drawn-up as an order of the 30th April 1867, and the defendants being thus entitled to the costs, it not being possible to tax costs in an abated suit, the only course left them was to get the suit revived, if possible: otherwise they were without remedy.

Osborne, Q. C., and Martineau appeared in support
of the motion. Unless this motion succeeds the
defendants, who have got a decree of the court,
which operates as a judgment, are entirely without
the means of taking advantage of it. In Kemp v.
Mackrell, 3 Atk. 812, Lord Hardwicke characterised
the rule that there could not be revivor for costs
only, as a very hard rule. The 1 & 2 Vict. c. 110
has been since passed, and that alters the condition
of defendants in an abated suit. The circumstances,
here, moreover, are very peculiar, and in fact the
decree was made as of the 30th April, and therefore
when the costs were to be taxed, the plaintiff was
alive, and the rule as to taxing costs only applies in
the case of the order being pronounced in an abated
suit. The court lays hold of slight circumstances
where the decision is favourable to the plaintiffs,
and the suit might have been revived at any time
before the Lord Chancellor's judgment was pro-
nounced. But if the heir revives, he renders him-
self personally liable, ab initio, and the decree was,
in fact, personally against him. If the executor
revives, it is the same thing, although he may get
the costs out of the estate; and that was the reason
why the suit was not revived. There is no doubt
that the order can be enforced as a judgment if the
amount is ascertained, which may be done at
once. Otherwise the heir and administratrix may
swallow up the whole estate, and the Lord Chan-
cellor's order be entirely nugatory. There is a
subsisting suit, and by an order in chambers the
amount of the costs can be ascertained.
Johnson v. Peck, 2 Ves. sen. 464;
Morgan v. Scudamore, 2 Ves. jun. 313;
1 & 2 Vict. c. 110 s. 18;

Umpleby v. Wavering Valley Railway Company, 1
J. & H. 254.

Glasse, Q. C. and Jason Smith for the administratrix, argued that the rule was imperative, that there could be no revivor for costs only, and there could be no taxation in an abated suit.

J. H. Palmer, Q. C. and Ince, for the plaintiffs in the administration suit, took the same line of argument, and insisted that, if a judgment-creditor can come in in priority to the plaintiffs, who are creditors by simple contract, the whole assets may at once be swallowed up for costs. 1 & 2 Vict. c. 110, s. 30, enacts that the memorandum must contain the date of the decree, and the amount of the debt, damages, and costs. Here that is impossible, because the amount is not known until the costs are taxed, which cannot be done in an abated suit; and it is settled that the suit cannot be revived merely for the purpose of costs:

Jupp v. Geering, 5 Mad. 575;

Ellison v. Sharpe, L. Rep. 2 Ch. App. 358; 15 L. T.
Rep. N. S. 651;

Robertson v. Southgate, 7 Hare. 109;

Tupper v. Wilkins, 7 Sim. 349-51; 27 & 28 Vict. c. 112, s. 2, (1864);

White v. Hayward, 2 Ves. sen. 461.

Osborne, Q. C. in reply:

[V.C. M.

