SUPREME COURT.—In Banco.

New Zealand Herald, Volume XVIII, Issue 5977, 13 January 1881, Page 6

SUPREME COURT.—In Banco.

. . ■■'■c Wednesday. . [Before Mr. Justice' Gillies.] . His Honor took his seat on the Bench at 11 o'clock. ' " ' • ; COLE'S CIRCUS CASE. " Ring:" v. Cole and the Mayor aj<*p Corporation of Auckland.—His Honor delivered. judgment as follows This is an action brought by the plaintiff. for an injunction >to -restrain the detendants from respectively * permitting and committing a| threatened nuisance to the plaintiffs property by the erection of a circus on the Albert Park. After service of the dectara-1 tion, and before plea 011 motion made, the defendants intimated that they would not proceed with their threatened acts,, and the plaintiff then agreed not to proceed with his motion, the/question of costs being reserved for this Court. The plaintiff now moves, j for the costs of his proceedings up to the time , of notice given that the defendants would desist. In Roberts v. Roberts ' (1, Simon and Stewart, 39), where plaintiff had filed his bill to compel the defendant to deliver up a deed; but, before hearing, defendant had brought plaintiff's title, and nothing was left but the question of costs, which both parties were willing should be determined by the Court. Vice-Chancellor Leach said : "The Court entertains the subject of costs only as incidental to the subject of the suit. When out of Court, the parties disposed of the subject of the suit; they must dispose of the costs also. The Court will not hear the cause for that purpose." Again, in Gibson v. Lord Crawley (6, Maddex, 365), where : the plaintiff had filed his bill for. specific performance of a contract, but before hearing the parties agreed reserving (as in the present case) the question of costs, the same ViceChancellor said, on an application praying the direction of the Court as to costs, the Court can only determine the question of costs when the whole matter is before the Court at a hearing, and as incidental to the merits of the case. And the' agreements of the parties having prevented the proceeding to a hearing in the cause, the question of costs is not before the Court. In the case of Burgess v. Hills, 26, Bev. 244, which was an injunction suit, in which the defendant had in ignorance of plaintiff's rights infringed his trade label, but had at once on its being brought to his notice undertaken not to do so any more, *but refused to pay the costs, the cause was brought on for hearing, and a perpetual injunction granted with costs. But in course of argument it was urged that plaintiff, on defendant's submission, should have applied to the Court to compel defendant to pay the costs, instead of proceeding with the suit, relying on Sewell v. Abraham, &c. Sir J. Romilly, M.R., said, "It is said that after the defendant's submission the plaintiff's should have applied to the Court to compel ; him to pay the costs, but it is clear that the plaintiffs had no means of doing so. If they Had given notice of motion and the defendants had resisted it, the simple result would have been that the Court would have refused the motion with costs." Again, in Langham v. the Great Northern Railway Company (16, Simons, 173), where further prosecution of the suit had become unnecessary from the defendants having paid the amount claimed on a motion and costs, V. C. Shadwellsaid : "Though I think in reason and'common sense the motion ought to be/granted, I: must refuse it." There are besides numerous authorities to show' that even assuming that the plaintiff would have been entitled to his injunction had not the defendants disclaimed all intention of proceeding with the threatened nuisance, still after that dis'elaimer he could not have obtained his injunction, and this, indeed, was admitted by Mr. Hesketh 1 in his argument. What in that case would have been the result if the cause had come on for hearing, clearly, I think, on the authority of Knox v. Brown (1 Cox, 359), Brougliton v. Lashmar (5 Wright and Craig, 136), Sutton Harborn v. Hitcbens (15 Beavin, 161), the action would have been dismissed without costs. In the last - mentioned case, which was on injunction case, the M.R., Sir John Romilly said :—I am not aware of any case in which the Court has made the defendant pay the costs ■ of a plaintiff whose bill is dismissed. I could not do it without consent. " Although, therefore, it does seem somewhat hard on the plaintiff that. he should be put to considerable trouble and expense to protect his rights from threatene I injury, I do not see how on such a motion as this I could, looking' to the above authorities, grant costs against the defendants. The motion is therefore refused,, but without costs.

Fitzgerald v. Te Whiti.—His Honor said he was not prepared to give judgment in this case. It would be necessary to look carefully into the several authorities referred to. Judgment deferred.