LAW REPORT.

Evening Star, Issue 3273, 16 August 1873, Page 2

LAW REPORT.

SUPREME COURT,- IN BANCO. (Before his Honor Mr Justice Chapman.) Friday, August 15. CLAYTON V. MORRISON. Practice —Costs—Rule nisi, costs of, reserved — Matter subsequently before Court of Appeal, and no order there made as to costs—Each party bears his own coats. Where the costs of a rule nid, obtained in the course of a cause, were reserved till the further order of the Court, and the whole cause, including the subject matter of the rule nisi; went subsequently to the Court of Appeal, and was therefore disposed of, but nothing was said as to the reserved costs; held each party was to bear his own costs. A rule nisi obtained by the defendant in the course of a cause, was made absolute to modify an injunction granted against him, the costs of the rule nid being reserved till the further order of the Court. Subsequently, the whole case, including the subject matter of the rule nisi, went to the Court of Appeal, where it was decreed that the original and the modified injunction should be dissolved, but nothing was said as to the costs reserved by the Court below. Mr Barton having, on 3rd July, obtained a rule nisi calling on the plaintiff to show cause why he should not pay the costs of the rule nid to modify the injunction, cause was now shown Ly Mr B. C. Haggitt, who contended that the defendant was not now entitled to those costs. The expression “ till the further order of the Court,” used in the rule, meant not only an order as to the costs reserved, but any order relating to the modified injunction ; and such an order had been made by the Court of Appeal, to which Court the whole matter of the action had gone under section 18 of the Court of Appeal Act, 1862. Section 21 of that Act enacts that the decision of the Court of Appeal is to be final as regards the tribunals of the Colony, and the same judgment is to be entered up in the Supreme Court, and the same execution and other consequences and proceedings are to follow, as if the decision had been given by the Supreme Court. Rule 497, Reg. Gen., 1856, directs that the costs sf a motion shall be always in the discretion of the Court; and that if in disposing of any motion, the Court says nothing as to co ds, each party is to pay his own costs, and no subsequent application is to be made for them. Here the Court of Appeal had taken the place of the Supreme Court, and, inasmuch therefore as nothing had been said in the former Court as to the costs reserved by the latter, each party would have to bear his own costs. Mr Barton, in support of the rule, contended that, although all the other questions in the case had gone to the Court of Appeal, this question as to the costs of the rule nid to modify the injunction was not referred to that Court, having been specially reserved by the Court below for its own consideration; this Court, therefore, had power to make an order as to the costs reserved. Per Chapman, J.: The whole question was intended to be referred, and was referred to the Court of Appeal-—or, more properly, to all the judges sitting as a quad Supreme Court; as they had given no directions as to the costs of the rule nisi to modify, which had been reserved, each party would have to pay his own costs. The rule, therefore, would be discharged, but, as the point was an entirely new one under the Sractice of the Court of Appeal, without costs, lule discharged, but without costs.