I by the Act (1 & 2 Vict. c. 110), for payment of the costs and the parties obtaining it are entitled to treat it as such. Neither of the leading counsel for the opposite side, nor their juniors, denied that it must be so treated, and as giving all the rights of judgment-creditors to those holding it, against the estate of the late Mr. Troup. But, unfortunately, it is a judgment for the costs to be taxed by the taxing master, and unless the amount due upon it can be ascertained, the judgment can never be worked out. It may be for 201. or 20,000l. for costs to be taxed by the taxing master, but until he does so tax them, the judgment is not available, and no execution can be taken out. At first, it occurred to me that if this order could be brought into my chambers in the suit of Troup v. Troup, I could have directed my chief clerk to admit it as a debt; but, until taxation had taken place, it was admitted on all hands that it was impossible to revive the suit for the mere purpose of costs, and it was also admitted that there was no other object now left in the suit, because, inasmuch as the bill was dismissed with costs, there was no other question left. Now it is certainly, in my opinion, a reproach to the administration of justice in this country that the law should be as it now is in this respect, that, however clear the right of a party, whether plaintiff or defendant, may be to recover the costs on a decree of this court, if the person either having to pay or to receive them dies before the amount is ascertained by taxation, the obligation to pay and the right to receive is equally gone. It is remarkable that so long ago as 1754, 114 years ago, this very thing was the subject of observation by one of the greatest Lord Chancellors that ever lived, Lord Hardwicke, that is, that as a general rule there can be no revivor for costs; if the costs are taxed there may be, if they are not, there can be none. Thus, he says, "I always held this to be a hard rule, and a nice distinction; the right to costs is the same before taxation 'as after, only the quantum has not been ascertained." Now, this is repeated in all the other cases on the subject which have been mentioned this morning. In White v. Hayward, 2 Ves. sen. 462, it is said, "This is a thing which does not often happen, and it deserves consideration. No doubt; but as to costs the distinction is that, whether given to plaintiff or defendant, by the death of the and unliquidated, they fall to the ground, because party before they are taxed, so that they are uncertain dies with the person. But if taxed they become a it is a personal demand in the nature of a tort, and certain duty decreed, and though the party to whom they are given dies, they go to the representative, who is entitled to some remedy or process of revivor for those costs. This has been determined by Sir Joseph Jekyll and by me, in Bass v. Prideaux, where the bill was for costs only." That which was the subject of regret to him has been the subject of regret to the mind of every judge since, and not less so to mine; and during all this period it has not only been regretted, but it has been a foul reproach to the court that such should be the rule. It seems that the same was the rule in bankruptcy until 1849. The practice was then remedied, but it still remains in full force in this court. In Jupp v. Geering, 5 Mad. 575, Sir John Leach held that the right to revive was lost, as to

Andrews v. Lockwood, 15 Sim. 152; on appeal, costs, by the death of either party before taxation.

28 Phill, 398.

The VICE-CHANCELLOR.-If I had any doubt on this question, the authorities cited being so numerous, I should have felt it my duty to reserve my judgment for a more complete opportunity of considering them; but as I do not, I shall dispose of the question. Now the order of the Lord Chancellor is, no doubt, a judgment, or equivalent to a judgment,

By that case the rule on the abstract question is put beyond the possibility of doubt. Lord Cottenham, also, in Andrews v. Lockwood, 11 Jur. 967; 2 Phill. 398, treated it as clear that there could be no revivor merely for costs. I was at first, as I have said, as desirous as any judge could be who has ever addressed himself to this subject to get out of this rule if he could, to discover some mode by which the amount might be treated as a judgment under

IN PARLIAMENT.] South-Eastern, AND LONDON, BRIGHTON, &C., RAIL. Co.'s BILL. [IN PARLIAMENT.

the 1 & 2 Vict. c. 110, and being brought into chambers, and being ascertained, to direct the taxing master to correct and modify the bill; but when I look at the form of the decree, I am satisfied there can be no judgment but for the amount of costs, and I am obliged to come to the conclusion that the costs can only be taxed in the cause in which they were given for taxation; and when the costs are ascertained, the taxation can be made and proceed in the cause in which the order was made, and there is no rule enabling the taxation except in the cause in which the right is given by the decree or order. It is perfectly clear that the right to the costs cannot be ascertained in the cause of Troup v. Troup, because no further proceedings of any description can take place unless the suit is revived, and revived merely for costs it cannot be. I am, therefore, very reluctantly obliged to come to this conclusion, although beyond all possibility of doubt if the Lord Chancellor's order had been made while Mr. Troup was alive, it would have operated as a judgment against him, and, being dead, must be treated as a judgment against his estate, but for an unascertained amount except by taxation, and a taxation can only be in the cause in which the decree was made. But no proceeding can be taken because the suit has abated; and if I were to allow it as a judgment, and direct the taxing master in the cause of Troup v. Troup to ascertain the amount, it would be going beyond my power, and the order would be discharged on appeal. Deeply regretting, therefore, as I do, the necessity of acting upon a rule so absurd, it is a rule of the court far beyond my reach, and it is a thing that can only be set right by the Legislature, and I hope it will soon receive such consideration. I am obliged here to come to the conclusion that the right to these costs is lost, and the application must be refused, but, under the circumstances, without costs.

