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in no sense reprehensible in the course they had adopted, and that the resistance was neither unfair, unreasonable, nor improper, though the exceptions had been overruled, it ought to be without costs. In an unreported case, a bill was filed by some creditors to have the Duke of York's estate administered after the decree. The Crown brought in a very large claim before the Master, who allowed it. The plaintiff took exceptions to the report, and upon argument the Vice Chancellor of England overruled them. A discussion arose respecting the costs. The Attorney General insisted that he was entitled to costs; and on the other hand it was insisted for the plaintiff that as the Attorney General had come there representing the Crown, and claiming in right of the Crown, and not in his official capacity, as claiming on behalf of a charity, and as he did not pay costs he was not entitled to receive them, and the Vice Chancellor, although he overruled the exceptions, did so without costs.

The Solicitor General, Mr. Turner, and Mr. Maule, for the Attorney General, contended that, this being a suit by the Attorney General on behalf of the Crown, the first question to be considered was, whether the Crown ever received costs. The writers upon the subject were obscure from not considering the origin and primary jurisdiction of this Court in the matter of costs. Now, costs were unknown at the common law, and it was necessary to point out the distinction which existed as to costs in the several courts of common law and equity. The 6 Edw. 1. c. 1, called the Statute of Gloucester, was the first statute that ever gave costs; before that, the only mode of dealing with the question was by the jury giving damages sufficient to cover any costs; but the Statute of Gloucester did not extend to the king, as he was not expressly named. That statute was followed by the 33 Hen. 8. c. 39, which enacted that where the king recovered his debt, he should also obtain his costs at the same time. All the statutes related to costs at the common law, and unless in very modern statutes there was no statute relating to costs between parties in equity; but it was clear how the jurisdiction arose. A court of equity never gave damages of any sort

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or description, and consequently, in adjudicating between the rights of parties, the courts of equity, acting upon extended principles in doing what was just, thought it right, besides giving the relief to which parties were entitled, also to give the expenses to which they had been put in obtaining that relief, probably from analogy to the common law, which arose from statute. In the case of the Crown there was a difference between the costs which existed at common law and those which existed in equity, because the Crown only I got them at common law so far as they were given by statute; but the jurisdiction of courts of equity did not depend upon statute, but upon an equitable jurisdiction which by its very essence gave a large discretion. Courts of equity, therefore, adopted a different rule: they might give costs in such manner as they thought fit; and should there be a case of peculiar hardship the Courts might perhaps direct that costs should be paid by the Crown, if it saw any mode by which the order could be enforced. And even courts of common law, when those courts might be considered as having an equitable jurisdiction, considered they might give costs. Accordingly, in The King v. Hassell, the Court of Exchequer did give costs where a motion had been made against the Crown of a highly irregular and improper sort. It was not that there were particular sorts of motions, in which the Crown might have a right to receive costs; but that where the Court itself had a large discretion, which was analogous to the equitable jurisdiction exercised in these courts upon this subject, there was no rule prohibiting the Crown from receiving costs, and that the Court might, if it thought fit, award costs where the circumstances justified it. In 3 Black. Com. 400, it was stated that the Crown did not receive costs, as it was beneath its dignity this reason was unsatisfactory: it was, no doubt, because the courts of law had not the subject of costs at all under their jurisdiction, unless a statute gave them both power and jurisdiction. Hullett v. the King of Spain and The Duke of Brunswick v. the King of Hanover (6),

(6) 6 Beav. 1; s. c. 13 Law J. Rep. (N.S.) Chanc. 107.

