BOOK IV. 4. The Costs. In case of In case of in the case of a trial before the sheriff the defendant should move to discharge the writ of trial, and then take the cause down by proviso (h). 4. The Costs. It is entirely in the discretion of the court, whether they will oblige the party applying for a new trial to pay costs, as a condition precedent to his proceeding to a second trial. Upon setting aside a nonsuit, or a verdict for misdirection Misdirection. of the judge, the court grant a new trial usually without costs (i). Where the verdict was set aside for the misconduct of the jury, the court ordered the costs to abide the event of &c., of Jury. the second trial (k); if set aside, because the verdict was contrary to law or to the opinion or direction of the judge, a new trial is granted usually without costs (7); but if because the verdict was contrary to evidence, or because of excessive damages, the new trial is usually granted upon payment of costs (m). Where during the trial of a cause one of the jury absconded, and the others were accordingly discharged, and a second trial was afterwards had, when a verdict was found for the plaintiff, it was held that the plaintiff was entitled to costs of the first trial (n). But if a judge of his own authority discharges a jury from giving a verdict on the ground of their not being able to agree, the party ultimately successful will not be entitled to the costs of the first attempt at trial (o). In case of prise. If a party have obtained a verdict by trick, the court will Fraud or Sur- grant a new trial without costs, or, perhaps, in very gross cases, will oblige him to pay the costs (p). Where a new trial was granted because the plaintiff had a material witness for the defendant concealed in his house, and prevented him from being served with a subpoena, it was granted without costs (q). If granted on the ground of surprise not fraudulent, it seems it will be on payment of costs (r). On new Where new without Men If a new trial be granted upon a ground not opened at the first trial, it will be upon payment of costs (s). By R. H., 2 W. 4, r. 64, “if a new trial be granted Trial granted without any mention of costs in the rule, the costs of the first tion of Costs. trial shall not be allowed to the successful party, though he succeed on the second" (t). Consequently, if the rule for a new trial says nothing about the costs of the first trial, they (h) Corone v. Garment, 1 Hodges, 74: Day v. Day, 1 M. & Wels. 39; 4 Dowl. 740; 1 Gale, 403; 1 T. & G. 314, S. C. (i) Buscall v. Hogg, 3 Wils. 146: Vale v. Bayle, Cowp. 297: Harris v. Butterley, 2 Id. 485: Jackson v. Duchaire, 3 T. R. 553: Goodright v. Saul, 4 Id. 359. Hullock, 388. (k) Hale v. Cove, 1 Str. 642. (4) Hullock, 387: Furneaux v. Hutchins, Cowp. 808: Pochin v. Pawley, 1 W. BI. 670: Jackson v. Duchaire, 3 T. R. 551: Farrant v. Olmius, 3 B. & Ald. 692. (m) Anom., 12 Mod. 370: Macrow v. (n) Harrison v. Bennett, 1 C. & M. 203. (p) Anderson v. George, 1 Burr. 352; see Hullock, 391. (9) Bull. N. P. 328: but see Turquand v. Dawson, 1 C., M. & R. 709, where the court refused a new trial, applied for by the plaintiff, on a similar ground (ente, 1093). (r) See Greatwood v. Sims, 2 Chit. 28. (8) Sutton v. Mitchell, 1 T. R. 20. (t) See the former practice by which in C. P. & Exch., but not in Q. B., a party who succeeded in both trials was entitled to the costs of the first, though not mentioned in the rule. (Tido, 9th ed. 916: Truslove v. Barton, 10 Moore, 96: Loader v. Thom78, 3 Y. & J. 525; 1 C, & J. 54, S. C.) fall to the ground as a matter of course (u). Where, after a CHAP. XXVII. verdict for the plaintiff, a new trial was obtained, and the rule was silent as to costs, and after the plaintiff had applied for a special jury the defendant withdrew his plea and suffered judgment by default, and damages were assessed thereon; the court held that the plaintiff was not entitled to the costs of the first trial (x). And where the first trial is abortive, and neither party is liable to the costs of it in the first instance, both parties are in the same situation as to costs as if no trial had taken place, and the plaintiff will not make himself liable to the costs of it by discontinuing, nor will the defendant by withdrawing his defence, and suffering judgment by default (y). So, where the cause was referred at Nisi Prius, and the award was afterwards set aside, and a second trial had, the successful party was held not to be entitled to the costs of the first trial (*). But the