Solicitors: Spyer and Son; Weale; Walker, Grant,

and Martineau.

En Parliament.

Reported by FREDERICK CLIFFORD, and PEMBROKE S. STEPHENS,
Esqrs, Barristers-at-Law.

abandonment of lines and alteration of tolls were deaut with by two other Bills not before the court.

The Bill was one (18 L. T. Rep. N. S. 129–32) "for establishing a working union of the SouthEastern and London, Brighton, and South Coast Railway Companies, for confirming an agreement of the companies in that behalf, for authorising the admission of the London, Chatham, and Dover Railway Company into the union, and for other purposes." The preamble stated that "it is expedient that a working union be established" between the South-Eastern and the Brighton Companies, so as to secure the working, management, and maintenance of the undertakings of the two companies as one, and that the two companies have entered into an agreement for the union or amalgamation set forth in the schedule to the Bill, and that it is expedient that the admission of the London, Chatham, and Dover Railway Company into such union be authorised. And also that the chairman of the board of directors of the South-Eastern and Brighton Companies had entered with the chairman of the board of the Chatham Company into a preliminary agreement with respect to the terms of such admission, which was set forth in the second schedule to the Bill.

And the Bill then, amongst other things, provided that the agreement between the South-Eastern Company and Brighton Company shall be thereby confirmed, and have full effect as therein mentioned. And the said agreement respecting the terms of admission of the Chatham Company into the working union of the two companies shall, if and when the same is adopted as therein mentioned, have by virtue of the Act full effect; and provision was also made by the Bill for the admission of the Chatham Company into the amalgamation and working union, and for the appointment of members by or on behalf of the said company upon the joint

committee therein mentioned.

The agreement between the Brighton Company and the South-Eastern Company provided for an immediate amalgamation between those companies on the basis of each company keeping its own capital separate, and being solely responsible for its own existing liabilities, the whole system being

THE COURT OF REFEREES ON PRIVATE worked as one and under one management, and the

BILLS.
Friday, March 20.

total net profits, after paying working expenses, being divided in the proportions therein mentioned; and, amongst other things, that all unfinished lines

(Before Mr. DODSON, Chairman; Mr. RICKARDS, and which under the amalgamation become useless and

Col. STUART, Referees.)

SOUTH-EASTERN, AND LONDON, BRIGHTON, AND
SOUTH COAST RAILWAY COMPANIES BILL.
Objections to the locus standi of:-1. CORPORATION
OF BRIGHTON; 2. INHABITANTS OF BRIGHTON
AND HOVE; 3. CORPORATION OF HASTINGS.
Bill for working union of railway companies—Respective
rights of corporation and inhabitants to oppose—
S. O. 134.

A Bill for establishing a working union of two railway
companies, and for authorising the admission of a
third company into that union was opposed by the cor-
porations of certain towns served by these lines on the
ground of public injury to such towns by reason of the
virtual monopoly of traffic which would be thus created,
and also because of the proposed abandonment of
certain lines authorised but not completed, and the
probable introduction of higher fares and rates within
the district. In one case the inhabitants had petitioned
apart from the corporation:

Held, that the corporation in that case had no locus standi, but, as to the remaining petitioners, that they must be heard against the Bill, though the proposed

injurious are to be abandoned, each company taking on its own separate account the expenses and liabi lities of such lines.

By the agreement between the chairman of the South-Eastern Company, the Brighton Company, and the Chatham Company, they agreed to recommend their respective boards to apply to Parliament for powers to unite the management as one system, and to fuse the receipts of the Chatham Company with those of the united Brighton and South-Eastern Companies, provision being made for ascertaining the proportion of the Chatham Company. The agreement further expressed that the proportion in which the net income of the two lines should be

divided was 55 per cent. to the South-Eastern and
45 per cent. to the Brighton Company; this basis
of division to be subject to the alteration that may
be produced by the augmented traffic, and subject
also as therein mentioned; "the whole system
being worked as one for the best advantage."
Bill was promoted by the Brighton Company,
In furtherance of the amalgamation agreement, a
authorising them to abandon certain lines and for
other purposes, and a like Bill was promoted by
the South-Eastern Company for the abandonment of
the railways authorised by the South-Eastern, and

THE BAR REPORTS.

