1849.

In re HAMMERSMITH RENT-CHARGE.

place, are part of the costs of the inquisition; and the Statute of Gloucester gives, as my Brother Parke has observed, the costs of the motion for a new trial which fails, as part of the costs of the writ. In truth, these intermediate costs do not in principle differ from the costs of the writ. Without the writ there can be no effectual inquisition, and without getting rid of the intermediate obstacle there can be no effectual inquisition. If, then, the costs of the writ are part of the costs of the inquisition, the costs of getting rid of the intermediate obstacle, that is, the costs of shewing cause against the rule in this case, must be so too. It would have been different if the application to the Court had been made after the taxation of the costs of the inquisition, and for that reason the costs of the writ of habere facias possessionem are expressly given by the Act.

I

This is really like the case of a motion for a new trial, the costs of which are part of the costs of the cause. think, in cases like the present, we ought to give a liberal and reasonable construction, so as to effectuate, if possible, that which is of the essence of justice,-that, primâ facie, he who is in the wrong shall, until the Court for some special reason relieves him from the burthen, bear the costs of the argument in which he has failed. If, therefore, the party thought that he ought not to pay the costs of that argument, he should have applied to the Court to discharge it without costs. It is not for the party who succeeds to ask to have them. Primâ facie, I think they are part of the costs of the inquisition.

I am of opinion that this rule must be absolute, and I regret that, in so small a matter, the parties should have incurred so much costs and have been subject to so long a delay.

PARKE, B.-The question in this case turns upon the

proper construction of the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, s. 82.

After an inquisition under that section had been executed, there was an application made to the Court, and a rule nisi obtained to set aside the writ and subsequent proceedings, on the ground that the Judge's order by virtue of which it issued was made ex parte; that rule was discharged, the opinion of the majority of the Court being that the Judge might proceed ex parte. Nothing was said about the costs of the application. Afterwards the tithe owner had the costs of the inquisition taxed, and, as part of them, the Master allowed the costs of shewing cause against the application to set the writ and subsequent proceedings aside.

I made an order at Chambers to set aside the taxation in that respect, and disallow those costs. A rule nisi was subsequently obtained to set aside my order, and cause shewn in the last term. I have the misfortune again to differ, as I believe, from the rest of the Court. The question is of importance, not because the result will make any material difference as to the costs of such application, but because, if the tithe owner's construction is to prevail, there will be a departure from the salutary and now wellestablished rule, that the words of a statute are to be construed according to their ordinary grammatical import, unless that would lead to some absurdity, or inconvenience, or inconsistency with the intentions of the framers, to be collected from other parts of the Act. It is of little practical importance as to costs, because if my order was wrong, and costs of shewing cause are to be taxed as costs of the inquisition, the party failing will hereafter take care to apply for the discharge without costs, and the Court will do justice in that respect. The only difference will be, that the tithe owner, if my order was right, will have a remedy only when the rule of Court gives him the costs by

1849.

In re HAMMERSMITH RENT-CHARGE.

1849.

In re

enforcing that rule against the party applying; whereas, if it was wrong, he will have a remedy for the costs as part HAMMERSMITH of the costs of the inquisition against the land itself, by holding it till they are paid.

RENT-CHARGE.

The above-mentioned rule has been continually acted upon of late years, and ought not to be departed from. The 82nd section provides [his Lordship read it.].

Now, under the term "costs of the inquisition," according to its ordinary acceptation, cannot be included the costs of an abortive attempt to set it aside; to include those you must alter the words and read them as if they directed the costs of the inquisition, and making it effectual, to be both taxed; and this is contrary to the just principle of construction. The literal construction leads to no absurd or inconvenient result. The tithe owner will get his costs, if he is, in the judgment of the Court, entitled to them by rule; but, on the other hand, if those words are to be interpolated, the effect will be, that the landowner will always suffer from the improper application by an occupier, the costs of which the owner will have to pay. This is a reason for abiding by the sound rule of construction above mentioned.

