generally 

Feb. i.-t, payable out of income {Equitable Beversionary Society v. 

^^^^- Fuller, 1 J. & H. 379; 30 L. J. Ch. 497 ; 9 W. R. 400; 

4 L. T. 50) ; secus, where a petition would in any case 



COSTS UKDER OTHER ACTS. 329 

have been necessary {Re Langford, 2 J. & H. 458) ; and 
see Bii<Jajp v. Bishop, 9 W. E. 549 ; 4 L. T. 350. 

By s. 34 of the Declaration of Titles Act, 1862, 25 & 2G Declamtion 
Vict. c. 67, the Court may order costs, either as between ^^j; i862. 
party and party or as between solicitor and client, to be 
paid by and to any person, party to any proceeding under 
the Act, and give direction as to tlie fund out of which 
such costs shall be paid. 

Where a railway had been abandoned under the Rail- Railways 
ways Abandonment Acts, the costs of a petition by the ment^ct 
depositor for the transfer out to him of the bulk of the 1S69. 
deposit moneys were ordered to be paid out of the general 
assets of the company {Be Ldurjliarne By. Co., 12 Eq. 454; 
19 W. K 1108). 

By s. 55 of the National Debt Act, 1870, 33 & 34 Vict. National 
c. 71, the Court may make such order as to the costs of 1370. 
petitions for re-transfer of stock and payment of dividends 
as to the Court seems just. All costs and expenses 
incurred by the Attorney-General or the Commissioners 
in resisting or appearing on any such petition, if not 
ordered by the Com^t to l)e paid out of the stock and 
dividends tliereby claimed, are to be paid by the Commis- 
sioners out of unclaimed dividends. The practice is to 
order the costs of the Attorney-General and of the 
Commissioners to be paid by the applicant as between 
party and party, and to make the transfer conditional 
upon payment of sucli costs {Ex parte Sanford, W. N. 
(1867), 77 ; Be >Sted, ibid. 282 ; Ex parte Jameson, 19 
Eq. 430 ; Bushtuurtk v. Walden, 18 W. R. 204). Formerly 
these costs were usually directed to be paid out of the 
fund {Ex parte Holland, 1 Ph. 379 ; Ex ^;rtr^e Gillett, 
3 Madd. 28 ; Ex parte Martin, Jac. od) ; but this form fell 
into disuse because parties having had funds transferred to 
them had evaded payment of the costs {Be Acldand's 
Trusts, 26 L. T. 418). 

By sec. 9 of the Vendor and Purchaser Act, 1874, 87 Vendor and 
& 38 Vict. c. 78, the judge " shall order how and by whom Acr 1874. 



'd'dO COSTS INDEK PARTICULAR ACTS. 

all or any of the costs of and incident to the application 
shall be borne and paid." 

The general rule is that the purchaser must pay the 
costs if he fails on a vendor's summons caused by an 
objection to the title {Oshorite to Boulctf, 13 Ch. D. 774; 
2<S W. R mr, ■ Re Waddeirs Contnici, 2 Ch. D. 172 ; Re 
Cookes' Contract, W. N. (1<S77), 5). Where, however, the 
purchaser failed on an objection as to incumbrances, but 
the case was a proper one to be brought before the Court, 
each party had to pay his own costs of a vendor's 
summons {Finvh v. Jukes, W. N. (1877), 211 ; and see Re 
Coward and Adam's Purchase, 20 Eq. 179; 23 W. R. 
605). So where the difficulty had arisen entirely from 
conflicting decisions no costs were given {Osborne to 
Rou'Jett). 

If the vendor is in the wrong his summons will be dis- 
mi.s.scd with costs {Re Packman and Moss, 1 Ch. ]). 214 ; 
24 W. R 170). 

Where the purcha.ser makes an improper requisition and 
takes out a summons for an order on the vendors to 
answer it, the summons should be dismissed with costs 
{Re Ford and Hill, 10 Ch. D. 3G5, where on appeal the 
order below was reversed and the vendors got the costs of 
the appeal, but apparently paid the costs below). 
Laixi By s. 73 of the Land Transfer Act, 1S75, 38 cl- 39 Vict. 

Tran.sfcr ... 

Act, 1875. c. 87, provision is made for taxation and payment or costs, 
charges, and expenses incurred by any parties in or about 
any proceedings for the registration of land under the 
Act. 
Costs By the Settled Estates Act, 1877, 40 .;- 41 Vict. c. 18, 

Settled i^- 41, it is enacted that " it shall be lawful for the Court, 
A^^^'^iVy ^^ ^^ shall think fit, to order that all or any costs or 
expenses of all or an}- parties of and incident to any 
application under this Act shall be a charge on the here- 
ditaments which are the sulject of the application, or on 
any other hereditaments included in the .same settlement, 
and subject to the same limitations ; and the Court may 



COSTS UNDER OTHER ACTS. 331 

also direct that such costs and expenses shall be raised by 
sale or mortgage of a sufficient part of such hereditaments, 
or out of the rents or profits thereof, such costs and 
expenses to be taxed as the Court shall direct." 

This is a simple re-enactment of 19 & 20 Vict. c. 120, 
s. 29. For form of order see ^Setoi'on Decrees, p. 1488. 
Trustees are allowed their costs of appearing on the peti-^^^*^ "^ 
tion {Re Duke of ClevelamVs Estates, 2 L. T. 78). 

Where an order made under the Act of 1856, directing 
a mining lease to be settled by the judge, was amended 
pursuant to 27 & 28 Vict. c. 45, s. 2, the costs of the 
application were ordered to be paid out of the one-fourth 
of the rents set aside by the trustees as representing the 
inheritance {Lorat v. Diihe of Leeds, 11 L. T. 442). 

In Re Tuastall's Will, 14 L. T. 352, the costs of the Costs made 
application were charged upon the property, and the on the'' 
V. 0. directed that the name of the person advancing the estate. 
money necessary for the payment of the costs should be 
inserted in the order to save the expense of a mortgage- 
deed ; and see Re Hurles Settled Estates, 2 H. & M. 
204; 13 W. R. 171 ; 19 L. T. 592; 11 Jur. N. S. 78, 
where the costs of all parties as between solicitor and 
client of so much of the petition as was not dismissed, 
together with the costs of the trustees of so much of the 
petition as was dismissed, were ordered to be a charge on 
the estate. 

Where the powers to be given are for the permanent 
benefit of the estate, the costs of the application come out 
of the corjms {Wheeler v. Tootel, 16 W. K 273; 17 L. T. 
534) ; if the application is solely for the benefit of the 
tenant for life, they come out of the income ; see Re 
Marners Trusts, 3 Eq. 432, and other cases cited, ante, 
p. 322. Where the property to be sold comprised copyholds 
as well as freeholds, the Court directed the copyholds to 
be enfranchised before the sale, and the costs of enfran- 
chisement to be paid out of the proceeds of sale {In tq 
Adair's Settled Estates, 16 Eq. 124). 



882 COSTS UNDER PARTICULAR ACTS. 

Costs of By s. 17 the Court may sanctioD proceedings for the 

{01°^™-'°^'' P^'otection of any settled estate, and order the costs and 
tcction expenses in relation thereto to be raised and paid by 
s. 17. means of a sale, or mortgage of, or charge upon all or any 
part of the settled estate, or be raised and jDaid out of the 
rents and profits of the settled estate, or out of any 
moneys or investments representing moneys liable to be 
laid out in the purchase of hereditaments, to be settled in 
the same manner as the settled estate, or out of the in- 
come of such moneys or investments, or out of any ac- 
cumulations of rents, profits, or income. Where proceed- 
ings have been instituted i':ithout the previous sanction 
of the Court for the protection of a settled estate, the 
Court, either on an application under the Law of Pro- 
perty Amendment Act, 22 & 23 Vict., c. 35, or under this 
section, may give permission to the trustees to apply 
moneys in tlieir hands in defrciying the costs of the tenant 
lor life incurred in the litigation (lie Earl de la Wafi's 
Edatcii, IG Ch. D. 5!S7, I'ollowing lie Lord Rivers' Estate, 
ibid. 588 n. ; lie Ticyford Abbey Estates, 30 W. R 268). 
Scale of The fees and allowances under the Act are regulated 

^^'^^^ by Orders XXIX. and XXX., which incorporate R S. C. 

(Costs), Ord. VI., and Rules of Oct. 28th, 1875. 
Convey- By s. 69 (7) of the Conveyancing Act, 1881, 44 & 45 

.jnciiig Ad, y-^.^^ c. 41, it is provided as follows: "The Court shall 
have full po^Yer and discretion to make such order as it 
thinks tit respecting the costs, charges, oi expenses of all 
ur any of tlio parties to any application." 



■ CHAPTER VI. 

COSTS AFFECTINCi PARTICULAR PERSONS. 

Sect. I. — Costs of Assignees, I ncwinhn racers, dx. 
The priiicqiles on which the Court acts in disposing of ^°s*^ ^- 

., L o • 1 • 1 1 particular 

the costs 01 assignees and incumbrancers, as between assignees: 
themselves and strangers in administration actions, are !• ^^ 

T , , , . . . between 

also applicable to other actions in which the costs are tliemselves 
payable out of a fund; see (i.ntc, p. 187, and the cases g^^.'^j^^^^g 
there cited. Where the costs are payable by a ])art3^ to 
the action personally, the general rule is that incum- 
brancers are entitled only to add their costs to their 
securities against their own assignors. If the assignor is 
plaintiff, and the assignees defendants, the latter will not 
in general be entitled to have their costs over from the 
principal defendants who are ordered to pay the plaintiff's 
costs {Topliam v. Duhe of Portland, 3 N. R. 183) ; bat 
in mortgage suits the mortgagee is entitled to add the 
costs of assignees from him to his own, see the cases cited 
ante, pp. 233, 234. In a suit to raise a legacy charged 
on land, the mortgagee of the devisee was not allowed 
costs against the legatee {SJtacUeton v. ShacJdeton, 2 S. & 
S. 242). Incumbrancers on the life estate, who are neces- 
sary parties to a suit by prior incumbrancers on the 
inheritance, are not allowed costs against the inheritance 
{Ennis v. Brady, 1 Dr. & Wal. 720). If the first incum- 
brancer is not a necessary -party to a suit respecting the 
equity of redemption, he will not be entitled to costs out 
of the fund, but only against the plaintiff personally 
{Laird v. Tohin, 1 Mol. 543) ; secv.:^ if the co-defendant 



BB4 



COSTS AFFE(;T1N(; rARTlCCLAll PEUSOXS. 



ii. jVs 

))ct\veon 

assiijnor 

and 

assi'sneo. 



Costs of 

assignees 

and 

trustees 

in bank- 

ruiitcy or 

insolvency- 



raise sncli a case as to make the incumbrancar a necessary 
party (ibid.). In Cocl'ell v. Taylor, 15 Beav. 127, which 
was a suit to set aside a mortgage on a reversionary in- 
terest, it was held that submortgagees had, under the cir- 
cumstances, no equit}^ against the plaintiff, and they had 
to pay the costs of insisting on their securities ; but in 
Tottenham v. Green, 1 N. R. 46G, they were allowed to 
add their costs of suit to their security, and see Gomley v. 
Wood, 8 J. & L. 678, and ante, p. 250. As to the costs 
of transferees of a mortgage generally, see a.ate, p. 234, 
seq. As to the costs of persons claiming under one of the 
parties to a partition suit, see ante, p. 243. 

As to the mode in which costs are disposed of, as 
l)ct\veen assignor and assignee, see ante, pp. 187, 188, and 
ch. IV. sec. II. generally. Where the plaintiff in an ad- 
ministration suit mortgaged ]>endente life, his share was 
carried to a separate account, and he was allowed liis costs 
as between party and party out of it, but not his extra 
costs, as between solicitor and client, as against liis mort- 
gagee {Smith V. Plummer, 18 L. J. Ch. 45G). 

There is no special right in assignees or trustees in 
bankruptcy or insolvency which exempts them from the 
ordinary rule on the subject of costs {Fattison v. Graham, 
2 8ni. & G. 207) ; and they have, therefore, no better title 
to costs than their bankrupt or insolvent would have had 
{Walker v. Molloij, G Ir. Eq. R. 218; Carr v. Henderson 
11 Beav. 415). A trustee in bankruptcy, who makes an 
unsuccessful application to the Court, will be ordered to 
pay the costs, which, if the estate is insufficient to bear 
them, will fall upon him personally {Ex parte Angerstein, 
9 Ch. 479) ; secus, where the difference has arisen entirely 
upon the language of the Bankruptcy Act, and the trustee 
is right in bringing the matter before the Court {Be 
Pettifs Estate, 1 Ch. D. 478). - A trustee in liquidation 
who wrongly paid the costs of the debtor's solicitor in 
priority to those of the receiver, the estate being insuffi- 
cient to pay both, was ordered to pay tlie costs of the 



COSTS OF ASSIC4NEES, INCUMBRANCERS, ETC. 3B5 

receiver out of his own pocket {Ex parte Roj/Ie, 20 Eq. 
7«0 ; 23 W. R. 908 ; 33 L. T. 39). Where the assignees 
of the mortgagor of a share in a ship were made parties to 
a suit bj the owners of the other share to determine a 
question raised by the mortgagees, they got no costs 
{Green v. Briggs, G Ha. 632). In a suit by the wife of a 
bankrupt, to administer an estate and establish the plain- 
tiff's equity to a settlement, the assignees were allowed no 
costs, as the bankrupt was a debtor to the estate {Rother- 
hara wBattson, 2 Sm. & G. app. viii.). Assignees or trustees 
in bankruptcy brought before the Court in the course of 
a suit may become liable to the whole costs of the suit if 
they adopt it {WJ/itcomh v. MincJiin, 5 Mad. 91 ; Poole v. 
Franhs, 1 Mol. 78), although they do not resist the plain- 
tiff's demand further than by submitting the question to 
the 'Court {Blytlie v. Granville, 13 Sim. 190). In Whit- 
comh V. Mlncliin, it was lield that the plaintiff should 
apply to the assignees to satisfy his demand or disclaim 
before instituting proceedings against them, but this will 
not hold as a general principle (see the cases cited ante, 
p. 117). Where, however, the bankrupt or insolvent 
would have had to pay costs, his trustees may escape 
without costs, if the estate has been administered, and 
they have no assets in their hands {Williams v. Nixon, 
2 Beav. 472; Edwards v. Jones, 1 Coll. 247; Rider v. 
Jones, 2 Y. & C. C. C. 329) ; and in Foxiuell v. Greatorex, 
33 Beav. 345, where the assignee was entirely in the 
wrong, he was only ordered to pay the plaintiff's costs 
incurred siJjsequeiitly to the bankruptcy. In Collins v. 
Reece, 1 Coll. 675, the trustees of a creditor's deed had to 
pay the costs of a bill filed by the assignee in insolvency 
of the debtor for an account. 

As to the costs where plaintiff or defendant becomes 
bankrupt, see further, p. 341 ; and as to the costs of the 
trustees of a bankrupt executor, see ante, p. 188. 



B36 COSTS AFFECTING PARTlCULAll PERSONS. 



Sect. U.— Costs of Attorney-Genrral, Crovn, dr. 
Stat. 18 & By Statute 18 & 19 Yict., e. 90, sec. 1, it is enacted as 

19 Vict. C. r ^^ 

90, sec. 1. follows :— 

" In all informations, action.s, suits, and other legal pro- 
ceedings to be hereafter instituted before any court or 
tribunal whatever in the United Kingdom, by or on be- 
half of the Crown, against any corporation, or person, or 
persons in respect of any lands, tenements, or heredita- 
ments, or of any goods or chattels belonging or accruing 
to the Crown, the proceeds whereof, or the rents and 
profits of which said land.s, kc, by any Act now in force, 
or hereafter to be passed, are to be carried to the Con- 
solidated Fund of Great Britain and Ireland, or in respect 
of any sum or sums of money due and owing to Her 
Majesty b}^ virtue of any vote of Parliament relating to 
the public revenue, Her Majesty's Attorney-General, or 
in Scotland the Lord Advocate, shall be entitled to re- 
cover costs for and on behalf of Her Majesty where 
judgment shall be for the Crown in the same manner and 
under the same rules, regulations, and provisions as are 
or may be in force touching the payment or receipt of 
costs in proceedings between subject and subject, and 
such costs shall be paid into the Exchequer and shall 
become part of the Consolidated Fund. 
gpp o " 2. If in any such information, action, suit, or other 

legal proceedings judgment shall be given again.st the 
Crown, the defendant or defendants shall be entitled to 
recover costs in like manner and subject to the same rules 
and provisions as though such proceedings had been had 
between subject and subject; and it shall be lawful for 
the Commissioners of Her Majesty's Treasury, and they 
arc hereby required, to pay such costs out of any monies 
which may be hereafter voted by Parliament for that 
purpose." 



COSTS OF THE ATTORNEY-GENERAL. 837 

See Attorney General v. Haamer, 4 De G. & J. 205 ; 
5 Jur. N. S. 693 ; and see also Attorney General v. 
Sittrnghourne By. Co., 1 Eq. 636 ; 35 Beav. 268, where 
a petition was dismissed with costs as against the Crown. 
As to the form of the order for payment of costs to or by 
the Crown, see Seton, 556. 

It will be observed that the Act does not apply either The Act 
where the Attorney General is a defendant, or where he ^ppiy to 
sues on behalf of a charity. In the latter case, the rule ^f ".i^'-'^'^ 

charity 

still applies that the Attorney General cannot be made to suits, 
pay costs where he sues without a relator {Attorney General 
V. Dean and Canons of Windsor, 8 H. L. C. 369, 404 ; At- 
torney General v. Lord Chesterfield, 18 Jur. 686). But 
he may receive costs ; and it seems the Court Avill be 
more inclined to give costs in a charity suit than when 
the Attorney General is suing on behalf of a claim by 
the Crown [Attorney General v. Ashburnham, 1 S. & S. 
394 ; and see Perkins v. Bradley, 1 Ha. 219). In the 
case of successful proceedings with respect to charities, he 
is entitled to costs as between solicitor and client (Mog- 
gridge v. Thackwell, 1 Ves. Jun. 475 ; 7 Ves. 36 ; 13 Ves. 
416; Mills v. Farmer, 19 Ves. 490; 1 Mer. 104). A 
summons by the Attorney General in the matter of a 
charity for an order for taxation and payment of his costs 
relating to the charity, not being costs in the matter, must 
state the matters in respect of which payment of such costs 
is desired {Be Duhuich College, 15 Eq. 294; 21 W. R. 
519). 

If the Attorney General is made a party to a suit in Where the 
respect of a share in an estate or fund claimed by the QeneraHs 
Crown, he may have costs out of the estate or fund if defendant 
there is something coming to the Crown, but not other- 
wise : see Perkins v. Bradley, 1 Ha. 219, where the 
Attorney General unsuccessfully claimed an interest in the 
share of a felon against purchasers for value ; Murphy v. 
Osborne, 9 Ir. Eq. K 254, where the Attorney General 
was made a defendant in respect of a charge vested in a 

z 



338 COSTS AFFECTING FAKTICULAR PERSONS. 

deceased bastard, and nothing was found due on the 
charge. In Kitchener v. Kitchener, 13 Jur. 761, the costs 
of the Attorney General, made a defendant in respect of a 
reversionary interest belonging to a felon, were not pro- 
vided for by the decree, as the right would not arise till the 
reversion fell into possession ; see now 33 & 34 Vict., c. 23, 
abolishing forfeiture for treason and felony, but not affect- 
ing forfeiture consequent upon outlawry. The Attorney 
General made defendant to a legatee's bill and supporting 
the plaintiff, whose bill was dismissed, did not receive any 
costs (Corporation of Gloucester v. Wood, 3 Ha. 149). And 
the Crown will not be entitled to the costs of the Attorney 
General's appearance, in a suit, to which he is not a party, 
to argue a question as to legacy duty, if the claim is un- 
successful (Hohson V. Keale, 17 Beav. 178) ; or as to the 
right of a convict to a share of pergonal estate (Gough v. 
Davies, 4 W. R 757). Where a petition under Romilly's 
Act for the alteration of a scheme was dismissed, the costs 
of the Attorney General opposing, as between solicitor and 
client, were given out of the fund {Attorney General v. 
Stewart, 14 Eq. 17). Where the interest in respect of 
which the Attorney General is made a party is of such a 
nature that the Court would ordinarily allow three counsel, 
two counsel will be allowed besides the Attorney General 
{Cocl-harn v. Rajihael, 12 L. J. Ch. 263). 
Costs of Where the Solicitor to the Treasury has taken out ad- 

Solicitor to niinistration, as nominee of the Crown, to a deceased per- 
the Trea^ son, he is in the same position as any other administrator, 
admiiiis- ''i^^l ^iU be entitled to his costs, charges, and expenses 
behalf °of accordingly {Partington v. Reynolds, 6 W. R. 615). But 
the Crown, if he appeals against a decree finding certain persons to 
be next of kin he cannot have costs, as the appeal is in 
respect of the beneficial interest of the Crown, and not his 
legal title as administrator {ibid.). And so, if the letters 
of administration have been revoked before a suit by the 
next of kin to recover property in the hands of the Soli- 
citor to the Treasury, he cannot have costs {Kane v. 



