In Equity, as at Law, the party who fails is, prima facie, liable to costs (g): and, although the question of costs rests entirely in the discretion of the Court (h), yet it is for the unsuccessful litigant to show, (if he can,) the existence of circumstances sufficient to negative his prima facie liability (i); and the present disposition of the Courts appears to be, to adhere, with considerable strictness, to the general rule. It was observed by Lord Cottenham, C, in a recent case, "Parties may have more or less reason for coming here; but the question is, whether those who are right, or those who are wrong, are to pay the costs of their so doing. The rule I always act upon is, to order costs to be paid by those who are wrong " (k):

Costs, as a general rule, are borne by unsuccessful litigant.

(c) Southcomb v. Bishop of Exeter, Ha., see p. 225.

(d) Supra, 88.

(e) Gee v. Pearse, 2 De G. & S., see 346.

(f) See Wedgwood v. Adams, 8 Beav. 105.

(g) Vancouver v. Bliss, 11 Ves., see 463

(h) Sug. 821; Gerahty v. Malone, 1 H. L. C. 81.

(i) Vancouver v. Bliss, ubi supra.

(k) Hunter v. Nockolds, 2 Ph. 545; and see Green v. Briggs, 6 Ha. 633, and Earl Nelson v. Lord Brid-port, 10 Beav. 305.

The cases upon the subject may be conveniently classified as follows, viz.

1st, Cases where the general rule, fixing the unsuccessful litigant with costs, is merely allowed to operate.

2ndly, Cases where it is enforced with more than ordinary stringency.

3rdly, Cases where it is modified, so as to deprive the successful litigant of his costs, wholly or in part.

And 4thly, Cases where the successful litigant is wholly or in part fixed with payment of costs.

As to the 1st class of cases. - A purchaser resisting specific performance, on grounds which the Court considers clearly untenable, will not be relieved from costs because he acted under counsel's opinion (l); or even upon the recommendation of the Master (m): so where he is held by his conduct to have waived the usual reference upon the title (n), or any particular objection arising on the title (o), and he has rested his defence on the question of title, the decree against him will be with costs. So, where the vendor's bill is dimissed merely for want of title, and the title is clearly bad, the decree against him is with costs (p), although he be merely a trustee for sale (q), or although the title have become defective through the accidental destruction of the deeds subsequently to the contract (r): so, where a purchaser had objected that a good title could not be shown unless certain accounts were taken, and, this being resisted, each party filed a bill for specific performance, the Court, holding the purchaser to be right, made a decree in the second suit, and gave him the costs of both suits (s).

Cases where general rule is allowed to operate.

(l) Moling v. Hill, 1 Cox, 186; and see Firmin v. Pullin, 12 Jur. 410, where it would appear that a trustee anting under advice was nevertheless fixed with costs.

(m) Earl Nelson v. Lord Bridport, 10 Beav. 305.

(n) Fleetwood v. Green, 15 Ves. 595; Margravine of Anspach v.

Noel, 1 Madd. 317.

(o) Burnett v. Brown, 1 J. & W. 175.

(p) Walters v. Pyman, 19 Ves. 351.

(q) Edward v. Harvey, G. Coop. 40.

(r) Bryant v. Busk, 4 Russ. 1,5.

As to the 2nd class of cases. - A vendor obtaining a decree for specific performance has been held entitled to costs on the special ground of the purchaser having persisted in an objection to the title which he knew had been decided against another purchaser in a former suit (t); so, where a bill is dismissed on the ground of misrepresentation (u), or fraud, or contains groundless imputations of moral (w) fraud against the defendant (x), or where the claim is dishonourable and contrary to moral equity (y), or against a clear stipulation in the contract (z), the dismissal will be with costs: so, where the unsuccessful litigant has acted fraudulently in the subject-matter of the suit, or has acted vexatiously, and refused fair offers of accommodation, the decree against him will generally be with costs (a).

As to the 3rd class of cases (b). - A vendor obtaining a decree, has been refused costs on the ground of his having unsuccessfully contended that the purchaser had waived his right to investigate the title (c); so, a vendor has been refused costs, where the purchaser's objection to the title, although overruled, has been considered a fair objection (d), or has been occasioned by the vendor or his solicitor (e): so, where the title was not clear on the abstract as delivered before bill filed (f), or the vendor has refused to furnish necessary evidence in support of the title, (although the purchaser's requisitions embraced unnecessary evidence) (g).

Cases where general rule is enforced with more than ordinary stringency.

Cases where general rule is modified, so as to deprive unsuccessful litigant of costs, wholly or in part.

(s) Burton v. Todd, and Todd v. Gee, 1 Sw. 255, 262.

(t) Biscoe v. Wilks, 3 Mer. 456.

(u) Buxton v. Lister, 3 Atk., see 387.

(w) See the conclusion of V. C. Wigram's judgment in Marshall v. Sladden, 7 Ha. 444.

(x) Beames on Costs, 109; Scott v. Dunbar, 1 Moll. 442, 460; Lang-ley v. Fisher, 9 Beav. 90; see Glas-cott v. Lang, 2 Ph. 310,322; Knight v. Majoribanks, 2 Mac. & G. 16.

(y) Davis v. Symonds, ] Cox, 402, 408, and other cases cited in Beames on Costs, 37.

(z) Williams v. Edwards, 2 Sim. 78, 83.

(a) Beames on Costs, 109, and cases cited.

(b) Ibid. 39.

(c) M'Queen v. Farquhar, 11 Ves. 482; Sidebotham v. Barrington, 5 Beav. 261.

(d) Cox v. Chamberlain, 4 Ves. 631; Staines v. Morris, 1 Ves. & B.

So, the dismissal of the vendor's bill has been without costs, in cases where the dismissal was merely on the ground of his own laches in applying to the Court (h), or of the title being merely doubtful (i), or of the general inaccuracy of the transactions relied on as constituting the contract (k), or upon a ground of defence which the purchaser did not resort to until after the institution of the suit (l): so, where a purchaser had, in the first instance, by his acts, waived the time for completion, and had gone on for some time inducing the vendor to incur expenses to perfect his title, and suddenly, upon discovering that vacant possession could not be given according to stipulation, declined to complete (m): so, according to Sir E. Sugden, "if, after a bill filed for specific performance, the plaintiff, in pursuance of a power in the instrument, determines the contract, the bill will be dismissed without costs" (n): so, the Court has, by way of compromise, refused to fix the vendor with costs, he on his part consenting to give up his legal right of action under the agreement (o).