that there ought to be judgment quod partes interplacitent, however numerous they may be," and again, "not only is the King entitled to judgment whenever a title for him appears upon a record between other parties, but the Attorney-General may elicit a title for the King by interposing to take an issue" (see, as to this, Willion v. Berkley (1562), Plowd. 223, 243), and again (p. 126), "the King shall have execution where his title appears of record in pleadings between two subjects, although he be not party to the suit. If a presumption of title only appears for the Crown, the Court will in some places proceed to give judgment in the action, but will suspend execution until the party has interpleaded with the King." See the ancient authorities cited by him.

Mention may be made here of a case in pari materia, In re Manor of Lowestoft and Great Eastern Railway Co. (1883), 24 Ch. D. 253; 52 L. J. Ch. 912. An adverse claim having been made by the Crown and an information filed with respect to land acquired by a railway company, the company paid the purchase money into Court. The vendor petitioned for payment out, but the Court ordered the petition to stand over till the information had been heard, on the ground that "it is well known that you cannot by any process under the Lands Clauses Consolidation Act bring the Crown into Court as a litigant to contest any claim before the Court."

CHAPTER XIII.

COSTS.

General Observations.

Crown Costs at Common Law.

AT common law (the practice in equity is discussed below, p. 621) the King and any person suing to his use (a phrase which does not include relators) neither pays nor receives costs; "for besides that he is not included under the general words of these statutes [i.e., statutes as to costs], as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them" (3 Bla. Comm. 400). Blackstone adds that it seems reasonable to suppose that the Queen Consort participates in the same privilege. (See above, p. 7.) In L. A. v. Hamilton (1852), 1 Macq. 46, 55, Lord Brougham observed: "I am exceedingly sorry that, according to an inflexible rule, we cannot give costs as against the Crown." And in L. A. v. Lord Dunglas (1842), 9 Cl. & F. 173, 212, Lord Cottenham said: "The Attorney-General in this country, and the Lord Advocate in Scotland, equally represent the Crown, and are not liable for costs.' In Smith v. Earl of Stair (1849), 2 H. L. C. 807, 809, Lord Brougham remarked: "The Crown would not have to pay the costs here; if so, then it cannot get them; the right to costs must be mutual." The principle has been always recognised, and an interesting discussion of it will be found in The Leda (1863), Br. & L. 19; 32 L. J. P. 58. See also Lord Mansfield, C.J., in R. v. Wilkes (1770), 4 Burr. 2527, 2568. It was held to apply even where the Crown instituted a suit substantially for the benefit of another, if such other person was not a relator. (R. v. Corum (1782), 1 Anst. 50.)

The principle applies to Government Departments and the heads of such Departments, in so far as they sue or are sued by virtue of any statutory provision which does not specifically provide for payment or receipt of costs by them.

The question of costs in each of such cases will be found in the article on each Department in Book I. of this work. It was suggested by the Court in R. v. Archbishop of Canterbury, [1902] 2 K. B. 503, 572; 71 L. J. K. B. 932, that, "as incidental to departmental

administration, there must often be litigation which does not directly affect any prerogative of the Crown, and as to which no good reason can be assigned for the denial of costs to the successful party." But quare, whether this can be so apart from express statutory provision, where the Department, or the head thereof, is a party as such. (See further Thomas v. Pritchard, [1903] 1 K. B. 209; 72 L. J. K. B. 23, where the above passage is cited.)

The Judicature Acts and Rules do not enable the Court or a judge to order costs to be paid by persons who before the Acts came into operation could not have been ordered to pay them. (In re Wood's Estate (1886), 31 Ch. D. 607; 55 L. J. Ch. 488; In re Mills' Estate (1886), 34 Ch. D. 24; 56 L. J. Ch. 60; and see now the Supreme Court of Judicature Act, 1890 (53 & 54 Vict. c. 44), s. 5.)

So the Petitions of Right Act, 1860, s. 7 (below, p. 687), though it applies the current practice as to security for costs to proceedings by petition of right, only operates to enable an order for security for costs to be made against the suppliant; it does not render the Crown liable to give such security. (Tomline v. R. (1879), 4 Ex. D. 252, 254; 48 L. J. Ex. 453.) It appears, therefore, from the last cited cases that security for the costs of discovery, under Ord. XXXI. rr. 25, 26, 27, would not be ordered against the Crown.

Crown Costs under the Crown Suits Act, 1855.

The common law principle above enunciated has been modified by several statutes, which are noticed below under their appropriate heads. The chief and most comprehensive of them is the Crown Suits Act, 1855, which is printed below, p. 673.

This statute provides for the payment of costs to and by the Crown, as in proceedings between subject and subject, in all informations, actions, suits and other legal proceedings to be thereafter instituted before any Court or tribunal whatever in Great Britain and Ireland by or on behalf of the Crown in respect of any hereditaments or goods and chattels, the proceeds or rents and profits of which are to be carried to the Consolidated Fund, or in respect of any money due to the Crown by virtue of any vote of Parliament for the service of the Crown, or any Act relating to the public revenue, such costs to be recoverable by the Attorney-General or Lord Advocate on behalf of the Crown. It was extended to the Isle of Man by the Crown Suits (Isle of Man) Act, 1862 (25 & 26 Vict. c. 14), s. 1.

