confined to amount of debt.

Penalty not amount fraudulently aliened, and is not confined to the amount of the debt. Thus it was said in an old case (t), that if a man be indebted to me in £20, and he make a fraudulent deed of his goods of the value of £2000, although I be defrauded but of the £20, yet he shall forfeit the whole value of the goods so conveyed. Gift to defeat There a man had made a fraudulent gift of his thirty heriot. horses to defraud the lords of several manors, of whom he held land of their customary heriots. On his death the plaintiff, one of the lords, sued for the whole value of the thirty horses, because he was entitled to choose the best beast, and was defrauded of his election by the gift; but it was finally agreed that the plaintiff should set a price on any one of the thirty horses as the best horse, and demand the value of that horse as forfeit by the statute, and so his election should be saved to him. But according to another report of the same case (u) it was held that any of the lords could sue for the value of all the beasts. By 22 Vict. c. 32, the payment of any sum of money imposed by any statute as a penalty or forfeiture upon a convicted offender may be remitted by the Crown.

Imprisonment.

Indictable offence.

Fraud not stated.

How convicted.

With regard to imprisonment of offenders. An indictment on the 13 Eliz. c. 5, s. 3, alleged that the prisoners devised and prepared a certain feigned, covinous, and fraudulent conveyance of certain lands, and unlawfully, fraudulently, &c., did execute the same conveyance. It was urged in arrest of judgment that the section did not create an indictable offence, and that, if it did, and indictment could not be preferred until after a recovery of damages in a civil action, and that this indictment was bad for not stating in what respect the conveyance was fraudulent. Maule, J., held that the Act created an indictable offence, and that an indictment might be preferred before an action was brought, notwithstanding the words "and also" near the end of the penal section; and that it was not necessary in such an indictment to set out the specific facts which constituted the fraud, and that the words "being thereof lawfully convicted" mean being convicted there of before some competent tribunal (v).

(1) Cresswell v. Cokes, 2 Leon. 8; and see Plowden v. Greene, Co. Ent. 162, pl. 35.

(u) 3 Dyer, 351 b.

See Child v. Sands, 1 Salk. 31-2, 3 Lev. 354; Scriven, Copyholds, 5th ed. 267, n. (x).

(v) Reg. v. Smith, 6 Cox, C. C. 31. See also Plowden v. Greene, Co. Ent. 162, pl. 35.

It has been laid down by the House of Lords, that the Costs under effect of the Judicature Act, 1875, which gives the Judicature Court a discretion as to costs, was to repeal all previous Act, 1875. Acts which directed costs to follow certain rules without leaving the Court a discretion (w). The judges of the High Court of Justice were thereby enabled to exercise a judicial discretion as to costs in all cases, with certain exceptions (x), and to direct the payment of costs where any previous statute was silent as to the costs of proceeding under it (y).

By the Rules of the Supreme Court, 1883, the rules Costs under contained in.and forming a part of the Judicature Act, R. S. C. 1883. 1875 (z), were annulled, and the Rules of the Supreme Court, 1883, were substituted for them (a).

The costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, are now in the discretion of the Court or judge (x), so far as relates to any proceedings taken on or after October 24, 1883 (b). This rule is subject to the provisions of the Acts and Rules; and to two provisoes contained in it, as to the right of an executor, administrator, trustee, or mortgagee to costs out of an estate or fund, and as to costs following the event in the case of an action, cause, matter, or issue tried with a jury.

[* 545] *This rule applies to all proceedings in the High Court of Justice which are not expressly excepted from its operation (c).

(w) Garnett v. Bradley, App. Cas. 944; and see Ex parte Mercer, 10 Ch. D., per Jessel. M. R., 482.

(x) R. S. C. (1883) Ord. 65, r. 1.

