Millington v. Fox, 3 Myl. & Cr. 338. Taylor v. Southgate, 4 Ibid. 203; s. c. 8 Law J. Rep. (N.S.) Chanc. 137. Bacon v. Spottiswoode, 1 Beav. 382. Tod v. Tod, 1 Bligh, N.s. 639. Maguire v. Maddin, 2 Bro. P.C. 393. The Marquis of Waterford v. Knight,

3 Cl. & Fin. 270; s. c. 11 Ibid. 653. Sheehy v. Lord Muskerry, 7 Ibid. 1. Calcraft v. West, 2 Jones & Lat. 123.

The LORD CHANCELLOR. The decree appealed from on the further directions, and the original decree on which it was founded shew the situation of the cause so far as is necessary for enabling me to come to a conclusion in this case. The decree on further directions is, that upon hearing the order of the 8th of July 1843, and the order of the Court of Exchequer of Pleas of the 12th of June 1845, by which it was ordered that the verdict found for the plaintiff on the trial of the action, should be entered for the defendant, the Court orders the plaintiff's bill to stand dismissed. This order shews what was the result of the proceeding at law, and that it was not a verdict obtained under circumstances which might not try the right, but that the court of law set aside the verdict found for the plaintiff, and ordered it to be entered for the defendant, shewing, therefore, an adjudication, and that the plaintiff had failed in establishing his legal right. The original decree shews also how this arose, and what was the object of the suit. An account was directed to be kept of what was received by the defendant from the copyright. The injunction was granted, and the Court took the usual course of retaining the bill, giving the plaintiff permission to try the right by an action at law, but directing that if the plaintiff did not in due time bring his action, then the bill was to be dismissed with costs, but if he brought an action, the costs were reserved. This was obviously necessary, because the object being to try a legal right, if the proceedings at law had not so tried the right as to satisfy the Court in which of the parties the right was, the Court would not have been in a situation to dispose finally of the costs. The Court, however, adjudicated to this extent, that if the plaintiff did not try the right, his bill

was to be dismissed with costs, thus only putting on the decree what is according to the universal practice of the Court, that if a party comes here for relief, founded on a legal right, the plaintiff must fail in his proceedings in equity, if the legal right is not established. It is then a point adjudicated, that if he does not establish his right, he is to pay the costs. It therefore follows that if he takes the course directed, for trying his legal right and fails, the same result must ensue. It becomes a matter of course to dismiss the bill with costs. These two orders cannot stand together. The Court could not mean to say to the plaintiff "if you do abandon your right, the bill shall be dismissed with costs; but if you try and fail, the bill shall be dismissed without costs." In both cases the party would be in the same situation, except that in the latter additional costs would have been incurred. Looking only then at what the Court has done by its decree, and not at any of the circumstances of the case, I consider that the original decree laid down a rule which should have been followed upon that ground alone. I should have thought it the duty of this Court, for the purpose of amending that defect, to vary the decree made on further directions. The first decree is consistent with the forms and practice of the Court, and the second is not. If the second decree was made on grounds arising from the conduct of the defendant in the cause, the case was as much before the Court at the original decree as on the further directions. It might have been adjudicated on the original hearing. The record was then complete. The suit has been since asleep. The Court only retained the matter to see the result of the proceedings at law; it only retained the bill in order to try the question at law. Then, therefore, was the time at which the plaintiff should have made any case which he had against the defendant. Whether he did so or not, or whether in doing so he failed, I have no means of knowing. If any unnecessary expense was created by the defendant's course of conducting the trial, the practice of the court of law supplies a remedy; the court of law was quite competent to set this right. Any impertinence or impropriety would be visited on the defendant by the court of law.

But this would not affect the costs of the suit, the only question in the suit being the right of the plaintiff to call in question the right claimed by the defendant.

