66 against the plaintiffs personally. Again, it has been decided in several cases (although in Jupp v. Geering Sir J. Leach denies the distinction) that there is a difference between abatement by death of the party to receive the costs and abatement by death of the party to pay them, and that in the former case the rule does not apply: Lowten v. The Mayor of Colchester (a); Hall v. Smith (b); Morgan v. Scudamore (c). As to the general rule it may be observed, that, in almost every reported decision upon the subject, from the times of Lord Chancellor King to the present, it has been reprobated as hard and unreasonable. It arose before the principles of equitable jurisdiction were thoroughly understood-and, as suggested by Lord Rosslyn in Morgan v. Scudamore— "before the proceedings of the Court had acquired all the force they "have since:" in Kemp v. Mackrell, Lord Hardwicke said it was a "hard rule and very nice distinction;" in Betagh v. Concanon, Lord Plunket obviously thought it unjust and irrational; and in Averall v. Wade, Sir William M'Malion allowed himself to be fettered by it, but admitted that by so doing "there was a failure of justice." The reason given for it by Sir J. Leach in Jupp v. Geering, may account for its origin, but cannot justify its continuance. If such reasoning should prevail, the Chancery practice both in this country and in England should be greatly altered. We might therefore, if it was necessary, confidently appeal to the Court to do now what Courts of Equity ought to have done long ago; that is, at once and altogether to repudiate a rule which is confessedly repugnant to equity and good conscience.-As to the objection that this is an abated cause, and that Wise's administrator is not a party to it, it is to be observed that notwithstanding the abatement, the cause has been and still is in full activity for the purposes of the decree; and that at any rate, the plaintiffs must be taken to have waived that ground of objection by attending upon, and taking the benefit of the taxation of the costs, whereby they had them considerably reduced. Mr. Collins, in reply, insisted that the distinction taken in Morgan v. Scudamore had been expressly overruled by Sir J. Leach in Jupp v. Geering, and by Lord Punket in Betagh v. Concanon; that Johnson v. Peck, and Kemp v. Mackrell did not apply to this case, in which the bill had been dismissed as against Wise, who had no interest whatever in the decree, except the payment of costs; that as to the plaintiffs, the cause had been long since at an end; and therefore, that the present case was clearly within the rule, and not distinguishable from Jupp v. Geering and Averall v. Wade. He further contended that the question here 1840. Rolls. BARRY v. STAWELL. 1840. Rolls. BARRY v. STAWELL. was not whether the rule was hard or otherwise, but whether there was such a rule; and that the authorities were decisive respecting it. MASTER OF THE ROLLS. If upon consideration, the rule appears to me to be inconsistent with equity, nothing less than an express decision of the House of Lords shall oblige me to follow it.* 66 The case stood for consideration. • Upon two or three occasions his Honor has expressed himself thus strongly.: (see Daly v. Duggan, 1 Ir. Eq. Rep. 316); and although such language has the authority of several of the most illustrious names to be found in the history of English law, the Reporter is aware that some members of the Bar have been seriously startled by it. It is idle to suppose that declarations of the kind have any tendency to shake the due authority of precedent in Courts of Justice. In a very late case (Ward v. Painter, 2 Beav. p. 93,) the Master of the Rolls in England has laid down what seems to be the general law upon the subject. After noticing the particular circumstances of the single previous decision upon the question before him, his Lordship said "I am not, it is true, absolutely bound by a single decision of co-ordinate jurisdiction. The law of "England not only allows the review of any judgment, but also the free discussion of "the propriety of any legal decision; and therefore, I would put no restraint on the "counsel for the defendant in the argument of this case. But a solemn decision of a 66 competent Judge is by no means to be disregarded. I ought not to overrule it without being clearly satisfied in my own mind that the decision is erroneous. My not being "so satisfied is a sufficient reason for overruling this demurrer; thinking, as I do, that "if Barton v. Tattersal is to be overruled, it should be overruled by a higher tribunal." No one can doubt the general authority of judicial decisions. They are not merely aids to subsequent adjudication; they are to the nation at large the evidences of the law, and especially, upon that account, entitled to respect, and not to be overruled without strong reason. But upon questions of law, much more than upon any other, the argument of great names is likely to have weight; and the danger is infinitely less, of