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Judgment
Miller, J.—The appeal is for costs only. The lower Court has given costs to the plaintiff although the first and second defendants satisfied the
claim after suit. If the plaintiff had a cause of action the payment after suit would be no reason for refusing him his costs, and the appeal is therefore
grounded on the contention that he had no cause of action.
The defendants purchased property from the plaintiffs 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 Tevar v. Arunachalam Chetti ILR (1900) Mad. 441 is right vide also Nyapati Rangana-dham Pantulu v. Nyapati Balarama
Doss (1909) 5. M.L.T. 247 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 Doraisami Thevar v. Lakshmanan Chetty (1904) 14 M.L.J. 185 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 Chetti ILR (1900) Mad. 441.
So far then as the question of costs is concerned it seems to me impassible to hold, whichever view of the law I take that the plaintiff'' was not
justified in suing to secure that the defendant should pay money which they had undoubtedly undertaken to pay, When I say justified in suing I
mean that he had authority not only in this Court but 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 when his suit, whether that authority lays down good law or bad law, was successful in causing
the defendants to do what they ought to have done before.
I dismiss the appeal with costs.