1. 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.
2. 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 I.L.R. (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 I.L.R. (1900) Mad. 441.
3. 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.
4. I dismiss the appeal with costs.