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where the defendant upon appeal was allowed his costs, shew that if the reason assigned was allowed to prevail it might be carried to an unlimited extent. In The Attorney General v. the Earl of Ashburnham (7), the principles now contended for were under consideration. In that case a charity information was filed without a relator under the 59 Geo. 3. c. 91, and Sir John Leach said "he found no such general principle in courts of equity as that the Crown could neither pay nor receive costs. Attorney General constantly received costs where he was made a defendant in respect of legacies given to charities; and even where he was made a defendant in respect of the immediate rights of the Crown in cases of intestacy. And where charity informations had been filed by the Attorney General, costs had been frequently awarded him in interlocutory matters independently of the relator." And he considered that he had jurisdiction, and directed the defendant to pay the Attorney General his costs. In The Skinners Company v. the Irish Society (8), the Attorney General was made a defendant, and obtained his costs. In state prosecutions, as they were for the benefit of the country, the Attorney General did not apply for costs; but in numerous prosecutions and indictments filed by the Attorney General on behalf of the Commissioners of Police, it was the ordinary daily occurrence for the costs of the Attorney General to be paid, and they were not carried to the Consolidated Fund, but were paid like the costs of any private party. In The King v. Miles the question was not determined; counsel finding the Court was against them, gave up the point. The Attorney General v. Levy (9), in the Exchequer, Michaelmas term, 1840, was another instance of the course adopted by the Court. It was an information of intrusion filed against the defendants, who allowed judgment to go by default. A fine had been imposed upon them, regulated by the value of the premises of which they had retained possession. The defendants obtained an order nisi to reduce the amount of the fine; and on motion to make the order absolute, the order nisi was dis

(7) 1 Sim. & S. 394.

(8) 7 Beav. 593; s. c. 12 Cl. & Fin. 425. (9) Unreported.

charged, with costs. By the practice of this Court the defendants were required to make a deposit, upon appealing to a higher tribunal, as a security for costs; and this deposit was to be made whether the exceptions were against the Master's finding or against a judgment of the Court below, but in no case was the Crown liable to make any deposit: this strongly evinced the rule of the Court, and upon the exceptions being overruled, the Attorney General became entitled to have the deposit applied in payment of the costs; and why was the corporation not bound to pay the extra costs? In a court of equity there was no distinction between charity and other cases. In Burney v. Macdonald (10) the Court refused to give the Attorney General his costs, on the ground that it was not the practice so to do, except in charity cases. Upon the decided cases, and according to principle, the discretion of the Court was unfettered. The exceptions were taken to avoid putting in an answer, and questions were raised which had been previously decided upon the demurrer in the House of Lords. Between the Crown and the defendants there was the relationship either of principal and agent or landlord and tenant; the latter held property under the Crown, and were liable in respect of their acts, and though the information had been filed for five years, no answer had yet been put in. It was under these circumstances that the Crown was considered entitled to the costs, and the fact of the Crown being plaintiff by the Attorney General did not in any degree preclude the Court from giving the costs, if it should be thought fit and proper to do so.

Mr. Randell, in reply.-In the case of The Skinners Company v. the Irish Society the latter held estates by grant from the Crown upon a public trust, the Attorney General was made a party, not as claiming any right of the Crown, or in respect of any pecuniary interest of the Crown, but in his public capacity representing the Crown as parens patriæ, and it being for the protection of the right of the subject, the Attorney General received his costs under the ordinary rule. The unfairness of the

(10) 15 Sim. 6, 15.

Attorney General receiving his costs without being liable to pay them seemed to have been felt; it was consequently suggested that there might be a case in which the Court would order the Attorney General to pay costs: it did not appear that any such order had ever been made, but if the Court did make such an order, it could not be enforced.

In The King v. Hassell the party applied against a proceeding to which he had assented, and which had been granted to him at his own request as a boon; he was, therefore, directed to pay the costs he had occasioned, yet this was not a case to which the acts of parliament applied; it was done under the exercise of a general jurisdiction, which all Courts had over the costs of suitors guilty of misconduct. In The Attorney General v. Lord Ashburnham, also, the Attorney General appeared in his public capacity to protect the interests of the charity, and the Court considered that it had jurisdiction to give the Attorney General his costs, but the observations applied only to that particular case. The question upon the demurrer was, whether the defendants should answer at all, and whether its being an information in the nature of an ejectment, was not so much opposed to the principles and practice of the Court that the defendants would be protected from answering further than as to the title, which raised the question, whether the demurrer was not a complete answer to the information on the ground of its being a case for law, and not a case for equity; but the overruling the demurrer did not determine the extent to which the corporation were bound to answer.

