Eldon remarked, that, as to the costs of a suit in Equity, although it was in many cases very hard that they should follow the event of the cause, yet all his experience had persuaded him that it was much to be wished that it was so, but that certainly it was not the present course of the Court, and that where there is a fair case for consideration, it is not the course to visit the party who fails with costs. In that case, he held, that the purchaser was wrong in resisting a covenant which he was bound to enter into, yet as the Master's opinion had been the other way, and the Judges at Law would not decide the case until they had the opinion of the Court of Chancery, and professional men had differed upon the question, it would, he said, be too presumptuous in him to set such a value upon his own opinion, by marking the resistance of the purchaser with costs, and therefore he made the decree without costs.1 3 It is to be noticed that, where the Court comes to a decision upon a point of Law which is contrary to a former decision, either of this Court or of any other of competent jurisdiction, it will generally exonerate the party against whom it decides from the payment of costs to his adversary, as in the case of Rose v. Calland,2 above referred to; but where the point has been decided before, and the Court thinks that the decision was correct, it will, if the party, against whose interest the decision is, had notice of the previous determination, fix him with the costs of the litigation; thus, where a bill was filed for a specific performance, and the purchaser set up an objection to the title, which had already been decided in a former case, of which the purchaser had notice, the purchaser was decreed to pay the costs of the suit.4 And here it may be remarked that, in suits for specific performance, it is not the mere failure of an objection taken by the purchaser to a title, that will fix him with costs: a purchaser is considered as entitled to take a fair objection; and, although it be overruled, yet the Court will not, on that ground, give costs 1 See 3 Sugd. V. & P., ed. 1848, 87; Rose v. Calland, 5 Ves. 187; 11 Ves. 337; Willcox v. Bellaers, T. & R. 491. 25 Ves. 186. See Sutton Harbor Improvement Co. v. Hitchens, 15 Beav. 161; S. C. 1 De G., Mac. & Gor. 161. So in cases of great novelty, it is said that the Court ought not to give costs to either party. Jones v. Mason, 5 Rand. 577; Hoffman v. Skinner, 5 Paige, 526. And also in cases where the practice of the Court on the subject was unsettled. Hoffman v. Skinner, supra. Biscoe v. Wilks, 3 Mer. 456. against him; this, however, must always depend upon the weight which the Judge may think due to the objection.2 But where a vendor sells an estate, his title to which is clearly bad, the Court will dismiss his bill with costs; 3 and this it will do even where the defect has been occasioned by an accident, as where the title-deeds were burnt after the contract; 4 and it seems that if there is one decided objection to the plaintiff's case, which prevails, the circumstance, that the defendant has taken others which have failed, will not relieve the plaintiff from his costs. It seems, however, that if the Court thinks an objection groundless, although it was supported by the opinion of counsel, upon which the purchaser acted, yet the party taking it will be compelled to pay the costs; for the Court cannot allow the mistaken advice of a third person, to operate to the disadvantage of the party who is clearly in the right.5 In most of the cases before stated, the Court, in withholding the costs of the suit from the successful party, has been influenced by the conduct of the party with reference to the suit or the subject-matter of it; there are, however, many cases in which the Court, without any reference to the good or bad conduct of any party, has refrained from awarding costs to be paid by the unsuecessful party, solely from consideration of the peculiar hardship of the individual case. Instances in which the Court has, upon this ground, departed from its general principle, are referred to in the note, and many others occur in the books; it is, however, use less to state them more fully, since they involve no general princi ple beyond what has been stated, and depend upon the circumstances of each case as they appeared to the Judge who heard it. 13 Sugd. V. & P., ed. 1840, 141; and see Cox v. Chamberlain, 4 Ves. 631; Staines v. Morris, 1 V. & B. 8; Sharp v. Roahde, 2 Rose, 192. 