COSTS OF THE BANK OF ENGLAND. 339 

Reynolds, -i De G. M. & G. 505). The Solicitor to the 
Treasury is now a Corporation Sole (39 & 40 Vict., c. 18, 
s. 1). 

By Statute 23 & 24 Vict., c. 34, s. 11, it is enacted, that Costs ou 
upon any such petition of right, as mentioned in the Act, ^f j'j.ljlt^ 
the Attorney General or other person appearing on behalf payable by 
of Her Majesty shall be entitled to recover costs against pijant to 
the suppliant in- the same manner as in proceedings ^^'^ Crown ; 
between subject and subject, with the same remedies for 
recovering the same. 

And by section 12 it is enacted, that the suppliant l^y the 
shall in like manner be entitled to costs against the the 

Crown. suppliant 

And by sections 13, 14, & 15, arrangements are made 
for the mode of paying the co.sts incurred by the Crown. 



Sect. III. — Cosls of the Bunk of England. 

With respect to the transfer of the public stocks, the The bank 
Bank occupies a quasi-fiduciary position {Hoiuard v. Bank costs 
of England, 19 Eq. 295), and will, in many cases, be occasioned 

'nil f ■ c c 1 "^ iinsuc- 

allowed the costs of an action to compel a tran.sfer of stock, cessfui 

Avhich the Bank has refused to permit without the direc- ''e^us^' to 

i _ permit a 

tion of the Court. In Pearson v. Bank of England, 2 transfer 
Bro. C. C. 529; 2 Cox, 175, the tenant for life of stock °^ '*°'^- 
bought the reversion, and the Bank having refused to 
transfer it upon a joint memorial, a transfer was directed 
with costs to the Bank ; and see Austin v. Bank of Eng- 
land, 8 Ves. 522 ; Marryatt v. Bank of England, ibid. 
524, n. ; Aynsworth v. Bank of England, ibid. ; King of 
Hanover v. Bank of England, 8 Eq. 350. So where the 
Bank refused to pay dividends without the direction of 
the Court, on account of a doubt as to the construction of 
a statute, they were allowed costs, though the decree was 
against them {Bristed v. Wilklns, 3 Ha. 235). ' It is a 

z 2 



310 COSTS AFFFX'TING PARTICULAR PERSONS. 

question of the greatest nicety, and one requiring to be 
settled for the protection of the public at large. The pro- 
perty in question is consols, as to which the Bank are 
public trustees. If it had been Bank stock, which is their 
own property, a different question might have arisen. As 
it is, I cannot possibly say that the Bank ought to pay 
costs ' {i^ev V. C. Wood, Bathe v. Bo ah of England, 4 K. 
No costs & J. ,564). In that case, which was a suit by a married 

fivGn . 

woman with an order of protection under the Divorce Act, 

to compel a transfer of stock to which she was entitled as 

administratrix, a transfer was directed, but the parties 

being in poor circumstances no costs were given to the 

Where the Bank. Howcver, in Franklin v. B(nih of England, 1 

costs. '^^^ Russ. 575, where the Bank refused to permit an executor 

to transfer a sum of stock specifically bequeathed, it was 

held that the legacy was not good without the assent of 

the executor, and therefore he, not having yet assented to 

it, might transfer the stock, and the Bank had to pay the 

costs of the suit; and see Banh (f England v. P<tr!^on.% 5 

Ves. GG8. 

fhc \lank ^^ ^^^^ Bank are made parties to a/» suit in a case where 

unneces- the required relief against them might have been had 

made uiider Statute 40 Geo. III., c. 36 (enabling the Court to 

parties. restrain the Bank though not parties to the suit), they 

will be dismissed with costs {Edridge v. Edrklge, 8 Mad. 

386). But, it seems, a demurrer would not lie in such a 

case {Temple v. Bank of England, 6 Ves. 770). If they 

are made parties merely for the purpose of discovery as to 

the amount of stock belonging to the testator a demurrer 

will lie (Saunders v. Sa.undcj's, 3 Drew. 387); or if brought 

to the hearing the Bank will be dismissed with costs, but 

as between party and party only (De Combe v. Be Combe, 

3 Jur. N. S. 712). 

The costs ^^^ ^■^ _2J«rfe Winter, 5 Russ. 286, the Bank was held 

"f iiie to be entitled to disobey an order under Statute 6 Geo. 

bank dis- -^^j ^'j/iinm 

obeying an IV., c. /4 (the old Irustee Act), as made on an msuffi- 
order ^^jg^^ statement of fact, and were allowed the costs of 



COSTS OF BANKRUPTS. 341 

successfully arguing the point ; and see Re King, 10 Sim. made hy 

605. ' tl^c Cmut 

-1171 T. 1 ultra virt*. 

Wliere the Bank were made parties to a suit to deter- Out of 
mine the right to a specific legacy of stock, they were '^^'■^^ ^""'^ 
allowed costs out of the legacy only, the costs of all other given 'to^ 
parties coming out of the general personal estate {Ham- *^® ''""^'■ 
riiond V. Keame, 1 Swans. 35 ; and see Shrymslier v. 
Northcote, ibid. 566, 573). 

Where the Bank is successful, of course it will have costs 
(Prosdcr v. Bank of England, 13 Eq. 611). 



Sect. IY. — Co.sf.s of Baul-rupts. 

Where a certificated bankrupt was made a party to a Where the 
suit in respect of a claim against himself and his part- J|;'^"'^^""P* 
ners accruing before the bankruptcy, he was held en- become so 
titled to have his costs from the plaintiff {Pannell v. ^"^"''^ '"'*' 
Hurley, 2 Coll. 241). But in Gregory v. Bessell, 6 Mad. 
1S6, a bankrupt who had been guilty of fraudulent con- 
duct was dismissed without costs. A bankrupt made a 
defendant to a suit to determine the respective rights of 
his wife and his trustee, will be allowed his costs, 
although he is a debtor to the estate (Rotherham v. 
Battson, 2 Sm. & G. app. viii.), and in Green v. Otte, 2 L. J. 
Ch. (O. S.) 123, they were allowed as between solicitor 
and client. 

If a sole plaintiff becomes bankrupt in the course of a Where a 
suit, his trustee in bankruptcy may, if he please, go on ^f ^ .^ 
with the suit; and in that case he becomes liable to the becomes 
costs of the suit from its commencement. If the trustee j^q "Jhe"^'* 
take no step in the matter, the action may be dismissed course uf 
with costs for want of prosecution, on the defendant un- *^^ '"'*' 
dertaking not to enforce the order against the plaintiff 
personally but only against his estate in bankruptcy 
(WrigJd V. Stcindon Ry. Co., W. N. (1876), 296 ; Ahhotson 



342 COSTS AFFECTING I'AimCULAR PERSONS. 

V. Greng, W. N. (1871), 2 ; 19 W. R. 340; 23 L. T. 796 ; 
Daniel v. Harding, 1 Y. & C. C. C. 436). 

If the suit is brought to a hearing after the sole plaintiff 
has become bankrupt and is then dismissed, the dismissal 
will be without costs; see Boucicault v. Delafield, 12 
W. R. 1025 ; 4 N. R. 476, where the plaintiff became 
bankrupt after the hearing of the cause, but before judg- 
ment was given ; but see the other Avay, Smith v. Ffg, 1 
Dick. 288 ; unless vexatious conduct or fraud is proved 
against the bankrupt, in which case he may be ordered at 
the hearing to pay costs personally {Loch v. Bromley, 3 
Ves. 40 ; and see the observations of V. C. Wood in 
Boucicault v. Delafield). An order for the payment of 
the costs of the defendant to a suit for discovery, however, 
is regular, though the plaintiff has become a bankrupt 
{Hibherson v. Fielding, 2 S. & S. 371). 
Where a A defendant who has become a bankrupt or insolvent 

beco'incT*^ may nevertheless dismiss the suit with costs for want of 
bankrupt, prosecutiou (scc ante, p. 81, and the cases there cited). 
And the Court would not at the instance of the assignees 
order the plaintiffs to file a supplemental bill, or in defiiult 
have their bill dismissed {Manson v. Burton, I Col. 626). 
In a recent case where a sole defendant became bank- 
rupt the Court declined to add his trustee as a defendant 
under R.S.C. OrJ. L., r. 2, the plaintiff's claim being a mere 
money demand, or to make any order as to the plaintiff's 
costs up to the bankruptcy, which were consequently lost 
{Barter v. Duheux, (C. A.) 50 L. J. 527 ; 29 ^Y. R. 622 ; 
44 L. T. 596). 
Costs of a A bankrupt executor or trustee, however, will be en- 
excc'uto? titled to his costs of suit in the usual form, whether the 
or trustee, bankruptcy has occurred before the suit (Cotton v. Clark, 16 
Beav. 134);or after it {Samuel v. Jones, 2 Ha. 246 ; Turner 
V. Mullineux, 9 W. R. 252) ; and see Boivyer v. Griffin, 9 
Eq. 340 ; 18 W. R. 227, where Turner v. Midlineux is 
treated as conclusive. If a balance is found due from the 
bankrupt to the estate, it may be set off against his costs 



COSTS OF GUARDIAN AD LITEM. 313 

up to the baiikniptcy, but not ngainst his subsequent costs 
(see ante, p. 19())>-^. So a bankrupt trustee is entitled to his • ^' ^^^.^k^ t/'^/^^^^ 
costs of appearance on a petition for the appointment of ^^t^\^^f\Q> "S^^efe 
new trustees {Turner v. Mullineux). "-^"^ ^<^^^^ iA.f%_ 

Costs ordered to be paid, but not taxed before the bank- 
ruptcy of the person to receive them, cannot be set off in 
bankruptcy against a debt due from the party 1o pay them 
{Ex parte Rhodes, 15 Ves. 539). 



Sect. V. — Costs of Guardian ad Litem. 

' Where tlie Court appoints one of the solicitors of the Order as to 
Court to be guardian ad liteni of an infant or person of ^°!|'^jj^^ 
unsound mind, the Court may direct that the costs to be «f^ litem. 
incurred in performance of the duties of such office shall 
be borne and paid either by the parties, or some or one 
of the parties to the suit in which such appointment is 
made, or out of any fund in court in which such infant or 
person of unsound mind may be interested, and may give 
directions for the repayment or allowance of such costs as 
the justice and circumstances of the case may require' 
(Cons. Ord. XL., r. 4). 

Except in cases of gross misconduct the guardian ad Costs of 
liteni of an infant will not be ordered to pay the costs of ""^^I*^", 
an unsuccessful defence {Morgan v. Morgan, 11 Jur. N. S. defence. 
233 ; 12 L. T. 199). 

Where the solicitor to the Suitors' Fee Fund is appointed where 
guardian to a defendant Avho is an infant, or of unsound g^^rdian is 

. T 1 . ,. 1 , . . ^p . . appointed 

ramd, at the mstance oi the planitm, it is the settled rule at plain- 
that the plaintiff shall pay his costs in the first instance, st!!n-"^"b 
and add them to his own {Fraser v. Thompson, 4 De G. pays the 
& J. 659 ; Neiuhury v. Marten, 15 Jur. 166) ; although it may\ave 
is a foreclosure suit, and the security is insufficient ^^^"^ °^^^- 
{Harris v. Hamlyn, 3 De G. & S. 470). But in a parti- 
tion suit, the guardian's costs were ultimately charged on 
the infant's share {Robinson v. A^ton, 9 Jur. 224 ; and sec 



34i COSTS AFFECTING I'AUTICULAR PEUSONS. 

Rohe;] v. W!utci'-uo<l, there cited). Where a guardian was 
appointed at the plaintiff's instance to a defendant alleged 
to be, but who was not really, an infant, the plaintiff bore 
the costs (Green v. Bodley, 7 Beav. 271). The Court, 
however, has no jurisdiction to order the costs of a defen- 
dant to whom the solicitor to the Suitors' Fee Fund is 
appointed guardian to be paid out of the suitors' fund 
{Fraser v. TJioiapson, 4 De G, & J. 659). 
Where a Where a person of unsound mind, to whom a guardian 

person of ^^^^ Utem had been appointed at the instance of the plain- 
mind re- tiff, recovered before the hearing and applied for leave to 
dZ7m.' appear by his own solicitor, it was held that he must pay 
the costs of the guardian before obtaining an order to sub- 
stitute his own solicitor, but might add such costs to his 
own costs of suit (Framjdoii v. ]Vef)h, 2 N. R 547 ; 11 W. 
R. 1018) ; and see Bbjth v. G'/wn, W. N. (1876), 214. 
The solici- Where the solicitor to the Suitors' Fee Fund is appointed 
tor to the ^,^j^^j.(]ij^^ f„i iifcra to an infant defendant, and also appears 

rMutois o 

Fund ap- f^j. Q^her parties defending in forma pcaiperis, he will be 
different' entitled to his full costs in each case, notwithstanding the 
capacities ^.^^^ -^ j^^ Colquhouii, 5 De G. M. & G. 35, ante, p. 127, 

entitled to ■'■ , /n m t n>'£C 

,fuli costs which was held not to apply {Frazer v. Ikompson, 1 uiit. 
in each. ^g^^_ 



Sect. YI. — CW^ of Heir at hnv and Xe.rt of kin. 

Co.tgof In Bcrney v. Eijre, 3 Atk. 387, Lord Hardwickc is 

heii-athiw, stated to have ' laid down the following general rules : — 

as between ,.„,. ,■ ■, •^■< i- . 

himself that if a devisee bring a bill merely in perpetuarn rei me- 

^J^^. moriam, and the heir at law does nothing more than cross- 

devisee. 1 1 £> 1 

examine the witnesses who are produced to conhrm the 
will, he is entitled to his costs. If he examines witnesses 
to encounter the will, he shall not have his costs. This is 
where the bill does not pray relief, or is not brought to a 
hearing. But when the cause is brought to a hearing, if 
the heir at law has an issue directed to try the will, and 



CO.STrf OF HEIR AND NEXT OF KIN. 34 J 

the will is established, as he has a right to be satisfied how 
he is disinherited, he shall have his costs. If he sets up 
insanity or any other disability against the person who 
makes the will, and fails, he shall not have his costs. But 
it must be a very strong case which will induce the Court 
to give costs against him, as spoliation or secreting the 
w'ill. I should ' (said Lord Hardwicke, with reference to 
the particular case before him) ' have decreed the defen- 
dant, the heir, his costs, notwithstanding one witness 
has sworn positively to an attempt of concealing the will, 
because it is as positively denied by the defendant's 
answer, but then it appears likewise that after the heir 
was informed that the will w-as in the hands of a particular 
person, he went and took out administration upon the 
oath usual on those occasions, without ever making any 
enquiry after the person whom he was informed by letter 
had the will in his custody. This is such an improper 
behaviour in the heir that I will not give him his costs.' 

With regard to the first point mentioned by Lord In suits to 
Hardwicke, the costs of the heir in a suit to perpetuate Smon*^ 
testimony to the will merely, see ante, p. 215, seq., and to the will 
the cases there cited. The heir will be entitled to his '"^"^^ ^' 
costs from the plaintiff, though he refuses to release his 
right {Anrjell v. Brown, 2 P. W. 285, n.) 

The rules above stated with respect to the costs of the -Where the 
heir, where the will is established against him, are followed ^^'^^! ^^ ^^' 

° ^.„ tablishea 

generally, though subject to some modification. Where against the 
the heir is defendant he will be entitled to his costs from f^'ls^e- 
the phiintiff, both at law and in equity, though an issue fendaut ; 
devisavit vel noii is granted at his request and found T^T.^ 
against him, if he has not been vexatious or guilty of 
tampering with the will (BUnkeJiorn v. Feast, 1 Dick. 153 • 
and see Boson v. Boson, ibid. 300; Johnson v. Gardiner, 
ibid. 313 ; Gough v. Botevel, ibid. 896 ; Creiv v. Jollif, 
Prec. Ch. 93 ; Tueker v. Sanger, M'Clel. & Y. 425 ; 18 
Pr. 607 ; WrigJd v. Wright, 5 Sim. 449) ; and he is' en- 
titled to examine witnesses on his own behalf (Tuthill v. 



346 COSTS AFFECTING PARTICULAR PERSONS. 

Scott, 2 Moll. 468 ; uotvvitlistauding tlie dictum in M'Clel. 

Sc Y. 445). ' The Court does not consider the heir hound 

to litigate with his hands tied ; and he is at liberty to 

raise any questions before the Court which may be fairl}' 

necessary to determine the validity of the will ' {per V. C. 

Parker, Grove v. Younrj, 5 De G. & S. 38). 

The heir It seems at one time to have been held tliat, if the heir 

priv'cd of set up a case of insanity or incompetence in the testator, 

costs as of ami failed, "he could not have costs (see Berney v. Eyre ; 

where 'he White V. WU.'ion, 18 Ves. 87 ; Smith v. Dearmer, 3 Yo. Sc 

alleges in- j £78). But the rule now followed appears to be, that 

sanity, and ; _ _ . . 

fails." even in this case the heir will not be deprived of his 

costs, unless the defence was made without any proper or 
just grounds {Waters v. Waters, 2 W. R. 642, and see 
1 K. & J. 759 ; Roberts v. Kerslale, 1 K. & J. 751 ; 
and see Grove v. Yoiuifj, 5 De G. & S. 38, though this 
case is differently reported on this point in 15 Jur. 1100). 
In Webb v. Glaverdeii, 2 Atk. 424, Lord Hardwicke him- 
self is reported to have said, that even where insanity is 
alleged, the Court ' very often allow\s the heir his costs.' 
Whether the defence is a proper one to make will of course 
depend upon the circumstances of each particular case. 
In Waters v. Waters, 2 \V. R. 642, the heir was allowed 
his costs. In Roberts v. Kerslake, on the other hand, 
V. C. Wood refused costs, because the heir lived in the 
neighbourhood of the testator, who was subject to fits of 
delirium, and knew of all the circumstances on which the 
testator's sanity was established when the will was made. 
The Vice-Chancellor there suggested, as a test of the 
propriety of the proceedings, the consideration whether 
the Court would antecedently sanction such risk being 
incurred on behalf of an infant. Again in Grove v. Young, 
where the heir adduced voluminous evidence of the tes- 
tator's incompetence in the suit, but declined to raise the 
question in an action which was directed for the purpose 
of trying the will, the Court gave no costs at law or in 
equity generally, but made the defendant pay the costs of 



COSTS OF HFJR AND NEXT OF KlN. 347 

the useless evidence. But it must be a very exceptional 
case in which costs will be given against the heir. In 
White V. Wilson, 13 Ves. 87, the heir (in the language 
of Lord Erskine) ' wickedly and fraudulently contested 
this will,' but the Court gave no costs of the issue, made 
the defendant pay the costs of a motion for a new trial, 
and gave him the costs in equity. 

The circumstance that the heir was a party to previous What 
judicial proceedings in which the validity of the will cij-cum. 
was upheld, will be a reason for refusing him costs — as stances 
where the will as to personalty had been previously esta- prive the 
blished in the Ecclesiastical Court against the heir as one ^^ir of 

^ costs. 

of the next of kin {Stacey v. Sprdtlcy, 4 De Gr. & J. 199) ; 
or where the heir had previously brought an action of 
ejectment and failed {Grove v. Young, 5 De G. & S. 38). 
Where a person was made defendant to a bill to establish 
a devise of gavelkind lands as sole heir of the testator, and 
admitted his title, but it was afterwards discovered that 
his elder brother had left children, the original defendant 
having in his answer to a supplemental bill admitted his 
knowledge of the fact, but alleged ignorance of the law, 
was refused costs both at law and in equity {Roberts v. 
Scoones, 7 Sim. 418). In M((n v. Ricketts, 7 Beav. 93, the 
heir at law, who was also a trustee under the will, having 
in a suit against him by the assignees of a cestui que trust 
for an account, disputed the validity of tlic will after 
twenty years' acquiescence, was refused an issue, and had to 
pay the costs of the suit up to the hearing ; and see S. C. 
on appeal, sub norn. Tarquand v. Ricketts, 1 H. L. C 
472. 

An heir at law and executor who elects to take real 
estate in Scotland, in opposition to a will under which he 
would be entitled to a legacy, is entitled to his costs out 
of the personal estate, except the extra costs caused by liis 
election {Harrison v. Harrison, 8 Ch. 342 ; 42 L. J. Ch. 
495 ; 21 W. E. 490 ; 28 L. T. 545). 