The corporation was advised that they had answered as far as they were bound by the practice of the Court; but the Court considered that the defendants were bound to make the discovery, to which the exceptions referred: that related to particular interrogatories, while the question upon the demurrer was whether an answer should be put in. There had, therefore, been no attempt to obtain a review of the judgment upon the demurrer by the exceptions; and though the decision upon them was against the defendants, there was nothing in them unfair, unjust, or litigious. By making the de

posit it was said the defendants, in respect of it, admitted the title of the Crown to costs, but that deposit was made only in compliance with a rule of Court, which had been extended by the 41st of Lord Lyndhurst's General Örders (11), and in deference to the general practice of the Court, but the title of the Crown to costs was left the same as before. Suppose the Crown asserted a right, and after putting a subject to great expense, found itself mistaken? Such cases were to be found in the books. Was it not a serious mischief to the subject that he should be afflicted with the expense and evil of litigation at the instance of the Crown without having any means of obtaining the costs? The Master did order the corporation to pay the costs of the exceptions, and no exception was taken to it, because it was considered that, in consequence of the general rule, no attempt would be made to put that part of the order into force. The corporation, throughout this suit, had merely asserted its rights and protected its interests. It had not been actuated by any spirit of wanton litigation, neither had it attempted to adopt a course of practice, or take a course of proceeding not perfectly justifiable; their position rendered it their bounden duty to protect by all means that property of which they had been in possession from time immemorial.

The MASTER OF THE ROLLS.-We are not now considering the costs of the cause, but the costs of a particular proceeding in which the city of London has failed. It by no means follows because there may be a certain rigid rule at law with respect to costs, that such rule has become or should be a strict rule in this court. The case first came on here upon demurrer, which was overruled. The question of costs, then, was not decided by the Court in any manner, but the order was made by consent of the Attorney General without costs. If I am to be governed by my own recollection there was a difficulty in this case, which made it perfectly justifiable for the city of London, in all fair practice of the litigation in which they were involved, to bring forward the question in the form in

(11) Ord. Can. 19.

which it was brought forward, and if I had decided the question of costs, I have no doubt I should not have given costs against the city of London. That matter came before the House of Lords. The decision in this court was affirmed, and then the question arose about costs, and there was a misapprehension that the costs had been decided here, and that the order was not made by consent; but upon that being explained, the Lord Chancellor finally determined to give no costs, and my entire persuasion is, that without reference to any such rule of not paying and not receiving costs, the order here would have been affirmed without costs. I do not consider that as the smallest authority for what is now laid before me; but the demurrer having been disallowed, the defendants were called upon to answer. They answered a large part of the bill, but there were other parts they objected to answer. I agree that the question upon the demurrer, whether they should answer any part of the bill, is not the same as whether they shall answer two or three particular parts. I think the principle upon which the demurrer was decided very applicable to the principle upon which the exceptions were decided. I think it is probable, had it not been for the objections to those parts of the bill, that an answer would have been put in. However, the Master not only allowed the exceptions made to the answer, but certified that the costs ought to be paid by the corporation of London. Certainly if there ever was a case in which the parties were called upon to take notice of the claim of that right which is now set up, this is the case, for there was a direct certificate that they were to pay the costs of those exceptions. They thought right to except to the Master's report: and according to the rule of the court, they were to make a deposit to satisfy costs, if costs should become due from the defendants. Now, there was a certificate that they were to pay costs, there was a deposit to be made towards the payment of further costs, and there was not the smallest complaint in any way, and no application was made to the Court to be relieved from that deposit, which was the sign of their being answerable for the payment of costs, but the

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matter was brought forward upon acquiescence in the certificate to pay costs, and upon an acquiescence in the practice of the court, from which they claimed no exemption, as they might have done, to be relieved from the payment of the deposit, but their case was argued and discussed without any reference to that at all, and this came on therefore upon an entirely new and separate application.

