198 Analytical Digest of Cases: Law of Costs. AMENDMENT. fault, it was not a proper matter to be put interested in a testator's estate employed counsel issue at that stage of the suit. Smith v. Cham-to attend for him before the Master on a quesbers, 2 Phill. 221. tion as to the propriety of allowing certain items in the executor's charge: Held, notwithstanding the question was one of considerable Error.-Insufficient tender. Interlocutory difficulty, that the expenses of employing costs may be set off against each other by the counsel ought not to be allowed in taxing costs party interested without leave to do so. When as between party and party. Russell v. Nicholls, leave is given to amend on payment of costs, 15 Sim. 151. such payment is a condition precedent to amending. If when costs are being taxed an error is Contribution to costs.-The usual direction made in the casting up, which is not discovered in decrees in creditors' suits that the creditors until after the Master has made his allocatur, shall, before they are admitted, contribute their the party to whose prejudice such error has arisen has no right to take upon himself to correct it; and if he tenders less than the actual amount found by such allocatur, such tender will be bad. Levy v. Drew, 35 L. O. 147. See Dismissal. APPEAL FOR COSTS. The Infringement of patent. Dismissal. rule which prohibits an appeal for costs alone, is confined to those cases in which the correctness of the decision as to costs cannot be judged of without rehearing the cause upon the merits, and therefore does not apply to a case in which the error of such decision is apparent on the face of the decree or order appealed from. Where a bill to restrain an alleged infringement of a copyright is retained at the hearing, with liberty to the plaintiff to bring an action, and the action is accordingly brought and fails, it is of course that the bill should be dismissed with costs, and therefore, if dismissed without costs, it is error on the face of the decree. Chappell v. Purday, 2 Phill. 227. CONTEMPT. Receiver. After a petition has stood over at the request of the respondent's counsel, for his convenience, the petitioner incurred a contempt which he had not cleared when the petition came on again: Held, that he was nevertheless entitled to be heard. CREDITORS' SUIT. proportion to the expenses of the suit, does not prevent the court, on further directions, if the case warrants it, from ordering the plaintiff to pay all the costs of the suit. But if the suit be anything more than a mere creditors' suit, the direction for contribution ought to be limited to the costs of that part of the suit in which all the creditors have a common interest with the plaintiffs. Dunning v. Hards, 2 Phill. 294. DISCOVERY. 1. 12th Order of May, 1845.-A bill of discovery is not within the 12th Order of May, 1845, unless it be a cross bill in aid of a defence to an original bill. Heming v. Dingwall, 2 Phill. 212. perpetuate the testimony of witnesses is entitled 2. A defendant to a bill for discovery and to to his costs of the discovery, although he has examined witnesses in chief. Skrine v. Powell, 15 Sim. 81. DISMISSAL FOR WANT OF PROSECUTION. General orders.-Order to umend.-Under the Orders of May, 1845, in a case where there are several defendants, any one of them may move to dismiss for want of prosecution at the expiration of four weeks after his answer is deemed sufficient, provided the plaintiff has since taken no step, and although his co-defendants may not have put in their answer; but an order to amend obtained and served A receiver who, without the sanction of the is, under ordinary circumstances, an answer after the notice of motion and before its hearing court, defends an action brought against him to the motion to dismiss, but the plaintiff hav by a party to the cause, is not on that account ing by such means intercepted the defendant's disentitled to the assistance of the court in right, must pay the costs of the motion. Lester recovering from such party the extra costs of the action, although, if his defence had failed, v. Archdale, 9 Beav. 156. he would not under such circumstances have been entitled to reimbursement. Bristowe v. Needham, 2 Phill. 190. See Appeal for Costs; Fraud; Specific Performance. EJECTMENT. 1 & 2 Vict. c. 110, s. 18.-In an action of ejectment in which a verdict was found for the defendant, costs taxed, and the Master's allocatur for the amount indorsed on the consent lessors of the plaintiff, and the amount not rule, which was served on the attorney for the being paid on demand made on one of the lessors of the plaintiff, the defendant issued a writ of fieri facias. Held, this was an order for the payment of costs under the 1 & 2 Vict. c. 110, s. 18, and the court discharged a rule obtained for the purpose of setting aside the writ for irregu Analytical Digest of Cases: Law of Costs. 199 larity. Doe dem, Hemming and others v. Barratt, motion.-A bill filed for redemption of a mort34 L. (. 251. See Amendment. ERROR. EXECUTOR. gage, and an injunction to restrain a sale under a power alleged to have been fraudulently inserted in the deed, contained various charges of oppression and misconduct against the defendant, on the ground of which it prayed, that he might pay the costs of the suit. Representative of insolvent executor.—The Ön a motion for an injunction supported by representative of a defaulting executor fully affidavits of those charges, the defendant subaccounting, is entitled to deduct his costs of mitted to an immediate account, the plaintiff suit out of the assets, though they may be in-undertaking to pay what should be found due, sufficient to repay the breach of trust. Haldenby v. Spofforth, 9 Beav. 195. See Petition for Costs. FRAUD. Dismissal.