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Judgment
Miller, J.—The appeal is for costs only. The lower Court has given costs to the plaintiff although the 1st and 2nd defendants satisfied the
claim after suit. If the plaintiffs had a cause of action, the payment after suit would be no reason for refusing his costs, and the appeal is, therefore,
grounded on the contention that he had no cause of action.
The defendants purchased property from the plaintiff undertaking to pay the price or part of it to his creditor or creditors. For three years they
failed to make any payment and thus left the plaintiff in the position that property other than that sold was still under encumbrance when it ought to
have been freed from encumbrance. Though the property had not been actually sold up as threatened by his creditors, still there is authority that he
had a cause of action against the defendants, a cause of action for damages to the amount of the money which he or his creditors ought to have
received, if Dorasinga Tevcr v. Arunachalam Chetty 23 Ma. 441 is right vide also Nyapati Ranganadham Pantulu v. Nyapati Balarama Doss 5
M.L.T. 247 : 4 Ind. Cas. 1121; or a cause of action for nominal damages, if I follow what is stated to be the rule in America, vide Mayne on
Damages page 260. No doubt, Doraisawmy Tevar v. Lakshrnanan Chetty 14 M.L.J. 285 suggests that he had no cause of action without proof of
damage sustained at the date of suit, but that is in conflict with Dorasinga Tevar v. Arunachalam Chetty 23 Ma. 441.
So far then as the question of costs is concerned, it seems to me impossible to hold, whichever view of the law I take, that the plaintiff was not
justified in suing to secure that the defendants should pay money which they had undoubtedly undertaken to pay ; when I say justified in suing, I
mean that he had authority only in this Court not elsewhere in support of the existence of a cause of action, and I do not see why he should not, if
he sued in reliance on that authority, get his costs whether that authority lays down good law or bad law, when his suit was successful in causing the
defendants to do what they ought to have done before.
I dismiss the appeal with costs.