so refusing or objecting shall be liable to pay costs to the other party, but shall not be entitled to receive any costs of or in such appeal, unless the said Court otherwise order."

Sect. 46, giving power to the barrister to give costs in certain cases to parties claiming or objecting, enacts, that in cases of appeal, such order for the payment of costs shall be suspended and shall abide the event of such appeal, unless the Court of Appeal shall otherwise direct; but no appeal is allowed against, or only in respect of, any such order for the payment of costs.

Sect. 60 enacts, that all appeals shall be prosecuted, heard, and determined by the Court of Common Pleas, according to the ordinary rules and practice of such Court; and sect. 62 provides for notice of appeal. The Court may (sect. 65) remit the statement to the barrister for amendment, and (sect. 66) every decision of the Court is to be final.

Sect. 70 enacts, "That it shall be lawful for the said Court to make such order respecting the payment of the costs of any appeal, or of any part of such costs as to the said Court shall seem meet: provided always, that it shall not be lawful for the said Court in any case to make any order for costs against or in favour of any respondent, or person named as respondent, as aforesaid, unless he shall appear before the said Court in support of the decision of the revising barrister in question."

It is scarcely necessary to state, that no inflexible rule has been or can be adopted, with respect to the award of costs, by the Court under this section.

When the Court affirms the decision of the revising barrister, and thinks it is a case in which the appellant was not warranted in questioning it, it is not unusual to give costs; but where the appellant obtains the judgment of the Court in his favour, it is not usual to impose costs on the respondent (a), and the Court will not do so where the respondents are official persons, as overseers (b). In the case of a consolidated appeal in which the question was whether service of a notice of objection had been duly proved, and the Court

(a) Capel v. Burton, 2 Lutwyche's Registration Cases, 158; and see Burton v Guy, Id. 4; Jolliffe v. Rice, Id.

96; Lee v. Hutchinson, Id. 159.
(b) Capel v. Burton, supra.

affirmed the decision of the barrister in holding the proof insufficient, costs were granted (a). So, also, where the question was whether the barrister had power to amend the description of the appellant's qualification (b).

If the appellant does not appear to support his case, the Court will in general affirm the decision with costs (c); and where he does appear, but is not called upon, the Court will affirm the decision with costs, where the case does not involve a mere question of law, but turns upon whether the revising barrister has taken a correct view of facts (d)-as, for instance, where the question for the opinion of the Court was whether, under the circumstances, there had been a sufficient tender of rates (e); and in such a case they have given costs, although the respondent's counsel was heard (f). But when the question was one merely of law, and the respondent was not heard, costs have been refused to the appellant-as where the question was whether a freeman and liveryman of London was within the disfranchising proviso in the Reform Act (g); but in a later case involving a mere point of law, and the respondent was not called upon, the decision was affirmed with costs (h).

(a) Birch v. Edwards, 2 Lutwyche's Registration Cases, 37.

(b) Onions v. Bowdler, Id. 59.

(c) White v. Pring, Id. 141; Bass v. Perkins, and Crowder v. Overseers of St. Mary, Lambeth, 1 Lutwyche's Registration Cases, 255.

(d) Bishop v. Smedley, 1 Barrow &

Arnold, 614; Allen v. House, Id. 419. (e) Bishop v. Smedley, supra; and see Walker v. Payne, Id. 541.

(f) Walton v. Pitt, Id. 73, and numerous other cases.

(g) Croucher v. Browne, Id. 621. (h) Walton v. Cotton, 2 Lutwyche's Registration Cases, 53.

CHAPTER LIX.

COSTS OF RULES AND MOTIONS GENERALLY.

ALTHOUGH the costs of various interlocutory proceedings in an action have been already noticed under separate heads, it is obvious that there are a number of steps taken in, and applications made to, the Courts at Westminster, as well where there is a cause pending as where there is not, the costs of which cannot be considered separately and with reference to the subject-matter of each (varying as the facts do in some one or more points in almost every individual instance), but must be discussed upon general principles regulating the Courts in dealing with them.

Where costs are in the discretion of the Courts, whether by reason of their general powers over the proceedings carried on in them or by virtue of some particular Statute, that discretion will, as a general rule, be exercised by giving the costs to the party succeeding in the cause. It is necessary therefore, in order to restrain that application of the rule, that there should be something in the particular circumstances of the case to draw it out of the limits within which the rule operates, and the judgment of the Courts on that which is left to their discretion will necessarily vary according to the views of different individuals on the same subject (a).

