In reply to further questions by the Assistant Jodge, Mr. Oppe said that he was making' this application sabetantial matter now. He wanted to be able to say to the Privy Council that the question bad been raised.
The Judge said that he quite agreed with counsel in raising the question as to the order that this Court should make on the appeal, bat he did not soe how this Court could possibly now be asked to vary the order of the Court below on that question. It was not part of plaintiff's appeal bat something absolutely Te was an appeal as to rt did not as a rale case where the Mr. Oppe—We should have asked for this at the trial, but we did not do so and your Lordship may hold now that we are too late.
Mr. Macleod said that it seemed to him that the application made to the fall Court failed not because the Court -|disagreed, bat because on the rules governing this Court the decision of the senior Judge carried the raling of the Coat, that was thatthe sppiaton dismissed, lost, and therefore that edison should carry with it the costs of the successful party unless for some good cause, What cause could be assigned in this case? It was impossible to say thst the respondent had acted in any way that could be called a good cause for keeping them from their costs. Mr. Oppe had not suggest-
UN
159 ed any misbehaviour or malfeasance of any kind which entitled him to ask this Court for the alteration of the general rule that costa followed the event. Mr. Oppe could not show any good cause at all, It seemed to counsel, therefore, according to the constitution of the fall Court here being what it was and the decision being what it was, coste must in the ordinary way follow the event.
Oppe said that the application was on the ground that there was good cause.
Mr, Macleod said that if Mr. Oppo could mention a cause he would like an opportanity to answer hin.
Mr. Oppe said that there had been a good deal of law on what was a good caure and what was not and it had been established that the Court could take the surrounding circumstances into consideration in considering the action of the defendant.
The Judge—On appeal.
to appeal, Mr. Oppe—I think' that will spply The Judge—Io a trial you are practically bound by the jary.
Mr. Oppe—No my lord. Good cause is found by the Judge.
Mr. Oppe then cited the case of Barnett Wise (5 Ex. D. p. 311) on the point of the duty of the Judge being to consider the whole surrounding circumstances of the case, Mr. Oppe aald that as regarded rise question of the Todge, the Judge in this case gave judgement with coote at the time of the trial, The point was not then raised, bat the whole order of the Judge was appealed from. Had the appeal beea successful the appeal as to costs would been snccessfal also.
The Judge said that the case Mr. Oppe cited showed that the Court of Appeal thought that the Jadge should take these things into consideration when he was asked. His Lordship thought that Mr. Oppe would have objected, but be did not and his Lordship was not going to ask him to do so, As counsel did not object he coald not do so now. If he had asked his Lordship to do it and he bad refused, thea counsel could have come to the Court and appealed.
The Assistant Jodge—You mean that in deciding who is to pay the costs of this appeal you are asking us to take into consideration the various things that might have been taken into consideration in deciding the question of carts in the Court below Mr. Oppe—Yes.
The Jndge—Have you any authority? plaintiff, in such a Does the Court of Appeal say that the
way that whatever in the Court below we shall not give him costs Mr. Oppe—They have been deprived of coste because the appeal has been made reasonable by their action, Mr. Oppe then cited the case of The Escourt Hop Essence Ca. (L. R. 10 p. 276).
The Judge—Costs were refused on the groand that he hed been guilty of fraud
Text read from the printed page and cleaned; old type leaves the occasional error.