The practice of taxing the costs of discharging rules in the progress of a suit, as part of the costs included in a judgment, was referred to as affording an analogy. But it certainly does not. This practice is grounded on the Statute of Gloucester, which enacts, that, in all cases where the party is to recover damages, he shall recover his costs of the writ purchased, together with his damages.

Judgment is given for the damages, and those included the costs of the writ purchased, which, by a long course of construction, has been held to mean all the costs of the action. The judgment is, that he recover his damages by him sustained, as well by the trespass or grievance, or breach of promise, as the case may be, as for his costs and charges

1849.

In re

RENT-CHARGE.

by him about his suit in that behalf expended. The judgment alone gives the costs, and all up to the time of judgment must be included in it. But if the Statute of HAMMERSMITH Gloucester had provided that the plaintiff should recover the costs of the trial of the issue, and the costs of shewing cause against a rule for a new trial had always been taxed as part of those of the trial, it would have been an analogous case; as it is, it is no authority.

Upon these grounds, I am of opinion that my order was right.

ALDERSON, B. (a), added:-My Lord Chief Baron, before he left the Court, informed me that he agreed with my Brother Platt and myself, in thinking that this rule ought to be made absolute.

Rule absolute.

(a) The Lord Chief Baron left the Court, in order to preside at Nisi Prius.

1849.

May 28.

By deeds of lease and re

lease, being the settlement made

on the marriage of E. M. H.

DOE d. CLIFT v. BIRKHEAD.

EJECTMENT for certain undivided shares of certain lands and premises in the parishes of Britwell Salome and Britwell Prior, in the county of Oxford. The first count was on the demise of George Clift, and was for 19-336th parts of the property; the second was also by George Clift, ed in pursuance and was for 6-56th parts; the third was by John Pottinnants contained ger Birkhead, and was for 19-336ths; and the fourth was in the release, by John Pottinger Birkhead, and was for 6-56th parts.

and W. B., by which deeds, and a fine levi

of the cove

certain lands of

which E., the wife of W. H.,

and mother of E. M. H., was

then seised in fee, a settlement was made after the solemnisa

tion of the said marriage, to the

use of the said

W. H. for his life, with remainder to the

The defendants pleaded not guilty, upon which issue was joined. Pursuant to 3 & 4 Will. 4, c. 42 s. 25, the parties agreed to the following case for the opinion of this Court:

Elizabeth, the wife of William Harness, being prior to, and at the date of the settlement next hereinafter stated, seised in fee simple of the lands and premises above mentioned, by indentures of lease and release, dated the 25th and 26th of June, 1787, being the settlement made previous to the marriage of their daughter and only child Elizabeth Mary Harness with William Birkhead, and by virtue of a fine levied pursuant to a covenant contained in the said settlement, conveyed the lands and premises above said W. B. for mentioned, situate at Britwell Salome and Britwell Prior,

use of the said

E., the wife of the said W. H.

for her life,

and then with

remainder for the use of the

his life; and

then for the use

of the said E. M. his intended wife, for her life, with remainder to the use of all and every the children of the body of the said W. B. on the body of the said E. M. H. his intended wife to be begotten, to be equally divided among them, share and share alike, to take as tenants in common and not as joint tenants, and of the several and respective heirs of the bodies of all and every such children lawfully issuing; and in case one or more of such children should happen to die without issue of his or their body or bodies, then as to the share or shares of him or them so dying without issue, to the use of the survivors or others of them, share and share alike, to take as tenants in common and not as joint tenants, and the several and respective heirs of their bodies lawfully issuing; and in case all such children but one should happen to die without issue, or if there should be but one such child, then to the use of such surviving or only child, and of the heirs of his or her body lawfully issuing, and for default of such issue, then to the use of the said E. M. H., the wife of the said W. H., and of their heirs and assigns for ever. The marriage was duly solemnised. There was issue of it eight children, three of whom died infants, unmarried, and in the lifetime of their parents. E. M., the wife of W. B., survived her husband as well as the said W. H., and at the time of her death, the limitation in favour of the issue of the marriage came into operation:-Held, that cross-remainders were here created by apt words in the deed, and that the word "share" must be understood as embracing accruing as well as original shares.