181

IN PARLIAMENT.] SOUTH-EASTERN, AND LONDON, BRIGHTON, &C., RAIL. Co.'s BILL. [IN PARLIAMENT.
provisions and objects of the Bill as will confer a
locus standi.

London, Chatham, and Dover (London, Lewes, and
Brighton) Railways Act 1866.
urged that the effect of the amalgamation provided
The petitioners
for by the Bill, now before the referees, would be to
give to the united companies the entire control and
monopoly of the traffic in the district served by the
respective systems, and especially in the towns
represented by the petitioners. They urged that
watering-places like Brighton and Hastings, being
places of great resort for persons who required to
travel frequently to and from London, were espe-
cially dependent upon the facilities given by railway
communication; and upon grounds of public con-
venience and of injury to traffic they prayed that
their locus standi might be allowed.

The locus standi of the corporation of Brighton was objected to on these grounds :

This is essentially an amalgamation Bill, although Davison, Q. C. (for Corporation of Brighton).— it is not framed as amalgamation Bills some years ago used to be framed. The earnings of the SouthEastern and the Brighton lines are to be thrown into a common purse and shared in certain specified proportions, the South-Eastern taking 55 and the Brighton Company 45 per cent. All future traffic is to be the traffic of both companies; and therefore under the Bill, if passed, both have an equal interest in saying that the towns and stations upon their respective systems shall have no more accommodation than is for the advantage of the common fund. The traffic, in short, will be dealt with only in reference to the common fund. Ther, in the sche

1. That the Bill does not contain provisions for taking or using any part of the lands of the peti-dule to the Bill all unfinished lines which, under tioners nor any provisions affecting the petitioners as a municipal corporation or as the local board of health; that there are no provisions in the Bill which can prejudicially affect the inhabitants of Brighton, and that the petition is drawn under a total misapprehension of the scope and objects of the Bill.

2. That the petitioners do not allege in their petition any such injury to the borough of Brighton or the inhabitants thereof as will confer a right to be heard against the Bill.

3. That some of the inhabitants of Brighton have also presented a petition against the said Bill, praying to be heard against the same, and it would be inconsistent with Standing Order 134 and with the practice of the House to allow two parties to be heard in the same interest, one claiming to be affected as inhabitants, and the other claiming to represent those inhabitants.

4. That the petitioners are not entitled to represent the inhabitants of Brighton, either as the municipal corporation or as the local board of health, for the purpose of opposing the said Bill or any of its provisions.

5. The petitioners have no such interest in the provisions and objects of the Bill as will confer a locus standi.

The objections to the petition of the inhabitants of Brighton and Hove were:

1. That the Bill does not contain provisions for taking or using any part of the lands or property of the petitioners or otherwise interfering with any of the rights and interests of the petitioners.

2. That the petitioners are not, nor do they allege themselves to be, the authority having the local management of any town.

3. The petitioners are not entitled to be heard against the Bill upon their petition as inhabitants of Brighton and Hove, inasmuch as it is not alleged in the petition that any public meeting of the inhabitants of such places has been held, nor does the petition, in fact, originate from any such public meeting.

4. That the corporation of the borough of Brighton have presented a petition to the same purport and effect as the petition of the petitioners, and therein claim to be the municipal authority of the borough, and to represent the inhabitants thereof, and if the inhabitants have a right to be heard, which the promoters do not admit, a locus standi under Standing Order 134 ought not to be given to two parties on separate petitions having identically the same interest, and one of such parties claiming to represent the other.

5. That the points raised by the petitioners do not apply to this Bill, but to another Bill before your honourable House, intituled, "London, Brighton, and South Coast Railway Bill."

