petition in a matter which ought to have been the subject of an information, would not allow costs to either side, both having been equally culpable, and the conduct of the corporation such as not to entitle it to costs (k).

But where trustees and a corporation were deprived of the administration of a charity, the costs of the relators were directed to be paid out of the funds of the charity, without giving any costs to or against the defendants, because they had not fallen into wilful error, but had merely adopted the line of conduct pursued by their predecessors for a century (1).

Where trustees of a charity were made, as individuals, defendants to a suit for the administration of the charity, and afterwards the information being amended, they were made defendants in their corporate capacity; but the suit was not dismissed against them as individuals; at the hearing, the record was considered as constituting two different causes; and the cause against the trustees as individuals being unnecessary, was dismissed with costs, though in the cause against them in their corporate capacity, a decree was made remedying abuses which had grown up in the charity, and regulating its future administration (m).

Where a town clerk had been made a party to a bill for the purpose of discovery, Sir John Leach, M. R., inclined to think that the corporation must pay the costs of the town clerk, but an inquiry was directed as to the practice (n).

Where the costs of a trustee are directed to be taxed, that means, as between party and party, not in the larger way between solicitor and client; but where a trustee in the fair execution of his trust, has expended money by reasonably and properly taking opinions, and procuring such directions as are necessary for the due execution of his trust, he is entitled

(k) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. S. 94.

(1) Attorney General v. Corporation of Newbury, Reg. lib. A. 1833, fol. 818.

(m) Attorney General v. the Earl of Mansfield, 2 Russ. 501.

(n) Attorney General v. Corporation of Berwick-upon-Tweed, Taml. 249.

not only to his costs, but also to his charges and expenses, under the head of just allowances (o).

It was decided by Sir John Leach, M. R., that a person named in a deed as trustee, who declines to accept the office, is in the same situation as any other defendant against whom a suit is dismissed, and can only have his costs as between party and party (p).

So persons nominated trustees by an instrument which being void, passed no trust fund, were not allowed costs as between solicitor and client, because there were no funds in the hands of the trustees, who were trustees of a nullity (q).

The attorney general suing in the discharge of his public duty, is never made to pay costs (r) in a court of equity, but he constantly receives costs where he is made a defendant in respect of legacies given to charities (s); and where informations are filed in his name on behalf of charities, costs have frequently been awarded him in interlocutory matters independently of the relator.

Upon informations relating to charities, where the merits of the case require it, the constant habit of the court is to subject the defendant to all the costs of the proceeding.

And where an information is filed by the attorney general without naming any relator under the stat. 59 Geo. III. c. 91, s. 1 (t), the Court of Chancery has jurisdiction to order a defendant to pay the attorney general his costs (u).

Where the attorney general institutes an information at

Rex v.

(0) Fearns v. Young, 10 Ves. 33 Hen. VIII. c. 39, s. 54. 184. Corum, Anstr. 50; Rex v. Miles, 7 T. R. 367; 2 Fowl. Pr. 371; 3 BL Comm. 400.

(p) Norway v. Norway, 2 Mylne & Keen, 278. See Sherratt v. Bentley, 1 Russ. & M. 655, where the same judge is reported to have held the contrary.

(q) Mohun v. Mohun, 1 Swanst.

201.

(r) See stat. 24 Hen. VIII. c. 8,

(s) Moggridge v. Thackwell, 7 Ves. 88. See 1 Sim. & Stu. 397. (t) Ante, p. 428.

(u) Attorney General v. The Earl of Ashburnham, 1 Sim. & Stu. 394.

the instance of relators, it is not the ordinary practice of the court to allow him separate costs; the conduct of the cause is with the relators, and they have usually, in all the proceedings, all the costs known to the court. And where in consequence of a suspicion entertained in the master's office of collusion between the relators and the defendant, the same solicitor having appeared for both, and in compliance with a suggestion coming from the master, the attorney general attended the proceedings by a distinct solicitor without the privity or sanction of the court, such costs were not allowed, the master having no power to alter the course of practice or to increase the expenses of the suit. If there be ground for suspecting collusion, application ought to be made to the court, in order that the matter may be put into a course of inquiry (v).

Relators on an information upon which abuses in a charity are proved and corrected, are entitled to be allowed not merely costs between party and party, but their costs, charges, and expenses (w).

In cases of gross breaches of trust, the relators will sometimes be allowed costs beyond those which are taxed, either by a direction in the first instance to tax them as between attorney and client, or by a reference to the master to see what extra costs they have incurred (x).