The Act is not drawn with very remarkable skill, but its effect was defined in R. v. Bradle (1857), 7 E. & B. 492; 26 L. J. M. C. 111, where the Court held that it only applied to proceedings taken by the Attorney-General or Lord Advocate on behalf of the Crown to

recover lands, goods or money as therein mentioned. It was held not to apply to charity informations by the Attorney-General in A.-G. v. Dean and Canons of Windsor (1860), 8 H. L. C. 369, 459; 30 L. J. Ch. 529. See also A.-G. v. Earl of Chesterfield (1854), 18 Jur. 686; and A.-G. v. Grainger (1859), 7 W. R. 684. In The Leda (1863), Br. & L. 19; 32 L. J. P. 58, which was a cause of damage instituted on behalf of Her late Majesty in her Office of Admiralty, and the commander and crew of one of her ships, Dr. Lushington followed R. v. Beadle, and refused costs against the Crown, though he condemned the Crown's co-plaintiffs in costs. A similar course was followed in In re Galvin, [1897] 1 I. R. 520; [1898] W. N. 140, where Boyd, J., held that costs could only be given where the Attorney-General was a party eo nomine; and in Secretary of State for War v. Booth, [1901] 2 I. R. 692, where the Secretary of State for War sued on behalf of the Crown in respect of certain lands vested in him. In In re Vernon's Estate, [1901] 1 I. R. 1, where the Board of Trade appeared on behalf of the Crown, in In re Madden's Estate, [1902] 1 I. R. 63, where the Commissioners of Woods and Forests appeared as respondents, and in R. (Postmaster-General) v. Great Northern Rail. Co., [1908] 2 I. R. 32, the Court held that the Crown is not liable to pay costs under the Act of 1855, unless the action or proceeding by or on behalf of the Crown is taken in the name of the Attorney-General. The decision to the contrary effect in In re Dublin, Wicklow and Wexford Rail. Co., E. p. Jordan (1892), 31 L. R. Ir. 1, must now be regarded as overruled.

Estimation of the Amount of Crown Costs.

The Crown, where it recovers costs, will be entitled to full costs as between subject and subject, although the solicitor acting for the Crown receives a fixed salary for his services; and it is impossible to calculate how much of such salary is to be allocated to the labour of the particular suit (4.-G. v. Shillibeer (1849), 4 Ex. 606; 19 L. J. Ex. 115; Azimulla Saheb v. Secretary of State for India (1892), I. L. R. 15 Mad. 405; affirmed s. n. Muhammed Alim Oollah Sahib v. Secretary of State for India (1893), I. L. R. 17 Mad. 162); and the same principle has been applied in Scotland to the costs of a Law Officer remunerated by the Crown by a yearly salary. (L. A. v. Stewart (1899), 36 S. L. R. 945.)

That the Treasury Solicitor is entitled to recover his costs as a duly qualified solicitor, where he is acting for a subject by direction of the Crown, appears from R. v. Archbishop of Canterbury, [1903] 1 K. B. 289; 72 L. J. K. B. 188. (See above, p. 18.)

It has been held in Scotland that the Crown is subject to the same rules as a private individual as regards the number of counsel whose

fees will be allowed on taxation. (Ordnance Officers v. Edinburgh Magistrates (1860), 22 D. 446.) See further the article on Chancery costs, below, p. 624.

Fees payable to a Public Department out of public money may be remitted by direction of the Treasury (Revenue Act, 1889 (52 & 53 Vict. c. 42), s. 31).

Appeals by the Crown as to Costs.

The Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 49, which provides that no order of the High Court, or any Judge thereof, as to costs only which by law are left to the discretion of the Court, is subject to appeal, except by leave of the Court or Judge making the order, does not bind the Crown; and it has been held that an appeal may be brought against any judgment awarding costs against an officer of the Crown suing on behalf of the Crown.

Whether the House of Lords would entertain an appeal by the Crown as to costs only, quære. (See Caledonian Rail. Co. v. Barrie, [1903] A. C. 126.)

Imposition of Terms as to Costs on the Crown.

In R. v. Abbott, [1897] 2 I. R. 362, 425, the Court showed an inclination, when the Crown, as appellant, had been granted by the Court what it described as a favour, to grant the successful respondent the costs of the appeal, and the Crown did not contend that he should not have them.

In In re Madden's Estate, [1902] 1 I. R. 63, where the Crown appeared, in accordance with the usual practice, by the Commissioners of Woods and Forests, the Court thought that the proper form of claiming the lands in question would have been by a proceeding in the name of the Attorney-General, in which case the Crown would have been liable to pay costs under the Crown Suits Act, 1855, and suggested that, in a future case of a similar kind, the Crown, if appearing again in such a way as not to render itself liable to pay costs, should be put on terms to abide the costs. But in In re Gardiner's Estate (1903), 37 I. L. T. R. 164, the Court put the Crown on terms as suggested in the last-cited case, and it was held on appeal that the Court had no jurisdiction to impose any such terms, In re Madden's Estate being distinguished on the ground that in the case before the Court the Landed Estates Court (Ireland) Act, 1858 (21 & 22 Vict. c. 72), s. 62, applied, and the Crown was entitled to appear by the Commissioners.

The imposition of terms in the above cases was suggested by Secretary of State for War v. Chubb (1880), 43 L. T. 83, where Jessel, M.R., insisted upon the plaintiff giving the usual undertaking