In re. MOORE, Wright J. 1903 to secondary alienees. In case of settlements avoided under SLOBODINSKY, the statute of Elizabeth, or under s. 47 of the Bankruptcy Act of 1883, it has been found possible even at law to protect Ex parte. persons who before the occasion for avoiding a settlement has arisen have become purchasers or incumbrancers for value without notice of grounds for avoidance. There is much greater difficulty in cases like those which are now in question, where the trustee's title is established by relation back and the statute contains no applicable exception. It is, indeed, sufficient to refer to cases like Copland v. Stein (1) and Nunes v. Carter (2) in order to shew that an alienee, however innocent, was not aided at law except in the cases specified by the statutes for the time being in force. Equity, however, did not altogether refuse relief: see Abery v. Williams (3); Collett v. De Gols (4); Latouche v. Lord Dunsany (5); Wilkes v. Bodington (6); and it may be that at the present day it would be right to apply or even extend the equitable doctrine. That, however, could only be done in favour of a purchaser whose title is without stain, and certainly not in cases like those which are now in question; nor in any case could the purchaser be protected on equitable grounds to an extent beyond the real value of what he paid or gave as the consideration for his purchase: see the cases last cited. Melinsky will add his costs to any security he may have. Each of the other respondents, Nevill, Bernstein, and Levartovsky, will pay the costs of his own part of this further hearing of the motion. Solicitors: Trower, Still & Co.; Ralph Raphael & Co.; Sweetland & Greenhill; W. H. Lane; Hyman Isaacs & Co. (1) (1799) 8 T. R. 199. (2) (1866) L. R. 1 P. C. 342, 349. (4) (1734) Cas. t. Talb. 65. (5) (1803) 1 Sch. & Lef. 137, 152. (6) (1707) 2 Vern. 599. H. L. F. [IN THE COURT OF APPEAL.] SANDERSON v. BLYTH THEATRE COMPANY. Practice-Costs-Jurisdiction-Alternative Defendants-Supreme Court of In an action in the King's Bench Division, claiming relief against the defendants in the alternative, the Court has jurisdiction in a proper case to order the unsuccessful defendant to pay the costs of the successful defendant, or to order the plaintiff to pay the costs of the successful defendant and then to add those costs to the costs which the unsuccessful defendant is ordered to pay to the plaintiff. The latter course should be adopted when the action is tried with a jury and the judge does not think that there is "good cause" for depriving the successful defendant of costs. Decision of Grantham J. affirmed. APPEAL from a decision of Grantham J. The action was brought originally against the Blyth Theatre Company alone, to recover a sum of 1897. 11s. 6d. for work done and materials supplied in connection with the defendants' theatre at Blyth. The statement of claim alleged that the work was done and the materials supplied at the request of the company by their agent, William Hope, the architect employed by the defendants in building the theatre. By their defence the company denied (amongst other things) that they or their agent requested the plaintiff to supply materials or do work as alleged in the statement of claim, and also set up other defences immaterial to be stated in detail. Thereupon the plaintiff took out a summons for leave to add Hope as a defendant to the action, and an order was made, dated January 29, 1902, giving the plaintiff liberty to amend the writ by adding the name of Hope as a defendant to the action, and to amend the statement of claim by claiming in the alternative against Hope the same sum as that claimed against the company, and in further alternative claiming the same sum against Hope by way of damages for breach of warranty of authority to order the work and materials, and the question of VOL. II. 1903. 20 2 C. A. 1903 June 22, 23; July 30. C. A. 1903 v. BLYTH THEATRE COMPANY. costs of and incident to the application was reserved. The writ and statement of claim were amended accordingly. The SANDERSON Company put in an amended defence, alleging that Hope had no authority to employ the plaintiff. Hope, by his defence, denied that he was the agent of the company, and set up other defences identical with those set up by the company. At the trial the jury found a verdict for the plaintiff against the company; and thereupon the judge ordered that judgment be entered for the plaintiff against the company and for the defendant Hope, and also ordered that the defendant Hope should recover against the plaintiff costs, to be ascertained, and that the plaintiff should recover costs against the defendant company, to be taxed, and also the plaintiff's taxed costs occasioned by joining the defendant Hope, including the costs which the plaintiff was adjudged to pay to the defendant Hope. The learned judge gave leave to the company to appeal from so much of the judgment as directed them to pay to the plaintiff the costs incurred by joining the defendant Hope, including the costs which the plaintiff was ordered to pay to the defendant Hope. An appeal was accordingly brought by the company, but to it the defendant