Besides, however, the question in this case, it is of importance that it should be generally understood what is the right course of dealing with the question of costs on appeal. There are many cases in which it has been discussed. When it is a matter of pure discretion, arising out of the circumstances of the case, one branch of this court cannot review the discretion exercised by another branch without knowing all which may have been known to that other branch of the court before which the case was originally heard. There the rule must be maintained that there is no appeal for costs. But where the question involves a principle, or a rule of practice is to be laid down, then an exception is to be made. So in particular cases where it would be very hard to refuse to consider the question of costs. And where the matter has not been one of pure discretion, the Court will entertain an appeal for costs ; as, for example, where costs are ordered out of a particular fund or estate, and the question is only what fund is to be charged, the Court will hear an appeal, though only for costs. There is another exception, where, on the face of the proceedings, the decision as to costs is inconsistent with the general practice of the Court, as if the Court should refuse to give the costs of a bill of discovery. The defendant may indeed have misconducted himself, yet the Court says the plaintiff has brought him here, and the rule as to costs is clear. So in other cases where there is a general and settled practice, there may be an appeal for costs. This was carried to a great extent in Owen v. Griffith. That was a strong instance. There the decree was against a mortgagee in possession. It appeared he had been overpaid. The decree ordered possession to be delivered to the plaintiff, and directed the defendant to pay costs. The mortgagee there had failed, but by the general practice it is of course for him to have his costs. He appealed, and though it was a pure question of costs, yet the appeal was allowed, and Lord Hardwicke gave the defendant his costs. The practice of the Court gave a mortgagee his costs,

A

and there was thus a departure from the established practice. This course was also followed by Lord Northington in Cowper v. Scott. There were also two cases before me. In Taylor v. Southgate there was a bill which sought to charge executors personally with default. The charge was unsupported by evidence, and at last it came to be a bill for an account only. Before the hearing, however, a decree was made in another suit of Taylor v. Scrivens, which had been instituted for the general administration of a testator's estate, directing the usual accounts and inquiries. The charges of misconduct having failed, it remained an ordinary bill against an executor for an account. decree was made, dismissing the bill, but directing the payment of the plaintiff's costs up to the time of the decree in the administration suit, out of the funds in court in that suit. There was an appeal from this part of the decree, and I held the Court had miscarried, and accordingly altered the decree by ordering that so much of the bill as sought to charge the defendants personally, should be dismissed with costs, to be paid by the plaintiff. This was a question of costs, and therefore it was contended, that being an appeal for costs only, it ought to be dismissed. I considered, however, that it was a case involving so much of principle as to make it an exception to the ordinary rule. Another case, of Angell v. Davis, recognized the same principle; and I there referred to several cases to shew the exceptions to the rule.

Where, therefore, the Court has before it the means of judging of the propriety of the decision as to costs, without going into the facts, the reason for the rule fails, and as the Court can decide without going into all the facts, the rule does not apply, and justice between suitors requires the matter should be dealt with. I am of opinion, therefore, that the decree on further directions in the present case is a miscarriage, the plaintiff having failed at law in making out the right on which his title to come here depended. The dismissal of the bill must therefore be with costs instead of without costs.

Bill dismissed accordingly.

A demurrer had been put in to the bill, which was overruled in November 1846, with costs and in December, the plaintiff obtained the common order at the Rolls, to dismiss the bill with costs. The defendant had appealed from the decision. Shortly afterwards, the defendant obtained an order from the Master of the Rolls, discharging the order of course, on the ground that, in the petition for it, no mention was made of the demurrer having been overruled, and that it was, consequently, irregular. The plaintiff now moved, before the Lord Chancellor, to discharge the last-mentioned order of the Master of the Rolls.

Mr. J. Parker, in support of the motion, contended, that a plaintiff had absolute controul over a suit until it was heard; and that, in this case, the plaintiff was entitled to the common order to dismiss the bill at any time, and that the proceedings respecting the demurrer did not affect this right in any

manner.

