1840. Rolls. BARRY v. STAWELL. ceeding, not upon any erroneous notion of legal rights, but upon the broad ground of equitable principle, he thought that costs decreed should not be lost by the fatality of the party dying before taxation. In Kemp v. Mackrell (a), Lord Hardwicke said, "I always held this to be "a hard rule and very nice distinction; the right to costs is the same "before taxation as after, only the quantum has not been ascertained." It is impossible to avoid perceiving that, upon this question, the opinion of Lord Hardwicke was substantially the same as the opinion of Lord Rosslyn; that both thought a Court of Equity should not be bound by such a rule as that which is contended for in this case. Where, I would ask, is the substantial difference between abatements after taxation and before it? The obligation to pay costs, and the right to recover them, are created not by the taxation but by the decree. The taxation merely settles the amount for which there has already been a decree; and the amount is not varied by the death of the party. Equity requires that a man's estate should not be mulcted in the costs occasioned by resistance to his just rights, or by his necessary defence against unconscientious demands, or by his being dragged into a litigation, in the subject-matter of which he disclaims any interest, and to which he is a stranger. Therefore, the decree, which ascertains the merits of the case, accordingly awards the costs; and I can see no colour of equitable principle in the proposition, that those costs, which by the decree of a Court of Equity are in fact found to have been so much money unduly subtracted from the proper funds for payment of the debts or support of the family of the person to whom they are awarded, are to be lost, if he happens to die before the precise amount of them is ascertained; although it is admitted the right of his representative would be clear if he had lived, perhaps a day or two longer, so that the taxation might have been complete before his death. Nor can I see why abatement before taxation, any more than abatement after taxation, should put an end to, or alter, the liability of the party decreed to pay the costs occasioned by his inequitable proceedings. The supposed distinction holds out an inducement to the person bound to pay, to delay the ascertainment of the amount as long as he can : it is, I think, a distinction without a difference, and should not be taken to be finally established, without some more satisfactory reasons being assigned for it than are to be found in the reports. In certain cases, Courts of Equity have held that the supposed distinction was inadmissible: for instance, where the costs were decreed to be paid out of an estate or particular fund. In Blower v. Morret (b), by the decree, all parties were to be paid their costs out of the estate: two of the defendants died before their costs were taxed, and the residuary (a) 3 Atk. 812; S. C. 2 Ves. sen. 579. (b) 1 Dick. 254. devisee insisted that those costs were therefore irrecoverable. Lord Hardwicke there said, "There is a distinction between personal costs "and costs to be paid out of an estate: costs when decreed out of an “estate, are a lien thereon, which makes it a security;" he further added" and there being nothing executory, there is no occasion to "revive." He accordingly ordered that the Master should proceed to tax the costs, and that when taxed they should be paid. Other exceptions have been taken (a); and it is impossible to consider them, and the obvious. anxiety with which they have been sought for, without thinking that the rule against revivor for costs must have been a bad one; that it has obliged Judges sitting in Courts of Equity, in apparently simple cases, to have recourse to questionable refinements in order to do justice; and that it would have been far better if they had at once declared they would not be bound by it, than, by acknowledging its authority, have left it to the Court in each case to discover by what possible subtlety could it be evaded. In the present case, the plaintiffs by the order of February last, to which I have already adverted, have been paid their costs and their demands out of the funds realised by means of the decree; and they now seek, without any colour of right or justice, to evade the duty which that decree cast upon them. I am perfectly satisfied that I ought not to permit them to do so. As to the objection that there should have been a revivor in this case (b), it is to be observed that the Master has certified the taxation as having been in the presence of the plaintiff's solicitor; and that this case is not at all like those in which by the abatement, the cause was to be considered as out of Court until revived. Here, for two years after the abatement, the plaintiffs themselves treated the cause as still subsisting, and did not cease to prosecute it until