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THE

LAW AND PRACTICE OF COSTS.

CHAPTER I.

(1.) Proccedings by the Crown; (2.) Dower; (3.) Quare Impedit.

THE Course of practice in the Superior Courts of Law is of equal duration, and coeval with the common law : and in awarding damages, costs are included as parcel thereof.

(1.) As a general rule, the Queen neither pays or receives costs a in any legal proceeding: and this rule extends to a scire facias brought by her, at her immediate suit; or when prosecuted at the instance of a subject; and also to a petition of right, even though the application by the petitioner is dismissed for want of jurisdiction. But the Queen is entitled to costs, in a suit of debt upon a bond, with a penalty;e and in a proceeding against a collector of taxes,f if his goods and chattels are inadequate, recourse may be had to his lands, and in that case, the "costs and expenses may be levied thereout. In revenue suits, for any breach of

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a Williams v. Attorney General; Hullock on Costs, 338 Rex v. Corum, 1 Anstr. 50; Rex v. Boyle, 1 Price, 434. The King v. Miles, 7 T. R. 367; Rx v. Wibling, 2 C. &

P. 10;

Rex v. Scott, 4 Price, 181.

c Brewster v. Weld, 6 Mod. 229;

262;

Rex v. Bingham, 1 Tyr.

1 C. & J. 379; S. C. nom. Hollis v. Bingham, 1 Dowl.

280; Ricketts v. Lewis, 1 B. & Ad. 197.

d Exp. Pering, 5 Dowi. 750; 2 M. & W. 873.

e 33 Hen. 8, c. 39, s. 54.

f 43 Geo. 3, c. 99.

g 25 Geo. 3, c. 35. Rex v. Boyle, 1 Price, 434; Rex v. Hopper, 3 Price, 40.

B

the laws, relating to the excise,h or the customs, the defendant may be admitted to make his defence in formá pauperis.

Proceedings in matters of revenue, are "at law;" but take place on the revenue side of the Court of Exchequer. In applications under 42 Geo. 3, c. 99,j for an executor or administrator to account for the personalty;k for legacy duties;1 or for duties on the residue,m the practice is for the rule to shew cause to contain a term, that if upon the delivery of the account, any duties shall be found payable to her Majesty, that the executor or administrator shall pay costs to the Crown, and to be taxed in the usual manner. The owner or occupier of lands, tenements, or hereditaments, may apply to this Court for relief, where he can shew by affidavit or otherwise, that by reason of some doubt or dispute as to the proper division, parish or place, he has been assessed, rated, or charged to the land tax, for two or more of such he must further shew that it is not made with a view to delay the payment, and express his readiness to bring into Court, pay, or dispose of, as directed, the sum assessed or charged: in such a case, the Court of Exchequer can by a rule or order call on the several Commissioners to appear and maintain, or to relinquish such assessments; and stay all proceedings in the meantime. It can also order payment into Court of the sum assessed, or of any part of it, to abide the determination of the dispute; or to be disposed of as the Court directs; or it may order a feigned issue upon any points or point; direct who is to be the plaintiff, and who the defendant; or dispose of and determine the question in a summary manner: make rules and orders as to costs and all other matters :P make the commissioners refund the whole sum assessed: or part of it :9

h Attorney General v. Dummie, 2 C. & M. 393; 4 Tyr. 284. i 3 & 4 W. 4, c. 53, s. 97. j s. 2.

k Ex parte Siratt, 3 Dowl. 209.

1 Attorney General v. Hancock, 2 M. & W. 563; Arnold v. Arnold, 2 Myl & Cr. 256; Sanders v. Kiddell, 7 Sim. 536; Douglas v. Congrepe, 1 Keen, 400.

m Re Piggott, 1 C. & M. 827; 3 Tyr. 859.

In re Robertson, 2 M. & W. 407; 5 Dowl. 609.

1 & 2 Vict. c. 58.

p Ibid. s. 3.

q Ibid. s. 4.

and pay to the applicant his costs of making the application or incidental, or relating to the same; or make the applicant pay to the commissioners their costs of appearing and answering such application: or one of the two sets of commissioners to pay to the other set their costs on such application, or proceedings under its order or direction. The costs, charges, and expenses of the commissioners, which are not reimbursed to them, are to be defrayed by a special assessment.r

Where a motion against the Crown is refused, it may, if so ordered by the Court, receive costs. And where a larger sum is levied under a writ of extent than is really due, the Court will order it to be refunded, and with costs to be paid by the prosecutor:t and in quare impedit by the Crown, the Court or a Judge may allow an amendment in the pleadings, even without costs."