23 Sugd. V. & P. ubi supra; see Burnaby v. Griffin, 3 Ves. 266; Bishop of Winchester v. Paine, 11 Ves. 195; Powell v. Martyr, 8 Ves. 146; Fludyer Cocker, 12 Ves. 25; Calverley v. Williams, 1 Ves. jr. 210; Weddall v. Nixon, 17 Beav. 170. Playford v. Hoare, 3 Y. & Jerv. 175. Bryant v. Busk, 4 Russ. 1. Maling v. Hill, 1 Cox, 186; see, also, Vancouver v. Bliss, 11 Ves. 448; and see M'Queen v. Farquhar, 11 Ves. 467. Shales v. Barrington, 1 P. Wms. 481 ; Drybutter v. Bartholomew, 2 P. WE 127; Coppin v. Coppin, ib. 291; Forbes v. Taylor, 1 Ves. jr. 99; Brodie t. 8 Paul, ib. 326; Moseley v. Virgin, 3 Ves. 184; Dickenson v. Lockyer, 4 Ves. 36 Everett v. Backhouse, 10 Ves. 94. With reference to this part of the subject, it may be stated, that, in cases where Courts of Law have assumed a concurrent jurisdiction with Courts of Equity, but the latter have not relinquished their jurisdiction over the subject, the Court of Chancery will not compel the party who seeks relief under its jurisdiction to pay the costs of his proceeding: thus, where a bill was filed by one partner against another, to enforce contribution, and the Court allowed the case to stand over, in order that an action might be tried at Law, which was decided against the plaintiff, the Court, although it dismissed the bill, did so without costs, being of opinion that, although the question was more proper to be tried at Law, the plaintiff was very well justified in coming for a contribution, for certainly this Court had never given up its jurisdiction.1 On the other hand, in cases in which, after a bill dismissed here, the plaintiff would have had a right to try the question over again at Law, the Court, for the purpose of putting an end to litigation, has frequently dismissed the bill without costs, upon the plaintiff's waiving his right to try the question at Law; 2 a rule which has been usefully applied to suits for specific performance. It is to be remarked, that, in the cases which have been referred to, the Court has marked its opinion of the conduct of the parties, principally by withholding from the successful party the costs which, upon general principles, he would otherwise have been entitled to receive from his adversary; and that in no case, save in those of heirs-at-law and mortgagees and incumbrancers, and others partaking of those characters, has the Court compelled the party succeeding in the suit to pay the costs of it. The general rule of the Court, indeed, seems to be, that the successful party, although he may, as we have seen, be deprived of his costs, never pays them.3 1 Wright v. Hunter, 5 Ves. 792. 2 Harnett v. Yielding, 2 Sch. & Lef. 560; see, also, Lawrenson v. Butler, 1 Sch. & Lef. 21; Buxton v. Lister, 3 Atk. 386; Underwood v. Hithcox, 1 Ves. 279; Leman v. Alie, Amb. 163; Attorney-General v. Owen, 10 Ves. 555. Lewis v. Loxham, 3 Mer. 429; Wykham v. Wykham, 18 Ves. 395; Attorney-General v. Oglender, 1 Ves. jr. 246; Cooth v. Jackson, 6 Ves. 41; Dixon v. Parker, 2 Ves. 219; Springfield v. Ollett, cited 3 Mer. 430, n. Indeed it appears, from the same note, that, according to the decree in Lewis v. Loxham, Reg. Lib. 1816, B. p. 1059, the defendant was ordered to pay to the plaintiff his costs of a second reference as to title, and of the report thereon, but not of the Lord St. Leonards has, however, laid it down, that, if a purchaser files a bill for a specific performance, which is dismissed because the defendant, the seller, cannot make a title, yet the bill may be dismissed, with costs against the vendor,1 a doctrine which is supported by a dictum of Lord Eldon, in Nicholson v. Wordsworth,2 that, when, on a bill by a vendee for a specific performance, it appears that the defendants cannot make a good title, there is no further question in the cause than who is to pay the costs, in that case, the bill was filed by the purchaser for a specific performance, insisting that the vendor could not make a good title, and the bill was dismissed with costs; and the corollary, drawn from it by Sir E. Sugden, is, that if a purchaser files a bill for a specific performance, insisting that the seller cannot make