February last, when they were paid ander the decree the full amount of their demands; and I understand there is a residue of the fund in Court respecting which some of the parties are still litigating. Under such circumstances, I see nothing to prevent the Court from ordering the plaintiffs, who came to the Court and obtained a decree, the benefit of which they have fully realised, to perform the duty which the decree imposed upon them. In Betagh v. Concanon (c), the Lord Chancellor thought it was the duty of the receiver, as the Officer of the Court, to pay the costs which from time to time he had been ordered to (a) See Hall v. Smith, 1 Bro. Ch. C. 437; Johnson v. Peck, 2 Ves. sen. 465; & 3 Atk, 773; Tucker v. Wilkins, 7 Sim. 349.-In Johnson v. Peck, Lord Hardwicke observed that this was a very strict and hard rule, and that "the Court has always endeavoured "to get out of it." (6) See the able judgment of Pennefather B. in Egan v. Doherty, 2 Ir. Eq. R. 85, and the cases cited in the note. (c) Lloyd & G. temp. Plunk. 359. 1840. Rolls. BARRY 7'. STAWELL. 1840. Rolls. BARRY v. STAWELL. pay, although the party to whom they were ordered died before they were taxed; and here, I would say, that it is the duty of the plaintiffs, taking as they have done the benefit of the decree, to perform that part of it which directed them to pay Mr. Wise's costs. I do not think that the technical rule upon which the plaintiffs rely should coerce the Court to make an order inconsistent with the justice of the case. I think the proceedings of Mr. Wise's personal representative would have been more regular, if, instead of issuing a subpoena, he had come to the Court after the costs were taxed, for an order upon the plaintiff's to pay them; but for the reasons I have given, I refuse the present application, and but for the decision in Averall v. Wade, which has been referred to, I would have refused it with costs.* [The plaintiffs have appealed to the Lord Chancellor.] *See Knox v. Knox, 2 Ir. Eq. Rep. 213; and Mitchell v. Townley, 7 Ad. & El. 166. Nov. 5. tors suit, a con COOK v. BRISCOE. (In the Rolls.) After final de- MR. BLAND moved, after final decree, to make a consent a rule of Court, cree in credithe object of which was, that the funds standing to the credit of the cause should be paid out in certain proportions to the persons entitled. It was signed by all the parties in the cause. sent in the nature of an allocating report will not be made a rule of Court, unless, signed by all parties who have come in under the de cree as well as by the parties in the cause; and there must be an affidavit to that effect. MASTER OF THE ROLLS. This consent is in the nature of an allocating report, and I cannot make it a rule of Court without an affidavit that it has been signed by all the parties who came in under the decree and proved demands before the Master.* • In some cases the consent must be signed by the parties themselves: see Coleman v. Mason, 2 Ir. Eq. R. 322; see also Gumming v. Ryan, ibid. 140; consent for appointment of receiver, Bailie v. Bailie, 1 Ir. Eq. R. 413; as to vacating receiver's recognizance, Fitzgerald v. Hill, 2 Ir. Eq. R. 398. CORBALLIS . THE COMPANY OF UNDERTAKERS OF (In the Equity Exchequer.) 1840. Equity Exchr. Nov. 5, 6, 7, 12. In 1814, the Grand Canal created certain stock with pe culiar advantages to the subscribers, the legality of which was doubtful. In 1831, they empower of Directors to ed the Court 1814 as the holders thereof were willing to bring in; terms. upon certain By the act of Parliament, the 53 G. 3, c. 143, it was enacted, that out of the Consolidated Fund there should and might be issued by the Lord Lieutenant, as he should think fit, from time to time, any sum or sums of money not exceeding in the whole the sum of £50,000, to the Treasurer of the Company of Undertakers of the Grand Canal; to be by him applied in liquidation of the debts of the Company, in such manner as any three of the Commissioners of the Treasury should approve. This sum of £50,000 was part of a sum of 150,000, which a committee of the House of Commons had reported that it was expedient to issue to the defendants, from time to time, to be applied by them in part payment of their debts. By the same act, it was further provided, that before any part of the £50,000, to be issued under the authority of that act in the then present year, or any sum of money to be granted on account of the 150,000 should be issued to the Company, the Company should set apart out of any funds, monies, or securities belonging to them, a sum of money equal to one-third part of such sum, as should from time to time be directed to be issued for the use of the Company; the same to be placed in the Bank of Ireland in the joint names of the Commissioners of the Treasury and the Treasurer of the Company: and that the Company should apply the money so set apart, and the money to be