precedents being hastily discredited, than that by a too rigid adherence to them, without regard to the alterations which have been and are rapidly taking place in the frame-work of society, common sense may be offended, and the genuine principles of the law neglected and forgotten. A Judge is to decide according to law; and although he is bound to have regard to the previous judicial determinations upon the same subject, it is not less his duty to bear in mind that no number of decisions however great, or however eminent and venerable may have been the Judges from whom they proceeded, can make law of that which is not law. There are a few exceptions created by public policy: for instance, on more than one occasion Lord Eldon has unhesitatingly followed decisions, although he admitted that he doubted the principles of them; because his refusing to follow them might have cast a blot upon half the titles in the kingdom. The exceptions, however, only prove the general rule; which seems to be, that precedents are to be followed, but not blindly; lest peradventure the blind lead the blind and both fall into a ditch. As to the old saying-"the worst of laws is that which is uncertain," it is to be observed, that, admitting the general truth intended to be conveyed by it, it shews no cause why error should be perpetuated; on the contrary, it furnishes the strongest reason for correcting at once what needs to be corrected: for the law must ever be " uncertain" while its principles are unsound. It is needless to refer to the often quoted passage from the Ecclesiastical Polity on the nature of law; as it is a first principle of British jurisprudence that what is not good law is not law. The MASTER OF THE ROLLS, after fully stating the facts of this case, now delivered his judgment upon it to the following effect: The plaintiffs insist that the subpoena has issued irregularly, and should now be set aside: they say that where costs are decreed to be paid by a plaintiff to a defendant, or by a defendant to a plaintiff, the right to recover them is lost by the death of either party before taxation; and that the effect of the abatement is all the same, whether it be by the death of the person decreed to pay the costs, or of the person entitled to receive them. For this position, they rely upon the case of Jupp v.Geering, decided by Sir J. Leach, in the year 1826, and the subsequent decision of the late Master of the Rolls in Averall v. Wade. In the former case the Vice-Chancellor decided in analogy to the common law. I quote his words :-" At common law, costs were lost if either party “died before final judgment; but by the statute of 17 Car. 2, c. 8, if "either party dies between the verdict and the final judgment, the final "judgment may still be entered up, and costs and damages recovered; "and the 8 & 9 W. 3, c. 11, extends the remedy to cases where either "party dies after interlocutory, and before final judgment. The final "judgment at law ascertains the amount of the costs, and is necessarily, "therefore, preceded by taxation. The statutes to which I have refered "have no application to cases in equity, and proceeding, therefore, upon "the general analogies of the common law, I must hold that costs in equity "are lost by the death of either party before taxation, as costs at common "law were lost by the death of either party before final judgment." Thus, the analogy to the common law is the sole ground of Sir J. Leach's decision, and appears to have been always regarded as the foundation of the rule that there cannot be a revivor for costs decreed but not taxed at the death of the party. Speaking of it, with reference to the decisions of former Judges, Lord Rosslyn says in Morgan v. Scudamore (a), “I cannot help thinking (the proceedings "of the Court had not acquired all the force they have since) they were guided a little too much by a supposed analogy to the case of a "judgment at law. It is quite impossible to draw any strict analogy "between them." I, too, must own, I can see no reason why the large discretion of a Court of Equity should proceed in analogy to a rigid rule of common law, which long ago was found to be so much against the common sense of mankind, that acts of parliament were passed to limit the application of it even in the Common Law Courts. But assuming the Vice-Chancellor's decision in Jupp v. Geering to be law, it does not appear to me to apply to the present question. The facts of that case were these:-Geering had filed a bill against a sole defendant for the specific performance of an agreement, and upon the hearing it was dismissed (a) 3 Ves. 196. 1840. Rolls. Nov. 10. BARRY บ. STAWELL. 1840. Rolls. BARRY v. STAWELL. with costs. The defendant died before the costs were taxed; and Jupp having taken out administration brought a bill of revivor against Geering for the costs. To that bill a demurrer was allowed.