This general principle, however, cannot be applied with strictness to the costs of those rules and motions which are incidental proceedings in the course of an action, and the merits and fate of which are frequently quite apart from and have no bearing on its ultimate result. With respect to them, justice would not be done by saying, on the one hand, that the costs of every interlocutory application should abide the final result of the action; or, on the other hand, that the party succeeding in the intermediate step should always, or even generally, have

(a) See, per Tindal, C. J., Barker v. Birch, 1 D. & L. 818.

the costs attendant upon it. The Courts, therefore, in dealing with these applications, while bearing in mind the general principle above expressed, have evolved certain rules or maxims, to the spirit of which they adhere rather than to the letter. These regulations have reference either to the mode and time of application and appearance of the parties before the Court, or to the nature and merits of the application itself.

Those of the first class are thus stated in the works of practice: The party who substantially succeeds on a rule which forms part of the regular proceedings in the cause, no mention of costs being made, will be entitled, if he also succeeds in the cause, to have the costs of the rule allowed him as costs in the cause (a); because the costs of all interlocutory proceedings in a cause, not otherwise specially provided for by the Court, are, according to the practice of all the Courts, costs in the cause (b). The practice of taxing costs of a discharged rule as part of the costs included in the judgment is founded on the Statute of Gloucester, enacting that when the plaintiff recovers damages he shall recover the costs (c). The language of the judgment is, that the plaintiff is to recover the damage by him sustained, as well on the occasion of the defendant's not performing his promises as for the costs and charges by the plaintiff about the suit in that behalf expended. The judgment alone gives costs, and all up to the time of the judgment must be included in it (d).

This last rule applies to rules made before judgment; for if not made until after judgment, the costs depend entirely on the rule; and if it be silent concerning them, each party must pay his own costs (e).

For example, the costs of opposing a rule to set aside final judgment cannot, for a technical reason, be made part of the costs of the cause. In that case, final judgment having been

(a) Hullock on Costs, 2nd edit. p. 625; Chitty's Archbold's Practice, vol. 2, p. 1388, 8th edit., and cases there cited.

(b) Per Alderson, B., in delivering the judgment of the Court in Pugh v.

Kerr, 6 M. & W. 20.
(c) See ante, p. 2.

(d) Per Parke, B., In re Ham-
mersmith Rent-charge, 4 Exch. Rep.
101; 19 L. J. (N. S.), Exch. 359.
(e) Hullock, 2nd edit. p. 625.

signed, the plaintiff cannot have the costs and proceed to tax them as part of those costs without having two final judgments, which, of course, would be irregular. The Court, therefore, usually discharges such a rule, if groundless, with costs; thereby giving the plaintiff the only remedy for their recovery (a).

"If the rule nisi be drawn up with costs, and no cause be shown against it, it is made absolute with costs, as of course. If cause be shown against it, and the rule be made absolute, the Court will make it absolute with costs, or without, in their discretion, according to the circumstances of the case; but if it be discharged, the Court almost always orders the costs to be paid by the party who obtained it" (b); or, as it might be more concisely expressed, if moved with costs it is discharged with costs (c).

Where a rule does not ask for costs, no costs can be given on making it absolute; for it is the clear and settled practice of the Courts not to give more than is asked for, and this applies to cases where, if costs had been asked for, they would have been granted according to the general practice of the Courts (d).

"Where the rule nisi is drawn up upon payment of costs by the applicant, whether cause be shown against it or not, and whether made absolute or discharged, the Court almost always makes the party who obtained the rule pay the costs" (e). In other words, a person offering to pay the costs of obtaining the favour he seeks, will be kept to those terms whether his application be resisted or not, or be or be not ultimately successful.

If a party obtains a rule to show cause, requiring two things with costs, although he be entitled to one, yet, if he fail as to the other, he shall not have costs; for the adverse party was under the necessity of coming into Court to resist the latter (ƒ). The defendant put a construction on an award which induced

(a) Per Alderson, B., In re Hammersmith Rent-charge, 4 Exch. Rep. 101; 19 L. J. (N. S.), Exch. 360.

(b) Chitty's Archbold's Practice, vol. 2, p. 1424, 8th edit.

(c) Id., p. 1277; Tilley v. Henley, 1 Chitty's Rep. 136.

(d) Rex v. The Sheriff of Middle

sex, 2 Dowl. 5; 1 C. & Meeson, 486; 3 Tyr. 440.

(e) Chitty's Archbold's Practice, 8th edit. vol. 2, p. 1424.

(f) Hullock on Costs, 2nd edit. p. 625; M'Andrew v. Adam, 1 Bing. N. C. 270.