But where the heir at law has been guilty of spoliation where t1\c 



348 COSTS AFFECTING PARTICULAR PERSONS. 

heir has OF tampering with the Avill, he Avill have to pay the costs 
of spolia- ^ ^^ establishing it, as laid clown by Lord Hardwickein Ber- 
tion, he ^eij V. Eyre, 3 Atk. 387 ; and see WlUiarna v. WiUiams, 
pays costs. ^^^ ^eav. 30G ; 3 N. R 100; 12 W. R. 140. And that 
will be so, although the costs are not increased by his 
misconduct (see AHihlleton v. MkJdJeion, .5 De G. tV: S. 
G56, where the heir tore the will to pieces, which were 
put together again, and the will was proved in that shape). 
In Ma IT 'i oft V. Marriott, 12 W. R. 303, the heir burnt a 
writing which was supposed to be a valid will, but which 
turned out to be a nullity, and in a suit by the devisee to 
establish this document as a will, or in the alternative an 
earlier one — Avhich was ultimately established — the heir 
having admitted the destruction of the second document, 
and also a copy of it, had no costs up to the heaiing, but 
had his costs of the issue and his subsequent costs, 
ii. Where Where the heir at law instituted a suit to set aside a 
isplainW will, in a case in which he might have proceeded by 
ejectment, and failed, he was ordered to pay all the 
costs occasioned by his controverting the will {Wehh v. 
Claverden, 2 Atk. 424 ; and see Johnson v. Gardiner, 
1 Dick. 313 ; Gougli v. Botevel, ibid. 396 ; BUiil-e- 
horn V. Feast, ibid. 153 ; Seal v. Botcnton, 3 Bro. 
C. C. 214 ; Tuthill v. Seott, 2 Moll. 468). But where an 
outstanding legal estate, as to all or any part only of the 
lands, prevented ejectment being brought, and it was 
otherwise a reasonable case for investigation, the bill 
was dismissed without costs generally, but the heir paid 
the costs of the issue (Trtf/anyi V. Wright, 2 R. & M. 1, 
31 ; Sea if e v. Seaife, 4 Russ. 309). In Stvinfen v. Stuin- 
fen, 27 Beav. 148, 167, where the heir disputed the will 
on the grounds of incompetency and fraud, but for any- 
thing that ajopears might have brought ejectment, no 
costs were given of the first trial, which ended in an 
ineffectual compromise through the mistake of all parties, 
but the heir had to pay the costs of the second trial, in 
which the jury found in favour of the will, and the costs 



COSTS OF HEIR AND NEXT OF KlN. 349 

of au unsuccessful motion for a new trial, and the bill was 
then dismissed without further costs. Where the heir at 
law filed a bill against the devisee and executor impeach- 
ing the validity of the will, and an issue was directed 
which resulted in the validity of the will being established, 
the bill was dismissed Avithout costs as regarded the 
devisee, and the plaintiff paid the costs of the executor 
(Banks v. GoodfeUow, 11 Eq. 472; and see Cowgill v. 
Rhodes, 33 Beav. 310). 

So, where the heir, instead of bringing ejectment, filed Present 
a bill for discovery of the deeds by which he was disin- "JthT*"'" 
herited, he had to pay the costs of the suit {Luxton v. Courts not 
Stephens, 3 P. W. 373). But in Leman v. Alie, 1 Amb. gpeciar 
163, a similar bill was dismissed without costs, with f'i'*'o"rto 
a direction that, if the plaintiff should further molest 
the defendants, they should be at liberty to apply for 
costs, and it was said that an heir at law contending for 
the inheritance on reasonable grounds, should not pay 
costs ; and see Stephens v. Trueinaii, 1 Yes. Sen. 73. But 
' in modern times the inclination of the Court has been to 
place the heir at law in the same situation as other parties' 
(per Sir J. Romilly, M. R, Swinfeii v. Siuivfeii). 

Where, however, the question between the heir and Where the 
devisee is one of construction only, it would seem that on 'i^f^tion 

•^ ' _ between 

tlie principles stated, ante, p. 96, seq., the heir at law, the heir 
though unsuccessful, should not pay costs, or may have il"one°or^*^ 
them out of the estate ; and see Yates v. Gomipton, 2 P. W. construc- 
308 ; Ra.shley v. Masters, 1 Ves. Junr. 201. So a bill by Next of 
next of kin, claiming the surplus against the executors, was ^i°- 
dismissed without costs (BllnkJtorn v. Feast, 2 Ves. 27). 

But wdiere the question was whether a particular house 
passed by the devise, and the heir failed at the trial of an 
action at law to prove a material fact alleged in the suit, 
and but for which the action would not have been directed, 
he had to bear the costs occasioned by the trial of the 
action [Neivton v. Lucas, 1 My. & C. 393). In a suit upon 
the construction of will the heir at law was ordered 



BoO 



COSTS AFFECTING FArvTICULAU FERSOKS, 



Costs of 
heir and 
next of 
kin in 
charity 
cases. 



Costs of 
next of 
kin and 
heir in- 
adrainis- 
tration 
suits. 



to be made a party, which was done, and the V. C. 
decided that he was entitled to the residue. The Court 
of Appeal reversed this decision, and their judgment was 
substantially affirmed by the House of Lords, but under 
the circumstances the heir was allowed his costs both in 
the court below and in the appeal {Singleton v. Toinlinaon, 
3 App. Cas. 404). 

In charity cases the heir at law, if he makes no im- 
proper point, will, though unsuccessful, be entitled to his 
costs {Currie v. Pye, 17 Ves. 462 ; Whicker v. Hume, 14 
Beav. 528) ; and generally they will be allowed as between 
solicitor and client (Carrie v. Pye ; James v. James, 11 
Beav. 397 ; Lewis v. AUenhy, 18 W. R. 1127 ; W. N. (1870), 
213), but not, it seems, as of right {Whicher v. Hume; 
and see ante, p. 206). So as to the costs of next of kin 
{Carter v. Green, 3 K. & J. 608 ; Gaffnej v. Hevoy, 1 Dr. 
&Wal.25 ; but see Wilkinson v. barber,- 14 Eq. 96, where 
theM. R. decided to follow Carter y. Green). In Attorney 
General v. Haberdashers Company, 4 Bro. C. C. 177, 
S. C. Beames, app. 18, the heir at law having come in 
under an enquiry in a charity information, and in a sup- 
plemental information filed against him unsuccessfully 
claimed the increased rents of the charity estate, was 
allowed his costs out of the estate as between solicitor and 
client, including those which he ' had been put to pre- 
viously to the time of being made a party to the suit in 
proving himself such heir at law.' And in other cases the 
heir at law has been allowed his costs, charges, and ex- 
penses {per Lord Langdale, M. R., Attorney General v. 
Kerr, 4 Beav. 297, 299). 

The costs of the heir at law and all other parties to a 
successful suit to set aside deeds as not duly executed 
and enrolled will be paid out of the estate {Wickhamv. 
Marquis of Bath, 1 Eq. 17; 35 L. J. Ch. 5; 11 Jur. 
N. S. 988 ; 14 W. R. 21 ; 13 L. T. 313). As to the costs 
of next of kin proving their title in Chambers in 
an administration suit, see ante, p. LS6. In Sviff v. 



COSTS OF INFAKTS, ETC. 351 

Siviff, 1 De G. F. & J. 160, the testator's heiress 
at law, who had come in under the decree in a next of 
kin's suit, was allowed the costs of proving her pedigree, 
as well as her general costs ; and see Att. Gen. v. Haber- 
dashers Compamy, cited above, and the MS. cases therein 
referred to. In Bland v. Daniell, W. N. (1867), 169, the 
costs of the enquiry for the heir at law as between soli- 
citor and client were given him out of the real estate. 

Where an heir at law, plaintitf, was put to prove his 
pedigree, and it appeared that the evidence, which satisfied 
the Court, was submitted to the defendants before suit, 
the plaintiff had costs against them, though trustees, 
personally {Lancashire v. Lancashire, 1 De G. & S. 288). 

Where the real estate of an intestate has been ex- Where the 
hausted by his creditors, the heir at law, being in the Srin'the^"^ 
position of a trustee, will be allowed costs, and as between position of 
solicitor and client, whether as defendant {Tardrew v. ^ 
Howell, 2 Gifif. .530), or as plaintiff (Shiftier v. Shiftier, 4 
N. R 475). In Hoddel v. Pugh, U W. R. 782, which was 
a suit for specific performance by the executor of a 
deceased vendor, the heir at law having refused to convey 
had to pay the costs of the suit. As to the costs of an 
infant heir at law in a suit for specific performance of his 
ancestor's contract, see ante, p. 261, seq. 

The heir at law of a decea.sed purchaser is not entitled Heir of 
to have the costs of the conveyance of real estate con- ^^urchTJer 
tracted to be purchased, which has descended on him, "ot enti- 
paid out of the personal estate {Waife v. Barnes, C. P. costs^of 

C. 502). convey- 

A disclaiming heir in a foreclosure suit is in the same Disdaim- 
position with regard to costs as any other disclaimino- i"g lieir. 
defendant {Gray v. Adamson, So Beav. 383). 



Sect. VII. — Costs of Infants and theirnext Friends. 

Any person is at liberty to institute proceedings in the Cos;.^ as 

name of an infant, as liis next friend (Mitf Pi. 25; RSO between 

the next 



B;r2 COSTS AFFECTIKC; I'AKTK'ULAU I'EitSOKS. 

friend of Ord. XVI. r. 8) ; but by so doing he renders himself liable 
plaintiff ^^ ^^® defendants for all the costs of the suit, including 
and the those of any interlocutory proceedings in it taken on 
ants. behalf of the infant plaintiff {Jones v. Leiris, 1 De G. & S. 

245 ; andcf Buchtonx. Buckioli, 2 Dick. 79-i ; Roddani v. 
lietJierington, o Ves. 91). As between the next friend 
and the defendants, the former is in the same position 
with respect to costs as any adult i^laintiff, and the action 
will, in a proper case, be dismissed with costs payable 
by the next friend. See Frank v. Mainivaring, 4 Beav, 
']7, where a bill was filed in the name of an infant, 
under the sanction of a Master, to set aside certain 
deeds alleged to have been executed by a settlor when 
a lunatic, and a jur}- having found in favour of the 
deeds, the bill was dismissed with costs ; and see also 
B(i rfJdi v. Wood, 9 W. R. S17, as to the costs occasioned 
by unproven charges of misconduct made in an infant's 
bill. In Widtersv. Woodhridr/c, 7 Ch. D. 504, where a bill 
imputing misconduct to a trustee Avas dismi.s.sed with 
costs which the next friend was unable to pay, the 
trustee's costs were allowed out of the trust estate. 
"Where two out of three infant plaintiffs had attained 
twenty-one before decree and had adopted the proceed- 
ings, and a decree was made for payment of costs by the 
plaintiffs generally, it was held that an attachment against 
the next friend alone wjus not irregular {Fv.rccll v. ITooc?- 
ley, 5 Ir. Eq. R 37C). If, however, the infant dies before 
the taxation of costs ordered to be paid by the next 
friend, it is said that the next friend cannot be pro- 
ceeded against for them, and the costs are lost {Morgan v. 
Compton, Bunb. 332). 
Costs as But as between the next friend and the infant, the 

thrinfant f^^i'i^^e^'j though jjrr/au facie liable for the infant's solicitor's 
and the bill of costs as well as those of the other side {Re Flower, 
friend. 19 AV. R. 578), will be entitled to the costs of a suit pro- 
perly instituted for the infant's benefit {Dunn v. Dunn, 
3 Drew. 17) ; even though unsuccessful, see Taner v. Ivie, 



COSTS OF INFANTS, ETC. 853 

2 Ves. 467, where the bill, which was filed with a Master's 
sanction, had been dismissed with costs. And in general 
the next friend's costs will be allowed as between soli- 
citor and client [Broicn v. Weatherhead, 4 Ha. 122) ; but 
not, it seems, as a matter of right (see Oshorne v. Denne, 
7 Ves. 424, where the extra costs were refused). The 
extra charges and expenses beyond taxed costs might also, 
it has been said, be allowed to the next friend under the 
head of 'just allowances ' (Fearnsv. Young, 10 Ves. 184). 
And in Palmer v. Jones, 22 W. R. 909, Jessel, M. R., 
directed the costs, charges, and expenses of the next friend 
properly incurred before suit with reference to the insti- 
tution thereof to be paid out of a fund in Court recovered 
in the suit. 

The Court may provide for the next friend's costs out Tlie next 
of any funds under its control in the suit, but it will ," ^'^ 

■J ' no hen tor 

not give the next friend a charge for his costs on an costs on an 
estate recovered in the suit ; see Bonser v. Bradshaw, 9 recovered 
W. R. 229 ; 7 Jur. N. S. 231 ; 30 L. J. Ch. 159, where the i" t^^^ suit. 
defendants, who had been ordered to j)ay the costs, had 
absconded, and the purchase monies of part of the estate 
recovered having been paid into Court by a railway com- 
pan}^, the Court on petition, ordered those monies to be 
applied jjro tanio in payment of the next friend's costs, 
but declined to make any order as to the residue. Semble 
the Statute 23 & 24 Vict. c. 127, s. 28, does not apply to 
the costs of a next friend, so as to give him any charge 
on the estate or funds recovered (ibid.) ; and the Court 
will not hear an application by the next friend's solici- 
tor to charge the estate with his costs, unless it is sub- 
stantially opposed on behalf of the infant (S. C. 10 W. R. 
481). But the solicitor's application was ultimately 
granted after the plaintiff came of age (S. C. 4 Giff. 260). 
And in Pritchard v. Roberts, 17 Eq. 222, the costs of pro- 
ceedings under the Declaration of Titles Act on behalf of 
an infant, together with the costs of a partition suit, and 
a suit to obtain a declaration of lien, were held to be costs 

A A 



C54 CObTS AFFECTING PARTICULAR PERSONS. 

for which the solicitor had a lien on the funds recovered ; 
and sec also Baile v. Baile, 13 Eq. 497, 'post, Ch. IX. sect. iv. 
Costa The Court will, before judgment, direct an enquiry 

suit is whether the suit is for tlie infant's benefit, or if so, 
found not whether the next friend is a proper person to conduct it, 
tlie in- on motion either of one of the defendants [Fox v. Siiwer- 
I'l^tit ^''^'O'l^j 1 Beav. 583), or the infant himself by another next 
friend for the purpose of the application {Guy v. Guy, 
2 Beav. 460) ; and if the suit appears to have been im- 
properly instituted, it will be dismissed with costs against 
tlie next friend {ibid. ; Thomas v. Elsom, \V. N. (1H77), 
]77); or some other person may be appointed as next 
fri(!nd {Clayton v. Clarke, 2 Giff. 57')). In a clear case 
the suit may be at once dismissed with costs without a 
reference {Sale v. >SV(/^, 1 Beav. 586). But the Court will 
not direct a reference upon the application of the next 
friend himself to see whether the suit which he has 
instituted is for the infant's benefit {Jones v. Fowell, 
2 Mer. 141). And it is irregular to add such an enquiry 
to a decree for accounts {Clayton v. Clarke, 9 W. R. 718, 
overruling S. C. 2 Giff. 575). See further as to a next 
friend's liability to costs Palmer v. Walcshy, 3 Ch. 732, 
where a next friend filed a bill on behalf of a supposed 
lunatic and was ordered to pay all the costs. 
\Yherc the I'l^c Court considers it to be primd facie for an infant's 
next friend jjencfit to be made a ward of Court, and have his property 
allowed administered and secured {Clayton v. Clarke) ; the ques- 
costs, or ^- -whether the suit is for his benefit, therefore, Avill 

the eon- ' _ _ ' 

trary. uot depend upon the result of the accounts {ibid; but 
see Anderton v. Yates, and Mackenzie v. Taylor, cited 
below). The question is whether the suit was instituted 
with a fair intention, and not to answer some purpose of 
spleen, or other improper purpose on the part of the next 
friend {Whittaker v. Maria r, 1 Cox, 285). In the case 
last cited it w^as said that ' no degree of mistake or mis- 
apprehension is sufficient to charge a next friend with 
costs;' but see Pearce v, Pearce, 9 Ves. 548, where the 



COSTS OF INFANTS, ETC. 355 

next friend, having filed his l)ill without sufficient in- 
formation of the facts dismissed it with costs, and Lord 
Eldon reserved the question of costs as between the next 
friend and tlie infant ; and see also Cdley v. Caley, 25 W. 
R. 528 ; W. N. (1877), 89 ; and Strajford v. Warren, 
23 S. J. 740, which show that a next friend will certainly 
be made to pay the costs in a proper case, and where the 
suit ought never to have been instituted. In Clayton v. 
Clarke, 9 W. R. 718, it appearing that the bill was filed 
from motives chiefly personal to the next friend, the 
Court gave him no costs up to the hearing, but allowed 
him the subsequent costs, except those of an unsuccessful 
motion to vary the certificate. In Walher v. ^7^^, 7 Sim. 
234, where the next friend was of immoral character and 
in low circumstances, and had filed the bill to spite the 
mother of the infant, from whose service he had been dis- 
missed, the bill was ordered to be taken off the file, with 
costs against the next friend. Again, in Anderton v. 
Yates, 5 De G. & S. 202, a bill was filed in the name of 
infants against the testator's widow (the stepmother of 
the plaintiffs) and her co-executor, against whom (un- 
proven) injurious imputations were made ; the Master 
having approved of the widow and her co-executor as 
guardians, and the application of the whole income for 
maintenance, and in fact left things as they were before 
suit, the Court made the next friend pay all the costs, 
and stayed further proceedings. Where a bill was filed 
on behalf of infants entitled to one moiety of a residue 
for an account, and the suit was opposed by adults entitled 
to the other moiety, as unnecessary, the Court gave the 
costs, including apparently those of the next friend, out of 
the plaintiff's moiety, though the accounts proved correct 
{Mackenzie v. Taylor, 7 Beav. 467). Where the next 
friend was removed on the application of the father, but 
had done nothing wrong in instituting the suit, the costs 
both in the Court of Appeal, and in the Court below were 
made costs in the action {Woolf v. Pemberton, 6 Ch, D. 

A A 2 



356 



COSTS AFFECTING PARTICULAR PERSONS. 



^VIlere two 
or more 
suits arc 
instituted 
coneur- 
roiitly in 
the name 
of an 
infant. 



19 ; 2.5 W. R. 873). The next friend uf an iufont was 
disallowed the costs of an ajjpeal as unnecessary {Camp- 
hell V. Camphell, 2 My. & C. 25) ; and so of an unnecessary'- 
suit {Ellis V. Ellis, 1 Russ. 368). But the Court refused, 
in Smalhuood v. Rutter, 9 Ha. 24, either to dismiss or 
refer an infant legatee's bill on the mere ground that the 
case might have been raised by claim, or the fund might 
have been paid in under the Trustee Relief Act ; the 
propriety of any expenses being matter for consideration 
■when the costs are disposed of. Where at the hearing 
costs are ordered to be paid by a next friend,. without 
any reservation of the question who is to bear them 
ultimately, the order is final against him personally {CaUy 
V. Caley, 25 W. R. 528). 

If two or more suits are instituted in the name of an 
infant, an enquiry will be directed which suit it is most 
for the infant's benefit to have prosecuted, and proceedings 
in the other or others will be stayed (Mitf. PI. 27, and the 
cases there cited). The reference may be obtained on the 
more allegation that the suits arc for the same purpose ; 
it being at the risk of the party moving, in case the 
allegation should prove untrue, to have the order dis- 
charged with costs {Sullivan v. ^SuUivan, 2 Mer. 40). 
But the choice of one suit does not imply that the other 
suit was improper {Crouiher v. Flood, 5 L.J. Ch. 352 ; 
Starten v. Bartholomeiv, 6 Beav. 143). In the former case, 
the next friend in the first suit, proceedings in which were 
stayed, was allowed his costs out of the funds in the second 
suit, in which a decree had been made. In the latter case, 
the first bill was dismissed without costs, because the next 
friend was a mere nominee of the solicitor, whose proceed- 
ings were in other respects also not strictly regular, and the 
costs of the defendants only were made costs in the second 
suit.* It is not usual, however, to direct a reference after 
a decree has been made in one of the suits {Taylor v. 

* This caso also shows that the bill in one snit could be dismissed at 
once, which was doubted in Morlimer v. JVcst, 1 Swans. 358. 



COSTS OF I^•FA^'TS, ETC. 357 

Oldham, Jac. 527) ; and after one cause is in the paj^er it is 
not of course to do so {Rundle v. Bundle, 11 Beav. :33). 

The next friend will not bo entitled to the costs of any Costs after 

the intaut 

proceedings in the cause taken after the infant has come has coiuc 
of age. An infant, sole plaintiff, on coming of age, may ° ^°'^' 
elect either to proceed with or discontinue the suit. If he 
adopts the suit, he becomes liable to the costs of it from 
the commencement (Mitf. PI. 26). If, on the other hand, 
he repudiates the suit, or even, it would seem, takes no 
steps in prosecuting it, he does not become liable for any 
part of the costs, but the defendant must recover them 
from the next friend {Turner v. Turner, 2 Stra. 708; 
2 Eq. Ca. Ab. 228, reversing S. C. 2 P. W. 297). It 
follows that if the next friend is dead when the plaintiff 
comes of age, and no new next friend has been appointed, 
the defendant will not be able to recover the costs of a 
suit, which the plaintiff has repudiated, at all {Turner v. 
Turner; and see Morgan v. Crompton, Bunb. 332).* 
As between the next friend and the plaintiff, however, 
the latter will, if the suit was properly instituted on his 
behalf, be liable for the costs of it, together with the extra 
costs of the next friend, although he elects to discontinue 
it {Anon. 4 Mad. 461+ ; Broiun v. Weatherhead, 4 Ha. 
122; and see Dunn v. Dunn, 3 Drew. 17, 19). But the 
plaintiff, it would seem, cannot himself move, on coming 
of age, to have the suit dismissed with costs against the 
next friend {Anon. 4 Mad. 461). The next friend has no 

* Where the next friend of an infant plaintiff dies, his nearest paternal 
relations are entitled to nominate the new ne.xt friend (Talbot v. Talbot, 
17 E(|. 347 ; and see JFoolf v. Pembrrton, 6 Ch. D. 19 ; 25 W. R. 873). 
As to the practice where the next friend of a married woman dies, see 2wst, 
sect. viii. 

f This case appears to have lieen misnuderstood. It was a rpiestion ap- 
parently between the next friend and the late infant, and not between the 
late infant and the defendants. In fact the bill may, for anything that 
appears in the report, have been dismissed with costs against the next 
friend, the infant undertaking to pay them. It may also be observed that 
the plaintiff, by moving in the suit, may be said to some extent to have 
adopted it ; and see Bcamcs, 111 u. (15). 