-Observations as to the legal and equitable right of parties to bar known existing adverse claims by fine and non-claim. If in levying a fine a direct fraud is practised, this court has undoubted jurisdiction to give relief, but the mere fact that a party levying a fine has good reason to believe that if he did not do so an adverse claim might or would be established against him, has never been considered as sufficient evidence of a gross fraud to induce this court to grant relief. and further directions and costs were reserved: Held, on a subsequent hearing of the cause for further directions, that the affidavits filed on the former occasion could not be read, the the account, and an order giving the plaintiff first order having shut out all the merits except the costs of the suit on the ground of those afuavits, was on appeal dismissed, and the defendant was allowed his costs according to the ordinary rule. Dunstan v. Patterson, 2 Phill. 341. MOTION. 1. Reservation of costs.-If the costs of a motion are reserved until the hearing, and at the hearing no motion is made as to those costs, but the costs of the suit are reserved until the hearing for further directions, that reservation does not include the costs of the motion, and consequently, the court can make no order respecting them. Gardner v. Marshall, 14 Sim. 575. An estate was settled on husband and wife for life, with a limitation to their issue, and in default a power of appointment was given to the wife. There was one child only of the marriage, who died an infant. The wife survived her husband, and appointed the estate to G. D. F., who was the releasee to uses, and 2. The costs of an abandoned motion in suphad possession of the settlement. G. D. F., port of which the party has given notice of his shortly after the wife's death, made a feoffment intention to read an affidavit previously filed and levied a fine with proclamations. After in the cause, are only 40s. Green v. Meares, the expiration of five years, the heir of the child 14 Sim. 526. claimed the estate, insisting that under the terms of the settlement the child took the estate in fee, and that the power of appointment had never arisen. He filed a bill against G. D. F. to avoid the fine, alleging that it had been levied with the full knowledge of the plaintiff's rights, and with a fraudulent view to bar them. Held, that the act of G. D. F. did not constitute a fraud; that G. D. F. stood in no fiduciary relation towards the plaintiff'; and the bill was dismissed with costs. Where a plaintiff imputes personal fraud which is not proved, it is a reason for awarding costs against him on the dismissal of his bill. Langley v. Fisher, 9 Beav. 90. INTERLOCUTORY APPLICATIONS. PETITION FOR COSTS. Priority of executor's costs when found sufficient.-Whether it is regular to present a petition to come on with the cause on further directions, for the purpose of stating circumstances occurring since the filing of the bill, with a view only to the adjudication of the costs of suit: Semble, not. Where the fund is deficient, the executor's costs of an administration suit are paid thereout in priority of the other parties. Tanner v. Dancey, 9 Bear. 339. PROCEEDING FOR COSTS. Where a suit was prolonged for the sake of the costs, after the question in dispute between the parties had in effect been decided, the court refused to give costs on either side. Ottley v. Gray, 35 Ľ. O. 9. RECEIVER. 45th Order of May, 1845.-After the filing of a bill, plaintiff gave notice of motion for an injunction, which motion, at request of defendants, stood over; in the mean time defendants filed a demurrer, which was over-ruled, but, on appeal, allowed. Plaintiff being ordered to pay An adverse application was made against a the costs of the demurrer and the costs of the receiver by a party to the cause, which was resuit. Held, that the defendants were not en-fused with costs. The applicant being wholly titled to the costs incurred by them in preparing to resist the motion. Finden v. Stephens, 35 L. O. 35. MORTGAGE. Assignment of debt.-Decree by consent on unable to pay the costs: Held, that the re- 200 Analytical Digest of Cases: Law of Costs. SECURITY FOR COSTS. A plaintiff, whose residence was correctly stated in the bill, ordered to give security for costs, because he had frequently changed his place of abode since the bill was filed. Player v. Anderson, 15 Sim. 104. Case cited in the judgment: Calvert v. Day, 2 SHORT-HAND WRITER'S NOTES. SPECIFIC PERFORMANCE. Dismissal.-Where s bill for specific performance is filed by a purchaser, and it turns out that the vendor cannot make a good title, the bill is dismissed, but without costs. Malden v. Fyson, 9 Beav. 347. STAYING TRIAL. An application to stay the trial of an issue for the purpose of obtaining further evidence refused with costs under the circumstances. Hargrave v. Hargrave, 9 Beav. 153. TRUSTEE. alleged to be of unsound mind, though not found so by inquisition, by any one professing to be his next friend, and such a person may be sued as a defendant, and the court then appoints a guardian to answer for him. In such cases the court imposes all the restraints of infancy, and the party is bound by the acts of the guardian so appointed. The court having proper evidence that they are incapable of protecting their own interests, treats them as infants, or as insane, though not found so by inquisition, and being satisfied that their next their interests, and making all necessary infriend or guardian pays proper attention to quiries to ascertain their rights and what is beneficial to them, or, if necessary, directing that a commission may be applied for, ultimately deals with their rights and property as justice may require. A contract may be implied in favour of a person who has supplied a person of unsound mind, though not so found by inquisition, with necessaries, or has provided him with proper protection and support.