(y) Ex parte Mercers' Co., 10 Ch. D. 481; Ex parte Hospital of St. Katherine, 17 Ch. D. 378; Re Lee and Hemingway, 24 Ch. D. 669. (z) Longman v. East, 3 C. P. D., per Brett, L.J., 156.

(a) R. S. C. (1883), and App. O.

(x) R. S. C. (1883) Ofd. 65, r. 1.

(b) McClellan v. McClellan, 29 Ch. D. 495.

(c) Supra.

R. S. C. 1883

do not apply to County Courts.

Discretion

But it does not apply to proceedings taken in the County Courts, the costs of which are still governed by the County Courts Act, 1867 (d).

But although the Court has now a wide discretion as exercised by to costs, yet that judicial discretion is always exercised upon certain fixed principles (e).

Court accord

ing to fixed

principles.

Costs under

13 Eliz. c. 5.

Under the old practice as to costs the decisions on the statutes of Elizabeth and in cases in which voluntary deeds were set aside for undue influence afforded ample scope for the Court of Chancery to exercise its discretion either in reimbursing those who have been deceived or injured the amount they have expended in obtaining a redress of their wrongs, or in punishing those who have acted unfairly, or who, though entitled to relief, have not been entirely free from blame in the matter before the Court (ƒ).

Where a deed is set aside as fraudulent under the statute 13 Eliz. c. 5 it has been held that the utmost the Court can do for the trustees is not to order them to pay costs (g).

But trustees have been ordered to pay costs where by their conduct the proceedings have been rendered necessary (h), or where they have actively supported the deed (i), or have made themselves accessory to a fraud, as by signing a false receipt on the back of the deed (k).

[* 546] *A plaintiff suing to set aside the deed may,

(d) Plumb v. Craker, 16 Q. B. D. 40; Judicature Act, 1875, s. 67; 30 & 31 Vict. c. 142, s. 5.

(e) See Fane v. Fane, 13 Ch. D. 228; Cooper v. Whittingham, 15 Ch. D. 501: Wilmott v. Barber, 17 Ch. D. 772; Dicks v. Yates, 18 Ch. D. 76; The Swansea v. The Condor, 4 P. D. 115; Harris v. Petherick, 4 Q. B. D. 611; Foster v. Great Western Railway Co., 8 Q. B. D. 25, S. C. 515; Daniel, Ch. Pr. 6th ed. 1169, 1170; Morgan & Wurtzburg, Costs. 2nd ed. 1-7.

(f) See Holmes v. Penney, 3 K. & J. 104; Hale v. Metropolitan Saloon Co., 4 Drew, 492.

(g) Elsey v. Cox, 26 Beav. 95; and see Townsend v. Westacott, 2 Beav, 340, S. C. 4 Beav. 58; Elsey v. Lutens, 8 Hare, 159; Crossley v. Elworthy, L. R. 12 Eq. 158; and see decree in Cornish v. Clark, L. R. 14 Eq. at p. 190; and Morgan & Wurtzburg, 2nd ed. 396, 402.

(h) Smith v. Dresser, L. R. 1 Eq. 651; Tanqueray v. Bowles, L. R. 14 Eq. 151.

(i) Freeman v. Pope, L. R. 9 Eq. 206, S. C. L. R. 5 Ch. 538; see form of decree, Seton, 4th ed. 1369; Mackay v. Douglas, L. R. 14 Eq. 106, 123.

(k) Turquand v. Knight, 14 Sim. 643.

by praying a conveyance by the trustee, and thus treating him as a real trustee, elect to give him a claim to costs (1).

Where there was a doubt whether the debts were prior or subject to the settlement, the bill was dismissed without costs (m).

Where the deed is set aside as fraudulent in an administration action, and the fund which is subject to it is in court, the trustees may, if there is no imputation on their conduct, have their costs paid out of it (n).

And where the deed is upheld, the trustees have been allowed to take their costs out of the settled funds (o).

Trustees of a voluntary settlement will be personally liable to pay the costs of any appeal from a decision as to the validity of that settlement (p).