358 



COSTS Al-TE'TLNG rAUTICULAll PERSON'S. 



Where an 
infant co- 
plaintiff 
comes of 
a;ie. 



The next 
frieml re- 
mains 
liable 
under an 
order for 
paj'nient 
of costs 
made 
during tlie 
plaintiff's 
infancy. 

The next 
friend of 
an infant 
does not 
give secu- 
rity f jr 



lien for his costs on deeds left in Court for discovery 
{Dunn V. Dunn.) 

The name of an infant co-plaintiff coming of age m;iy 
be struck out on his own application, either before decree 
{Acre>< V. Little, 7 Sim. 138; Guy v. Guy, 2 Beav. 461) ; 
or after decree (Bkhiell v. BickneU, 32 Beav. 379). In 
Guy V. Guy, the next friend was ordered, under the 
circumstances, to pay the costs of the application ; but in 
Bicknell v. Buknell, no costs of the application were 
given, and the next friend's costs were made costs in the 
cause. A married woman who has been made co-plaintiff 
to a suit when an infant, may, on coming of age, have her 
name struck out ; but it seems she should first be examined 
apart from her husband {Cooke v. Fryer, 4 Beav. 14). But 
the petition of a co-plaintiff, coming of age, to be let into 
possession of her undivided share, or to be indemnified 
against future co.sts, alleging that the objects of the suit, 
so far as concerned her interest, were satisfied, was dis- 
missed with costs [Smith v. Lyster, 4 Beav. 227). Wlicrc 
one of two infant co-plaintiffs has come of age, and 
adopted the suit, the next friend has, of course, no longer 
the exclusive control of it ; see Brovjn v. Brown, 11 Beav. 
.562, where an order of course to change solicitors obtained 
on the application of the next friend alone was discharged 
with costs. 

The next friend also remains liable for all costs, for the 
payment of which an order has been made during the 
plaintiff's infancy ; see Frizell v. Ilochjens, 2 Moll. 4.56, 
where a decree was made for payment of costs to the 
defendant, who did not apply for them until four years 
and a half afterwards, during which time the plaintiff had 
coj^ie of age, and got the funds in the suit out of court, 
ar \ the next friend was held liable. 

The next friend of a married woman may be required 
to give security for costs on account of his poverty, but 
not the next friend uf an infant (see ante, p. 11, seq.). 
It is an unsettled point whether the next friend of an 



COSTS OF INFANTS, ETC. 359 



infant can sue in formd pauperis. On the one hand, costs on 
there is a dictum in an anonymous case (1 Ves. Junr, v,o^°Jrty. 
409) that he cannot do so ; and Sir J. Eomill}^ Isl. R., Qu. whe- 
expressed the same opinion (Lind^cu v. Turrell, 24 Beav. *^^^' ^"^ 
124). On the other hand. Lord Cranworth, C, doubted infomut 
whether it might not be allowed on a special applica- ^''"'*^'^"^' 
tion (S. C. on appeal, 2 De G. & J. 7). But it is quite 
clear that an order of course for the purpose obtained on 
the common affidavit of the infant's ]30verty is irregular 
{Ihid.). 

A next friend cannot withdraw from the suit without ^^^^i<^^°*^^^° 

.. i'f>)i r-i T^^y-t friend 

an enquiry whether it is for the infant s benefit that a is changed. 
new next friend should be substituted (Melling v. Melling, 
4 Mad. 2G1). But he will in general be permitted to 
retire upon giving security for the costs already incurred 
(see ante, p. 18). The new next friend will, however, 
become responsible to the defendants for the costs from 
the commencement of the suit. In Lander v. Ingersoll, 
4 Ha. 596, a solicitor, who had been employed by the 
infant's mother to prosecute the suit, but was afterwards 
discharged by her, having, on the death of the next friend, 
named another one, and amended the bill accordingly, the 
Court removed the new next friend on payment of his 
costs by the mother, without prejudice to the question by 
whom they should ultimately be borne, and made the soli- 
citor pay the costs of the application and of appointing a 
new next friend. On the substitution of one next friend 
for another, the costs were ordered to be paid out of the 
estate, without prejudice to any application by the infant 
plaintiff for reimbursing her estate those costs {Taylor v. 
Oldham, Jac. 529). And see Woolfv. Pemherton, 6 Ch. D. 
19 ; 25 W. R 873. 

In Elsey v. Cox, 2G Beav. 95, which was a suit by the Costs of 
assignees of a bankrupt to set aside a post-nuptial settle- "'^'"'*'|* '"^"^ 
ment on his wife and infant child. Sir J. Romilly, M. R. ants. 
held that the Court could not do mure for the infant than 
not Older him to pay costs. But in Goldt^mUh v. Ixusscll, 



360 COSTS AFFFX'TING PARTLCrLAR PERSONS. 

5 De G. M. & G. ooG, which was a similar suit, the costs 
of all parties except the settlor were allowed out of the 
settlement funds ; and in Short v. Eidge, W. N. (187(3), 
47, an infant defendant had his costs from the plaintiff, 
though the decree was without costs as regarded the adult 
defendant. The costs of the unsuccessful defence of an 
infant in a suit to recover a sum of money under the limi- 
tations of a settlement, were charged not upon the general 
fund, but upon the infant's own share {Edvl of Orford v. 
Churchill, 3 V. & B. 59). So in a suit for executing the 
trusts of real estates settled on infants, the Court lias juris- 
diction to order the sale of the infants' share for payment 
of their costs [ante, p. 177). As to the costs of a suit for 
specific performance against tlie infant heir or devisee of a 
deceased vendor (see ante, p. 201, i^cq.). The costs of 
settling a conveyance in Chambers on behalf of an infant 
come out of the estate {Broivn v. Lake, 15 L. J. Ch. ;U). 
Where an infant was defendant to a foreclosure suit and 
the property was not worth the amount advanced on it, an 
order was made for foreclosure absolute in the first in- 
stance, on payment by the plaintiff of the infant's costs 
{Croxen v. Lever, 12 W. R. 2:37; 10 Jur. N. S. 87; 
Bennett v. Harfoot, W. N. (1871), -1; I!) W. R. 428; 
24 L. T. 8(i). 
.\n infant An infant in the .same interest with the plaintiffs ought 
should he ^ ^ j^^ I ^ co-plaintiff; and successful plaintiffs were 

made CO- . , 

piuintiir. not allowed to recover with their own the costs of an 
infant made defendant {Hoskhg v. KichoUt^, 1 Y. & C. C. C. 
478). 
Costs of an An infant defendant in contempt for not answering 
infant dc- p.^^j qq costs ; the plaintiff paid the costs of the 
contempt, messenger in that case (Perl-in.H v. Hamond, 1 Dick. 
287). But a fraudulent infant may be ordered to pay the 
costs of a suit {Chuhh v. Grl(nths, 35 Beav. 127); and 
where an infant sued without a next friend, concealing the 
fact of his infanc}^ and was taken in execution for non- 
payment of the costs of the suit, the Court refused to 



COSTS OF MARRIED WOMEN, ETC. 3C1 

discharge him {Finlcy v. JvKle, 13 East, 6, and cases 
cited in note). 

As to the costs of a guardian ((d litem to an infant Costs of 
defendant, appointed at the instance of the pLaintiff, see gnaniLi/ 
ante, sect. v. "'^ ^'■'^'"• 

As to. the costs of infant trustees, under tlie Trustee Costs of 
Relief Act, see ante, Ch. V., sect, iii.; and nnder the Trustee trustees. 
Acts, 1850, 1852, see ante, Ch. V., sect. iv. 



Sect. VIII. — Costs of Married Woman and her Next 
Friend; and. as betivccn Husband and Wife. 

By R. S. C. Ord. XVI. r. 8, married women may, by Where 
hjave of the Court or a judge, sue or defend without their ^,^^^!^^ 
husbands, and without a next friend, on giving such sues aloae. 
security (if any) for costs as the Court or a judge may 
rc(|nire. Under this rule the judge has complete and 
unfettered discretion to allow a married woman to sue 
alone or by a next friend, and either with or without 
giving security {Martano v. Mann, 14 Ch. D. 419 ;'"^Ax.3.^-tMx^i/e^WA, 
49 L. J. Ch. 510; 42 L. T. 890; Kingsmany. Kingsman^^'^'^''^^^^- 
(C. A,), G Q. B. D. 122). A married woman in receipt 
of a separate income of £1,500 a year was allowed to 
defend separately without giving security [Koel v. Xoel, 
18 Ch. D. 510 ; 28 W. R. 720 ; 42 L. T. 852). The appli- 
cation for leave to sue alone need not necessarily be made 
before the action is commenced ; and where the plaintiff 
begins the action alone and the defendant then applies 
that the action may be stopped until the plaintiff adds a 
next friend or gives security for costs, and his application 
is refused, this is tantamount to giving leave to sue alone 
(Kingsman v. Kingsnian). 

It is not easy to say Avhat is the precise liability of a LiaMlity 
married woman in respect of costs. In an action in the luarried 
Probate Division an order may, it seems, be made on her wojnan to 

costs : 

personally for payment of costs {Morris v, Freeman, 8 P. D, at ia\v ; 



362 COSTS AFFECTING PARTICULAR PERSONS. 

65 ; 47 L. J. P. D. & A. 79 ; 27 W. R. 62 ; 39 L. T. 125 ; 

and see under the Divorce Act, Miller v. Miller, L. Pw, 
2 P. & D. 13 ; Ifilne v. Milve, ibid. 202 ; M. v. C. 
ibid., 414) ; and this appears to have been a regular 
practice in the Common Law Courts before the Judicature 
Act ; see Keviun and wife v. Boodle, 4 C. B. 359 ; Morria 
V, Freeman, and cases there cited. It is presumed that the 
Queen's Bench Division will follow the old Common Law 
practice in this respect ; and Haunen, J., in Morris v. Free- 
man, expressed an opinion that since the Judicature Act the 
judges of the Chancery Division can also condemn a 
married Avoman in costs, if on general principles of justice 
it should appear right to do so. In the Comnion Law 
Courts no distinction seems to have been made between 
married women with separate estate and married women 
without, so far at least as ordering them to pay costs was 
concerned. The practical difference was that if the woman 
had no property the order coukl not be enforced, 
ill ciiuitv. There seems no reason why a married woman should 
not be equally liable to costs in actions in the Chancery 
Division ; but in Eqidty the practice has been merely to 
charge the costs on her separate estate without making her 
personally liable (Morrcllx. Cowan, 6 Ch. D. 166 ; 25 W. R. 
808 ; 37 L. T. 1 22, reversed on ' other grounds, 7 Ch. D. 
151 ; 47 L. J. Ch. 173; 26 W. R. 90; 37 L. T. 586; 
Mellennj v. Daviex, 10 Eq. 88; Colleit v. Dickenson, 

11 Ch.D. 687; 40 L. T. 394); and see Besant v. Wood, 

12 Ch. D. 605, where the Master of the Rolls said : "I am 
by no means prepared to say I cannot make a married 
woman pay the costs ; I can make her separate property 
liable for the payment." In Collett v. Dielienson, the 
costs were declared a charge upon an annuity payable to 
the wife under a separation deed, but without prejudice 
to any claim of tlie trustee of the deed ; the costs of the 
husband (who had been added as a defendant) were 
ordered to be paid by the i)laintitf, and added to his own. 
Jn another case, Fcjnbertojt v. M'Gill, 1 Jur. N. S. 1045, 



COST;S OF MAUUIED WOMEN, ETC. 363 

liberty was reserved to the plaintiff to apply for payment 
of costs ordered to be paid b}^ a married woman, in case of 
any moneys becoming payable to her separate use. 

By s. 11 of the Married Women's Property Act, 1870, Mamed 
33 & 3-1 Vict, c. 93, a married woman may sue in her own property 
name for her statutory separate property, and she has the ^f^!'*'' ^^'^^» 
same remedies for the protection of such property as if she 
were an unmarried woman. By s. 3 of the Married 
Women's Property Act Amendment Act, 1874, 37 & 38 
Vict, c. .50, the husband is entitled to judgment for his 
costs of defence if, when sued for his wife's ante-nuptial 
debts, it is not found that he is liable ; and costs paid to 
the husband under this section may be recovered against 
the wife's separate estate, notwithstanding a restraint on 
anticipation {London and Provincial Bank v. Bogle, 
7 Ch. D, 773 ; 47 L. J. Ch. 307 ; 26 W. R. 573 ; 37 L. T. 
780). By 20 & 21 Vict, c, 8.5, s. 26, a wife judicially 
separated from her husband is considered a feme sole for 
purposes of contract and suing, and her husband is not 
to be liable for any costs she may incur as plaintiff or 
defendant. 

Notwithstanding the Judicature Acts, however, the rule Where 
in Equity still is that a niarried woman suinor to recover ™''^''"^'^*^ 



vomaii 



separate estate ought in general to sue by a next friend, sues by a 
making her husband a defendant ; and if she make him a fnciia. 
co-plaintiff, she may lose a part of her costs (Roberts v. 
Evans, 7 Ch. D. 830 ; 47 L. Ch. 469 ; 26 W. R. 280 ; 
38 L. T, 99). 

An action cannot be brought in the name of a married 
woman by her next friend without her consent {Andrews v. 
Cradoch, Prec. Ch. 376 ; 1 Eq. Ca. Ab. 72 ; Cooke v. Fnjer, 
4 Beav. 14; and see 1 8. & S. 265), and she may disavow 
the suit at any time (Sayer on Costs, 84 ; Beames, 103). 
The objection that the next friend has no authority to 
sue may be takL-n by the defendant {Schjott v. Sohjott, 
19 Cli. D. 94, where the action was dismissed with 
costs to be paiil by thu solicitors uf the next i'riend)> 



36-1 COSTS AFFECTING PARTICULAR PERSONS. 

Where u married woman sues by a next friend lie is 
directly liable to the defendants for the costs, but the 
married woman is also liable to the extent of her separate 
estate, where her separate estate is the subject matter of 
the suit {Baiiee v. Barlee, 1 S. & S. 100; Hogan v. 
Morgan, 1 Hog. 250). If the plaintiff is restrained from 
anticipation, the costs cannot be charged on future income, 
but may be paid out of arrears (Moore v. Moore, 1 Coll. 
54). In a partition suit the Court has charged the costs 
of a married woman upon her share, notwithstanding the 
restraint upon aniicipat'ioix [Fli'inivgv. Armdrong, 5 N. R. 
181 ; 11 L. T. 470). In D'Oechsner v. Scott, 24 Beav. 
239, the fund was settled without power of anticipation, 
but the trustees, who were defendants, and against whom 
the bill had been dismissed, were allowed their costs out 
of the income under the power of reimbursement in the 
settlement. Where a married Moman, pending a suit for 
nullity of marriage, filed a bill against her husband without 
a next friend, and obtained an injunction, it was held (the 
suit for nullity having been dismissed) that neither she 
nor her solicitor could be made to pay the costs of the 
motion to dissolve the injunction {Sealey v. Gadon, 
13 W. R. 577). 
Unncccs,- Where a next friend institutes unnecessary proceedings 
"T?r^'y,° in the name ofa married woman without her consent he will 

ccouings. 

be ordered to pay the costs {Kenrieh v. Wood, 9 Eq. 333 ; 
Cooke V. Fryer, 4 Beav. 14; Dav'ies v. Whitehead, W. N. 
(18fi()), 162 ; in re Potter, 7 Eq. 484, where a petition by 
the next friend of an infant married woman was dismissed 
with costs). Where a writ was issued by a next friend 
without a solicitor, the writ and all subsequent proceed- 
ings thereon wera set aside with costs against the next 
friend (Sivaiin v. Sivann, W. N. (1880), 191 ; 43 L. T. 
530); and see Schjott v. ScJijott, 19 Ch. D, 94, ante, 
p. 12. By 15 & 16 A^ict. c. 86, s. 11, the next friend mui-t 
give a written authority before his name can be used. 
The next friend of a married womaii must be a person 



COSTS OF MARRIED WOMEN, ETC. 365 

of substance, and the Court will, on the defendant's appli- Next 
cation, and evidence of the next friend's j)overty, order carried 
the next friend to be changed, or security for costs to woman, if 

1 • / J -1 -» 1 T 1 • Tx i'^ poverty, 

be given (see ante, p. 12, and the cases there cited), must give 

Security may be obtained, altliouoh a married woman and security for 

'' •' _ _ o _ costs. 

infants sue by the same next friend (Penningfon v. Alvin, 

1 S. & S. 265 ; Drinaii v. Mann'ix, 3 Dr. & W. 1-54), or 
the husband is a co-plaintiff, if he is a formal party merely, 
and a bankrupt (Smith v. Etches, 1 H & M. 5.58) ; or the 
next friend is himself a co-plaintiff (5«7(/it?/ v. BrocLflhurst, 

2 W. R 680). 

A married woman may, by special leave, sue in formd A married 
2XLuperis, without a next friend {Hind v. Whitmore, 2 K. ^ay sue 
& J. 458, and the cases there cited) ; but poverty must be in forma 
distinctly shown (CahUcott v. Baker, 13 W. R. 449). Such wHW a 
leave may be obtained ex parte {Wellesleij v. Mornington, T-^^ . 
2 W. R. 514 ; 18 Jur. 552 ; In re Lancaster, 2 W. R. 337 ; ''*'"' ' 
18 Jur. 229 ; Be Foster, 18 Beav. 525, overruling Page v. 
Page, 1 W. R. 262), but not of course (see the cases cited 
above ; notwithstanding Coulsting v. Goulsting, 8 Beav. 
463).* The order is entitled in the matter of the appli- 
cant only {Pii re Barnes, 10 W. R. 464). In Ex parte 
Hahewill, 3 De G. M. & G. 116, a married woman was 
allowed to present a petition for access to her children, 
under Stat. 2 & 3 Vict. c. 54 (now repealed, see 36 & 37 
Vict. c. 12), in forma 'pauperis, and without paying the 
£,\ stamp required by the orders of the Court (but, as to 
the latter point, see Parkinson v. Chambers, 3 W. R. 34). 
In the same case the order, though ohta'medex 2)arte, was 
held to be not invalid from the suppression of the fact that 
the petitioner had near relatives in good circumstances, 
there being no evidence that any of them were willino- to 
act as her next friend. A married woman may obtain 

* A liusbaud and wife may obtiiiii au order of course to defend infurnid 
pauperis, in a suit respecting the wife's reversionary interest in laml, and a 
special motion was refused, but, as affidavits liad beeu unnecessarily died in 
opposition, without costs. {Pill v. I'ilt, 1 Sni. &: G. ajip. xiv. ) 



366 COSTS AFFECTIKG PAliTFCtJLAU PEUSOKS. 

leave to appeal in forma xtaupeTis, though slie sued Ly a 
next friend below {Crouch v, Walleri', 4 De G. & J. 43). 
A peeress may sue in forr)id iiauperis (Wellesley v. Wel- 
lesley, 10 Sim. 1). Some technical difficulty, however, 
occurs when costs become payable to a married woman 
suing in forriid pavpcris, as there is no person who can 
give a receipt for them (see Wellesley v. Wellesley, 1 De 
G. M. & G. 501, Avhcre the Lords Justices made an order 
for payment of costs generally, and gave liberty to apply 
in casQ of any difficulty). Probably the costs would be 
paid on the receipt of the plaintiff's solicitor. And see 
Att. Gen. v. City of London, 8 Bro. C. C. 178, where the 
Court, being uncertain whether certain defendants could 
sue as a corporation, made an order for the payment of 
their costs to their agent. 
Wlin-o tlic If the next friend becomes insolvent in the course of the 
becomes"^ suit, an order may be obtained staying pi'ocecdings until 
insolvent r^ j-j^^v next friend is appointed, or the plaintiff obtains an 
course of order to sue in forma pauperis ( Wilton v. Hill, 2 De G. M. 
the suit. ^ Q gQy^ where, however, the former next friend was dis- 
charged, but without prejudice to her liability already 
incurred). In D'Oechsner v. Scott, 24 Beav. 239, which 
was a suit to charge the trustees of the plaintiff's settle- 
ment with a breach of trust, the bill was dismissed with 
costs, and the next friend having taken the benefit of the 
Insolvent Act after taxation, the (,*ourt gave the defen- 
dants, the trustees, their costs out of a balance in tlic 
hands of the receiver belonging to the plaintiff, and then 
made an order similar to that made in Wilton v. Hill. 
Wlicrc tlic If the next friend is changed, the former next friend 
iiext friend Ynust ffive sccuritv for the costs already incurred ; as to 

IS changed. ° "^ . , . " 

which, and the proper security to be given, see ante, p. 13. 
Where the Where the next friend of a married woman has died, 
next friend ^j^^ proper Order is that she appoint a new next friend 
within a limited time, or in default the suit be dismissed 
{Barlee v. Barlce, 1 S. & S. 100). In the case cited, the 
Court further directed, that in event of the bill being 



COSTS OF MAURIED WOMEN, ETC. 367 

dismissed, the costs of the defendants, who were the plain- 
tiff" 's trustees, as between solicitor and client, should be 
paid out of a balance in court belonging to the plaintiff 
for her separate use, and that the residue of the fund 
should be paid to the plaintiff. 