6. The petitioners have no such interest in the

the amalgamation, become useless or injurious are this schedule is the new line sanctioned to Brighton, to be abandoned. Conspicuous for its absence from though not yet begun. But another Bill referred to this (the London, Lewes, and Brighton) line; and a the same group, authorises the abandonment of their present fares. It is objected that where there third Bill empowers the Brighton Company to raise is a petition from the inhabitants and another from the corporation, both cannot be heard before this court. Until the constitution of the Referees Court, municipal authorities were heard by Parliamentary committees almost without question; and the principle to be gathered from the decided cases in this court is, that the referees will hear municipal corporations where they allege that the trade of the town, which it is their business to look after, is affected by any measure. Where in the petition they do not make this allegation, there are cases in There is the case of the Caledonian and Scottish which you do not hear them. [Rodwell, Q. C.— North-Eastern, 14 L. T. Rep. N. S. 459] That is my case. [Mr. RICKARDS.-That is the case of the upon the authorities, which distinguish the case Royal Burghs; but there certain duties are thrown from that of an English corporation.] Then there is [Mr. RICKARDS.-I think the corporation of Chester the case of the Corporation of Chester, Smeth. 172. have some special duties as owners of wharves and quays, so it was not as guardians of the town generally that they appeared]. In the case of the Great Western Railway (further powers) Bill 1866 Smeth. 175, a locus standi was allowed to the corporation of Cardiff. [Rodwell.-That was on the ground that they were injuriously affected by works, and no works are contemplated in this Bill.] The cases of Huddersfield Water (Smeth. 177), Sheffield Waterworks (p. 179), and Dundee Water (p. 181), are also in my favour. If the proposed working union takes place, there will be an end to the competition for traffic which now exists, and the fear of this competition, which alone keeps railway companies on their best behaviour, will be removed. If the Bill passes, the Brighton line will relapse into security and high prices; they will give the minimum of accommodation for the maximum of charge; and the interests of the town will be seriously affected. Is not that a point upon which the corporation, as representing the town, should be heard before the committee?

Saturday, March 21.

Adjourned.

(Before Mr. DODSON, Mr. RICKARDS, and
Mr. BONHAM CARTER.)

posed amalgamation will be detrimental to the public
Round (for Corporation of Hastings).-The pro-
convenience and interest, and will be the creation of
a practical monopoly. There are three stages

plaintiff's man in possession. On the 17th May otices announcing a sale by auction of the goods were posted up outside the house, and in places about the eighbourhood, and the catalogue stated that the sale would take place under a bill of sale on the 24th May. Y, the debtor, who was an infirm old man, was allowed, though against the wish of the plaintiff's man in possession, to remain on in the house, on the plea that he could not get lodgings elsewhere. Between the 17th and the 24th May the defendant's execution was put in, the bailiff procuring admission by knocking at the door, and when it was opened forcing his way in. On these facts the verdict, at the trial of an interpleader issue to determine the right to the goods, was entered for the defendant (the execution-creditor), with leave to the plaintiff to move to set it aside and to enter it for himself, the court to draw all inferences of fact:

|

[Ex.

placing a man in possession of them on the premises of Young, the debtor; the doors being locked, and the keys being kept by the man in possession, and the business, that of a baker, being stopped. Notices, announcing the sale of the goods by public auction, on the 24th May, under the bill of sale, were printed on the 17th May, and posted outside the house and shop, and in various places in the neighbourhood. The debtor Young, who was an old and infirm man, was permitted, though against the wish of the man in possession on behalf of the plaintiff, to remain on and to live and sleep in the house, on the plea that he could not find accommodation elsewhere. On the 21st May, the defendant's execution was put in, the sheriff's officer obtaining admission upon the premises by knocking at the door, and when it was opened forcing his way in.

At the trial of the interpleader issue before Lush, dict was, upon this state of facts, entered for the defendant, and leave was reserved by the learned judge to the plaintiff to move to enter it for himself, the court to be at liberty to draw all inferences of fact.

Hell (adopting the view taken in the judgment of Bram-J., at the last Summer Assizes at Warwick, the verrell, B. in Gough v. Everard, 8 L. T. Rep. N. S. 863; 32 L. J. 210, Ex. ; 2 H. & C. 1), that the necessary inference from the facts was, that more was done here than the taking of merely formal possession, and that actual and real possession and control were in fact taken and kept by the plaintiff, and that public notice of this was given by the catalogues announcing the sale, and therefore the rule to enter the verdict for the plaintiff must be made absolute.