V

All judgments, statutes, recognizances and inquisitions for debts due to the Queen under the act of 33 Hen. 8, c. 39, and also all acceptances of office under 13 Eliz. c. 4, must, in order to affect lands, tenements, or bereditaments, as to purchasers or mortgagees, be registered, e. g. a memorandum or minute containing the name, and usual or last place of abode, and the title, trade, or profession of the Crown debtor; and also, in the case of a judgment, the Court, and title of the cause; the date and amount of the debt, damages, and costs recovered; if on a statute or recognizance, the sum acknowledged, and its date; and in the case of an inquisition, the sum found due and its date; and if an obligation or specialty, the sum for which made, and its date; and in case of acceptance of office, the name of it and the time of accepting it, must be left with the senior Master of the Court of Common Pleas. This officer is bound to enter the particulars in a book, to be called "The Index to Debtors and Accountants to the Crown," in alphabetical order by the name of the Crown debtor or accountant. His fee on this entry is 2s. 6d., and upon a search therein of ls.

r 1 & 2 Vict c. 58, s. 3.

↑ Rex v. Edwards, 1 Price, 447.

Rex v. Hassel, M'Clel. 105.

Rex v. York (Archbiskop), 3 Nev. & M. 453; 1 Ad. & Ell. 394.

2 Vict. c. 11, s. 8.

(2.) The only mixed actionsw now remaining are a writ of right of dower, or unde nihil habet, and the writ of quare impedit. They are maintainable only in the Court of Common Pleas, and upon an original writ sued out in the Court of Chancery, and returnable in the former Court. In these actions, a judgment upon a demurrer.x whether to pleadings in abatement or in bar, is with costs; and the Court will not allow amendments; or a demurrer,z or a demand of view,a to be withdrawn, except on payment of costs. The new rules as to pleadingh do not apply here : and unless issued has been joined upon the mise:e the tenant, although succeeding on a demurrer, cannot have final judgment.

In Dower, damages are awarded under the provisions of the Statute of Merton ;f and costs follow by virtue of the Statute of Gloucester; including all the costs expended in the suit; and even those upon the first writ, where the demandant purchases a writ of journey's accompts. The count is not in form for damages; for though recoverable "pending the writ," yet they are uncertain;h but upon a nolle prosequi,i the tenant is not entitled to any costs. In an action at common law, there can only be one judgment given as to the costs.j

w 3 & 4 W. 4, c. 27, s. 36.

x Ibid. c. 42, s. 34.

y Rex v. Archbishop of York, 1 Ad. & Ell. 394; 3 Nev. & M. 453; Reppington v. Tamworth School, 2 Wils. 118.

z Twyning v. Lowndes, 2 Scott, 250; 2 Bing. (N. C.) 133; 1 Hodg. 196.

a Tolson v. Fisher, 3 Bing. N. C. 783; Tolson dem., Watson ten., 4 Scott, 577; 3 Bing. N. C. 770.

Hil. 4, Wm. 4.

c Miller v. Miller, 3 Dowl. 408; 1 Scott, 387; 1 Hodg. 31; Barnes v. Jackson, 3 Dowl. 404; 1 Scott, 525; 1 Hodg. 37. d Bro. Abr. tit. Droit de Recto, pl. 16, y. B.; 26 Hen. 8, f. 8, pl. 6; 5 Rep. 85 b; Richton v. Nesbitt, 6 Ad. & El. 103. 0, 45 c. c William, the heir of William v. Gayn, 2 Saund. 42 f 20 Hen. 3, c. 1.

6 Edw. 1, c. 1; 2 Inst. 288.

h Pilfold's case, 10 Rep. 117; Jenk. Cent. 6; Br. Damages

14;

Fitz. Damages, 34.

i William v. Harris, 2 Dowl. 819; 4 Moore & Scott, 358;

Bing. N. C. 13.

i Middleton v.

Crofts, Andr. 60.

[3.] In Quare Impedit,k the demandant obtaining a verdict, is entitled to full costs; and so also the defendant, if he obtains a verdict, or if there is a discontinuance, or a nonsuit. The archbishop, bishop, or other ecclesiastical patron or incumbent, is not to have judgment given against him for any costs; provided upon the trial, the Judge trying the cause, or on a judgment given on other proceedings in the cause, the Court "certify that he had probable cause for such defence;" but a defence grounded upon a presentation or collation, previously made to the benefice, is not to be considered

So.

The issue in dower as to "" unques accouple," or in quare impedit, as to the clerk being living and being idonea persona, becomes parcel of the proceeding in the Common Pleas, and the costs of it are costs in the cause. Upon the writ1 for the trial of such issue, going to the bishop,m or in case of a vacancy of the see, to the guardian of the temporalities, the plea remains sine die in the Court of Law until the return of the inquisition; the inquiry takes place in presence of the parties; and on the return of the inquisition, all parties are summoned to hear judgment.n

In these actions, the Court will not allow a discontinuance by the demandant, except on payment of costs; and costs are also allowed upon interlocutory motions.p

k 4 & 5 Wm. 4, c. 39; Holt v. Holland, Skin. 25; Windowe v. Bishop of Carlisle, 3 Bing. 404.

1 Bishop of Exeter v. Hale, Ca. Parl. 88.

m 39, 40 E. 3, 25; Specot's case, 5 Rep. 1, 57.

n Bracton, 419.

• Sot v. Perry, 2 W. Bla. 758; 3 Wils. 206.

p Denman v. Bull, 2 Bing. 387; 9 J. B. Moore, 745.

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