If a married woman employ a solicitor iu proceedings In what 
relating to her separate property, that property is liable ggparatr 
for payment of the bills {Murray v. Barlee, 3 My. & K. property of 
209 ; 3 L. J. Ch. 184 : 4 Sim. 82) ; and may be charged woman is 
though there is a restraint on anticipation, under 28 & 24 J.^-'''!^'^ 
Vict. c. 127 (Ee Keanc, 12 Eq. 115 ; 40 L. J. Ch. G17). solicitor's 
But where the instructions, though in writing, related to J^^^^." 
suits on behalf of the children of the married w^oman, 
whose husband was a lunatic, in which suits the mother 
had no interest, and to which she was not a party, it was 
held that her separate estate was not liable for the costs 
(Re Piigli, 17 Beav. 336). And see, generally, as to 
charging the separate estate of a married woman, Vaughan 
V. Vanderntegen, 2 Drew. 165; Johnsnn v. Ga/higlicr, o 
Do G. F. & J. 404 ; 30 L. J. Ch. 298 ; 7 Jur. N. S. 273 ; 
9 W. Pt. 506; Pike v. Fitzglhhon, 17 Ch. D. 454; and 1 
W. & T. L. C, p. 539, et seq. The mere fact of business 
having been done relating to the separate property of a 
married woman vested in trustees is not sufficient to make 
that property directly liable to the solicitor {Callow v. 
Iloivle, 1 De G, & S. 531) ; though it may be so indirectly 
through the trustee's right of reimbursement {Worra.ll v. 
Harford, 8 Ves. 4 ; Turner v. Letts, 20 Beav. 185). 

In Vanslttart v. Vansittart, 4 K. & J. Q'2, which was a Costs of 
suit for .specific performance of an agreement for separa- > l^^^'n" 
tion between husband and wife, V. C. Wood said that a liusbaiul 
case between husband and wife was not a case for costs, ' 
and allowed a demurrer by the husband without costs. 
But this cannot be considered the rule now, and in Wal- 
rond V. Walrond, Johns. 18, the Vice Chancellor seems 
to have altered his opinion, and allowed a demurrer to 
a similar bill with costs ; and see the observations of 



868 COSTS AFFECTING PARTICULAR PERSONS. 

L. J. Knight Bruce, in Vansittart v. Vandttart, on 
appeal, 2 De G. & J. 249, 258 ; and Lampert v. Lampert, 
1 Ves. Junr. 121, where costs were given to a wife against 
her husband. In Pearse v. Pearse, 22 W. R. 69 ; 29 L. T. 
453, a wife was allowed costs of exceptions for scandal as 
between solicitor and client ; and in another case the next 
friend of a married woman, petitioner, was ordered to pay 
the costs occasioned by personal charges against her hus- 
band in a petition under the Trustee Act {Re Wills' 
Trusts, 3 N. R 107; 12 W. R 97; and see Coyle v. 
Cuming, 27 W. R 529 ; 40 L. T. 455). In a suit by a 
married woman to administer the estate of a testator, and 
enforce her e([uity to a settlement against her husband, 
who was a bankrupt, and his assignees, the husband was 
allowed costs, though a debtor to the estate {RotherJiam v. 
Battson, 2 Sm. & G. app. viii.) ; and in Green v. Ofte, 2 L. 
J. Oh. (0. S.) 123, the husband was allowed costs as between 
solicitor and client. In a suit to foreclose a mortgage vested 
in trustees for the separate use of a married woman, the 
husband, who was made a defendant, was held entitled to 
costs out of the fund {Dillon v. M'CortIn/, 2 Ir. Eq. R. 192). 
. The costs of jDroceedings justifiably instituted by a married 
woman against her husband for a divorce or a judicial 
separation, are chargeable against the husband (Stocken v. 
Pattrick, 29 L. T. 507 ; Ottaway v. Hamilton, 26 W. R 
783 ; 38 L. T. 925 ; and see Ex parte Moore, 4 Notes of 
Ca. Supp. i.). 
Where Where husband and wife sue as co-plaintiffs, the suit is 

liushaiul ||)j3 husband's only, and he has the sole control over it 
sue as CO- {Hops V. Fox, 1 J. & H. 456); and, therefore, he is solely 
piaintifts \y^\^\Q for the costs on the one hand (Bradhv.ry v. Shaive, 

or deieud . 

jointly. 14 Jur. 1042) ; and, on the other hand, if costs become 
payable, they are ordered to be paid to the husband, and 
his receipt alone is sufficient (Set. 115). So, also, where 
husband and wife are defendants, and defend jointly 
(Orange v. PicJ^ford, Set. 118); and although the costs 
become payable in re.'^pect of the dismissal of the suit, so 



COSTS OF MARRiED WOMEN, ETC. 3G9 

far as it seeks to charge the separate estate of the wife 
{WrigJit V. Chard, 4 Drew. 702). And, therefore, in the 
case last cited, it was held that a set-ofF arose of the costs 
so payable against other payments directed to be made by 
the husband. As a general rule, where husband imd wife 
join in defending in respect of the wife's separate property 
and the defence is successful, the action will be dismissed 
against them both with costs (Kevan v. Crawford, Q Ch. 
D. 29). Upon the death of the husband, when he and 'Whei-e the 

, . . „ . -,..,,,., • 1 , J 1 -1 husbaud 

his Wife are suing as co-piaintins m lier riglit, the widow dies, 
may elect wdiether to continue the suit or not. If she pendmg 

•^ _ _ _ the suit. 

does not proceed, she is not liable for the costs (Mitf PL 
[59]), which are consequently lost. But if she takes any 
step in the suit after her husband's death, she makes her- 
self liable for the costs from the commencement (ibid. [60] ; 
Anon. 3 Atk. 720 ; Anon. 2 Vern. 197 ; Backhouses. Mid- 
dleton, Freem. 133; Parry v. Juxon, 3 Ch. Rep. 40; 
Parrott v. Randall, Gary, 70). Where a decree had been 
made after the death of the husband, though the fact was 
unknown to the defendants, for payment of costs to them 
by the husband, and the Avife took out a summons for 
service of the decree on certain parties, she was held to 
have adopted the suit, and the decree, though passed and 
entered, was, on motion by the defendants, varied, by 
ordering the costs to be paid by the wife (2Iills v. Barlow, 
3 De G. J. & S. 426 ; 11 W. R. 351 ; 1 N. K 412). On 
the other hand, if costs have been ordered to be paid to the 
husband, and he dies before payment, the wife is entitled 

to them by survivorship {Coppin v. , 2 P. W. 496). 

Where a suit by a feme sole abates by her marriage, it WLere a 
will be dismissed without costs, in default of her husband plaintiff 
reviving (Westrojrp v. Healey, Fl. k K. 141). If the "tarries. 
husband revives, and obtains a decree with costs, he will 
be entitled to costs from the commencement, except 
(under the old practice) the costs of the bill of revivor 
' [Diirhaine v. Knight, 1 Vern. 318) ; or, conversely, 
becomes liable to them. Where the wife sued out a sub- 



370 COSTS AFFECTIKG PARTICULAR PERSONS. 

poena, as single, being then married, it was held that the 

husband and wife [qu. the husband alone] must pay costs 

{Hastings v. Jiigges, Gary, 36 ; Piers v. Caiuse, ibid. 98). 

Where the 111 Barry V. Woodham, 1 Y. «&; C. 538, husband and 

husband ^^[f^ living apart, and defending separatel}^, were allowed 

ami wife „ , -, ■ • i x 4-i,„ 

defend separate sets of costs, there being no evidence as to the 
separately, g^.^^j^jg ^f ^beir separation ; and in Times v. JS'egus, 3 Y. 
& C. 90, the husband had to pay costs, and the wife got 
no costs ; and see Grighij v. Cox, 1 Yes. 517. But in 
Garey v. Whittingham, 5 Beav. 268 ; 6 Jur. 545, where 
the husband and wife, who lived apart, were made defend- 
ants in respect of the wife's share of a residue, and 
answered separately, they were held entitled to one set of 
costs only. From a report of the same case at an earlier 
stage (1 S. & S. 163), it appears that the husband first 
answered separately, stating that he had no control over 
liis wife, and being attached for want of his wife's answer, 
lie was discharged, and an order was made for the wife to 
answer separately, and indemnify her husband in respect 
of costs ; and see Barry v. Cane, 3 Mad. 472.^ApJI!^<<rY j\^l'^'^i wi? 5-j.^ 
^j^g The husband will not, it seems, in equity, be made re- 

husband sponsible in costs for his wife's fraud. "I do not know of 
pay'costs any case in this Court, where a feme covert has been guilty 
for his of a fraud solely, without the husband, and where he has 
fraud. no benefit at all from it, that he should suffer ; it would 
be extremely hard that he should pay costs ; I know of no 
precedent, nor do I believe that the Court would do it " 
(2)er Lord Hardwicke, Cotton v. Luttrcll, 1 Atk. 452). 
The question in this case, however, was respecting the 
admissibility of the husband's evidence. 
Costs of Where a married woman, defendant, insisted upon her 

V^^. "'" equity to a settlement, and the Court gave her a moiety 
heVequit^y of the fund, her costs were deducted from the fund before 
lilent.'"^" division (Archer v. Gardner, C. P. C. 340). 
Costs in a In a suit by a husband against his wife, to have a settle- 
sait of j-,-,gi-,t rectified, and the income paid to him during their 

against' joint lives, the costs of the husband of that suit, and of an 
his wife. 



COSTS OF PAUPERS. 371 

unsuccessful suit by the wife in the Ecclesiastical Court, 
were allowed him out of the accumulated income, but the 
wife, who was living in adultery, and set up a different 
trust from what it really was, got no costs {Ball v, 
Montgomery, 2 Ves. Juur. 196 ; 4 Bro. C. C. 339). 

A bill by a widower to be relieved against a bond Costs in ^ 
given by his deceased wife before marriage, and concealed suit alter 
from him, was dismissed, as consideration was positively '^^^ ^^'f^'s 
sworn to, and with costs, as the concealment was at the 
wife's request, and he was her administrator (Blanchet v. 
Foster, 2 Ves. 264). The husband, however, was suing 
in his own riwht, and not as an adnrinistrator. 



Sect. IX, — Costs of Paiqjers. 

By r. 5 of the order as to Court fees, Oct. 1875, the exist- 
ing rules and practice applicable to proceedings by per- 
sons suing in forma 'pauperis, are to apply to the pro- 
ceedings to which the order relates as to actions in forma 
pauperis. 

As to suits in forma pauperis see 11 Henry VII., c. 12 ; Who may 
23 Henry VIII., c. 15 ; and Drennan v. Andrciv, 1 Ch. defend /« 
p. 801, n. 7. In former days, if a pauper plaintiff failed in /<^""''* , 
his suit, instead of being ordered to pay costs, he was 
flogged. Tlie 11 Henry VII. c. 12, applied only to actions 
at law, but the principle of the Act was followed by the 
Court of Chancery, and has been adopted in the Chancery 
Division. Persons who can themselves {Wilkinson v. Bel- 
sher, 2 Bro. C. C. 270) swear that they are not worth ^65 in 
the world, their wearing apparel and the subject matter of 
the suit excepted (Allen v. McPherson, 5 Beav. 469), may 
sue and defend in forma ptaujjeris (Dan. Ch. Pr. 6th 
edition, p. 85, and Spencer v. Bryant, 11 Ves. 49). A farm- 
ing tenant with valuable crops on the farm, but no otlipr 
property, was not allowed to defend in forma pauperis, 
although restrained by injunction from parting with the 
crops {Riclgway v. Echuards, 9 Ch. 143 ; 22 W. R. 288 ; 



372 COSTS AFFECTIKG TARTICULAU PEHSOKS. 

29 L. T. 907). The £.5 means £.3 available for the suit 
{Dresser v. Morton, 2 Phil. 286). A party in possession 
and enjoyment of property the subject of the suit, worth 
£140 and £10 a year, ought not to be permitted to sue 
in forma pauperis {Taprell v. Taylor, 9 Beav. 493 ; 
Butler V. Gardener, 12 Beav. 525 ; and see Burry Port 
Co. V. Boivser, 26 L. J. Ch. 319) ; nor an officer on half- 
pay, though he may have passed through the Insolvent 
Court {Boddington v. Woodley, 5 Beav. 555) ; nor a 
person who offers to redeem a mortgage (Foivler v, 
Davies, 16 Sim. 182) ; and it is not enough that he should 
swear that he has only £5, except Sec, " after payment of 
liis just debts" (Perry v. Walker, 1 Coll. 229). An 
e.\ecutor, even though without a.ssets, cannot sue or defend 
in forma imuperis (Oldjield v. Cohhctf, 1 Ph. 613, S. C, 
before the Court below,* 1 Coll. 169 ; 2 Beav. 444; 3 
Beav. 432), unless he is also beneficially interested (Martin 
V. Whltmore, 17 W. R. 809) ; and see the cases cited in 
Fowler v. Davies ; Oldfiehl v. Cohhett ; Bayly v. Bayly, 
11 Beav. 256;! Everson v. Mattheic, 3 W. R. 159; 
Flattery v. Anderson, 11 Ir. Eq. Rep. 586 ; and Parkin- 
son V. Chambers, 24 L. J. Ch. 47 ; 3 W. R. 34, where an 
administratrix having a beneficial interest was on special 
application admitted to sue in that form (see also Rogers 
V. Hooper, 1 W. R. 474) : and in general the same rule 
applies to all persons filling representative characters (see 
St. Victor V. Devereux, 6 Beav. 584 ; and Paradice v. 
Sliepjpard, 1 Dick. 136). A creditor of a joint stock 
company in course of being wound up may, on the usual 
affidavit, be allowed to sue in forma pauperis (ex parte 
Fry, 1 Dr. & S. 318). Leave to defend in forma pauperis 
will be given without a certificate of counsel (Bird v. 



* In tliis case V. C. Knight Bruce held that a defendant in contempt, 
though sued as executor, might appl}- in forma pauperis, for the limited 
piu'pose of clearing liis contempt. 

t It appears from this case that an executor may have the benefit of the 
7tli rule of Stat. 1 Wm. IV. c. 36, s. 15. 



COSTS OF PAUPERS. 373 

Bird, 17 W. R. 155). A person who is not a defendant 
to a suit cannot be admitted to defend iu/or^ift ixmperis 
{Holdeii V. H olden, W. N. (186 8) 180). 

As to married women suing in formd pauiJeris, see 
ante, p. 365, seq. ; and as to the next friend of infants, 
see mite, p. 358, 

A person may appeal {Bland v. Lamb, 2 J. & W. What pro- 
402 ; Crouch v. Waller, 4 De G. & J. 43 ; Fitton v. ^'^f Jf 
Macclesfield, 1 Vern. 264), be examined pro interesse suo taken im 
(James v. Dove, 2 Dick. 788), present a petition under sm 2)aii.pcris. 
Act of Parliament (Re Money, 13 Beav. 109 ; ex parte 
Haheii'ill, 3 De G. M. & G. 116) ; or sue as a creditor of a 
joint stock company being wound up {ex parte Fry, 1 Dr. 
& Sm. 318) in forma pauperis. When an order to sue 
in formd pauperis had been made in the Court below, it 
was held unnecessary to obtain a fresh order to ajjpeal in 
formd pauperis {Drennan v. Andrew, 1 Ch. 300). 

If at any time pending the suit the party suing or A party 
defending in formd pauperis becomes of abiUty to sue, or [Hgp^iiper- 
to defend himself, the Court will dispauper him {Perry v. ed on 
^Yalher, 1 Coll. 229; and see Tunstall v. Freeney, 1 Coll. of ability 
234, n. ; Bartlett y. Smith, ibid.: Clarke v. P^/^-e, -i^irf. ; *« ^^'^ or 

. 1 • 1 defend 

but under circumstances he may be readmitted to sue or himself : 
defend in formd jKCuperis {1 Smith's Ch. Pr. 871). The 
mere possession of property, however, is not sufficient, if 
it is wrongful {Perry v. Walker, 1 Y. & C. C. C. 676) ; 
nor will the circumstance of the pauper having sued 
another person at \?^.vf not in formd pauperis {ihid.), or the 
pauper being in regular employment {ibid.), be sufficient. 
If it is made to appear to the Court that the party was 
not in fact " a pauper " when he made his affidavit, the 
order will be discharged with costs {Romilly v. Grint, 2 
Beav. 186 ; and see Goldsmith v. Goldsmith, 5 Ha. 123). 
And as no exception of debts should be made on making 
the application to sue or defend in formd 'pauperis (see 
supra), an affidavit that the party is largely indebted, or 
in embarrassed circumstances, is no answer to the applica- 



374 COSTS AFFECTIKG I'AIITICULAR PERSONS. 

tion to dispauper {Romilbj v. Grint ; Fcrrtj v. Walker, 
1 Coll. 229). The circumstance of a subscription having 
Leen made to help the plaintiff in the suit, however objec- 
tionable on the ground of maintenance, is no ground for 
dispaupering {Corbett v. Curhett, 16 Ves. 409). Where the 
order was obtained irregularly, and on the suppression of 
a material circumstance, it was discharged (JS'owell v. 
Whital-er, 6 Beav. 407). But it was held too late three 
years after the order, and after the defendants had 
answered, and the plaintiff had iiled replication, to move 
to discharge for irregularity an order for the plaintiff to 
sue in forrnd ixtu'pevis {ParJdnson v. Hanbury, 4 De G. 
M. & G. 508). 
or if he ^ pauper who behaves in a vexatious and improper 

conducts manner in his conduct of the suit or his defence may be 
defence in dispaupered (Wagner V. Mears, 3 Sim. 127; Daintree v. 
a vexatious ^^^ 12 Jur. 594 ; and see Perry v. Walker, 1 Coll. 

manner : ^ , , . „ 

229). But improper or vexatious conduct in a former 

suit is no ground for dispaupering [Corbett v. Corbett, 16 
Ves. 409). A pauper's solicitor may also be ordered per- 
sonally to pay the costs of any irregular proceedings 
{Brown v. Daiuson, 2 Hog. 76) ; and see Cons. Ord. VII. 
r. 11. 
or remu- ^ party may also be dispaupered for giving remunera- 
nerates his ^[q^^ iq \^[q counscl or soHcitor, or making any agreement 

counsel or • i //-</-> i tttt n\ 

solicitor, for recompensing them (Cons. Urd. Vil. r. 9). 

Pauper Where costs are ordered to be paid to a party suing or 

entitled to defending in forma pauveris, such costs are to be taxed 

rfn'cs costs, ,. , , ^ iiiiji ■ T 

as dives costs, unless the Court shall otherwise direct 
(Cons. Ord. XL. r. 5). 
No remu- " After an admittance to sue or defend informct paMperis, 
ueratiou to ^^ £gQ^ profit, or reward shall be taken of the pauper by 
of the pau- any counsel or solicitor, for the despatch of the paupers 
coui!sel'c!r business, during the time it shall depend in Court, and he 
solicitor, shall continue in forma ixaiperis ; nor shall any agree- 
ment be made for any recompense, or reward afterwards. 
And any person offending herein shall be deemed guilty 



COSTS OF PAUPERS. 375 

of a contempt of Court ; and the party admitted wlio 
shall give any such fee or reward, or make any such 
agreement, shall be from thenceforth dispaupered, and 
not be afterwards admitted again in that suit to sue or 
defend in for md pauperis" (Cons. Ord. VII. r. 9). 

In Parkinson v. Chamber's, 3 W. R. 34, it was held that What costs 
the stamp fee of £1, payable on drawing up the order to ^bie by 
sue in fonnd pauperis, could not be remitted, as the paixper?. 

/ -,.1 1 • Costs of 

plaintiff was not a pauper till the order was made, and it stamp, 
could not be returned ; but see Ex parte Haheivill, 3 De 
G. M. k G. 116. In Thomas v. Ellis, 8 Ch. D. 518, the 
chief clerk's certificate was ordered to be delivered out 
without payment of Court fees, the plaintiff, since it was 
ready, having obtained an order to sue in forind p^auperis. 
In Ballard v. Catling, 2 Ke. 60G, it was held that an Where the 
order of course to sue in formd p)auperis, not served, was uot bcea 
no protection against costs, on a bill being dismissed for ^^^i'^'*^^^- 
want of prosecution. But it seems not to be true, as a 
general proposition, that such an order is inoperative until 
served, where at least there is no mala fides in with- 
holding it, and no step in the cause has been taken incon- 
sistent with it {Church v. Marsh, 2 Ha. 652). Where the 
order has not been served, it is in the discretion of the 
Court to give costs to the pauper or order him to pay 
them as the case may be, but primd facie he will be wiicro 
entitled to the benefit of the order iihid.). If notice °"!°'" ^' 
of motion to dismiss for Avant of prosecution has been obtained 
served on a pauper defendant, he cannot apply to sue in ge'^rvic'e of^ 
formd pauperis without paying the costs of the motion motion. 
{Smith V. Pawson, 2 De G. & S. 490). 