—There, the bill in the original suit was dismissed generally: the decree was negative, except as to the payment of costs; and the decision amounts to no more than this, that a cause, in which, at the time of abatement, nothing remains to be done, except to pay costs decreed to a defendant who dies before taxation, shall not be revived for the mere purpose of obtaining an order for the payment of those costs. Jupp v. Geering has not decided that— where there is a decree for many other purposes besides the payment of costs the representative of a deceased party may not obtain an order in the cause, that the plaintiffs, who, notwithstanding the abatement, have been vigorously enforcing the decree for their own benefit, may perform the duty it imposed upon them, and pay to him the costs which they were thereby ordered to pay to the defendant whom he represents. However, Averall v. Wade (a) has been cited to shew that even in such a case as the present there cannot be an order for payment of the costs; that there is "no remedy." It is said that case squares exactly with the present. The resemblance certainly is strong :-Averall filed a judgment creditor's bill, making O'Connor, who was a prior incumbrancer, a party. As to O'Connor the bill was dismissed with costs; but there was a decree for payment of the plaintiff's demand, and, if necessary, for a sale of the lands in the pleadings mentioned. Afterwards, O'Connor died before his costs were taxed, and the plaintiff proceeded to a sale under the decree, but refused to pay O'Connor's administratrix the costs decreed; and the Officer of theCourt having refused, under the circumstances, to issue a subpœna for the taxed costs, in the name of the administratrix, she applied to the Court for an order either that the plaintiff should pay the costs to her, or that the Officer should be at liberty to issue a subpena for them at her suit against the plaintiff. The late Master of the Rolls refused the application. I think it would be found upon examination that there were circumstances in that case to distinguish it from the present; but, without attempting to draw any distinction between them, I feel bound to say that, in my opinion, the decision in that case is not one which ought to bind the Court. Adverting to it in Betagh v. Concanon (b), Lord Plunket said "I am not prepared to follow the "decision in that case;" and the late Master of the Rolls himself is reported to have said that the case was a hard one, and that there was failure of justice." In my judgment, it would have been far better to have given the order which the justice of the case required, than to a (a) 1 Moll. 571, n. (b) Lloyd & G. temp. Plunk. 360. have yielded to what appears to be a technical and unsubstantial distinction, whereby, confessedly, justice was defeated. Morgan v. Scudamore was a much considered case.- -[His Honor here stated the facts as in 2 Ves. jun. 313.]-When it first came on upon demurrer, Lord Rosslyn expressly stated that he did not mean to give any opinion upon the question, whether there might be a revivor for costs only, as it appeared by the statements and prayer of the bill that a revivor was necessary for other purposes of the decree besides the payment of costs, and this was, of course, admitted by the demurrer. The demurrer was, therefore, overruled. The defendant then answered, stating that the decree had been fully executed, and thus raising the precise question whether there could be a revivor for costs only. Whatever may have been Lord Rosslyn's impression as to costs at law, when this question was first mentioned, it is, I think, very plain that, when it became necessary for him to decide it, it was not upon any supposed analogy to legal distinctions his judgment was grounded. In Lowten v. The Mayor of Colchester (a), decided in the year 1817, Sir William Grant, observing upon the case of Morgan v. Scudamore, said, "There, the "Master having settled the amount of the costs, but not having made "his report previous to the abatement, Lord Rosslyn at first doubted "whether he should not order the report to be entered nunc pro tunc; "and, on the question coming a second time before him, he seems to have "taken a broader ground, and to have thought taxation not absolutely neces"sary to entitle a party to revive." From this, and the judgment itself in Morgan v. Scudamore (b), it would appear that Lord Rosslyn, after a laborious investigation of the question (in the course of which he examined critically nearly all the printed cases upon the subject, and had the records of the Court searched for precedents), was not disposed to pay much attention to the supposed distinction between costs taxed and costs not taxed at the time of an abatement; and that-pro 1840. Rolls. BARRY v. STAWELL. In the case of Fitzgerald v. Arthure, 1 Ir. Eq. Rep. 196, his Honor noticed with approbation the following passage of Lord Chancellor Brougham's judgment in Armstrung v. Armstrong, 3 My. and Kee. 66, which seems to be not altogether inapplicable to the present subject: "There were times when Courts of Justice took a delight in vain subtleties and |