Curtis v. Lloyd, 4 Myl. & Cr. 194; s. c. 8 Law J. Rep. (N.s.) Chanc. 85.

Mr. Rolt and Mr. Terrell, contrà, insisted, that after such a proceeding in the cause as a decision upon a demurrer, and an appeal from that decision, the controul of a plaintiff over his suit was diminished. The plaintiff could no longer obtain a common order to dismiss the bill; but that, at all events, he was bound to state all the special circumstances in the petition which he presented to obtain the order, and that the order to dismiss in this case ought to be discharged upon that ground alone-Cartwright v. Smith (1).

Mr. Parker replied.

(1) 6 Beav. 121.

NEW SERIES, XVI.-CHANC.

The LORD CHANCELLOR.-These orders, which are obtained of course, and chiefly at the Rolls, are very necessary in the prosecution of suits; and it is clear that, without proper regulations, the granting of these orders may be productive of great injustice. I understand that, where any proceedings of this kind have taken place in the progress of a suit, the officer, when informed of those facts, does not give these orders of course. It is contrary to the practice to issue the order without reference to the facts. Though the form of the order follows the usual course, any particular circumstance ought to be stated in the application for the order.

The order in question was not obtained according to the practice of the Court. That is the ground on which the Master of the Rolls .disposed of the case. I am very strongly impressed with the notion that such an order as this was never made before. The order of course to dismiss, is given on the supposition that such an order gives the defendant as much as the Court would give him; and therefore the plaintiff is entitled to such an order. But the position of the parties is changed where there has been any proceeding which gives one party a right against the other, as a demurrer, and the party is liable to pay the costs of the demurrer. The demurrer is decided upon by the Court, and the defendant has the adjudication of the Court on the merits of the plaintiff's case as stated in his bill. But it is very important to consider what he may lose if the plaintiff may deprive him of this benefit, without any notice, and without the Court being able to intervene. If the plaintiff is at liberty so to do, he may do so to-day, the moment after judgment is heard. you consider to what extent that may be carried, it is very difficult to say the Court will admit a practice which will allow the plaintiff so to deal with his adversary. This is not a case in which the party would be entitled to dismiss the bill in the ordinary mode upon paying costs, which may be a very small portion of the costs due to the defendant.

If

What is sufficient for my purpose is, that this is not in accordance with the practice of the Court; and therefore this motion must be refused with costs.

2 M

By marriage articles any property of the wife accruing during the coverture was to be settled in trust, after the death of the husband and wife, and in certain events, for the next-of-kin of the wife. A bill was filed by the wife against her husband and the trustee for the execution of the articles :-Held, that the parties who would be the wife's next-ofkin if she was then dead, were not necessary parties.

This bill was filed by Mrs. Fowler, suing by her next friend, against her husband and. the defendant James, who was named as the trustee in the marriage articles afterwards mentioned.

By articles executed previously to the marriage of the plaintiff, it was agreed that all personal property to which she or her husband in her right might become entitled during the coverture, should be settled upon certain trusts for the plaintiff and her husband for their lives; and after their deaths, in case there was no issue of the marriage, and in default of appointment by the plaintiff, the property was to be in trust for such persons as, at the death of the plaintiff, would, under the statute for the distribution of the estates of intestates, be entitled to her personal estate in case she had died a widow and intestate.

Considerable sums were subject to these trusts, but no settlement had ever been executed.

The object of this suit was to have new trustees appointed (James being unwilling to act as a trustee), and to have a proper settlement executed, and the trust funds transferred to the trustees.

There was no issue of the marriage now living.

The cause came on to be heard before the Lord Chancellor as an original cause.

Mr. Cooper, for the defendant James, submitted to the Court, that upon the authority of the case of Wardle v. Hargreaves (1),

(1) 11 Law J. Rep. (N.s.) Chanc. 126, and 1 Y. & Coll. C.C. 265, nom. Wardell v. Claxton.

the persons who at this time would be the next-of-kin of the plaintiff if she was dead, were necessary parties to the suit.