A plaintiff suing in formd ixvivperis was not allowed Pauper 
to amend by leaving out parties without paying their "q" j^jJ^g^Y 
costs ( Wilkinson v. Belsher, 2 Bro. C. C. 272) ; nor could by leaving 
he move ex parte to dismiss his bill generally without or dismiss' 
costs {Parkinson v. Hanhivry, 4 De G. M. & G. 508 ; l"« '-'^'i 

^ ' ex parte 

Pearson v. Belcher, 3 Bro. C. C. 87). without 

A party, who during the pendency of the suit has coJt&"° 



376 COSTS AFFECTING PARTICULAIl PERSONS. 

Pauper becD admitted to sue or defend in forma pauperis, will, 
ci's^of '^ if the merits so require it, be ordered to pay costs up to 
proceed- \\^q time wlien he became a pauper {Prince Albert v. 

ings before ^, „ -rx ^ n r-( ^- -. i--. r, -■ .-^ t -^-t i 

he became Strange, 2 De G. & S. 6o2, 718 ; 13 Jur. o07 ; and see 
pauper. Ano7i., Mos. 6Q ; Smith v. Paivson, 2 De G. & S. 490). 
The Lord The 2nd section of Stat. 28 & 24 Vict., c. 149, directs 
mty"assi^ that the solicitor to the suitors' fund, or other officer of 
solicitor to the Court, to be appointed by the Lord Chancellor, shall 
fendant'^ visit the Quccu's Prison quarterly, and examine the 
confined prisoners confined there for contempt, and .report to the 
Queen's Lord Chancellor, who may assign a solicitor to any such 
Thrreiort P^'isoi^er, uot Only for defending him in forma pauperis, 
of the but generally for taking such steps on his behalf as the 

Solicitor to , /. , , • i i i i 

the Suitors' nature of the case may require, and make any such orders 

Fee Fund. ^^ the Lord Chancellor was empowered to make by the 

seventh rule of the old Contempt Act (11 Geo. IV. and 1 

Wm. IV., c. 36, s. 15). 

The pan- The rule referred to empowered the Court to order that 

pcr's costs ^|jg ^Qgtg Qf tbe contempt of any such prisoner should be 

tempt may paid out of the interest and dividends of the securities 

Jf%^i;^j'^ °"* standing to the account of the Suitors' Fee Fund, or any 

Siiitor.s' cash standing 'to that account, and to direct any such 

prisoner to be discharged. Provided that if any such 

defendant became entitled to any funds out of such cause, 

the same should be applied, under the direction of the 

Court in the first instance, to the reimbursement of the 

suitors' fund. 

The 6th section of Stat. 23 & 24 Vict., c. 149, provides 
that the solicitor to the suitors' fund shall make the 
necessary and proper payments out of pocket which may 
be requisite in the proceedings taken on behalf of the 
prisoners and defendants under the order of the Court> 
and shall be allowed the same as part of his disburse- 
ments in respect of the suitors' fund.* Provided that if 

* In Ward v. Woodcock, 5 L. T. 816, it was held that the Court had 
no jurisdiction under this section to order the jdaintiff's costs to be paid 
out of the Suitors' Fee Fund on the discharge of a pauper defendant from 
custody for the breach of an injunction. 



COSTS OF PURCHASERS UNDER DECREE. 377 

any such prisoner or defendant shall be or become entitled The Sni- 
to any funds in the cause, such funds shall be applied in p°J^^| 
the repayment to the suitors' fund of the sums expended to lie rcim- 
on his behalf as aforesaid. Provided, also, that in case 
any prisoner or defendant shall become entitled to any 
costs in any such suit or proceeding, such costs shall be re- 
ceived by the solicitor to the suitors' fund and paid by him 
into the suitors' fund. 

By 32 & 33 Vict., c. 91, the suitors' fund was trans- 
ferred to the National Debt Commissioners, but the Court 
has no power on motion on behalf of a pauper defendant 
in contempt, that he may be discharged from custodj^ to 
order the costs of the plaintiff, upon his own application, 
to be provided for by the Treasury (Hall v. Hall, 11 Eq. 
290). 

Wlierc a pauper institutes a second suit after allowing Proceed- 

his first suit to be dismissed for want of prosecution, pro- "'^''' '? ^ 

■^ ' *■ .second 

ceedings may be restrained until the costs of the first suit suit by a 
are paid {Cnheii v. Routh, 4 Y. & C. 514 ; Brooky. Alcock, ^^^^^ 
1 Sm. Cli. Pr. 874). And a second suit in the name of ^^ayc*^! 
another plaintiff, who w^as a defendant to the first suit, but meet of the 
for the same purpose, with colourable variations, Avas stayed i°^^^ °{ ^ 

^ ^ -^ nrst suit. 

in like manner (Elsam v. Alcock, ibid.). But in Wild v. 
Hobson, 2 V. & B. 105, Lord Eldon said that proceedings 
in a second suit by persons suing in forma ixiupevis would 
only be stayed in case of vexation. 



Sect. X. — Costs of Purchasers under Decree. 

A purchaser of property sold under a decree of tlie q^^^^ ^f 

Court will be entitled to the costs of the motion fur a reference 
r 1 -1 1 f 1 r . , ^ . ^ , as to title, 

reierence to the title, and oi the reterence itseli, it the wlicre the 
title is made out on grounds not appearing in the abstract *^*^'® ^^ 
(Fielder v, Higglnson, 3 V. & B. 142). And he will not 
pay costs if the title proves good according to the abstract 
{Flower v. Hartop'p, 8 Beav. 199 ; Holland v. Kiny, 20 L. 



878 COSTS AFFECTING PARTICULAR PERSONS. 

T. Old S. 123 ; 1 W. R. 80, where the marginal note is 
wrong), unless his objections were frivolous {Thorpe v. 
Freer, 4 Mad. 466 ; Peers v. 8ney<l, 17 Beav. 151). In 
Osborn v. Oshorn, IS W. R. 421 ; W. N. (1870), 30, how- 
ever, the Court said that on principle a purchaser must 
take objections at his own peril, and for the sake of his 
title pay the costs if he fails. The report of Gartiden v. 
Benson, 1 Ke. 671, which states that the Court held the 
purchaser to be entitled to his costs, appears to be inaccu- 
rate (8 Beav. 200). There is nothing in the circumstance 
of the purchaser being a defendant to take the case out of 
the general rule {Holland v. King, where it was stated 
that the purchaser was well acquainted with the title). 
Where tlic Where the purchaser asked for specific performance of 
is"com-**° ^^^^ contract with compensation, he obtained it, on appeal, 
picted with with costs both in the Court below and the Appeal Court 
saUoir" {Leyland v. Illingiuorth, 2 De G. F. & J. 248). 
Costs of The purchaser is not allowed the costs of a motion to 

pa°y tlie**^ pay the purchase-monies into Court {Ckrlstian v. Chani- 
purciiase hers, 4 Ha. 307) ; and where he is in default he will have 
CouTtV" '^ t<^ pay them (1 Sm. Ch. Pr. 1015). Where the notice 
to substi- also asked that one purchaser might be substituted for 
tute one another on the usual affidavit of no underhand barij^ain, 
for the costs not being increased were not ordered to be paid 

' by the purchaser {Chridiccii v. Chambers); but if such 
application is made separately it would seem that the 
to transfer second purchaser should bear the expenses of it. In ap- 
purchasc plications for transfer to the credit of a cause of pur- 

momes '■ ... . . . 

paid into cliase-mouies paid into Court by a public compan}', it is 

public '^ '^ ^^°^ necessary to serve all the parties to the suit, and their 

company costs will not be allowed against the company {'per V. C. 

credit of Wood, Eden v. Thompson, 2 H. & M. 6 ; 12 W. R. 759 ; 4 

the cause, jsj'^ j^_ g^^^ ^^(^ ^qq fm-tlier as to the costs payable by com- 
panies ante, ch. V,, sec. II. 

Costs of A purchaser who has paid his money into Court, but 

purc.iaser ^iSis not got his conveyance, is entitled to appear, and will 

on motion ° J > 1 1 > ^ 

for pay- receive his costs of appearance when the money is dealt 



COSTS OF PURCHASEnS UNDER DECREE. 379 

with {JS^ohle v. Stoiv, 80 Beav, 272) ; secus, if he has gut ment out 
his conveyance {Barton v. Lautour, 18 Beav. 526). "The 1\2^^' 
practice is to draw up the order with the purchaser's con- monies, 
sent, in which case he is entitled to his costs of appearance, 
or on proper evidence that he has been served with notice 
and has got his conveyance " {Xohle v. Stoiu). 

Where title deeds are in the hands of persons residing Costs of 
in different parts of the country, the vendor must (in the !^J-,^tract"° 
absence of special condition) bear the expense of the pur- with deeds 
chaser sending a clerk to compare the abstract with them 
(Hughes v. Wynne, 8 Sim. 85, S. C. affd. 1 Jur. 720). But 
a country solicitor should not, it would seem, bo allowed 
the costs of journeys to town to examine abstracts (Re 
Tryon, 7 Beav. 496). 

The general rule is that where the decree contains a pur- 
direction for settling the conveyances in chambers in case 'J^^'^^*^'-"! 
the parties differ, the purchaser pays the costs of his own settling 
attendances, unless a special case is made {Hodgson v. ancIHi 
Shaiu, 16 L. J. Ch. 56 ; 11 Jur. 95). But where the estates chambers. 
of an intestate, whose heir was an infant, were sold by the 
Court, the costs of settling the conveyance came out of the 
estate {Bnnvn v. Lake, 15 L. J. Ch. 34). 

If any proceedings under the Trustee Act are necessary q^^^^ of 
in order to make a good conveyance, the vendor must, it proceed- 

1 1 n ^ Ti 7 7 n r ings neces- 

seems, bear the costs ot them ; see Bradley v. Munton, saiy to 
16 Beav. 294, where the contract provided that " the costs °°™i^l«^to 

'^ the con- 

of surrender " should be borne by the purchaser, and it veyancc. 
was held that the costs of procuring some person to sur- 
render by proceedings under the Trustee Act were not 
included. Where the heiress at law, who was a party to 
the suit, refused to acknowledge the deed, the costs of the 
purchasers occasioned by such refusal, together with a sum 
jjaid to the heiress to induce her to convey, were ordered 
to be paid out of the funds in Court {Billing v. Webb, 1 
De G. & S. 716) ; and see TJarmas v. Buxton, 8 Eq. 120; 
and the funds being insufficient for the payment of the 
costs of all parties, the purchaser's costs were paid ir\ 



380 



COSTS AFFECTING PARTICULAR PERSONS. 



Where the 
title is bad 
the pur- 
chaser is 
discharged 
with costs, 
charges, 
and 
expenses. 



priority {Billing v. Wehh). But where tlie purchaser was 
a defendant, no costs Avere given of a petition to have a 
co-defendant, who refused to convey, declared a trustee 
under the Trustee Act {Robinson v. Wood, 5 Beav. 246). 
Where the decision in chambers is against the title, or 
it is too doubtful to be forced on a purchaser {Blossc v. 
Lord Clanmorria, 3 Bl. 62), the purchaser is. entitled to 
be discharged with all his costs, charges, and expenses 
consequent on his becoming purchaser, and of the .appli- 
cation, and of investigating the title {Att. Gen. v. Corpora- 
tion of Newark, 8 Sim. 71 ; Perkins y. Ede, 16 Beav. 268, 

1 W. R. 10, where the form of the usual order is given). 
The costs of the purchaser obtaining his own counsel's 
opinion will be included (Barton v. Dovnies, 4 Ir. Eq. Rep. 
607). If tliere are funds in court the purchaser's costs will 
be directed to be paid out of those funds (RctjnoUh v. Blake, 

2 S. & S. 117); but without prejudice to the question by 
what fund they should be ultimately borne, if there are 
more than one (Potcell v. Povdl, 1!) Eq. 422 ; 10 Gh. 
130; Set. 1410). Where there is no fund in court, the 
purchaser Avill be entitled to his costs from the plaintiff 
personally, without prejudice to the question how tiiey 
should be ultimately borne (Smith v. Nehon, 2 S. & S. 
557) ; although the plaintiff is only a pecuniary legatee 
(Berrij v. Johnson, 2 Y. lV: C. 564). But a defendant, to 
whom the conduct of the sale has been given, will not be 
ordered to pay the purchaser's costs where there are no 
funds in court which can be made primarily liable ; in such 
a case leave will be given to the purchaser to apply for 
payment (Mullins v. Hussey, 35 Beav. 301 ; 1 Eq. 488). 
Where the Master had reported against the title to one 
lot, the purchaser of others under the same title was dis- 
charged with his costs without further inquiry (Letvis 
V. Levjis, 9 L. J. Ch. 170). Where there had been great 
delay, and there was little hope of completing the title 
Avithin a reasonable time, also, the purchaser was discharged 
Avith costs (Fra>ier v. Wood, 8 Beav. 339). Where the 



COSTS OP PURCHASEKS UNDER DECREE. 381 

title had been found bad, but the purchaser was neverthe- 
less attached for non-payment of the purchase-money, the 
contract was cancelled, with costs against the solicitor who 
acted for both parties {Broniage v. Davles, 4 Jur. N. S. 
682). 

In like manner, if a purchaser is discharged on the '^o ^liere 
ground of the vendor's misrepresentation {Lachlan v. cliaser is 

Rennolds, Kay, 52), or of want of iurisdiction in the Court f^iscliargad 
'^ ' '1 ' /' ^ •' .011 some 

to sell {Calvert v. Godfrey, G Beav. 97), he Avill be entitled collateral 
to his costs, charges, and expenses. In LecJirnere y. ^'°^"^'^" 
Brasier, 2 J. & W. 287, the purchaser was discharged on 
account of an error in the decree, though the parties were 
proceeding to rectify it ; the costs, however, were waived, 
but it seems that the purchaser should have had them 
(Sugd. V. & P. 108). But where the defect in the suit 
was already cured before the petition came on, the pur- 
chaser was not discharged, and the costs were reserved 
{Sheriuood v. Beveridge, 3 De G. .S: S. 425). However, the 
purchaser will not be entitled to the co.sts of investigating 
the title, where he is relieved on any such collateral gi'ound 
(Magennis v. Fallon, 2 Moll. 592 ; Mackrell v. Hunt, 2 
Mad. 34 n.). 

Where the purchaser had resold at a profit, and on The pur- 
examination of the deeds the title proved bad, it was held norrecover 
that he could not recover at law from the vendors the costs ^^^'^ costs of 
of resale, or the costs paid to the sub-purchasers ( Walker jnirchaser 
V. Moore, 10 B. & C. 416). f™'^ ti^^ 

' vendors. 

Where a resale is ordered, on the purchaser makinsf Practice 
default in completing, the practice is not to discharge the pg^.^[g fg 



purchaser, but he is ordered to make good the deficiency ordered on 

tlie pur- 
chaser E 
com- 
pleting. 



in price, and pay the costs of the resale in case a less price chaser not 
should be obtained on it {Harding v. Harding, 4 My. & '^°™" 
C. 514 ; Gray v. Gray, 1 Beav. 199 ; S. C. suh nom. 
Saunders v. Gray, 4 My. & C. 515, n. ; and see Set. 1413). 



38'2 COSTS AFFECTING PARTICULAR PERSONS. 

Sect. XI. — Costs of Receivers. 

Receiver A receiver appointed by the Court is a mere officer of 

thVcouJtf t^^e Court {Parker v. Dunn, 8 Beav. 497 ; Morison v. 
ancuiiouid Morlson, 7 De G. M. & G. 214, 224, 226), and he ought 
r.il appear i^ot in general to present a petition or take any proceed- 
in proceed- [^^„^ [^^ ^j-^g causo, but should apply to the plaintiff to do so 
{Ireland v. Fade, 7 Beav. .5.5). And where he is served 
with a petition in the cause, he should not appear, and 
will get no costs of appearance if he does so (Herman v. 
Dunbar, 23 Beav. 312). But where the receiver had in- 
curred costs which the parties had long neglected to provide 
for, he was allowed to petition for their payment (Ireland 
v. Fade). And in Richardson v. Ward, 6 Mad. 266, 
a receiver was allowed the costs of his own application 
to be discharged on the ground of ill-health. But the costs 
of a receiver's petition to discharge him will be refused 
where the petition is improperly presented (St dwell v. 
Mellersh, 20 L. J. Ch. 3-56). 
A receiver A receiver will be entitled out of the funds to his costs, 
h/s'^osts^° charges, and expenses properly incurred in the discharge 
caarges, of his ordinary duties, or in extraordinary services which 
expenses, have been sanctioned by the QQwxi(Malcolmv. O'Callaghan, 
3 xMy. & C. 52 ; Fitzgerald v. Fitzgerald, 5 Ir. Eq. R. 
525). And in Morison v. Morison, 7 De G. M. t G. 214, 
which was a suit to administer West Indian estates, a 
consignee appointed by the Court, who had become in 
advance, was held entitled to repayment out of the corpus 
of the estate in priority to the costs of the suit. The 
poundage and expenses of passing the receiver's accounts 
fall upon the tenant for life (Shore v. Shore, 4 Drew. 510)- 
The costs of a receiver under a liquidation petition are 
payable out of the assets in priority to the costs of the 
-^ a-iUL t^doy debtor's solicitor (Ex parte Royle, 20 Eq. 780 ; 23 W. R. 
ex.-*- j>J^j 908 ; 33 L. T. 39 ; and see Ex parte Page, 25 L. T. 716). 

Receiver's In Mcdcohii V. O'CiiUaghan, Lord Cottenham seems 
^f^servkes ^^ ^^^'^Q held that the expenses of extraordinary services 



COSTS OP RECEIVERS. 383 

undertaken by a receiver without the sanction of the under- 
Court, should on that ground alone be refused ; but, ^\thoyt 
he added, that if those services resulted in a benefit, it the leave 
might be inequitable to allow the parties to reap the Com-t ; 
advantage without reimbursing the expenses. In the case 
cited, the expenses of journeys to and residence in Paris, 
for the purpose of prosecuting (unsuccessful) suits there for 
the recovery of parts of the testator's estate, were refused. 
Where a receiver, without the leave of the Court, defended defending 
an action at law arising out of a distress for rent made by ^ithont 
him, and compromised it on the terms of the plaintiff ^s'*"^^- 
abandoning it, and each party bearing his own costs, he 
Avas not allowed his costs {Sivaby v. Dickon, 5 Sim. 629). 
But where the defence was completely successful, the 
extra expenses were allowed, though the receiver acted 
without the leave of the Court (Bristoice v. J^eedham, 
2 Ph. 190). Again, the receiver of a lunatic's estate pro- 
ceedinof in a wron^ form of action, which he was advised 
to abandon, and adopting another form in which he suc- 
ceeded, was refused the costs of the abandoned proceeding, 
although the Master reported that he had acted bond fide 
(Re Montgomery, 1 Moll. 419 ; and see Re Ormshy, 1 B. 
& B. 189). The receiver should not wait to apply fur 
leave to defend an action till just before trial {Anon. 6 
Ves. 287). The personal authority of the beneficiaries to 
incur expenses gives the receiver no lien on the estate 
{Malcolm v. WCallaghan). 

Where a receiver had been irregular in bringing in his where a 
accounts, he was ordered, on the application of an incum- receiver is 

^. ^ ■, -, I'l defanlt. 

brancer, whose charge he was directed to keep down, to 
bring them in at stated times, and to pay the costs of the 
application {Bertie v. Lord, Abingdon, 8 Beav. 53). If a 
receiver suffer any costs to accrue which ought to have been 
prevented, he will have to pay them out of his own pocket 
{Cooh v. Hharman, 8 Ir. Eq. K 515). And where the 
receiver makes default in paying into Court a balance 
certified to be due from him, he will have to pay the costs 



381 



COSTS AFFECTING I'ARTICULAll PERSOKS. 



Costs of 
other pro- 
ceedings 
against 
him. 



Costs of 

motion 

that 

tenants 

may 

attorn. 

Receiver 
appointed 
by will. 

Costs occa 
sioned by 
inter- 
ference 
with re- 
ceiver. 



Costs in 
Ireland. 



of the application (see the practice in such cases, stated in 
1 Sm. Ch. Pr. 1037). The receiver of leaseholds not paying 
the rent regularly, will have to pay the costs of the land- 
lord's application to proceed against him for it {Walsh v. 
Walsh, 1 Ir. Eq. R. 209). And where receivers, through 
carelessness, published a libel, and the chief clerk certified 
the amount of the damages, though an application to 
increase the amount was refused, the Court ordered the 
receivers to bear the applicant's costs personally (Stuhbs v. 
Marsh, 15 L. T. 312). On the other hand, an application 
to remove a receiver for misconduct was refused with costs, 
and the petitioner being insolvent, the receiver was allowed 
his costs, as between solicitor and client, out of the funds 
in his hands (Courand v. Hanrner, 9 Beav. 3). Where a 
receiver had been appointed under a mistake, he was 
removed, but costs were not given against him {Hunter v. 
Pring, 8 Ir. Eq. R. 102). 