When a deed is set aside by one creditor as void Other creditagainst the creditors of the grantor, the other creditors ors let in on will be allowed to come in and take the benefit of the contributing decree on paying their proportion of the costs; but not to costs. otherwise (q), so that the settlement fund cannot be declared applicable to payment of the plaintiff's debt and interest and his costs of suit, unless he has a lien which would entitle him to be paid in priority to other creditors, if any (r).

In Goldsmith v. Russell (s) the bill was filed by the Costs paid plaintiff on behalf of himself and all the other credit- from settled ors of the settlor, to impeach a settlement made by him. fund. The deed being declared void, an account was directed as to what was due to the plaintiff and the other creditors; and the costs of the plaintiff, and the trustees, and the settlor's wife and daughter, defendants, but not those of the settlor, were ordered to be [* 547] paid out of the settlement funds. But there it seems (1) Snow v. Hole, V.C., of England, March 1845; Lewin on Trusts, 8th ed. 989.

(m) White v. Sansom, 3 Atk. 410.

(n) In re Turner's Estate, W. N. (1884) 191; and see Taylor v. Coenen, 1 Ch. D. 636; Daniel, Ch. Pr. 6th ed. 123.

(0) Kent v. Riley, L. R. 14 Eq. 190.

(p) Ex parte Russell, 19 Ch. D. 588.

(q) Fletcher v. Sedley, 2 Vern. 3rd ed. 491, n.

(r) Adames v. Hallett, L. R. 6 Eq. 468, 473; ante, pp. 525, 526. (s) 5 De G. M. & G. 556; Adames v. Hallett, L. R. 6 Eq. 468; Ponsford v. Widnell, W. N. (1869) 81.

Priority of plaintiff.

Creditor

taking the risk allowed

full costs.

Costs given to plaintiff though unsuccessful.

Costs of cestuis que trust.

the property comprised in the settlement was sufficient to pay all the debts. A plaintiff in such a case will have priority as to his costs of suit.

A creditor who, by bringing an action on behalf of himself and all other creditors, has been the means of setting aside a fraudulent settlement, and making the property subject to it available for the creditors, is entitled to have his costs taxed as between solicitor and client, and also as between party and party, and the difference ascertained, the costs of the plaintiff as between party and party to be paid out of the general fund. Out of the remaining fund there will be set apart a sum equal to the amount of the debts, to be called the creditor's fund, and the difference between the plaintiff's costs, as between solicitor and client and party and party, will be deducted out of that fund, and the remainder of the fund apportioned among the creditors, including the plaintiff, ia proportion to the amount of their respective debts (†).

And in Barrack v. M'Culloch (u) where a plaintiff sued for the benefit of the creditors generally, although, under the circumstances, the settlement was not set aside, it was said that as it was a very proper case on behalf of creditors to be sif ed, although that expense could not be thrown on the parties who had explained it (ie, the settlees), the plaintiff should have his costs if ultimately the estate should not be sufficient to pay creditors; because it was a suit by him on behalf of himself and all other creditors, in which he and all the others would share in the benefit, if any had been derived. The bill was therefore dismissed, with costs against the trustees and the settlees, and (the debtor being dead) the common administration decree was made, reserving the question whether those costs should not ultimately be paid out of the estate, as they should be if the estate proved insolvent.

The costs of the cestuis que trust under a settlement [*548] set aside as fraudulent will, when their conduct is free from blame, be thrown upon the property comprised in it (v); but if they actively support the

(t) Stanton v. Hatfield, 1 Keen, 358, followed in Goldsmith v. Russell, 5 De G. M. & G. 557; see Morgan & Wurtzburg, 2nd ed. 202. (u) 3 K. & J. 110, 112.

(v) Ponsford v. Widnell, W.N. (1869) 81; ante, p. 546 ; Daniel Ch. Pr. 6th ed. 1232.