-Semble. Jurisdiction of the court to interfere for the protection of a lunatic not found so by inquisition. An executor was allowed, under the circumstances, the costs of a cross cause for administration of the estate instituted by him against his cestui que trust. Nelson v. Duncombe, Duncombe v. Nelson, 9 Beav. 211. Case cited in the judgment: Sherwood v. Sander. son, 19 Ves. 280. 3. Separate appearance.-Trustees appeared separately. One lived in a distant part of the country. The court declined making any special order as to costs. Wiles v. Cooper, 9 Beav. 298. 4. Separate answer.—' -Where a bill was filed on behalf of an infant against trustees for maintenance, and one of the trustees being at variance with the other, employed a different solicitor and answered separately: Held, that the costs of so doing could not be allowed him. Webb v. Webb, 35 L. O. 116. TWO SUITS. 1. Proceeding after notice of decree.-If the decree in one of two suits will effect the object of the other, the proceedings in the latter may be stayed, but the party moving is not entitled to his costs from the party restrained, and who has notice merely of the decree. Lewis V. Damer, 34 L. O. 300. 1. A. assigned leaseholds to B. in consideration of 4007. stated to have been paid to him by B. On the next day B. executed a deed declaring himself to be a trustee of the leaseholds for A.'s wife. The deeds were afterwards declared to be fraudulent and void as against A.'s creditors, and the court refused to give B. his costs, because the declaration of trust recited falsely that the 400l. was the separate property of A.'s wife, and that B. had received it from 2. Same object-Staying proceedings-A her, and B. had signed a receipt for it. Tur-party prosecuting a suit after notice of a quand v. Knight, 14 Sim. 643. 2. Lunatic.- Maintenance.— Costs of cross suit.—If a trustee be sued in Chancery for an account, and it appears that he has properly expended sums of money for the protection and safety, or for the maintenance and support of his cestui que trust, at a time when he, though adult, was incapable of taking care of himself, the court will allow him credit in account for such sums of money. A bill may be filed in the name of a person decree in another suit, under which he may obtain all the relief which he seeks in his own, may be refused his costs of an application to stop proceedings, but it is contrary to the prac tice to order him to pay such costs. Such application may be made by the plain. tiff in the suit in which the decree has been made, if he have an interest in staying the proceedings, as well as by the defendant, although such plaintiff be not a party to the other suit. Earl of Portarlington v. Damer, 2 Phill. 262. PRIVATE ARRANGEMENTS BETWEEN DEBTORS AND CREDITORS. a certain position in society, that those who supplied his household, his grocer, and tailor, and wine merchant, should not be losers by his unsuccessful speculations. Is it just, however, that they should fare so We are not blind to the imperfections of very much better than his trade creditors? the Bankruptcy Laws, aggravated as they It is quite possible, the bankrupt merchant have been by preposterous and ill-considered may have dealt with the tradesmen who changes, nor are we peculiarly enamoured supplied his house for many years, paid with the machinery by, or the mode in them punctually, and that they have realized which, this branch of the law is administered. a good round sum by way of profit from his Defective as the system is, however, we custom. Why should tradesmen of this concur with those who insist it affords in description be placed in a more advantageneral a more satisfactory assurance that geous position than trade creditors, some creditors will obtain that to which they are of whom might have had no other connecundoubtedly entitled,-the equal distribu- tion with the bankrupt, than the misfortune tion of all the effects possessed by a bank- of holding one of his dishonoured acceptrupt at the time of his bankruptcy, than ances, received in the ordinary course of can be secured by any private arrangement. business? It is impossible to suggest any We are quite aware that this view was not good reason why, as between creditors, popular in the city only a short time since, those of one class should be preferred to and are not sorry to find the creditors of another after this fashion. It may be said, insolvent houses, great and small, rapidly that upon the suspension of great houses, coming round to our opinion. This new it is generally found the aggregate sum fangled system of winding up the affairs of payable to domestic creditors is comparabankrupt houses, under a deed of inspection, tively insignificant. If the fact be so, the is, at the best, nothing more than a plan for distributing assets, without any investigation, and in nine cases out of ten is founded upon an objectionable basis. arrangement by which this class of creditors are paid in full, and others paid only a small dividend, is not the less objectionable in principle. It is uniformly resolved in the first instance, It may be freely admitted, however, that that small creditors - that is to say, creditors this is not the greatest objection to the to the extent of 507. or 1007., as the case may private arrangements which have lately been be, should be paid in full. Under this re- so much resorted