In charity cases, costs are frequently given as between attorney and client, where no improper point is made; and costs were given to the heir-at-law upon a question as to his right to the produce of real estate, out of which charitable legacies were given, although the court decided against him (y).

Where a suit was instituted for carrying a charity into effect, and the court at the first hearing ordered the heir-atlaw of the founder to be a party, and under a reference to the

(v) Attorney General v. Dove, Turn. & Russ. 328; Attorney Generalv. The Corporation of Huntingdon, cited Id. 329.

(w) Attorney General v. Winches

ter, 3 Law Journ. Chanc. 64.

(x) Osborne v. Denne, 7 Ves.

425.

(y) Currie v. Pye, 17 Ves. 462.

master to inquire who was such heir, the party found to be heir, by his answer insisted on his right to the surplus rents of the estates, as a resulting trust, the heir was allowed costs as between solicitor and client out of the funds of the charity, although the court decided that the heir had no interest in the property in question (z).

So where a suit was commenced entirely for the purpose of establishing charities, and the funds in question were very ample, and the costs of the relators and defendants in such suit had been ordered to be taxed and paid out of the estate, the court, on an application by petition, directed such costs to be taxed as between solicitor and client (a).

Although, in a charity case, the court is not bound by the formal relief prayed, but may grant proper relief according to the nature and facts of the case, although not asked for (b), yet the terms to be imposed between the parties as to costs are altogether in the sound discretion of the court (c).

The relator was allowed his costs, although he had prayed wrong relief, and shaped the whole information with a view to his own demand, which could not be sustained, where directions were given by the court for the regulation of the charity, for in such a case a relator will not be compelled to pay costs (d).

Relators have frequently not only been deprived of their own costs, but also ordered to pay costs. Where an information proceeded from a very improper cause, as from a private motive of revenge in the relator, and the court had no jurisdiction to entertain the information, it was dismissed with costs (e).

So where a relator totally fails in substantiating the case, no costs can be given to him—the utmost he can then claim

(z) Attorney General v. Tonna, 4 Br. C. C. 177; S. C. Beames on Costs, 373.

(a) Attorney General v. Carte, 1 Dick. 113; S. C. Beames on Costs, 343.

(b) Ante, pp. 443–446.

(c) Attorney General v. Hartley, 2 Jac. & Walk. 369.

(d) Attorney General v. Bolton, 3 Anstr. 820.

(e) Attorney General v. Middleton, 2 Ves. sen. 330.

is to be discharged without costs (f); but it seems that the court will not give costs out of the funds of the charity, unless a decree be made (g).

Where an information is unnecessary, and in contradiction to the rights of the charity as established by charter, the relators must pay costs; "as nothing," observed Lord Hardwicke, "is to be more discouraged than the bringing informations colourably for the benefit of the charity, but contrary to the real charity" (h); and costs were given against an exceptant, on the ground of his vexatious conduct (i).

The relators were charged with the costs of an information, which was dismissed, seeking a specific performance of an agreement between three executors, trustees of a charity, for giving to each a right to nominate to a third part of the charity funds absolutely (k).

Where an information was filed, involving most expensive inquiries, containing gross imputations on the conduct of individuals and allegations not proved, upon which no relief was or could be given, the court ordered the costs of all parts of the information, with respect to which the defendants had sustained costs by reason of the allegations of misconduct and abuse of office, to be paid by the relators (1).

An information, containing various charges of misconduct against the wardens and governors of a grammar-school, was dismissed with costs to be paid by the relators, as far as it sought to discharge the wardens and governors, and to appoint others, although all the other costs of the information to the hearing were directed to be paid and retained out of the funds of the charity, as between solicitor and client (m).

The costs of a suit relating to a charity are, in some cases, ordered to be raised by mortgage. Thus it was ordered that in case the governors of a school should not have a sufficient

(f) Attorney General v. Oglender, 1 Ves. jun. 247.

(g) Ibid.

(h) Attorney General v. Smart, 1 Ves. sen. 72.

(1) Aylet v. Dodd, 2 Atk. 230.

(k) Attorney General v. Glegg, 1 Atk. 356; S. C. Ambl. 584.

(1) Attorney General v. Hartley, 2 Jac. & Walk. 370.

(m) Attorney General v. Earl of Mansfield, 2 Russ. 501, 538.