master's taxation, there are not any costs allowed. The affidavits in support of the objections should specify them ; and all affidavits intended to be used on the arguinent should be referred to in the rule.k If the rule is discharged, it is generally so with costs. [61.] Trifling errors in the entry of the judgment,m as "counts" for " issues," "" defendant recover costs," instead of" defendants," are considered by the courts as elerical only; and will be allowed to be amended even after error brought thereon, on payment to the plaintiff of the costs of amendment.m i Ward v. Bell, 2 Dowl. 76; Parsons v. Pitcher, 6 Dowl. 6 Scott, 298. 600; Williams v. Hunt, 1 Chit. 321; Daniel v. Bishop, M'Clel. 61; 13 Price, 129; Aliven v. Furnival, 2 Dowl. 49. k Cliffe v. Prosser, 2 Dowl. 21. Williams v. Wynne, 9 Price, 344. Paddon v. Bartlett, 3 Ad. and Ell. 887. [57] CHAPTER III. 1. General Rules. Casts of the Defendant. 2. Costs on Summons. 3. Staying Proceedings, 4. Amendment of Writ. 5. On Arrest. 6. Outlawry: Waiver. 7. On Discharge from Arrest. 8. Sheriff's and Bailiff's Fees. 9. Security for Costs. 10. Special Bail. 11. Demand of Declaration. 12. Common Counts. 13. Oyer: Copy. 14. Payment into Court. 15. Non Pros: Discontinuing. 16. Motion for Judgment "as in case of a nonsuit." 17. Costs of the Day. 33. Double and Treble Costs. 18. Preparatory Proceedings before 34. Taxing Costs. Trial. 19. Demurrer. 35. Amendment. 20. Issue by Record: Special Case. 37. Satisfaction. [1.] As a rule, wherever the plaintiff would, if he had succeeded, have been entitled to costs, the defendant is also so reciprocally;a and the latter has his costs if he succeeds in a penal action. With respect to the costs of a defendant, it is important to remark, that since the New Rules as to pleadings, a defendant, even though he does not succeed in the action, usually gets some costs. & Greetham v. Theale, 3 Burr. 1723; College of Physicians v. Harrison, 9 B. and C. 524; 4 M. and R. 404. b 18 Eliz. c. 5, s. 3; Jeques v. Stevenson, Bull. Ni. Pri. 194; Wilkinson, q. t. v. Allot, 1 Cowp. 366; Law q. t. v. Worrall, 1 Wils. 177; Dover q. t. v. Hodgson, 1 Wils. 139; Elde q. t. v. Stevens, 2 Ld. Raym. 1333. c R. H. 2 W. 4 (74); Milner v. Graham, 2 Dowl. 422. [2.] Upon the writ of summons being issued,a the defendant is allowed four days after the service to pay the debt and costs;e and if upon a taxation more than onesixth is taken off, he is entitled to the costs of taxation, and to be paid by the plaintiff's attorney. The course in practice is, for the defendant's attorney to obtain a judge's order for taxing, and an appointment thereon from one of the masters, e.g. "I appoint 23d December, "R. Goderich." At this appointed time the bill of costs is taxed, and the master indorses upon the order his allocatur, e. g. £2 5 0 £1 16 6 The plaintiff's attorney to refund to the defendant £1 16 6 23d Jan. 1840. 13.] Where a summons is taken out to stay proceedings, upon payment of a certain sum and the costs; the refusal to accept that sum by the plaintiff, will not render him liable to the subsequent costs; but if the sum thus tendered be afterwards paid into Court, and accepted by the plaintiff; the latter will, if the refusal be shewn to be vexatious,g be liable to the subsequent costs.h d R. H. 2 W. 4, II.; Gale v. Winks, 5 Dowl. 348; 3 Bing. N. C. 294; 3 Scott, 667; Tomkins v. Chilcott, 2 Dowl. 187. e Bowditch v. Slaney, 4 Dowl. 140; 1 Hodges, 224; 2 Scott, 197; 2 Bing. N. C. 142. f Wurd v. Gregg, 5 Dowl. 729. Cumming v. Columbine, 6 Dowl. 373, h Gower v. Elkins, 3 M. and W. 216; 2 Dowl. 335; Roe v. Cobham, 6 Dowl. 628; Parsons v. Pitcher, 4 Bing. N. C. 306; 6 Dowl. 432; 5 Scott, 791. i [4.] If, with a view of saving the statute of limita. tions, the plaintiff is allowed to amend his writ of summons, it is upon the terms of "paying costs;k and the rule is the same, where an amendment in the indorsement of the debt and costs upon the writ is allowed. In these cases, the defendant has four additional days allowed him, for paying the