Owen v Griffith
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1749 |
| Date | 10 June 1749 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 1012
HIGH COURT OF CHANCERY
[250] owen v. griffith, June 10,1749. The rule that no appeal for costs merely, not to be strictly adhered to, if a sound distinction can be made : as where a fair incumbrancer is decreed only his principal and interest. Creditor by elegit. [Supplement, 131.] Appeal from a decree made by Justice Abney, sitting for the Master of the Bolls, for not giving costs to the defendant upon a bill brought to have an account taken, 1 VES. SEN. 251. ROBINSON V. GEE 1013 and for relief and satisfaction in the nature of a redemption of an estate, which the defendant had extended by elegit upon a judgment on a debt originally created by bond. The general rule, that there could not be an appeal for costs only, was insisted on : the costs were discretionary in the court, and not of right to be given to mortgagee, who may even be made to pay costs, if he misbehaves ; as by insisting on an estate not to be redeemable, which appears to be redeemable. Lord Chancellor. The defendant could only be obliged to account according to the extended value. But this court since Lord Cowper's time goes farther, and obliges the creditor to account for the profits really received : be is clearly intitled to his costs on the merits, if not precluded by that rule ; which I have often heard so delivered by the court. (Note: This doctrine affirmed by Lord Thurlow, in 1 Brown, 143, where he held there should be no appear or rehearing for costs only, unless upon an apparent mistake.) The foundation of it was to prevent vexation and trouble; for as cases in equity often depend on abundance of circumstances, about which as the reason of mankind might differ, it would create perpetual appeals : but this is no printed rule ; and it seems somewhat strict and hard to adhere to it ; for since the stamp duties, costs come to be very material. Yet if it was to be laid open generally, that an appeal might be for costs, it would cause that general inconvenience, to which a particular inconvenience ought to give way. But if a sound distinction from the rule can be made, it ought to be allowed : and it will be very unfortunate if in this case the defendant should be precluded thereby; for being an incumbrancer for a just debt, and having a Hen on the estate for her costs as well as her demand ; it seems to be an exception, and different from the court's not suffering matters to be over-ruled merely for costs. Besides here the...
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