All this might go for nothing, provided there were that strict and general rule, that the Attorney General should not receive costs because he does not pay them; but there is no such strict and general rule made out. It is a rule said to be applicable in courts of common law, and I do not know anything to the contrary, but here there are instances produced from various books in which the Attorney General has received costs in one case and another, such as charity suits, which are an everyday occurrence, and experience shews that it is so, and I do not see how I can exempt the corporation of London from paying those costs which, according to the ordinary practice of the Court, they ought to pay. It might be of very considerable importance in some cases as to the general costs, and there may be a question of very considerable importance as to the general costs of the suit; but as to the costs of a particular application they must be governed by the general rule of the court, unless there be such a rigid rule to the contrary, which there certainly is not, as to override that general rule. I do not find myself under the necessity of saying that the city of London has been guilty of improper proceedings for the purpose of delaying this suit, but they have adopted a proceeding which subjects them to pay the costs, and I do not see why they should be exempt from the ordinary rule of this court. There is therefore no reason why the defendants should not pay the costs.

The Solicitor General finally, in exercise of the discretion vested in him, declined, under the circumstances of this case, to press for the costs.

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Payment of or security for compensation in respect of damage consequential upon the execution of certain works by a railway company, is not, under the Railways Clauses Consolidation Act, 1845, made a condition precedent to the commencement of such works. Therefore, where a company, in the lawful execution of its powers, commenced the construction of works, by which the enjoyment of an easement by a neighbouring occupier of land might be interrupted, and damage sustained, a bill by such occupier to restrain by injunction the further progress of the works until the prospective damage should be ascertained, and the amount thereof paid or secured by the company, pursuant to the Lands Clauses Consolidation Act, 1845, was dismissed, with costs.

At the time of the filing of the bill in this suit, the plaintiff Henry Hutton was lessee and occupier of an ancient tidal water cornmill, with a water reservoir or milldam and land and premises thereunto belonging, lying contiguous to the river Thames, at Battersea, under a lease, of which about fourteen years were then unexpired. By agreement of the 5th of August 1837 the plaintiff and John Hutton, since deceased, but who was then co-partner with the plaintiff in their business of millers carried on at the above mill and premises, contracted to sell to the London and South-Western (then the London and Southampton) Railway Company, all their interest in a certain piece of the said land and milldam, required for the railway, and containing about 2 roods, for the price of 950l., to include the loss of land and water, the increased expense of clearing the milldam of the mud deposited by the tidal water of the Thames, general injury by severance, and all consequential damage, except as thereinafter provided. The company was thereby authorized to erect a bridge, for NEW SERIES, XVIII.-CHANC.

the purposes of the railway, across the
milldam, according to the dimensions speci-
fied in a plan, and agreed to construct a
scouring power by certain sluices opposite
the centre of each arch of the bridge, and
to execute other specified works for the
use and benefit of the vendors. Provided
that nothing therein contained should give
the company any right to stop up the
milldam or to impede the flowing of water
into it, other than for the purposes of erect-
ing, maintaining and repairing the bridge;
but the milldam, and the use and occupa-
tion of it, were to be retained by the vendors
and preserved to them by the company in
such and the same manner as it would
have been held, if not taken by the com-
pany, except as respected the building
and repairing the bridge. And further
that nothing therein contained should pre-
vent the vendors from having the free use
and right of way over the banks of the
milldam and any new banks to be made
by the company. The bridge and other
works were duly completed, and the
purchase and compensation money paid;
and by deed-poll of the 2nd of March
1838, the estate, right and interest of the
vendors in the land and premises were
conveyed to the company. By the London
and South-Western Railway Company's
Widening and York Road Station En-
largement Act, 1847 (1), incorporating the
Lands Clauses Consolidation Act, 1845
(2) and the Railways Clauses Consolidation
Act, 1845 (3), the company was, amongst
other things, empowered to widen and
enlarge their railway on certain lands, and
according to a specified plan.
By this
plan the company proposed to erect a
second bridge across the milldam or reser-
voir belonging to the plaintiff. Upon the
application of the company to parliament
for their last-mentioned act, the plaintiff,
as occupier of land on the line of railway,
unsuccessfully petitioned the Select Com-
mittee of the House of Commons, to which
the bill had been referred, to insert therein
a clause compelling the company to give
him compensation for the loss of water
and other injury which he should sustain
by the erection of the second bridge.

(1) 10 & 11 Vict. c. lxxxviii.
(2) 8 Vict. c. 18.
(3) 8 Vict. c. 20.

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