debt and costs, after the amendment is made, and the costs thereon are paid.m But where, after service of a copy of the writ upon him, he receives notice not to appear to it, there are not any costs upon either side;n a writ of scire facias may be amended on the terms of paying costs to the defendant.o [5.] Where a defendant is arrested under a judge's order, he can apply to any P of the judges at chambers for a summons, or to the Court for a rule, calling on the plaintiff to shew cause why the capias (if irregular) should not be set aside for irregularity, and why the bail-bond should not be cancelled; or why the deposit of the debt and 107. to answer the costs, should not be returned; or why the defendant, if in custody, should not be discharged. But if the objection is to the arrest only, the application must point to the latter result merely. The act gives power to the Judge or to the Court to grant or refuse the application with costs; or to make such other terms as he or they may see fit; and where the right to the discharge out of custody, exists either for this or any other ground; it is not waived r by demanding particulars of the plaintiff's demand.s [6.] Where proceedings to outlawry or waiver are taken oppressivelyt and unnecessarily, the Court or i Partridge v. Wellbank, 5 Dowl. 93. j 21 Jac. 1, c. 16, s. 3. * Urquhart v. Hart, 3 Dowl. 17; Shirley v. Jacobs, Id. 101; Cooper v. Waller, Id. 167. Trotter v. Bass, 1 Bing. N. C. 516; 3 Dowl. 407; 1 Scott, 403; 1 Hodges, 23; Edge v. Shaw, 4 Dowl. 189. m Cooper v. Waller, 3 Dowl. 167. n Wintle v. Hogg, 7 Dowl. 623. • Mackay v. Gwen, 1 Alcock and Napier, 397. (Irish.) P 1 & 2 Vict. c. 110, s. 6; Bateman v. Dunn, 7 Dowl. 105; 6 Bing. N. C. 49. a Larchin v. Willan, 7 Dowl. 11; 4 M. and W. 351. r R. H. 2 W. 4, s. 33. s Hodgson v. Dowell, 3 M. and W. 284; 6 Dowl. 364; H. and W. 29. Hunter v. Whitfield, 6 Dowl. 70, a judge will reverse them, and without any costs thereon being payable by the defendant;" and if it can be shown by affidavit that the plaintiff knew of the defendant having an attorney in this country; and yet that he secretly procured to a capias or distringas a return of non est inventus, and with a view to outlawry; the Court or a judge will set aside the proceedings, and with costs payable by him.v [7.] If a married woman, on being arrested, applies upon the ground of coverture for her discharge out of custody, she ought also to ask for her costs; as those incurred upon such an application are not considered as 66 costs in the cause."w [8] In case of the bailiff who arrests a defendant making him give either for searching the office, for the bail-bond, for receiving the deposit under the statute, or for any other pretence, greater fees than those allowed in the scale of fees published under the authority of the Masters of the Courts; the Court will compel the sheriff to refund the excess, and also to pay the costs of the application.x [9]. The right of a defendant to call upon the plaintiff to give seenrity for costs, before he is allowed to proceed further in the action, is viewed as strictissimė juris, but is allowed in certain cases, e. g. 1. For payment of the former costs where a second action of ejectment is brought upon the same title, and for the same premises as in a former suit, and in which the costs remain unpaid, though it was not tried.a 2. And for security as to costs, in the case of the sovereign of a foreign stateb suing in a Court here. 3. A wife suing " Pigouv. Drummond, 4 Scott, 573; 1 Bing. 354. Id. 1 Scott, 264; 1 Bing. N. C. 354; Hunter v. Whitfield, 6 Dowl. 70. w Mummery v. Campbell, 4 Moore and Scott, 379; 10 Bing. 511; 2 Dowl. 798. x 1 Vict. c. 55, ss. 1, 4. y Ex parte Tull, 1 M. and A. 80. z Crundell v. Bodily, 8 Mod. 225; Stra. 554; Holdfast v. Jackson, Barnes, 133; Doe d. Standish v. Roe 5 B. & Ad. 878; 2 Nev. & M. 468. a Doe d. Langdon v. Langdon, 5 B. and Ad. 864; 2 Nev. and M. 848; Doe v. Shadwell, 7 Dowl. 527. b Emperor of Brazil v. Robinson, 5 Dowl. 322; 1 Nev. and P. 817; Ad. and Ell. 801. |