1841. MOWLDS v POWER. their own views when the matter comes before them that the plaintiff here was at liberty to sue, although assumption which we are not justified in making; for decides this and, lays down that these words, "if the court shall so order," are only affirmative of the provisional assignee's right to sue by virtue of the assignment under the insolvency. The defendant certainly has a right to guard himself against the danger of being sued twice over. The provisional assignee is the proper person to sue, and the insolvent having once made an assignment does not, by settling with his detaining creditor, remit himself to his right of bringing actions. On these grounds this demurrer must be allowed. Application for leave to amend was made, 1841. MOWLDS v. POWER. ELLEN JOHNSTONE, Administratrix of JAMES R. KEATINGE Moved that the plaintiff should be exempted from the payment of costs in this case, under the 3 and 4 Vic. c. 105, s. 56. (a). It was an action of ecutors or administrators who have failed in actions brought by them, within the same period as new trial motions. 1841. Nov. 15, 18. Applications under the 3 & 4 Vict. c. 105, s. 56, for the allowance of costs to exshould be made The 3 & 4 Vict. c. 105, s. 56, is retrospective, and refers to actions commenced before the statute passed, and tried after. The practice is, for the officer to tax the defendant his costs in the first instance; and for the plaintiff to apply to the court if he has a case of exemption to make. (a) In every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the court in which such action is brought, or a judge of any of the said superior courts, shall otherwise order, be liable to pay costs to the defendant in case of being nonsuited, or a verdict passing against the plaintiff, and in all other cases in which he would be liable, if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be recovered in like manner. 1841. JOHNSTONE v. debt by the plaintiff as administratrix. The declaration was filed in Trinity Term 1840 (June 4), and contained COTTINGHAM. two special counts, on a bond dated September 18, 1833, for £420; with the money counts. The defendant demurred specially to the first count, and pleaded four special pleas to the second, on all which issue was joined. The case was tried before Crampton, J. at the sittings after Michaelmas Term, 1840, when a verdict was given for the defendant. The taxing officer allowed and certified the costs to the defendant. The first question arises on the 3rd and 4th Vic. c. 105, s. 56, which corresponds with the English enactment of 3 and 4 Wm. IV. c. 42, s. 31; viz.: whether that section is retrospective or not. Freeman v. Moyes (a), and Grant v. Kemp (b), would appear at first sight to decide that the English enactment was retrospective; but no reason was given for the judgment of the court in either of those cases, and in Freeman v. Moyes, Littledale, J. dissented from the rest of the court. On the other hand, Paddon v. Bartlett (c) (where the question arose on the statute of limitations,) is, in principle, a direct authority the other way, and gives a satisfactory account of the reasons of the court. In the language of the first section itself, there is nothing to shew that any actions except those "to be brought" were contemplated: and the last section of the act, fixing its commencement upon November 1, 1840, corroborates our view. But even supposing this point to be against the plaintiff, this is not a case where the court will be inclined to apply the statute (d). The defendant has (a) 1 A. & E. 338; 3 N. & M. 883. (b) 2 Cr. & M. 636. (d) See the facts and circumstances of the case, as they appeared below, reported in 1 Armstrong and Macartney, 11. 1841. V. withheld information which he might have afforded; and the principle to be extracted from all the authorities is, JOHNSTONE that when a defendant has not done all that in fairness CoTTINGHAM. he was bound to do, the court will not allow the administrator to be charged with costs. The principle in Southgate v. Crowley (a), (if that case be cited for the defendant,) is directly in our favour; for there a treaty had been long pending between the parties. R. Holmes, and Tomb, contra. The question on the Act is settled by Freeman v. Moyes (b); Grant v. Kemp (c); and Pickup v. Wharton (d); cases decided after conference with the other judges. And in Paddon v. Bartlett, cited for the plaintiff, Lord Abinger, C. B., observed, with respect to the very clause corresponding to with that now in question, that "the peculiar words of that statute made it apply" to actions already commenced (e). No distinction such as that in Pickup v. Wharton (viz. that no step was taken after the passing of the act,) can be made here; for both the replication and the trial were after the passing of the act. The reason of Mr. Justice Littledale's dissent in Freeman v. Moyes is not satisfactory. In the next place, the plaintiff's conduct is not such as to exempt her from the general rule. The case as to the bond was so clear that the defendant's counsel declined to address the jury upon it; and as to the transaction relating to the arrears of the annuities, it was quite evident from all the circumstances that the plaintiff was fully apprised of its being a sale and not a loan (ƒ). Lastly, the plaintiff (a) 1 Bing. N. C. 518. (b) 3 Nev. & M. 883; 1 A. & E. 338. (f) 1 Armst. & Mac. 11. D 1841. is late in coming forward, two terms having elapsed since JOHNSTONE the decision of the taxing officer. v. COTTINGHAM. Radcliff in reply.—If " brought" is retrospective, the meaning "to be brought" must be excluded. The doctrine, that the courts here are to be conclusively bound by English cases upon recent enactments, was strongly combated by Joy, C. B. in Roache v. Johnston (a). In Luckin v. Simpson (b), the words of the statute (2 & 3 Vic. c. 29) were just as strong as those in the present case; and yet in that case the judgment of the court was not founded on the words of that Act, but on those of the 6 Geo. IV. c. 16, s. 82, to which it referred. The judgment of Denman, C. J., in Hitchcock v. Way (c), illustrates our view of the case. As to the merits, the case involved complicated questions of fact and law, upon which it was impossible for a woman to form an opinion; and as to the time at which the application is made, no period is limited by the Act, but plaintiffs are left to their discretion. The plaintiff in fact did take the earliest opportunity of bringing forward the question, by contesting the point before the taxing officer. Pennefather, C. J.-The court are of opinion that Mrs. Johnstone, as administratrix of her husband, has not made out a case to exempt her from the costs of the action in which she has failed. In the first place, we think there has been great delay in taking no step to raise this question until more than ten months had elapsed since the trial. It so happens, that the trial was had before (a) 1 Law Rec. N. S. 100. (b) 6 Bing. N. C. 353. (c) 6 A. & E. 943. |