This was an interpleader issue which was directed to be tried in order to determine the right to Ortain goods and chattels which had been seized by the sheriff of Warwickshire under a writ of fi. fa., issued on the 20th May 1867, to levy the sum of 64. 38. 2d., the amount of debt and costs recovered in an action of Wall v. Young. The present plaintiff Smith was the claimant under a bill of sale alleged to have been given to him by Young, the executiondebtor and the defendant in the above-mentioned action, and the present defendant Wall was the execution-creditor, and the plaintiff in the same

action.

Wills, accordingly, in Michaelmas Term last, moved for and obtained a rule nisi on the part of the plaintiff to set aside the defendant's verdict and to enter it for the plaintiff, on the grounds that the possession taken under the bill of sale was actual and substantial, and more than mere "formal' possession, and that, on the facts of the case, the bill of sale did not require registration.

The following are the sections of the Bills of Sale
Act (17 & 18 Vict. c. 36), which bear upon the case,
and which were referred to in the argument:
Sect 1:

Every bill of sale of personal chattels made after the passing of the Act, shall be registered in manner therein prescribed, within twenty-one days after the making or giving thereof; otherwise such bill of sale shall as against (inter alios) sheriffs' officers and other persons seizing any property or effects comprised in such bill of sale, in the execution of any process, of any court of law or equity, authorising the seizure of the goods of the person by whom, or of whose goods such bill of sale shall have been made, and against every person on whose behalf such process shall have been issued, be null and void to all intents and purposes whatsoever, so far as regards the property in, or right to the possession of, any personal chattels comprised in such bill of sale, which at or after the time of (inter alia) executing such process, and after the expiration of the said period of twenty-one days, shall be in the possession or apparent possession, of the person

The facts of the case which materially bear upon the issue are as follows:-Young, the executiondebtor, was a baker, and was indebted to Wall, the execution-creditor, in the sum of 261. 10s., balance account for goods sold, and for which Wall brought an action and recovered the judgment, on which the above-mentioned writ of fi. fa. was issued making such bill of sale, or of any person against whom the

the 20th May 1867. Pending the said action and prior to the judgment therein, the executiondebtor, Young, on the 29th April 1867, executed the bul of sale in question under which the present plaintiff Smith claims, and thereby in consideration of 1551. therein expressed to be then lent and paid to the said Young by the plaintiff Smith, Young assigned unto the plaintiff, his executors, call and every his household goods and furniare, household linen, books, china, stock-in-trade ncluding baker's cart and horse), and all other ds, chattels, and effects then being, or which should thereafter, during the continuance of the present security, be in upon or about the messuage dwelling-house occupied by the said Young at Dunnington, or elsewhere belonging to him; and all and every the book and other debts due, and owing to him and all the estate, &c., with power to the said Smith in default of payment by the said Young of the said sum of 155., and interest as therein mentioned, to enter upon and take into his and their own custody and possession on the said premises, or wheresoever the said goods, chattels, and effects might be, and to sell and dispose of the same as therein-mentioned, for the purpose of realising the said principal and interest moneys in manner therein-mentioned.

On the 15th May the plaintiff Smith took possesNon of the goods comprised in his bill of sale, by

process shall have issued, under or in the execution of which such bill of sale shall have been made or given as the case may be.

Sect. 7 (interpretation clause):

Personal chattels shall be deemed to be in the "apparent

possession" of the person making or giving the bill of sale so long as they shall remain in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied place whatsoever, notwithstanding that formal possession by him, or as they shall be used and enjoyed by him in any thereof may have been taken by or given to any other person.

Nov. 22.-Hayes, Serjt. and Fitzjames Stephen, for the defendant the execution-creditor, now showed cause against the above rule. The question turned on the meaning of the words "apparent possession" in the Act of Parliament. If, on the facts, the goods in question were in the "appareut possession" of the vendor, so as to render registration of the bill of sale necessary, then the registration of that document was, as was proved at the trial, informal, and the bill of sale could not prevail against the execution-creditor. The goods remained on the premises occupied by the execution-debtor, and were actually used by him after the expiration of twenty-one days from the date of the bill of sale. The debtor and his wife remained on as before, and carried on their business, and the horse and cart

were used in the business. Therefore the goods were in his "apparent possession" within the mean ing of the Bills of Sale Act (17 & 18 Vict. c. 36),