090-NLR-NLR-V-23-ADAPPA-CHETTY-v.-KURERA.pdf
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Present: Bertram C.J. and Sohneider J.
ADAPPA CHETTY v. KURERA.24—D. C. Negotnbo, 13,099•
Costa—Four persons appearing by one proctor?—Order for costs in theirfavour—Payment of costs to one of the four.
“ If a party on one side in an action is ordered to pay costs wherethe other side consists of several persons, the general role is thatthe latter are jointly entitled to the costs, and, as in the ordinarycase of joint-creditors, payment to one of them is payment to all.MCircumstances may make this rule inapplicable. It would, how-ever, be impossible to lay down the rede that where an order forcosts is made in favour of several parties to an action who act incommon, payment must be made to the person who is substantiallythe most active of the persons concerned; nor would it be possibleto lay down the rule that costs in such a case must be paid to theproctor who appears for aU of them.
facts appear from the judgment.
Samarairickreme, for the appellant.
P. Y. PererOf for the respondents.
1 [1907) 11 N. L. B. 230.
1922.
March 28,1822. Bertram C.J.—
la this case four respondents in certain proceedings, who werealleged to he under a common liability, signed a common proxy.They were successful in the proceedings, and an order for costs was .made in their favour. The costs were, in fact, paid to two out offour, and the question is whether this payment was a discharge ofthe order to pay costs. The law on the subject is settled by ajudgment of this Court in Rodrigo v. Andris.1 The principle isfully discussed in the judgment of De Sampayo J.: “ 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-creditors, payment to one of them is payment to all.” It is quitetrue that the learned Judge goes on to add that circumstances maymake the rule inapplicable; and Mr. H. V. Perera in this case hassought to show that there were certain circumstances which tookthe case out of the rule. The circumstances on which he relies arethat the second respondent was the most active respondent andhimself incurred all the necessary expenses for the action, whereasthe other respondents did nothing.
I do not think that these circumstances are sufficient to takethe case out of the rule. The circumstances relied on for thispurpose must be circumstances which distinguish the positionof one of the parties from that of the others in a legal sense;and, moreover, there must be circumstances which are broughtto the notice of the person paying. It would be impossible tolay down the rule that, where an order for costs is made in favourof several parties to an action who act in common, payment mustbe made to the person who is substantially the most active of thepersons concerned; nor would it be possible to lay down the rulethat costs in such a case must be paid to the proctor who appearsfor all of them. Mr. Perera says that his client suffers a hardship;but any hardship he suffers is due to the fact that he chose tpassociate himself with the other respondents, and if he suffers inconsequence he is himself to blame. In my opinion the appealmust be allowed, with costs, here and below.
Schneider J.—I agree.
Appeal allowed.
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* [1917) 20N.L.B. 20.