Hope was not a party. The notice of appeal asked that the order of Grantham J. might be set aside, on the ground (1.) that there was no jurisdiction to make the order; (2.) that there was no contract between the company and the plaintiff for any breach of which the liability to pay the costs would arise; (3.) that the liability of the plaintiff to pay the costs did not arise in consequence of nor was the natural result of any breach by the company of any contract between the plaintiff and the company. Manisty, K.C., and E. Shortt, for the theatre company. It is submitted that the learned judge had no jurisdiction to order the company to pay to the plaintiff the costs which he had to pay to Hope. [ROMER L.J. Such an order is constantly made in the Chancery Division.] But it has never before been made on the common law side. The learned judge considered he could make the order under the C. A. 1903 Rules of the Supreme Court, Order LXV., r. 1—which provides that "where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom SANDERSON such action, cause, matter, or issue is tried, or the Court, shall, for good cause, otherwise order" on the ground that the company had failed as between themselves and Hope. [ROMER L.J. The practice of the old Court of Chancery was not directly to make an order for costs between co-defendants, but to order the plaintiff to pay the one defendant's costs and to add them to his own against the other defendant; that is, to have them over against the other defendant. But since the Judicature Act it has been the habit of the Court to order the one defendant to pay costs to the other direct: Rudow v. Great Britain Mutual Life Assurance Society. (1)] Here the verdict was for the plaintiff against the theatre company only, and therefore the company were liable to pay the plaintiff his costs as against them: Child v. Stenning (2); Williams v. Burrell (3); but it is submitted that the learned judge was wrong in holding that those cases applied as regards Hope's costs. The plaintiff's right of action as against Hope was an independent right as against an agent who had exceeded his authority: Collen v. Wright. (4) Having failed in this independent cause of action as against Hope, the plaintiff is liable for Hope's costs, and can only pass on that liability to the theatre company under some supposed contractual liability by way of indemnity. [VAUGHAN WILLIAMS L.J. referred to Hammond v. Bussey (5), where a representation was made by contract as to the quality of coal sold by the defendants to the plaintiffs, and the plaintiffs sold the coal to purchasers; the plaintiffs, in an action for breach of contract, recovered as "damages" the costs incurred by them in another action brought against them by the purchasers of the coal from them.] That was a case of representation by the contract, just as in Collen v. Wright. (6) (1) (1881) 17 Ch. D. 600. (2) (1879) 11 Ch. D. 82, 86. (3) (1845) 1 C. B. 402. (4) (1857) 8 E. & B. 647, 657-8. (5) (1887) 20 Q. B. D. 79. (6) 8 E. & B. 647. v. BLYTH THEATRE COMPANY. C. A. 1903 SANDERSON v. BLYTH THEATRE COMPANY. [STIRLING L.J. Order LXV., r. 1, says that, subject to the provisions of the Judicature Acts and the rules, costs "shall be in the discretion of the Court or judge."] Sect. 5 of the Judicature Act, 1890, also gives the Court a wide discretion; but the rule must be taken to refer to costs incurred by the plaintiff or defendant, as the case may be. Here Hope's costs are not costs "incurred" by the plaintiff in prosecuting his independent claim against the theatre company, but only costs which he has been "ordered" to pay. The plaintiff applied to join another defendant, merely as a second string to his bow, and not for the purpose of prosecuting his claim against the theatre company. [VAUGHAN WILLIAMS L.J. Could not the plaintiff join Hope as a defendant under Order xvI., r. 4, and was he not therefore a proper party ?] Complete justice could have been done if the theatre company had been the only defendants. [ROMER L.J. In Bennetts & Co. v. McIlwraith & Co. (1), where an action was brought in the first instance against agents, the plaintiffs were allowed to add the principals as defendants.] That was because the cause of action arose out of the same transaction. If a plaintiff adds another defendant in order to assist himself, he does so at his own risk as to costs. Here the plaintiff, for his own convenience, chose to join Hope as a defendant. In Admiralty cases, where the real issue is between two defendants, the unsuccessful defendant is ordered to pay the costs of the other: Green v. Goodyear (2); but that rule does not apply here. This action really comprises two separate proceedings-not one proceeding-against separate defendants. Costs can only be ordered as between the parties between whom the issue lies, as in the case of permitting inspection under Order L., r. 3: Shaw v. Smith. (3) No doubt the power conferred by s. 5 of the Act of 1890 is very wide, as is shewn by In re Fisher (4), but it is expressly (1) [1896] 2 Q. B. 464. (2) (1884) Note to The River Lagan, (1888) 6 Asp. M. L. C. (N.S.) 281. (3) (1886) 18 Q. B. D. 193. (4) [1894] 1 Ch. 450. |