to. Those arrangements solution the domestic creditors of the bank- afford abundant opportunities for the exrupt receive 20s. in the pound at the ex-ercise of dexterity and management, on pense of his trade creditors. No doubt, it the part of those who have the power and is extremely grateful to the feelings of a disposition to bring those qualities into person who has been accustomed to fill, and play. Questionable claims are frequently expect to be able to continue to maintain, admitted upon conditions mutually advanVOL. XXXV. No. 1,034. К 202 Private Arrangements between Debtors and Creditors. tageous to the claimant and the alleged consequent upon the winding up of an indebtor, though very little to the benefit of solvent estate under a fiat in bankruptcy, the insolvent trader's estate. It is con- must also be incurred when the affairs of a stantly thrown out as an inducement to firm which has stopped payment are to be creditors, to accept a proposed composition, wound up under the superintendence of that there are ante-nuptial or post-nuptial inspectors. In both cases professional sersettlements, or debts due to relatives, who, vices must be obtained and remunerated. in consideration of the proposed arrange- In the one event the solicitor's bill is inement, are willing magnanimously to relin- vitably subjected to taxation, in the other, quish the securities to which they are alleged the solicitor's charges are not necessarily to be entitled, and to share equally with subjected to any revision of the kind. So the unsecured creditors, whatever the likewise with respect to the accountant's bankrupt's estate may yield. Lord Eldon charges. In bankruptcy those charges are used to say, that the claims of relations on specifically required, by a provision of the a bankrupt's estate were, either the best or statute 5 and 6 Vict. c. 122, s. 83, to be the worst, the most meritorious or the subjected to the taxing officer's opinion. most suspicious, of all claims. When a Under private arrangements, the accountant trader is in difficulty or embarrassment, charges what he thinks reasonable and fair, and has affluent relatives, nothing is more under the circumstances, and there are no natural than that he should seek assistance means by which those charges can be from them, and when advances are made brought under the revision of any public by friends to assist a struggling trader, officer. The debts and assets are collected nothing can be more equitable than that and realized under a fiat at much less exthose who, generously and confidingly, pense than by any other mode of procedure, administered to his necessities, should be as the Court of Bankruptcy exercises a comreimbursed rateably with other creditors as pulsory power of enforcing the admission of far as his estate will admit. On the other debts due to bankrupts' estates, which is hand, nothing is more common than for a singularly efficacious and economical. The trader in embarrassed circumstances, to court fees, and the remuneration to which enter into legal obligations to those to whom the official assignee is entitled, are items of he has really incurred no pecuniary ob- expense peculiar to the proceedings in bankligations, with the fraudulent purpose of ruptcy, and are generally pointed out as a protecting himself from the just conse- sufficient ground for recommending the quences of reckless extravagance or impro- avoidance of a resort to that tribunal, in vident trading. The court of bankruptcy, cases where the assets are expected to be whatever its other defects may be, affords considerable. Now, it so happens, as we means for probing and investigating the have already remarked, that these charges, thousand fraudulent transactions unprinci- the enormity of which are so often insisted pled men in embarrassed circumstances upon, operate much less objectionably when resort to, which means are voluntarily abandoned by creditors, who rely on the interested statements of accountants hired by insolvent firms, in preference to the protection which the established tribunals of the country affords. there is a considerable estate to distribute. The court fees, which vary from 50l. to 60%, although most oppressive when the estate is trifling, are really a matter of compara tively small importance when viewed in reference to a large estate. Upon an estate We have already endeavoured to combat producing 5000l., for instance, the court an impression which prevails extensively, fees would probably not exceed 21. per cent., that the affairs of an insolvent firm may be and in no case could amount to above 31. per wound up under private inspection, at a cent. Assuming the average to be two and much less expense, than the estate of the a half per cent., which is rather above the same firm could be administered under a mark, the creditor in such a case would fiat in bankrupty. Our conviction that this receive 198. 6d., instead of 20s for view is erroneous, has been fortified by a every pound to be distributed. If the communication from a correspondent whose estate realized 100007., however, the court experience and knowledge of the subject fees would only cause a reduction of 3d, in gives deserved weight to his opinion. (See the pound, and so in proportion as the dis ante, p. 111.) As the remarks already tributable estate increased in amount. The hazarded on this part of the subject, do not same observation is applicable to the remuseem to have been sufficiently explicit, we neration payable to the official assignees. As may be excused for discussing the matter alreadyremarked, with an unaccountable disre somewhat in detail. Many of the expenses gard to uniformity, the commissioners hayees |