The LORD CHANCELLOR said it was uncertain who would be the plaintiff's next-of-kin at her death; and that to hold it necessary to make those persons parties who would fill that character if she was now dead, would be contrary to the rule nemo est hæres viventis. He thought it was sufficient under such circumstances to bring the tenant for life before the Court; and unless some additional authorities could be adduced, he must overrule the objection.

Mr. J. Parker, Mr. Stinton, and Mr. Rogers appeared for different parties.

Discovery, Bill of-Costs-125th Order of May 1845.

The 125th Order of 1845 applies to a cross bill of discovery filed as a defence to a suit in equity, and not to a bill of discovery in aid or defence of an action at law, in which the defendant's costs will be payable according to the old practice, upon the filing of the answer.

The plaintiff in this suit had brought an action in January 1844 against Hemming and Stevens, as executors of Mr. M'William. The executors filed a bill against Dingwall, praying for an account of his receipts and payments on behalf of the testator, and for an injunction to restrain the action. The plaintiff afterwards filed a bill of discovery against Hemming (Stevens being out of the jurisdiction) in aid of his action at law. Hemming put in his answer, and obtained an ex parte order for payment of his costs. A motion was now made, on behalf of the plaintiff, for the discharge of the order for payment of costs.

Mr. Stuart and Mr. Southgate, in support of the motion, contended that under the 125th Order of May 1845 (1), the costs of a bill of discovery filed by a defendant to a bill for relief, were to be costs in the original cause, unless the Court should otherwise order. Before this Order the defendant in the original cause would have been entitled to his costs immediately upon putting in his answer to the cross bill; but the 125th Order was made for the express purpose of remedying this practice. The present bill was in the nature of a cross bill, and therefore came within the terms of the Order of May 1845. They cited

Westfield v. Skipworth, 1 Phil. 277; s. c. 12 Law J. Rep. (N.s.) Chanc.

431.

Mr. Bethell and Mr. Willcock opposed the motion, and contended that this was not

(1) Ord. Can. 335; 14 Law J. Rep. (N.s.) Chanc. 296.

a cross bill, but was filed simply for dis-covery in aid of the action at law. The plaintiff had not filed this bill in the character of the defendant in equity, and therefore the case did not come within the 41st Order of August 1841 (2). This bill did not refer to that which had been filed by the executors. It was perfectly distinct from that, and was filed against one only of the plaintiff's in the original bill. This suit could never be brought on with the original bill, and therefore was not in the nature of a cross bill, and did not come within the terms of the 125th Order of May 1845.

The VICE CHANCELLOR.-As the plaintiff Dingwall is now in custody, I think it will be better that I should not postpone my decision, as I might otherwise have done, for the purpose of consulting with the Lord Chancellor and the Master of the Rolls, but I will decide the case at once. I put out of consideration entirely the 41st Order of 1841, as it is in substance, though not in terms, repealed by the 1st Order of May 1845, which repeals all Orders which are inconsistent with the Orders of May 1845. The object of the 125th Order was to give more effectual relief than could have been obtained under the former Order. The matter appears to me to stand in this way :-A bill was filed to restrain Dingwall from prosecuting an action at law, and for the purpose of taking certain accounts. The injunction was obtained, but was afterwards dissolved, upon which Dingwall filed this bill for discovery against Hemming alone, in consequence of the other executor not being within the jurisdiction. Hemming has put in his answer, and it is to be observed that that answer might go far towards affecting the matters put in issue in the original cause filed by Hemming and Stevens; and it was obtained for the express purpose of sustaining the action which was sought to be restrained by the first bill. I do not see, under these circumstances, that it can be said that the bill of discovery is about a matter wholly separate from what the Court has to decide upon in the original suit. It

(2) Ord. Can. 176; 10 Law J. Rep. (N.s.) Chanc. 414.