a good title, he must pay the costs whether he accept or refuse the title.3 - Another instance of departure from the rule, that the successful party is to pay no costs, may be found in the case of a cestui que trust making his trustee a defendant to a suit instituted by him against a third party; in that case the cestui que trust, although he obtains a decree against his trustee, must pay his costs, unless the trustee has been applied to, to join in the suit as co-plaintif and has refused. The proper course to be pursued by a cestui former proceedings, ibid; and see Lewin on Trustees, App. II. p. 698; Hays Bowen, 5 Beav. 610; Westcott v. Culleford, 3 Hare, 274. In Brooks v. Byam, ? Story C. C. 554, it was remarked by Mr. Justice Story, "In the ordinary course of practice, if a bill be dismissed, the most that is done is, in proper cases, to d> miss the bill without costs to the defendant. I do not say that a case may not he put, in which the Court might go further, and allow costs to the plaintiff, evez upon the dismissal. But it must be a very extraordinary case; such, for examp as where the defendant has, by his own fraud, in misrepresenting himself to be the proper and sole party to be sued, as executor, or heir, or devisee, indust nay, invited the plaintiff to bring the suit, and then has put in a plea, and esta> lished the fact that he is not executor, or heir, or devisee.”—“But on this, I g no opinion. The present is not such a case." See Sutton Harbor Improve L Co. v. Hitchens, 15 Beav. 161. 1 3 Sugd. V. & P., ed. 1840, 137. 2 2 Swanst. 365. 3 3 Sugd. V. & P., ed. 1840, 137. So where a purchaser brings his bill Sea conveyance of land, when he ought to have tendered, but has failed to tenthe purchase-money, he will be entitled to a conveyance on the payment of th purchase-money, but he will be decreed to pay all costs. Lee v. Bickley, 5 La Reade v. Sparkes, 1 Moll. 8. que trust who intends to file a bill against a stranger relative to the trust property, is stated to be, to apply to become a co-plaintiff, indemnifying him against costs, and then, if he refuses, he must abide his own costs as a defendant; for it is a rule, that, if a suit is occasioned by the misconduct or obstinacy of a trustee, he may be compelled to pay the whole cost of it.2 The only method, however, of effecting the object of compelling a delinquent defendant to pay the costs of the other defendant, is to order the plaintiff to pay them, and then to permit him to receive them again from the defendant whose delinquency has given rise to the litigation. When, however, the Attorney-General is plaintiff, costs may be paid by one defendant to another.* In deciding the question of costs, the Court will frequently apportion them, so as to cause the costs of one part of the suit to fall upon one party, and those relating to another part to fall upon the other party;5 thus, where a plaintiff claims several matters by his bill, and succeeds in establishing his right to a portion only of what he so claims, the Court will sometimes grant him a decree for that part of his case in which he is successful, with costs, to be paid by the defendant, and dismiss the remainder of his bill with costs, to be paid by himself." So also, where there are several issues, and some are found for the plaintiff and others for the defendant, the parties will be allowed costs on issues found in their favor, and must pay on those against them.7 See acc. Weymouth v. Boyer, 1 Ves. jr. 416; Parkes v. White, 11 Ves. 209; Seton on Decrees, 2d edit. 30. 4 5 Attorney-General v. Corporation of Chester, 14 Beav. 338. 1 Seton Dec. (3d Eng. ed.) 94, 95, 96; Platt v. Squire, 5 Cush. 551; Jones v. Morehead, 3 B. Monroe, 377. Where the main question in a bill is decided against the plaintiff, though he succeed in obtaining a decree, the defendant is entitled to his costs up to the time of the decision of the main question. M'Connell v. M'Connell, 11 Vermont, 290. * See Clinan v. Cooke, 1 Sch. & Lef. 22. In such cases, also, the Court sometimes contents itself, with making no order at all as to costs, the effect of which is, to throw upon each party the payment of his own. Prevost v. Benett, 2 Price, 272. See Thomas v. Fred. Co. School, 9 Gill & J. 115; Dupont v. Johnson, 1 Bailey Eq. 279. Where the whole merits of the |