Where the defendant submits to the whole demand of the plaintiff, and to pay costs, he may at once stop all further proceedings (r); and, if the question of liability to costs be the only one remaining in dispute, the proper course, it appears, is, to apply to the Court by petition (s): and where a plaintiff omitted so to do, but brought the cause to a hearing, the Court refused him any cost-subsequent to the time at which his original demand had been submitted to (t). It has, however, been unwillingly held by V. C. K. Bruce, that this course cannot, without the defendant's consent, be adopted before answer; inasmuch as he has a right to put in his answer, and read it on the question of costs at the hearing (u): and in a Later case (w) his Honour refused a similar application by a plaintiff after answer; but merely on the ground of the novelty of the proeeeding In a late ease (r), it was laid down by Sir J. Wigram, V. C, as a general rule, that where a defendant so disclaims as to show that he had no interest in the property when the bill was filed, he is entitled to his costs (y): but where he is properly brought before the Court in respect of an interest at the time the bill was filed, and then says, "I now abandon my interest," it is a question of discretion with the Court either to order the plaintiff to pay the defendant's costs or not; with reference to the circum-stances which may have rendered the suit necessary or proper (z).

Costs, when defendant submits to plaintiffs demand.

(l) Long v. Collier, 4 Russ. 269.

(m) Fewster v. Turner, 6 Jur. 144, V. C. W.; White v. Cuddon, 8 Cl. & Fin. 766.

(n) See 7 Ha. 444.

(o) Wright v. Howard, 1 Sim. & St. see 205; Bower v. Cooper, 2 Ha. 408; see Thomas v. Phillips, 11 Jur. 80, V. C. K. B.

(p) Wedgwood v. Adams, 8 Beav. 103.

(q) Hyde v. Dallaway, 4 Beav. 606.

(r) Darner v. Earl of Portarling-ton, 2 Ph. 30; Swell v. Abraham, 8 Beav. 598, and cases there cited; Sawyer v. Mills, 1 Mac. & G. 390.

(s) Sivell v. Abraham, ubi supra; Winter v. Vizitelli, 36 Leg. Ob. 53, V. C. E.; Price v. Corporation of Penzance, 4 Ha. 506.

As a general rule, a purchaser is less favoured on the question of costs when he has taken possession of the estate before the title is made out: but this does not apply to eases where, according to the contract, possession is to be taken before a title is shown; or where it is taken at the instance of the vendor (a). A purchaser who, for many years, retained possession without payment, and refused either to vacate the contract or accept the title, was fixed with the costs of a suit by the vendor, although the title was ascertained to be defective (b).

When defendant disclaiming is entitled to costs

Possession -how far important.

(t) Swell v. Abraham, 8 Bear. 598; and see Sentance v. Porter, 13 Jur. 980, V. C. W.; and Woodward v. Miller, 16 L. J., N. S., V. C. K. B. 16.

(u) Langham v. Great Northern Railway Company, 1 De G. & S. 505.

(w) M'Naughten v. Hasker, 12 Jur.956

(x) Gabriel v. Sturgis, 5 Ha. 101. (y) See Glover v. Rogers, 11 Jur.1000, R

(z) See Ohrly v. Jenkins, 11 Jur.1001, V. C. K. B

(a) See Vancouver v. Bliss, 11 Ves. 458; see 464.

Where the Court has actually dismissed a puchaser's bill with costs, it will not, on a subsequent application, allow him to set off against them the deposit paid to the vendor, but will leave him to his legal right (c): but the Court, as we have seen, has refused to give costs unless the vendor would return the deposit (d).

Where a defendant a purchaser asked for a case to be sent to a Court of Law, which was granted, and the opinion of the Judges was against him, but ultimately the bill was dismissed with costs upon another ground, he was allowed his costs at Law as well as in Equity (e): but, in other cases, the costs of, what may be termed, collateral litigation, have either been refused, or have been thrown upon the party failing therein, although held entitled to the general costs of the suit (f). It would appear that, as a general rule, such costs are not included in a mere order for payment of the costs of the suit (g).

And it is laid down by Sir E. Sugden, as a general rule, "that either party resorting to Law, where the Equity is against him, will be fixed with the costs of the action" (h); but the prima facie right of the other party to such costs may be lost by his neglecting to resort to Equity so soon as the action is commenced at Law (i).

Deposit, not set off against costs.

Costs of case sent to Law.

Costs of action at Law.

(b) King v. King, 1 Myl. & K. 442.

(c) Williams v. Edwards, 2 Sim. 84.

(d) Gee v. Pearse, 2 De G. & S. 346.

(e) Forbes v. Peacock, 12 Sim. 528; the Vice-Chancellor's decision on the general merits was reversed by Lord Lyndhurst, 1 Ph. 717.

(f) See Tounsend v. Champerdowne, 3 Y. & Col. see 528; Smith v. Leigh, V. C. 1821, cited Sug. 824.

(g) Salkeld v. Johnston, 1 Mac. & G. 533.

(h) Sug. 829; Staines v. Morris, 1 Ves. & B. 16.

(i) Grover v. Hugell, 3 Russ. see 433.

Lastly, we may remark, that where either party has received costs under an order or decree which is subsequently reversed on appeal, he will not, in repaying such costs, be compelled to pay interest upon them (k).

No interest payable on costs refunded.

(k) Small v. Attwood, 3 Y. & C. 131; and see 2 Ph. 469.