It is not the course of the Court, on motion that the 
tenants may attorn to the receiver, to order them to pay 
costs {Hobhouse v. Hollcoiuhe, 2 De G. & S. 208). 

A person appointed receiver by will, of a testator's real 
estates, with a salary, is a proper party to a suit to 
administer those estates {Consett v. Bell, 1 Y. & C. C. C. 
5G9). 

It is the uniform practice to order those who have in- 
truded on a receiver appointed by the Court, to pay the 
costs and expenses thereby occasioned {Lane v. Sterne, 
3 Gitr. 629 ; 10 W. R. 555 ; and see Frij^}^ v. Bridge- 
luater, <tc., Canal Comjxiny, 3 W. R. 356). 

As to what costs will and what costs will not be allowed 
to receivers in Ireland, see Sadleir v. Greene, 2 Ir. Ch. R. 
330. 



COSTS OF A^D RELATING TO SOLICITORS. 38-5 



Sect. Xll.—Cosfs of and relating to Solicitors. 

A solicitor who is sued in respect of fraudulent transac- Where the 
tions in which he has been mixed up in his professional ?°^^c'*°^' 

^ Jr IS a 

capacity, or who prepares improper instruments, which party to 
afterwards lead to litigation, may be ordered to pay all the *^^ ''''^'°°' 
costs thereby occasioned {Phosphate Sewage Co. v. Hart- 
mont, 5 Ch. D. 394 ; 46 L. J. Ch. 661 ; 37 L. T. 9 ; 
Baker v. Loader, 16 Eq. 49 ; 42 L. J. Ch. 113 ; 21 W. E. 
167 ; Proctor v. Rohinson, 35 Beav. 329 ; 15 L. T. 431 ; 
Bennet v. Vade, 2 Atk. 324; Beadles v. Burch, 10 Sim. 
332 ; Bowles v. Stewart, 1 Sch. & L. 209, 227) ; or may be 
left to bear his own costs {Harvey v. Mount, 8 Beav. 489, 
452, where, though exonerated from culimbility, he had 
not acted with prudence; Slator v. Xolan, Ir. R. 11 Eq. 
367, 408 ; Bagnall v. Carlton, 6 Ch. D. 371 ; 47 L. J. Ch. 
30 ; Henshall v. Fereday, 27 L. T. 743). And see further 
as to the costs of solicitors in cases of this kind Clark v. 
Girdwood, 7 Ch. D. 9 ; 47 L. J. Ch. 116 ; 26 W. R 90 ; 
37 L. T. 614; Phelp v. Anicotts, 17 W. R 703 ; Hugue- 
nin V. Baseley, 14 Ves. 273 ; Forshaw v. Welshy, 30 Beav. 
243 ; 30 L. J. Ch. 331. It is no defence for the solicitor 
to say that he only acted according to his client's instruc- 
tions. But where the solicitor has not been guilty of par- 
ticipation in a fraud, but at most only of a blunder, for 
which the remedy is an action for professional negligence, 
there is no jurisdiction to order him to pay the costs of 
the suit {Clark v. Girchuood). .s^ a.<=UpC^M.^ «.^ l j^^ 
Where a solicitor, by mixing up his personal interests 
in his client's transactions, rendered an investigation not 
unreasonable, the bill was dismissed against him without 
costs, though it contained unproven charges of fraud 
{Fyler v. Fyler, 3 Beav. 550). A solicitor may be made a May be 
party to the suit for the mere purpose of havinfj the costs ™''^'^*' ^ 
paid by him, in a case of fraud, but in that case only {Le merely fur 
Texierv. Margravine of Anspach, 15 Ves. 159) ; and the ''°''*'' 

c 



38G 



COSTS AFFECTING PARTICULAR FERSOKS. 



Where a 
solicitor 
trustee 
acts for 
himself, he 
is only 
allowed 
costs out of 
pocket, as 
against the 
cesticis- 
qv,e-trust. 



costs must be specifically prayed against him {Marshall 
V. Sladden, 7 Ha. 428; 19 L. J. Ch. 57). But no other 
person can be made a defendant for this purpose, except a 
solicitor or other agent, or an arbitrator ( Weise v. Wardle, 
19 Eq. 172 ; 23 W. R. 208 ; and see Aftwood v. Small, 
6 CI. & F. 232) ; and the Court discourages the practice 
(Barnes v. Addy, 9 Ch. 244 ; 43 L. J. Ch. 513; 22 W. R. 
505, 30 L. T. 5). If a suit to set aside suspicious transac- 
tions with a solicitor fails on some collateral ground, it 
will be dismissed without costs (De Montmorency v. 
Devereux,'7 CI. & F. 188, where the defendant proved 
confirmation ; Lord Clanricarde v. Henning, 30 Beav. 
175, where the bill was dismissed on the ground of the 
lapse of time). In Yetts v. Hilton, 9 L. T. 502, a solicitor 
Avho disclaimed to hold as purchaser and claimed only as 
mortgagee, was allowed costs from the date of the answer. 
A deed executed by a client and cestui-que-trust for 
securing a solicitor trustee his costs, to which he would 
not be entitled under the rule stated infra, was set aside, 
but without costs, as the rule was a severe one, and the 
•lient had acted inconsistently {Gomley v. Wood, 3 J. &L. 
. c). Where a suit by third parties has been rendered 
necessary through a solicitor's negligence in the conduct 
of his client's business, he may be made to pay the' costs 
of it (Todd V. Studholme, 3 K. & J. 341) ; and so at the 
suit of the client himself (C'r(//^ v. Watson, 8 Beav. 427). 
A solicitor trustee is not allowed, as against his cestuis- 
que-trust, any costs other than those out of pocket in 
respect of any professional services rendered by him, 
either in the administration of the trust estate out of 
court, or in conducting a suit by himself, or his own de- 
fence to a suit regarding the trust estate {Moore v. Froivd, 
3 My. & C. 45 ; Xeiu v. Jones, 1 Mac. & G. 668, n. ; 
Fraser v. Palmer, 4 Y. & C. 515; Gomley v. Wood, S J. 
& L. 678 ; In re Sherwood, 3 Beav. 338 ; Broughton v. 
Broughton, 5 De G. M. & G. 160; Liquidators of Im- 
lierial Mercantile Credit Association v. Coleman, 6 H. L. 



COSTS OF AND RELATING TO SOLICITOIlS. 3S7 

p. 208). "The rule really is that no one who has a duty 
to perform shall place himself in a situation to have his 
interests conflicting with that duty ; and a case for the 
application of the rule is that of a trustee himself doing 
acts which he might employ others to perform, and taking 
payment in some way for doing them " * {per Lord Crau- 
worth, C, De G. M. & G. 164). The case of Carmichael 
V. Wilso7i, 2 Mol. 537, where the contrary is reported to 
have been held on Lord Eldon's authority, cannot be relied 
on {per Lord Cottenham, 1 Mac. & G. 678 ; and Lord 
Langdale, 8 Beav. 594). The rule aj^plies as well to a 
constructive as an express trustee. Therefore, where a 
solicitor executor filed a bill to recover part of the assets 
and made a judgment creditor a party, the assets being 
insufficient for payment of the debt, the executor was 
allowed only costs out of pocket {Pollard y. Doyle, 1 Dr. Kuie 
& S. 319). The rule also applies where the trustee is a XlT 
member of a firm by whom the business is done {Golilr'S solicitor is 
V. Carey, 2 Beav. 128; and see Mafthison v. Clarlx'", oi a firm ; 
3 Drew. 8) ; though it is done by one of the partners who 
is not a trustee, if it is for the profit of all (Christophers 
White, 10 Beav. 523 ; Lyon v. Baker, 5 De G. & S ':ii2, 
where the Court refused an enquiry whether the employ- 
meiit of the trustee's partner was for the benefit of all but he mciy 
parties) ; but a trustee solicitor may employ his partner, ^™P'°y ^^^ 
who will be entitled to full costs, provided that the trustee 
does not participate in the profits (Clack v. Carlon, 30 L. 
J. Ch. 639 ; 7 Jur. N. S. 441 ; 9 W R. 568) ; and semUe, 
two firms may come to an arrangement between them for 
conducting each other's trust business (ibid.). After a dis- 
solution on which the trustee partner retires,- a fresh 
retainer to the continuing members of the firm is neces- 
sary ; and if they continue to act as solicitors to the trust 
without such retainer, they will not be entitled to costs, 

* The rule also ai^plies to other jirofessional men placed in a fiduciary 
position : see x)ost, p. 405. Qu. whether the rule applies where a solicitor 
executor renounces. 

c c 2 



388 



COSTS AFFECTING PARTICULAR PERSONS. 



Expenses 
of town 
agent 
itlloweil. 



A solicitor 
trustee 
appearing 
for him- 
self and co- 
trustees. 
Jbij/jS-cJ^ 36 (■ 



Solicitor 
trustee 
appearing 
for ccsluis' 
quc-trust. 



Special 
directions 
not made 
in decree 
giving 



unless upon the principle of salvage, stated _2J0sf, p. 391 
(Burge v. Brutton, 2 Ha. 373). The expenses of employ- 
ing a town agent, if employed by a country solicitor 
trustee in the ordinary course of business, will be allowed 
{ihid). 

In Gradock v. Pippv, 1 Mac. & G. 664, Lord Cottenham 
held that a solicitor trustee appearing for himself and his 
co-trustees in a suit was entitled to full costs as if he was 
not a party, except so far as the costs were increased by 
his being a party. The contrary, however, was expressly 
held by Lord Langdale in the earlier case of Bainbrigge 
V. Blair, 8 Beav. 588, where the solicitor acted for him- 
self, his co-trustees, and ce^tiiis-que-trust. In Lincoln v. 
Windsor, 9 Ha. 158, V. C. Turner held that the rule in 
Gradock v. Piper, applied only to costs in a suit, and not 
to the costs of business done in the course of administra- 
tion out of court, which he disallowed. This decision 
was followed b}'- Lord Cran worth, C, in Broughton v. 
Broughton, 5 De G. M. & G. 164, who, however, con- 
fessed his inability to see the distinction in principle 
between costs in and out of Court, and threw doubts on 
the soundness of Lord Cottenham's decision generally. 
Tiie rule in Gradock v. Piper was also questioned by the 
same learned Lord in the House of Lords {Manson v. 
Baillie, 2 Macq. 80, 82) ; and also by Lord Brougham 
{ihid. p. 91). 

A sole trustee acting as solicitor for the cestui s-que- 
trust, parties to a suit, will be allowed his usual costs, at 
least where they defend separately (Fraser v. Pcdmer, 
4 Y. & C. 515 ; Gradock v. Pijjer, 1 Mac. & G. 664); and 
according to the latter case where the trustees and cestuis- 
que-trust defend jointly, so far as the costs are not increased 
thereby, but see contra, Bainbrigge v. Blair, 8 Beav. 588; 
and the observations 8U2)ra. 

Where a trustee solicitor becomes entitled to costs, the 
Court will direct the taxation of his costs as between 
solicitor and clifut in the usual manner, leaving it to the 



COSTS OF AND RELATING TO SOLICITORS. 389 

Taxing Master to take notice of the fact that he is a solicitor 
solicitor (York v. Broiun, 1 Coll. 260; Cradock v. Piper, costs!^' 

I Mac. & G. 664). As to disputing after many years a 
bill paid by a trustee solicitor to himself, see Allen v. 
Jarvis, 4 Ch. 616. 

But a solicitor becoming a trustee for his client may Solicitor 
make a special contract with him for renmneration for his special 
professional services, the costs of which will in that case contract 
be allowed (Moore v. Froivd, 3 My. & C. 45 ; In re on be- 
SherwooJ, 8 Beav. 338); though, semhie, it would he J°^^^j.^J 
difficult for a solicitor to maintain such special contract, 
where the client had no independent advice (Moore v. 
Froivd) ; or at least was not expressly informed by the 
solicitor of the rule of law. In In re Sheriuood, the deed 
was settled by counsel on behalf of the client and cestui- 
que-trust. In Gorrdey v. Wood, 3 J. & L. 678, a deed 
executed by a client for securing a solicitor trustee his 
costs, without independent legal advice or information of 
his rights, "svas set aside, although the client had admitted 
his liability in correspondence, and had petitioned for 
taxation. Where, in a general account and release between 
a solicitor trustee and his cestui -que -trust, the former 
took credit for bills of costs for professional services, the 
release was upheld, the cestui -que-trust having had inde- 
pendent advice (Stanes v. Parker, 9 Beav. 385) ; but 
secus where the cestui-que-trust had no independent 
advice (Todd v. Wilso7i, ibid. 486 ; and see In re Wyche, 

II Beav. 209). 

The ordinary clause for trustees' indemnity and reim- what 
bursement, or a provision for retainer by trustees of costs ^'°^^. 
" incurred, sustained, or borne" by them, or which they 
might " sustain or be put to," Avill not give a trustee 
solicitor profit costs (Moore v. Frowd, 8 My. & C. 45). 
Where a solicitor executor is authorised to charge for Meaning 
" profes-sional " services, that means strictly professional, fggf,i,|nai 
and not such as might be performed by an executor services. 
in a lay capacity, such as attendances at the Bank to 



390 



COSTS AFFECTING PARTICULAR FERSONS. 



The Court 
may give 
solicitor 
trustee 
remunera- 
tion in 
special 
cases. 



The rule 

applies 

only 

between 

trustee 

and 



receive dividends, &c. {Harhin v. Darhy, 28 Beav. 
325). 

Semble, the Court will, under special circura.stances> 
make an order allowing a solicitor trustee some remunera- 
tion for his professional services ; but the application 
should be made before the costs are incurred {Ba'mhfigfje 
V. Blair, 8 Beav. 588) ; and professional charges would 
not be given (ibid.) ; and see MarsJiall v. Hollovjay, 
2 Swans. 453. 

The rule depriving a trustee who acts as his own 

solicitor of profit costs, however, applies only between the 

trustee and his ixdui-que-irud ; and, therefore, as against 

persons unsuccessfully impeaching the trust deed a 

ccstid-quc- trustee in such a position will be entitled to full costs 

"■"'^- {Piacev. Bc'ittle, 2 N. R 54C ; 11 W. R 979). So a 

solicitor trustee may charge Avith costs another client 

who advances money to the trust estate on mortgage ; 

see Whitney v. Smith, 4 Ch. 513; 17 AV. R. 579; 20 

L. T. 468. 

Solicitor It has been held also that a solicitor mortgagee defend- 

mortga^'ce jj^g jjjg ^{Wq to the mortgaged property will be entitled, as 

himself. against the mortgagor and subsequent incumbrancers, to 

^'^■'^■T^^-'^^^-^-^vo^i^ out of pocket only, if he acts for himself {Midcr v. 

WA.-f«.«,iu,Sc7: Gottam,'^ Jur. N. S. G30 ; 5 W. R 744). In Price v. 

^j^//^^uL366. M'Beih, 12 W. R. 818, Y. C. Stuart held that objections 

to allowing profit costs to a solicitor mortgagee should be 

taken at the hearing, and that, in the absence of special 

directions, the Taxing Master was bound to tax in the 

usual way; but see ante, p. 388. 

Where The Court has power, under its general jurisdiction 

payl'coSs °^'®^' solicitors as officers of the Court, to make them 

personally, personally answerable for the costs of proceedings taken 

a party to without authority, or for malfeasance or neglect in the 

the pro- conduct of their clients' business. 

CCGClill*''S. 

i Where "^^ ^'^ ^^^® practice and the costs payable by the 
he acts solicitor, when proceedings are instituted by him without 
authority, authority, or without proper authority, see ante, pp. 8G — 8[>., 



COSTS OF AND EELATING TO SOLICITORS. 391 

where the cases are collected. The liability to pay the 
defendant's costs in such a case is a liability incurred 
by means of a fraud within the 49th section of the Bank- 
ruptcy Act, 1SG9 (Jenkins v. Fereday, L. R. 7 C. P. 
358). As to what is sufficient retainer, see ante, p. 89. 
Although a defendant, for whom a solicitor has assumed 
to act without a retainer, takes no step to have his name 
struck out, that is not equivalent to a retainer {Hall v. 
Laver, 1 Ha. 571) ; but a solicitor under those circum- 
stances may be entitled to his costs if there are funds 
coming to the party, on the principle that it is inequitable 
for him to take the benefit of the suit without bearing the 
expenses of it {ihid. ; and see Bwrge v. Brutton, 2 Ha. 
373 ; 12 L. J. Ch. 3G8). The solicitor, however, in that 
case will have no personal remedy, but merely a lien on 
the funds (ibid.). The solicitors of a company, if they act 
in business relating to matters which are ultra vires as to 
the company, are to that extent the solicitors of the 
directors only {Be Phoenix Life Assurance Company, 1 H. 
& M. 433 ; 2 N. R. 548), Where a solicitor made a motion or the 
in the name of a married woman without a next friend, it f,j°g^^i.J 
was dismissed with costs, to be paid by the solicitor {Pearse irregular. 
v. Cole, 16 Jur, 214). And where a bill was filed by persons 
assuming, without title, to sue in a corporate capacity, it 
was taken off the file with costs, but against the town 
agent only, not the country solicitor {Burgesses of Ruthin 
V. Adams, 7 Sim. 345). 

In Cockle v. Whiting, 1 R. & M. 43, it was said that if a'ii. Where 
bill which is dismissed at the hearing with costs, be so ceecUn°3 
vexatious and frivolous that it cannot have been instituted ^^''^ ^}°^ 
bond fide, and the plaintiff is out of the jurisdiction, the 
Court would compel the plaintiff's solicitor to pay the 
taxed costs. And upon an application by a client to tax 
his solicitor's costs the solicitor will be disallowed the costs 
of a litigation upon which he advised his client to enter 
when he knew or ought to have known that he could not 
possibly be successful {Re Sheriuood (C. A.), 17 S. J. 146). 



392 COSTS AFFECTING PARTICULAR PERSONS. 

Where a false plea was put in for purpose of delay, it was 
ordered to be taken off the file with costs against the 
solicitor who gave instructions for it {Aubrey v. AHpinall, 
Jac, 441). In an interpleader suit, where the plaintiff was 
colluding with one of the defendants, the other defendants' 
costs, as between solicitor and client, were ordered to be 
or in case paid by the plaintiff and his attorney {Duv.rjey v. Angove, 
Wnceof 2 Ves. Junr. 304, 313). A bankruptcy petition, being 
solicitor, vexatious and frivolous, and though presented in another's 
name, really for the attorney's private advantage, was dis- 
missed with costs against the attorney {In re Cuthhert, 
, 1 Mad. 78). Where the action was frivolous, vexa- 
tious, and an abuse of the process of the Court, proceed- 
ings were stayed, and the jDlaintiff's solicitor ordered to 
pay the defendant's costs as between solicitor and client 
{Tilney v. StansfehJ, W. N. (1880), 77 ; 28 W. R 582). 
Where an illiterate person, having become the purchaser of 
property under a decree, retained the vendor's solicitor, by 
whom, though the report was against the title, he was 
attached for non-payment of the purchase monies, the 
contract was cancelled on motion, and all the costs were 
ordered to be paid by the soUcitor {Bromage v. Davies, 
4 Jur. N. S. 682). Again, where a solicitor having been 
discharged by the infant plaintiff's mother, by whom he 
had been retained, nevertheless appointed a new next 
friend in place of the former one who was dead, and went 
on with the suit, he was charged with the costs of a motion 
to change the next friend, and of the appointment of a 
new one {Lander v. IngersoU, 4 Ha. 596). But to make 
a solicitor pay the costs of improper proceedings he must 
be guilty of misconduct in the matter sought to be set 
aside {In re Greg, 9 Eq. 137). A solicitor who, knowing 
that money in court belongs to one person gets it out for 
another, will be personally liable {Ezart v. Lister, 5 Beav. 
585) ; and it is enough, if he knows of circumstances 
which duly considered would lead him to the knowledge 
{ibid.) ; and see Todd v. Studholme, 3 K. & J. 341 ; Be 



COSTS OF AND RELATING TO SOLICITORS. 893 

Spencer, 39 L. J. Ch. 841; 18 W. R. 240; 21 L. T. 
808. 

So also in cases of scandal tlic Court has ordered iii- In 

. -, , cases of 

the solicitor to pay costs ; see the cases cited ante, p. scandal. 
38. 