issued to them, in liquidation of such debts of the Company, and in such manner as the Commissioners of the Treasury or any three of them should approve. At the time of passing this act, the defendants were a body corporate by the resoluconstituted under several acts of Parliament; and consisted of a number of persons holding shares in the capital stock of the Company, in various sums; and amongst others, the plaintiffs were then shareholders and members of the Company; the plaintiff R. Corballis, to the extent of £3,300 of the capital stock; and the plaintiff C. Hopes, together with his late partner, J. W. Stewart (since deceased), to the extent of £3,600 of the like stock. In the year 1813, when the 53 G. 3, c. 143, was enacted, the Company were indebted to an amount exceeding £1,160,000: and not being able to comply with the provisions of that act, by raising one-third of the sum to be advanced by the Commissioners of the Treasury out of their a a The plaintiffs, one of whom was Director, and the other and both substockholder, scribers to the stock of 1814, refused to accede to the terms offered tions of 1831; but having so acted, that by their conduct they might have induced holders of 1814 to accept of other stock the arrangement proposed by the resolu⚫ tions of 1831, they were rerespect of the stock of 1814. fused relief in Semble: that where a bill is filed by two stockholders entitled to separate sums of stock, on behalf of themselves and all other holders of the same stock, praying relief; if it should appear that one of the plaintiffs is not entitled to relief by reason of some equitable circumstances peculiar to himself, the Court may nevertheless, in that suit, give the relief sought, and is not bound to dismiss the bill. 1840. CORBALLIS v. CANAL CO. then existing funds, and being prohibited by the 5th section of that act Equity Exchr. from incurring any further debts by borrowing or taking up at interest any money by loan or on debentures, without the consent of the Lord Lieutenant and the Commissioners of the Treasury; but being authorTHE GRAND ised and empowered by the acts constituting the Corporation, to increase the capital stock of the Company to an unlimited extent, the Court of Directors, on the 5th of November 1814, resolved to address a letter to Mr. Peel, then the Chief Secretary of State for Ireland, stating that they had resolved on the expediency of recommending it to the Company "to advance the sum of £33, 400, or so much thereof as should "be necessary, to be set apart as their proportion of the funds applicable "to the further liquidation of their debts, by a subscription for new "stock: and that in order to induce the proprietors to accede thereto, "the Directors had it in contemplation to propose a right of priority of dividend, not exceeding £5 per cent. per annum, to the subscribers for "the additional stock, out of such actual clear profits as should arise in "any half-year to the Company from the receipt of the tolls and duties, "and other property vested in them by law; after paying or providing "for all expenses of maintaining and keeping up the the said canal, and "also the interests of all loans and debts contracted by the Company." It was assumed that this letter was sent to Mr. Peel; but it did not appear, save as hereinafter mentioned, whether any answer had been returned to it. 66 It had been proposed at a meeting of the Court of Directors held the 12th of November 1814, to raise the money by a sale of the residue of certain stock created by the Company in 1810, and which had not been subscribed to: but it appearing that the money could not be procured in that manner, the Court of Directors, at a meeting held on the 26th of November 1814, prepared a report to be submitted to the Company at large, in which they stated that Mr. Peel had declined to recommend to Government a relaxation of the terms on which the Company were to obtain the advance of the second £50,000 from the Treasury: that they had then taken into consideration three plans for raising the money; first, the sale of the residuary stock of 1810; secondly, a subscription in the ordinary way; and thirdly, a subscription with priority of dividend to the subscribers: that on the first plan, "they had applied to their brokers without effect:" that they conceived the second "might not appear to afford sufficient inducement to the proprietors:" and that therefore they resolved upon the expediency of recommending to the Company to advance the sum necessary to be set apart, as their proportion of the funds, by a subscription for new stock; and in order to induce the proprietors to accede thereto, to propose a right of priority of divi dends, not exceeding £5 per cent. per annum, to the subscribers for the additional stock, out of such actual clear profits as should arise in any half-year to the Company, from the receipt of the tolls and duties and |