COMMON. See PRESCRIPTION. CONSENT RULE. See ERROR, 1. CONSIDERATION. 1. A debt being due to the plaintiff from a client of the defendant, an attorney, the latter inclosed to the plaintiff a bill of exchange accepted by his client for the amount, telling him that he may safely put his name to it as drawer, and that he will see it paid. Held, that there was a sufficient consideration in the forbearance of the plaintiff to proceed until the bill became due, to render the defendant liable. Emmett v. Kearns, 630 2. On a motion in arrest of judgment, it appeared that the declaration alleged the defendant, who was an attorney, to have been guilty of negligence, and in consequence, that the plaintiff was compelled to pay 147. costs, and in consideration of the premises, promised to pay the sum of 71. half of those costs. Held, that no sufficient consideration was alleged as moving from the plaintiff to the defendant. Smart v. Chell, 781 3. In an action of debt on a bond to H., not to enter into the service of another person, within ten miles of S., during two years after leaving H.'s service, some good consideration ought to be shewn on the face of the declaration, as the Court will not presume one. Hutton v. Parker, CONTEMPT. See SUBPOENA. CONTINUING (WRITS). See SUMMONS, 6. 739 1. The sureties of a defendant on the removal of an indictment for a misdemeanor by certiorari from the quarter sessions, are liable to pay the prosecutor's costs, although there is no undertaking to that effect in the recognizance, or direct provision to that effect in the 5 Wm. & M. c. 11, s. 3. The King v. Bezant, 680 2. Where an indictment has been preferred at the quarter sessions, and removed by certiorari into the Queen's Bench, that Court has power, under 5 & 6 Wm. 4, c. 50, s. 98, to award to the prosecutor costs incurred previous to the removal of the indictment, if the defence has been frivolous or vexatious, in the opinion of the judge trying the cause. Inhabitants of Preston, Regina v. 593 3. The 5 & 6 Wm. 4, c. 83, s. 5, does not affect the mode of taxation directed by 1 R. H. T., 2 Wm. 4, s. 74, therefore, where in an action for the infringement of a patent, the defendant obtained a verdict on one issue, which covered the whole cause of action. Held, that he was entitled to the costs of that issue, and the general costs of the cause, subject to deduction in respect of the issues found for the plaintiff. Losche v. Hague, 495 4. Where in an action of trespass brought against a magistrate in his judicial character, the defendant obtains a verdict, he must, under the provisions of the 7 Jac. 1, c. 5, obtain the certificate of the judge be fore whom the cause is tried, in order to obtain his double costs. Penney v. Slade and Another, 440 5. Where, in an action for unliquidated damages, an order was made for staying proceedings, upon payment of a sum under 20l. and costs to be taxed. Held, that the plaintiff was only entitled to costs upon the lower scale. Cook v. Hunt, 397 6. In an action against a public company for injury to a watercourse, the declaration contained special counts, charging various wrongful acts. The defendants pleaded not guilty to the whole declaration, and also several special pleas. A verdict was found for the defendants on the general issue, and for the plaintiff on the other pleas. The act incorporating the company, contained a clause giving them treble costs in the event of a verdict for them in an action for any thing done in pursuance of the act. Held, that the defendants were only entitled to treble costs upon the issues raised on those counts which were within the protection of the statute. Held also, that the proper mode of taxing the costs, was first to calculate those of the defendants, and then treble them, and from the amount deduct the plaintiff's costs. Wilson v. The River Dun Company, 369 7. Where a cause was referred at nisi prius, and the award set aside, and a second trial had, the party successful on the second trial, was held not to be entitled to the costs of the first. Wood v. Duncan, 344 8. Upon a motion to enter up judgment on the certificate granted by the Speaker of the House of Commons, under the 9 Geo. 4, c. 22, the court held that a primâ facie case was made out for the plaintiff, upon the certificate itself, which must be contradicted by the defendant, if he resisted payment of the costs mentioned therein, as intendments would be made in its favour. Held also, that the amount of costs certified to be due, cannot be impeached on affidavit, but that the certificate is conclusive. Fector v. Beacon, 265 9. Where there are several persons from whom the costs are certified to be due, an action may be brought against one of them only, if it shall not appear that proceedings are contemplated against the others, Ib. 11. If the power exists, it ought to be exercised before the time for signing judgment, Ib. 12. The plaintiff in an action for mesne profits, having been nonsuited, a rule was subsequently obtained and made absolute for a new trial. Without taking any further step, a fresh action was commenced in the name of John Doe. A rule was made absolute for staying proceedings in this action, unless the previous action was discontinued. Both plaintiff and defendant gave notice of trial and countermanded it. Subsequently the plain tiff served a rule to discontinue.Held, that the defendant was not entitled to the costs of the trial. Sir W. H. Jolliffe, Bart. v. Mundy, 225 13. Trespass for breaking and entering the plaintiff's close and taking. his straw. Plea, not guilty. Verdict for the plaintiff, damages, 1s. The judge did not certify. Held, that the plaintiff was entitled to no more costs than damages. Patrick v. Colerick, 201 14. The costs of settling a bill of exceptions are costs in the Court of error. Doe d. Harvey v. Francis, 193 15. The 60th section of 9 Geo. 4, c. 22, (enabling the Speaker of the House of Commons to certify the amount of costs of a petition against the return of a member), is not confined to cases in which there has been 86 a determination of the merits of such petition:" therefore, where the petitioner failed to appear, on the day appointed for taking the petition into consideration, and the order was in consequence discharged :-Held, that the Speaker had power to order the costs to be taxed, and on default of payment, to certify the recognizance into this Court as forfeited. Semble, that under the above act, the legislature intended to give no remedy for these costs by action, as