The Court may also direct the solicitor of one of the iv. In 
parties to pay to another party the costs occasioned by his ^g^igence 
ne^lisence in the conduct of his client's business. See between 

,,.„.,. third par- 

Faiukes v. Pratt, 1 P. W. 592, where the bill omitted to ties and 
pray process against some of the defendants, and a demurrer solicitor. 
having been consequently allowed for want of parties, the 
costs were ordered to be paid by the solicitor personally, 
the plaintiff beiug a poor man ; Courtney v. StocJi, 
2 Dr. & W. 251, where a solicitor was ordered to pay the 
costs of the day, in consequence of his non-attendance in 
Court when the cause was called on ; Ee Gommonwecdtli 
Land Co., 29 L. T. 502, where a solicitor issued a fi. fa. 
for costs contrary to good faith, and was ordered on 
motion to pay the costs of the execution and of the 
motion; Russ v. Wood, 2 Dr. & Wal. 490, where the 
solicitor vexatiously refused to accept service for his 
client; O^Riovdan v. Riordan, Ir. R. 10 C. L. 547, 
where a solicitor vexatiously refused to accept a banker's 
draft in payment of rent ; Taylor v. Gorman, 4 Ir. Eq. 
R. 550, where a solicitor misdescribed a lease sold by the 
Court; WJdte v. Hillacre, 3 Y. & C. 278, in the Ex- 
chequer, where a solicitor was charged with the costs of 
an application rendered necessary by his own delay and 
mistake ; and Re Hogan, 3 Atk. 812, where a petition on 
Avhich affidavits had been sworn before the solicitor him- 
self was dismissed with costs to be paid by the solicitor. 
By Cons. Ord. XXL, r. 12, if a cause is struck out for waut 
of papers, the plaintiff's solicitor may be ordered to pay the 
costs occasioned to the adverse parties. In Birch v. 
Williants, 24 W. R. 700, where a bill liad been dismissed 
with costs through the plaintiff's solicitor having neglected 
to instruct counsel or deliver papers, the cause was 



394 



COSTS AFFECTING PARTICULAR PERSOKS. 



Solicitor 
may bo 
made an- 
swerable 
for negli" 
genee by 
action. 



Where the 
solicitor 
has given 
a iiersonal 
undertak- 
ing ; 



restored, and the solicitor was ordered to pay the costs of 
the day, and of the appHcation to restore. 

It was formerly doubted whether the Court had power 
under its general jurisdiction to charge a solicitor, as 
between himself and his client, with loss occasioned to the 
latter by the solicitor's negligence in the conduct of a suit; 
see British Mutual SocU'tt/ v. Cohhold, 19 Eq. 627 ; 
Franldand v. Lucas, 4 Sim. 586 ; Mare v. Lewis, Ir. R. 
4 Eq. 219, where the jurisdiction was denied; contra, 
Dixon V. }Y'dh'inson, 4 De G. & J. 508 ; Chaiwian v. 
Chapman, 9 Eq. 276. 

Under the present practice the proper remedy of the 
client is an action for negligence against the solicitor ; see 
Whiteman v. Haivldns, 4 C. P. D. 13 ; 27 W. R. 262 ; 39 
L. T. 629 ; The Papa de llossle, 3 P. D. 160; 27 W. R. 
367. A solicitor cannot contract himself out of his 
liability for negligence by any agreement under the At- 
torneys' and .Solicitors' Act, 1870; see section 7 of the 
Act, 2^08t, p. 419. Where a fund in an administration 
suit had, through the negligence of the plaintiff's solicitor, 
been distributed amongst the creditors without regard to 
the rights of a mortgagee, the Court, in a suit instituted 
for the purpose, directed the creditors to refund j^wo rata, 
and the solicitor to make good the deficiency, if any, and 
pay the costs of the suit {Todd v. Studholme, 3 K. »&; J. 
341) ; and the solicitor had to pay the costs of a suit 
occasioned by his negligence or misconduct, in taking an 
insufficient security for his client {Craig v. Watson, 8 
Beav. 427). Negligence will also be a good answer to the 
claim of a solicitor against his client's estate in an admin- 
istration suit for the costs of a suit which failed through 
his default {Stol-es v. Trumper, 2 K. & J. 232; but the 
case was compromised on appeal). 

Lastly, a solicitor may become liable in costs, on the 
grounds of a personal undertaking by him. See Cook v. 
Broomhead, 16 Ves. 133, where a solicitor, having under- 
taken to appear for a defendant at the bearing and not 



COSTS OF AKD RELATING TO SOLICITORS. 395 

having done so, was ordered on motion to pay the plaintiffs 

the costs occasioned by the defendant not appearing, and 

the costs of the aijplication. " Tlie difterence is where the 

party thus undertaking for and on behalf of his client has 

an authority so to do, and where he has not. If such 

undertaker has no authority, then it is a fraud, and the 

undertaker ought himself to be liable. But where there 

is such an authority (as here there was) to the attorney, 

this is only acting for another, like the case of a factor or 

broker acting for principals, who were never held to be 

liable in their own capacities " (per L. C. Talbot, Johnson 

V. Ogilbi/, 3 P. W. 278 ; and see In re Williams, 12 Beav. 

510). A personal undertaking by a solicitor to pay costs 

may be enforced by the summary jurisdiction of the 

Court (GilhcH v. Coo'per, 15 Sim. 343 ; 11 L. T. (Old S.) 

169) ; but not if the payment of the costs is only one of 

the terms of a compromise (S. C. on appeal, 17 L. J. Ch. 

265). 

Where a solicitor agrees to indemnify the plaintiff in a or agrees 
suit against the costs and has the control of tlie suit, he j^^jy j^j^ 
will be ordered to pay the defendants their costs of suit client 

^ '^ against 

when dismissed {Re Jones, 6 Ch. 497 ; S. C. sub. nam., costs. 
Fielden v. KortJtern Ry. of Buenos Ayves, 40 L. J. Ch. 
113 ; 18 W. R 729 ; 19 W. B. 361 ; 22 L. T. 511 ; 23 L. 
T. 655 ; GocUe v. Whiting, 1 B. & M. 43). 

Where the solicitor gave the relator in a charity infor- 
mation an indemnity against costs, the information was 
ordered to be taken off the file with costs against the 
relator and the solicitor {Attorney-General v. Skinners'' 
Go., C. P. C. 7). As to agreements between solicitor and 
client as to costs, see, j'^ost. Chap. VII. 

An agreement to indemnify the plaintiff against costs 
in consideration of receiving a share of the property re- 
covered in the suit, will amount to champerty and main- 
tenance {Hilton V. Woods, 4 Eq. 432 ; Harrington v. Long, 
2 My. & Ke. 590 ; and see Re Attorneys Act, 1870, 1 Ch, 
D. 573 ; 44 L. J. Ch. 47 ; 24 W. B. 38 ; post, p. 422. 



39G 



COSTS AFFECTING PARTICULAR PERSONS. 



i. Costs of 

trustees, 

&c., in 

suits 

between 

themselves 

and 

strangers. 

Where 
trustees 
are plain- 
tiffs. 



^Yhere 
trustees 
are de- 
fendants. 



Costs of 
trustees 
under a 
void deed 



Sect. XIII. — Costs of Trustees, Executors, and 
A dministrators. 

In suits between themselves and persons, strangers to 
the trust, executors, administrators, and trustees, suing in 
that character, are in no better position as to costs than 
parties suing in their own right {Westley v. Williamson,2 
Mol 458 ; Hill v. Magan, ihid. 4G0 ; Elsey v. Lutijens, 8 
Ha. 165 ; Rennie v. Massie, L. R. 1 P. & D. 118; and seeder 
Lord Northington, Burgess v. Wheate, 1 Ed. 251). There- 
fore a vendor's bill for specific performance was dismissed 
with costs, although the plaintiffs were only trustees for 
sale {Edwards v. Harvey, G. Coop. 39) ; and see Ex parte 
Angerstein, 9 Ch. 479 ; Ex parte Royle, 20 Eq. 780; Pitts 
V. La Fontaine, 6 App. Cas. 482 ; Marhella Iron Co. v, 
Allen, 38 L. T. 815 ; Ex parte Forder, In re Sparks, W. 
N. (1881) 117. And where a litigant dies, and his exe- 
cutor obtains an order authorising him to continue the 
suit, he renders himself personally liable for the costs 
(Boynton v. Boynton, 4 App. Cas. 733 ; 27 W. K 141, 825 ; 
Horloch V. Priestly, 8 Sim. 621), If trustees become 
entitled to costs against strangers, such costs will, as a rule, 
be taxed as between party and party only ; in some very 
special cases, however, the trustees have received their costs 
as between solicitor and client (see Turner v. Collins, 12 
Eq. 438, and the other cases cited, post, p. 402). Residuary 
legatees in trust were not allowed costs as between solici- 
tor and client as against the executrix, who was sued in 
that character, though she Avas also tenant for life of the 
residue {Hearn v. ^Yells, 1 Coll. 323). 

But where trustees are brought iato Court in a suit to 
determine the rights in a fund, they will be allowed costs 
out of it, although they make a claim, if it is merely by 
way of submission to the Court {Rashley v. Masters, 1 Ves. 
Juu. 201, 205). In Elsey v. Cox, 26 Beav. 95, the Court, 
on setting aside a voluntary settlement, as void against 
creditors, held that the utmost it could do was to make 



COSTS OF TRUSTEES, EXECUTORS, ETC. 397 

the decree against the trustees without costs ; and see 
Toivnsend v. Westacott, 4 Beav. 58; Elsey v. Lid yens, 8 
Ha. 159, 1G4 ; Crossley v. Elwovthy, 12 Eq. 158, But in 
Goldsmith V. Russell, 5 De G. M. & G. 556, the costs of 
all parties, except the settlor, were allowed out of the 
funds ; and see Ponsford v. Widnell, W. K (18G9) 81 ; 
and Adames v. Hallett, G Eq. 468; 18 L. T. 789, where 
the plaintiffs' costs had priority. In Tiivquand v. Knight, 
14 Sim. 648, the trustee had made himself a party to the 
fraud b}'- signing a false receipt on the deed, and was 
allowed no costs, but did not pay any ; and see Pvideaux 
V. Lonsdale, 1 De G. J. & S. 433, 439, overruling on this 
point, S. C. 4 Giff. 159. Where the trustee had also a 
beneficial interest, and insisted on the validity of the deed, 
he had to pay costs {Irivin v. Rogers, 12 Ir. Eq. R. 159) ; 
and see Tanqueray v. Boivles, 14 Eq. 151 ; Smith v. Dresser, 
35 Beav. 378 ; 1 Eq. 651, where the trustee insisted on 
his right to retain his costs and expenses, and had to pay 
all the costs of a suit to make him give up the property ; 
Mackay v. Douglas, 14 Eq. 106, where the trustees actively 
supported the settlement, and they and the settlor were 
made jointly liable for the costs ; Ex iiarte Russell, in 
re Butterivorth, W. N. (1882), 26. Where the trustee, 
under a fraudulent -assignment of an annuity, was also 
trustee under the instrument creating it, and a necessary 
party in that character, he was allowed his costs, and 
directed to retain them, in default of payment by the in- 
solvent, out of the annuity (Norcutt v. Dodd, Or. & Ph. 
100). And where a conveyance by the trustee was asked 
for, he, being treated as a trustee to that extent, was 
allowed his costs {Snovj v. Hole, cited in Lewin on Trusts, 
7th ed. p. 848). In a suit by a purchaser to have a volun- 
tary settlement delivered up to be cancelled, no costs were 
given to the cestuls-que-trust, but the trustees had theirs 
from the plaintiff, who had them over from the settlor 
(Daking v. Whinii^er, 26 Beav. 568). In Cohnan v. Barrel, 
1 Ves. Jun. 50, the deed was supported, but, tlie transac- 
tion not being meritorious, the trustee was not allowed any 



398 



COSTS AFFECTING PATlTTCTILAR TERSOKS. 



As be- 
tween 
executors 
and 
creditors. 



ii. As 

between 

trustees, 

&c. , and 

their 

cc.ituis- 

quc-irust. 



costs. Where the right to relief was not dispnted, the 
costs were ordered to be paid out of the settled property 
{Thompson v. Milligan, 18 L. T. 809). 

As between themselves and creditors, however, executors 
and administrators are entitled to their full costs, charges, 
and expenses out of the estate in priority to the payment 
of debts, though the estate is insolvent (see the cases cited 
ante, p. 200). But if they improperly deny assets, they 
may be postponed to the creditors' debts and costs (Lodge 
V. Pritchard, 4 Gifif. 294). 

A personal representative who has distributed the assets 
under 22 & 23 Vict. c. 35, s. 29, ought to give an unpaid 
creditor full information as to the parties among whom he 
has so distributed them ; and if he has not given such 
information before suit instituted by the creditor, he will 
be refused the costs of defending himself and claiming the 
protection of the statute (Re Lindsay, Ir. R. 8 Eq. 61). 

As between trustees and cestids-que-triist, the former 
are ordinarily allowed their costs of suit as between 
solicitor and client, and in addition thereto any other 
costs, charges, and expenses properly incurred by them in 
the execution of their trust,' or the administration of their 
estate, upon the suggestion of counsel that any such have 
been incurred (1 Sm. Ch. Pr. 1074 : and Bradshaw v. 
Bradshav:, cor. V. C. Kindersley, there referred to in 
note 4) ; and the case must be supported before the 
Taxing Master. Strictly speaking, the charges and ex- 
penses of trustees are not "costs" at all, and the words 
are used because they include items which are not costs. 
They are not like the ordinary costs of an action in the 
mere ordinary discretion of the Court ; and to deprive a 
trustee of his charges and expenses, has been termed a 
"violent" exercise of the Court's discretion. The Court 
can deprive a trustee of them for gross misconduct, but 
that is all. An order directing payment of a trustee's 
costs, charges, and expenses out of a particular fund is, 
therefore, not within section 49 of the Judicature Act, and 
may be appealed from {In re Chennell, Jones v. Chennell, 



COSTS OF TRUSTEES, EXECUTORS, ETC. 390 

8 Ch. D. 492 ; 47 L. J. Ch. 583 ; 2G W. R 595 ; 88 L. 
T. 494). The Court deals liberally id this matter with a 
trustee acting bond fide {Courtney v. Rumleij, Ir. R. Eq. 
99; Ryan v. Msbitt, W. N. (1879), 100). "Nothing 
ought, I think, to be adhered to more sacredly than tlie 
general principle, which is that a trustee or executor 
having done his duty, having faithfully accounted, and 
having broiight forward the estate committed to his charge, 
should not be deprived of his costs upon light grounds " 
(l^er Lord Westbury, in BiA'sv. MicJdefhiuaif, 34 L. J. Ch. 
364). By R. S. C, Order LV. r. 1, the right of a trustee to 
costs out of a particular estate or fund to which he would 
be entitled according to the rules of Courts of Equity is 
expressly preserved. For an instance of trustees being 
allowed special costs under very peculiar circumstances, 
see Mostyn v. Emanuel, W. N. (1876), 287. For the 
form of the order, see Seton, 481, where the form of an 
enquiry whether any extra charges and expenses have 
been incurred is also given. The trustee will be allowed 
his usual costs, although he is a bankrupt {Turner v. 
Mullineux, 9 W. R 252; 3 L. T. 687; Bowyer v. 
Griffi^n, 9 Eq. 340 ; 39 L. J. Ch. 159 ; 18 W. R. 227) ; and 
trustees invalidly appointed but who had acted bond fide, 
believing themselves duly appointed, were allowed their 
costs, charges, and expenses, in the usual way {Travis v. 
Illimjvjorth, W. N. (1868), 206). A bankrupt executor's 
costs up to the time of his bankruptcy will be set off against 
a sum due from him to the estate, but not his subsequent 
costs (see ante, p. 190, and the cases there cited). A 
trustee under a void instrument which passes no trust- 
fund cannot have costs as between solicitor and client 
{Mohim V. Mokun, 1 Swans. 201, where the bill was filed 
to establish a will of personalty, which the Court held to 
be void ; and see Daking v. Whimper, 26 Beav. 568), 

Trustees, &c., have a lien on the trust funds or estate Trustees 
for their proper costs, charges, and expenses {Attorney- \i\^^^^ 
General v. Mayor of Korwich, 2 My. & C. 406, 424 ; the trust 

estate for 



400 



COSTS AFFECTING PARTICULAR PERSONS. 



their costs, Pavsons V. Spooner, 5 Ha. 102, 110 ; and see Statute 22 
am/ex-' ^'^ ^"^ Vict. c. .35, s. 31). And where a married woman's 
penses. suit against lier trustees was dismissed with costs so far as 
related to an alleged breach of trust, the next friend 
proving insolvent, the trustees were allowed to retain their 
costs of suit out of the income under the powers of re- 
imbursement in the settlement {D'OecJisner v. Scott, 
24 Beav. 239). So, where the estate was being adminis- 
tered b}' the Court, consignees and receivers appointed by it 
were allowed advances made by themin excessof the income, 
out of the corpus of the property {Morison v. Morison, 
7 De G. M. & G. 214). " These payments must be looked 
on as payments made in the proper administration of the 
trust for the protection and preservation of that, which 
was to be protected and preserved, until it should be con- 
verted into money. They must be treated as having 
been made in execution of a money trust, and it is 
impossible to permit the trust property to be enjoyed 
by any persons beneficially under the trust without making- 
good the expenditure and advances bond fide made in 
execution of the trust under the authority of the Court, 
whose duty it was to direct how the trusts were to be 
executed " {Ihld. p. 224, 22G ; Re Eo:ha.ll Coal Co., 3.5 Beav. 
449). But where an estate was vested in a legal tenant 
for life, with remainder to trustees, in trust to sell, it was 
held that the trustees had no lien on the estate for the 
expenses of an abortive sale, attempted with the appro- 
bation of the cestuis-que-trust, some of whom were under 
disability {Leedham v. Chmvner, 4 K. & J. 458). A power 
in trustees to raise by mortgage a fixed sum, implies a power 
to raise also the incidental costs of the mortgage (Armstrong 
X.Armstrong, 18 Eq. 541). A trustee acting bond fide in 
concurrence with the heir at law under a will as to real 
estate, which was supposed to be valid, but proved to be 
invalid, was held to be entitled to be indemnified out of 
the personal estate (Edgecumbe v. Carpenter, 1 Beav. 
171). But charity trustees, having several properties 



Where 
there are 
no funds. 



COSTS OF TRUSTEES. EXECTTOI^s. ETC 401 

vested in them, cannot indemnify themselves out of one 
for expenses incurred with respect to others {Attorney- 
General V. Grainger, 7 W. R. (i84) ; nor destroy all the 
trusts for the sake of recouping themselves expenses 
properly incurred {Darke v. Williamson, 25 Beav. 622). 
And where, on an ex officio information by the Attorney- 
General, a charity estate was held to be lost through 
breach of condition, the trustees could get no costs either 
from the Attorney-General or out of the estate {Attorney- 
General \\ Grainger). In Attorney-General v, Cuming, 2 
Y. & C. C. C. 139, 155, where the subject of the trust was 
an advowson and there were no funds, trustees (defendants) 
were allowed costs from their cestuis-que-trust (plaintiffs) 
personally ; and see Edenborough v. ArcJihisliop of Canter- 
bury, 2 Russ. 112; Turner v. Collins, 12 Eq. 438; 
40 L. J. Ch. 614 ; 25 L. T. 264, varied on appeal on the 
merits, 7 Ch. 629 ; 41 L. J. Ch. 558 ; 20 W. R. 305 ; 

25 L. T. 779. An administrator ad literii is entitled to costs of 
his costs out of the fund, if there is one, or, in default, a" ^'^I'li- 

nistrator 

from the plaintiff personally {Kash v. Dillon, 1 Mol. 236 ; ad litem 
Nicholson v. Falkiner, ibid. 555). A trustee will be 
allowed the costs of opposing a bill in Parliament which 
affects the trust estate {Re NicolVs Estates, W. N. 
(1878), 154). 

Where a widow on the death of her husband abandoned How the 
a suit by her husband and herself, the executors were enforced 
allowed to enforce their lien for their costs by a supple- 
mental bill {Jackson v. Woolley, 12 Sim. 12). But where 
a trustee, defending separately, died before the hearing on 
farther directions, a petition by his personal representative 
for payment of his costs out of the funds was refused 
{Matins v. Greemvay, 7 Ha. 391). In that case, however, 
the costs were partly incurred in rebutting charges against 
him otherwise than in his fiduciary character ; but see 
Walters v. Woodbridge, 7 Ch. D. 504; 47 L. J. Ch. 516; 

26 W. R. 469; 38 L. T. 83, reversing S. C. below, 
20 W. R. 520. 



402 



COSTS AFFECTIXG PARTICULAR PERSONS. 



Disclaim- 
in.!,' trustee 
entitled to 
co^ts as 
Letween 
party and 
party only, 



Costs 
of dis- 
ciainiing 
trustees 
generally. 



Suit may 
be dis- 
missed 
against 
trustees 
with 
solicitoi" 
and client 
costs. 



A person who disclaims the trust is in the situation of 
any other defendant, and can have costs only as between 
party and party {Norway v. Norway, 2 My. & K. 278 ; 
Heap V. Jones, 5 W. R. 106 ; BuReley v. Earl of 
Eglinton, 1 Jur. N. S. 994; Bray v. West, 9 Sim. 429, 
notwithstanding Sherratt v. Beniley, 1 R. & M. 655, which 
is overruled). Where the executrix of a deceased and 
sole trustee declined to receive or pay any dividends on 
the trust stock, she was allowed out of the fund the costs 
of a suit for the appointment of new trustees and a transfer 
of the fund {Lerjcj v. Mackrell, 2 De G. F. & J. 551, over- 
ruling S. C. 1 Giff. 165, where V.-C. Stuart said he would 
have made her