Under the statute 11 G. 4, and 1 W. 4, c. 70, the Court of Error is to give the judgment when in affirmance of the judgment in the Court below, together with such costs as they shall think right; and upon the record being returned to the Court below, that Court is to award execution :k and the same practice takes place with reference to a reversal of the judgment in the Court below, in which event there are not any costs "in error” for either party; but the plaintiff in error has judgment given for him in the action in the "Court below," and also his costs therein,m and including those as to a motion there to arrest the judgment.n

In error from the Exchequer of Pleas to the Exchequer Chamber, the costs in error are taxed by the masters of the former Court, and in the same manner as costs are taxed upon a bill of exceptions.p

[2.] The House of Lords is the dernier Court of Error in this realm; and writs of error lie here from the Court of Exchequer Chamber. The statutes relating to writs of error do not, in a direct sense, relate to this tribunal; and the costs upon such writs, when returnable and heard here, are in the discretion of the House." They commonly, in giving their judgment as to the costs thereon, adopt, as their guide, the spirits of the above statutes. If two Courts have been of the same opinion on any point, and judgment is affirmed here, the costs are given in their judgment;t and the House commonly

1 s. 8.

Beale v. Thompson, 2 M. and S. 249.

k Reg. Gen. Hil. 4, W. 4, r. 1, s. 16.

1 2 Saund. 101; Wyvill v. Stapleton, 1 Stra. 617.

m Gildart v. Gladstone, 12 East, 668; Swift v. Bottom, 1 D. and R. 183.

"Adams v. Meredew, 3 Y. and J. 419.

Reg. Gen. Mich. T. 2 W. 4, Exch. Cham.; 1 C. and M. 466; 2 C. and J. 685; 2 Tyr. 761; 2 Dowl. 138; 3 M. and Scott, 298.

P Attorney General v. Key, 2 C. and J. 10.

4 11 G. 4, and 1 W. 4, c. 70, s. 8.

Mandeville v. Lord Garrick, 3 Ridgw. 373; Bodily v. Bellamy, 2 Burr. 1097; Beale v. Thompson, 2 M. and S. 249.

233.

Myddleton v. Croft, Andr. 60; Doran v. O'Reilly, 5 Dow,

t Duvergier v. Fellowes, 1 Clark and Fin. 39,

names therein the specific" amount of costs to be allowed. But if they do not adopt that practice, the clerk of the parliaments, or the clerk assistant, proceeds in a taxation, and delivers out to the party in whose favour the judgment was, his certificate, and with the amount of the costs as taxed, expressed therein. In a late case,w where the respondent did not appear to support the judgment of the Court below, the House held the appellant was not entitled to have such judgment reversed with costs, except under the particular circumstances of the case, such as fraud in the respondent; and in the case in question the reversal was ordered to be "without costs."

" Per Lord Ellenborough, C. J. in Beale v. Thompson, suprâ. "The practice of the House of Lords is to give a sum in gross, in their discretion."

c. 64.

Standing Orders, No. 215. 3d April, 1835; 7 & 8 G. 4,

Hamilton v. Littlejohn, 4 C. and F. 20.

CHAPTER VIII.

Statutes and Practical Forms.

STATUTES.

6 Edw. 1, c. 1.

Several actions wherein damages shall be recovered.

Sect. 2.-The demandant may recover against the tenant the costs of his writ purchased, together with the dainages aforesaid. And this act shall hold place in all cases where the party is to recover damages.a

3 HEN. 7, c. 10.

Costs &c., awarded to the plaintiff, where the defendant sueth a writ of error.

If any defendant or tenant, defendants or tenants, or if any other that shall be bound by the said judgement, sue, afore execution had, any writ or error to reverse any such judgement in delaying b of execution, that then

1. By the common law, the plaintiff is not entitled to costs but only where he recovers damages according to this statute; Pilford's case, 10 Rep. 116 a.-2. Where a statute gives damages by creation, then the plaintiff shall recover no costs. This statute is introductive of a new law, and therefore the plaintiff recovers what it appoints him to recover, and no more; 27 H. 6, 10; 2 H. 4, 17 b; 9 H. 6, 66b; Turner v. Gallilee, Hardr. 152.

b This act was designed to restrain the abuse of writs of error, brought only for delay, and the body of the act gives the party costs and damages, only for this wrongful delay and vexation. Holri v. Ebizson, 10 Mod. 274.

if the same judgement be affirmed good in the said writ of error, and not erroneous, or that the said writ of error be discontinued in default of the party, or that any person or persons that sueth writ or writs of error, be non-sued in the same, that then the said person or persons, against whom the said writ of error is sued, shall recover his costs and damage for his delay and wrongful vexation in the same, by discretion of the justice afore whom the said writ of error is sued.

11 HEN. 7, c. 12.

A mean to help and speed poor persons in their suits. EVERY poor person or persons, which have, or hereafter shall have cause of action or actions against any person or persons within this realm, shall have by the discretion of the chancellor of this realm for the time being, writ or writs original, and writs of subpoena, according to the nature of their causes, therefore nothing paying to your Highness for the seals of the same, nor to any person for the writing of the same writ and writs to be hereafter sued; and that the said chancellor for the time being shall assign such of the clerks which shall do and use the making and writing of the same writs, to write the same ready to be sealed, and also learned counsel and attornies for the same, without any reward taking therefore and after the said writ or writs be returned, if it be afore the King in his Bench, the justices there shall assign to the same poor person or persons, counsel learned, by their discretions, which shall give their counsels, nothing taking for the same and likewise the justices shall appoint attorney and attornies for the same poor person or persons, and all other officers requisite and necessary to be had for the speed of the said suits to be had and made, which shall do their duties without any reward for their counsels, help, and business in the same: and the same law and order shall be observed and kept of all such

e In Graves v. Short, Cro. Eliz. 616, it was doubted whether in formedon, in which no costs are given in the action, there could be costs in error; and it was resolved by the Court, that costs and damages should be given for delay of execution, although in the first action no damages were recoverable,

suits to be made afore the King's justices of his Common Place, and Barons of his Exchequer, and all other justices in the courts of record, where any such suit shall be.

7 HEN. 8, c. 4.

The avowant in replegiari shall recover his damages and costs of suit.

Sect. 3.-Every avowant, and every other person or persons that make avowry, conisance, or knowledge, or justify, as baily to any other person or persons in any replegiari, or second deliverance for any rent, custom, or service, if their avowry, conisance, or justification be found for them, or the plaintiffs in the said actions otherwise barred, shall recover their damages d and costs that they have sustained, as the plaintiff should have done, if they had recovered in the said replevins.

21 HEN. 8, c. 19.

Avowries shall be made by the lord upon the land, without numing his tenant.

The avowant shall recover damages and costs of suit.

Sect. 3.-Every avowant,e and every other person or persons that make any such avowry, justification, or conisance, as baily or servant to any person or persons in any replegiare, or second deliverance, for rents, customs, services, or for damage fesant, or other rent or rents, upon any distress taken in any lands or tenements, if the same avowry, conisance, or justification be found for them, or the plaintiffs in the same be nonsuit, or otherwise barred, that then they shall recover their damages and costs against the plaintiffs, as the same plaintiffs should have done or had, if they had recovered

d By the equity of this statute, damages are recoverable upon a nonsuit in second deliverance. Partridge v. Strange, Plowd. 82.

In an avowry for an estray, if the defendant has a return he shall have costs and damages; as well as for an amercement in a leet, and for a heriot, though not mentioned in this act, Haselip v. Chaplen, Cro. Eliz. 257, 329.