under the 53 Geo. 3, c. 71. In Re Scott and Silver, 59 16. A cause was conducted by a clerk to a firm of two attorneys, and one of the firm having attended at the trial as a witness, it was held that the costs of his attendance were rightly allowed. Butler v. Hobson, 157 17. The declaration alleged, that the plaintiffs caused to be shipped upon a vessel of the defendants, certain wares and merchandizes, to be safely and securely carried by the defendants from Buenos Ayres to Liverpool, and then to be delivered to the plaintiffs. Breach, that the de fendants did not safely or securely carry the said wares and merchandizes, but that through their improper stowage, negligence, &c. the same were broken and damaged. The defendants pleaded, 1st, that they did not promise; 2nd, that the wares and merchandizes were not broken or damaged by the improper stowage or negligence, &c., of the defendants. The jury found for the plaintiffs on the first issue, and for the defendants on the second, except as to one cask of grease, which had been injured by a cask of tallow falling upon it, and they gave the plaintiffs 121. damages. Held, that this finding amounted to a general verdict for the plaintiffs, and that the defendants were not entitled to costs, in respect of that part of the issue found for them. Anderson and Others v. Chapman and Others, 822 18. In an action of trespass against two defendants, they pleaded by different attorneys, but appeared by the same counsel, and a verdict was found for one, and against the other. Held, that the defendant who obtained a verdict, was only entitled to half the costs of trial, counsel's fees, &c. Bartholomew v. Stevens and Edwards, 808 19. Where judgment passed for the plaintiff, on a demurrer to one plea, and the cause was taken down for trial upon another, and a juror was then withdrawn by consent. Held, that the plaintiff could not obtain the costs of the demurrer. Burdon v. Flower, 786 COSTS (OF THE DAY). See STAYING Proceedings, 3. Both plaintiff and defendant entered a cause for trial, plaintiff withdrew his record, and the defendant afterwards agreed that the cause should be made a remanet :-Held, that the defendant was not entitled to the costs of the COUNTY COURT. See DECLARATION, 1. COUNTY PALATINE. See INFERIOR COURT, 1. COURT (DELAY OF). 1. If a motion for a new trial is made after the first four days of Term, pursuant to permission granted by the Court, in consequence of the pressure of business, the party applying must give notice of that fact, to the other side, or it will be regular to sign judgment on the fifth day of the Term, before the motion has been made. Doe dem. Duncan v. Edwards, 547 2. Where a verdict was found, subject to a special case, to be agreed on between the parties, but it was not set down for argument until after the death of one of them, against whom judgment was ultimately given, the Court refused to allow judgment to be entered nunc pro tunc, at the instance of the successful party, as the delay in setting down the special case could not be considered as that of the Court. Doe dem. Taylor v. Crisp, 584 COURT (INFERIOR). COURT (OF REQUESTS.) A Court of Request act provided, "that if any person should commence any action in any of the superior Courts, against any person residing within the jurisdiction of the Court, for any debt, which upon the trial should be found not to amount to 40s. no judgment should be entered on the verdict; and if it were entered, it should be void, and the defendant should have costs." Held, that the act only applied to cases in which there had been a trial and verdict. Jackman v. Cother, 805 D. P. C. M M M COVENANT. See DECLARATION, 6. The declaration stated, that by an indenture made between R. R., of the first part, plaintiff of the second part, and defendants of the third part, defendants covenanted to pay the plaintiff 1007. on the 31st August then next. The plea set out, on oyer, an indenture, by which (after reciting that in consideration of 300l. and 1007. paid to R. R. by the plaintiff) R. R. mortgaged certain premises to plaintiff; the defendant and R. R., for the more effectually securing the repay. ment of the said sum of 100l. and interest, covenanted with the plaintiff to pay that sum and interest, on the 31st August then next. Held, that this was an absolute covenant to pay a sum of money on a day certain, on which debt might be maintained. Evans v. Jones and Another, 482 COURT ROLLS (INSPECTION OF). See INSPECTION (OF COURT ROLLS). CRIMINAL CONVERSATION. See ACTION (ELECTION OF). DAMAGES. See ARBITRATION, 18. DAMAGES (MITIGATION OF). A defendant cannot give in evidence in mitigation of damages, circumstances which, if pleaded, would have been a bar to the action, more especially where money has been paid into Court. Speck v. Phillips, 470 DECEIT. See DECLARATION, 2. DECLARATION. See COVENANT. 1. A declaration on a judgment of county Court, alleging it to have been held before the sheriff and suitors is bad on special demurrer. Quære, whether in such case it is necessary to set out in the declaration the names of the suitors. Jones v. Jones, 841 2. In an action for deceit, the declaration alleged that the defendant entered into an agreement with one Bowmer for the sale of a public-house, in reference to the value of which he made false and fraudulent representations that Bowmer being unable to complete his contract, it was agreed that the plaintiff should become the purchaser, and should stand in his stead, and that Bowmer before and at the time of such agreement, repeated to him the representations previously made by the defendant, of all which the defendant had notice, and the plaintiff confiding, &c., completed the purchase. Held, that the action was well brought. A plea to the declaration, denying that Bowmer acted under the authority of the defendant; held, ill. Pilmore v. Hood, 136 3. On the 2nd April, a witness was served with a subpoena, requiring his attendance at the assizes on the 31st March. The cause was not tried until the 6th April. Held, that he was liable to an action for non-attendance. Davis v. Lovell, 178 4. The declaration stated, that an action of ejectment was pending, and came on to be tried before certain justices of assize, to wit, at Taunton, in the county of Somerset. It then alleged, that the plaintiff served the defendant with a subpœna duces tecum: "And that, although the appearance of the defendant was necessary and material to the trial of the said issue, and although the defend |