c 20 1
Present : Wood Benton C.J. and De Sampayo J.
EODBIGO v. ANDBIS.
80—D. C. GaUe, 14,055.
Costs-r-Dccree for costs in favour of three persons—Payment of costs totwo out of the three persons.
It a party on on side in an action is ordered to pay costs wheretheothersideconsists of severalpersons,the generalruleis that
the latter are jointly entitled to the costs, and payment to one ofthem is payment to all. But circumstances may make the ruleinapplicable. Althougha general order for costs is made without
anyapportionment, the question isone offactas to who isentitled
to receive them.
The mere production of a formal receipt . by a party showing thathe had paid the full costs to two out of three persons who had adecree for costsagiinst him doesnot entitlehim tohavesatisfac*
tion of decree entered of record. He must prove payment. Other*wisethe ’partywho has grantedreceiptisentitledto recover a
third share of the costs.
facts are set out in the judgment.
A. St. V. Jayewardene, for plaintiff, appellant.
Zoysa, for defendant, respondent.
Cur. adv. vult.( 21 )
September 25, 1917. De Sampayo J.—1«7.
This appeal raises an important point of practice. The plaintiffRodrigo
brought this action to vindicate title to a certain land against Andristhe defendants, who were alleged to be in unlawful possession. Thedefendants, appearing by Mr. Alwis, proctor, died an answerdenying plaintiff’s claim, and setting up title in th®aselves to ashare of the land. At the trial an advocate, instructed by Mr. Alwis,appeared for all the defendants and raised a legal objection, whichprevailed, with the result that the plaintiff’s action was dismissed,with costs. Mr. Alwis, on behalf of all the defendants, taxed a billof costs, and applied for a. writ of execution kgairist .the plaintiff.
The plaintiff at the same time appeared and stated that he paidthe GOBts in full to the first and second defendants, and produceda notarial discharge from them, and he therefore moved thatsatisfaction be entered of record. The District Judge refusedthis application, on the ground, that payment to the first and seconddefendants alone did not release the plaintiff, and he allowed writto issue for the full amount of the taxed costs. The plaintiff hasappealed.
It is now well settled that a decree for costs against severalpersons constitutes a joint and several debt, which may be recoveredfrom one or all of them. Seddo v. Sitta,1 Periya Carpan Chetty v.
Mohamadu. 2 The nature of the obligation in the converse case,where the decree for costs is in favour of several persons, is notequally clear. Under the Boman-Dutch law it appears that wherean order for costs is made against several persons, each is liable for.his pro rata share. See Nathan’s Common Law of South Africa,vol. IV., p. 2202. Probably, under that law, one of several personsin whose favour an order for costs is made can likewise recoveronly his proportionate share. But the. Boman-Dutch practicedoes not appear to have been adopted here. The learned Judgesin the cases above cited refer to a long course of practice in Ceylon,and I have no doubt that this is referable to the English practicewhich in a matter of this kind has, I think rightly, been followedby our Courts. So far as reported decisions go, the District Judge'sruling in this case appears to be erroneous. In Wattegama R. M. v.
Pedro Perera,3 Dias A.C.J. held generally that payment to one ofseveral persons who have a decree for costs is payment to all, andLawrie J. said that “ each case must depend upon its peculiarcircumstances, especially on the relation in which the judgmentcreditors stand to each other ”. There is, however, no essentialdifference of opinion between the learned Judges. 'If a party onone side in an action is ordered to pay costs ’where the other sideconsists of several persons, the general rule is that the latter arejointly entitled to the costs, and, as in the ordinary case of joint
1 (1837) Mor. Dig. 203.»(1910) 13 N. L. R. 97.
3 (1888) 1 O. L. B. 24.
( 22 )1617.
creditors, payment to one of them is payment to all. But circum-stances may make the rule inapplicable, for as was said by ColeridgeJ. in Sprowler v. Stoakes and Yeomans: 1 " Because several personsare sued in the same action, they cannot necessarily be taken , torow in the same boat; their interests may be different. M Althougha general order for costs is made without any apportionment,the question is one of fact as to who is entitled to receive them.In the English case just referred to Stoakes and Yeomans weresued for use and occupation of a house. Each of them appearedin person, but neither of them having pleaded, judgment wassigned against both. Subsequently the judgment was set aside,with costs, on the ground of irregularity, as no rule to plead hadbeen entered. But it appeared that the judgment was set aside atthe instance of Yeomans alone, while Stoakes appearing separatelyhad unsuccessfully applied for time to plead, and it was held that-payment of the costs to Stoakes did not discharge the plaintiff,though the judgment was set aside even as regards Stoakes. ( Thewhole reasoning in the case showed that, if the circumstances hadbeen otherwise, the two defendants would have been joint creditorsin respect of the costs due, and. payment to one would have beenpayment to the other also. In the present case there are noexceptional circumstances which can alter the general rule. Thedefendants appeared together, made a joint defence, and succeededin having the action dismissed on a point taken by counsel' onbehalf of them all, I therefore think the order of the District Judgecannot be supported on the specific ground on which it has beenput. There remains, however, the 3question of the fact of payment.No inquiry has been made, nor any finding recorded, as to whetherthe plaintiff has in fact paid the amount of costs to the firstand second defendants. He has no doubt produced a formalacknowledgment from them, but I think that, in order to affectthe third defendant, there must be proof of an actual payment. Inmy opinion the case should go back for the determination of thisquestion. If there has been such payment, the plaintiff will b6entitled to have satisfaction of the decree entered of record. Butotherwise I think that, as the first and second defendants must betaken to have been paid two-thirds of the costs, the third defendantshould be allowed to issue execution for the recovery of theremaining third share for his benefit.
The order appealed from should, in my opinion, be set aside, andthe case sent back for the purpose above indicated. The plaintiffis, I think, entitled to costs of this appeal and of the argument inthe District Court.
Wood Renton C.J.—I agree.
Set aside.(1844) 13 L. J. Q. B. 230.
RODRIGO v. ANDRIS