rule applies only to the costs of those issues on which a new trial is granted. Where, therefore, on the trial of a right of way in one count claimed as a public, and in another as a private way, a general verdict was found for the defendants, and the court afterwards directed a new trial, expressly by the rule confining it to the right claimed in the second count, but in the rule no mention was made of costs, nor any reservation of defendant's verdict on the first count; the court held that the defendants were nevertheless entitled to the costs of the issues found for them on the first trial, and not in contest on the second, they having succeeded on such second trial (a). After a verdict for the plaintiff, a new trial was obtained by defendant, and the rule was silent as to costs, and the plaintiff afterwards discontinued; the court held the defendant was not entitled to the costs of the trial (b). ordered to Where the costs are ordered to abide the event of the second Where the trial, if the same party succeed on both trials, he shall have Costs are the costs of the first as well as the second (c); but otherwise abide the the costs of the first shall not be allowed (d). Where, how- Event. ever, the second trial was granted on the application of the plaintiff on account of the smallness of the damages, and the costs were to abide the event, and the plaintiff at the second trial obtained only the same amount of damages; he was held entitled to the costs of the second trial only (e). By "the event of the second trial" is meant the ultimate event of the cause; and, therefore, if the verdict at the second trial be set aside, and on the third trial the ultimate (u) Colrin v. Newbury, 2 Dowl. 415: and see Porter v. Cooper, 3 Id. 662; 2 C., M. & R. 232, S. C. (x) Peacock v. Harris, 1 Nev. & P. 240; 5 Ad. & El. 449, S. C.: see Elvin v. Drummond, 4 Bing 415, (y) Jolliffe v. Mundy, 4 M. & W. 502; 7 Dowl. 225, S. C.: infra, n. (b). (2) Wood v. Duncan, 7 Dowl. 344; 5 M. & W. 87, S. C. (a) Bower v. Hill, 2 Scott, 535, 540; 5 Dowl. 183, S. C.: sed vide Peacock v. Harris. 1 Nev. & P. 240: 5 Ad. & El. 449, S. C. (b) Gray v. Cor, 5 B. & C. 458; 8 D. & R 220, S C. The cases of Sweeting v. Halse, 9 B. & C. 369, n.: Chapple v. Durston, 1 C. & J. 111: Jackson v. Halland, 2 B. & Ald. 317; 1 Chit. Rep. 19, S. C., which are to the contrary of those in the (c) Trelawney v. Thomas, 1 H. Bl. 641: (d) Austen v. Gibbs, 8 T. R. 619: Chapman v. Partridge, 2 N. R. 382: Bird v. Appleton, 1 East, 111: Howarth v. Samuel, 1 B. & Ald. 566: Dodd v. Neal, 2 C. & M. 225. (e) Hudson v. Marjoribanks, 8 Moore, 440; 1 Bing. 393, S. C. BOOK IV. Double Costs of first Trial. Recovery of first Trial. event be the same as on the first trial, the party will be entitled to the costs of the first trial (ƒ). After a verdict for a defendant, the court made a rule absolute for a new trial, and ordered that the costs of the former trial should abide the event of such new trial: the record was carried down to the Spring assizes following, and made a remanet: it was tried a second time at the Summer assizes, when a verdict was again found for the defendant. The court afterwards ordered that the verdict should be set aside, and a new trial had between the parties, upon payment of the costs of the last trial, and that the costs of the first trial should abide the event of such new trial: upon the third trial a verdict was found for the plaintiff; and the court held, that the plaintiff was entitled to the costs occasioned by the cause having been made a remanet at the assizes next following the term when the first rule was made absolute for a new trial (g). In an action upon a statute which gives double costs, if a new trial be granted on a rule ordering the payment of the costs of a first trial generally, it would mean the double costs (h). When a new trial is granted to the defendant on payment &c., of Costs of costs, the plaintiff should not carry down the cause for trial until they are paid; for if he do so, he will have no remedy for the costs of the former trial, even though he should again obtain a verdict (i). In the Court of Queen's Bench, if a new trial be granted on payment of costs, the court will not point out in the rule a particular day on which the costs must be paid (k). Amount of Where a rule for a new trial has been obtained on payment the Costs, &c. of costs, there is a broad distinction between costs of the trial and costs in the cause; the costs of the pleadings, for instance, are never allowed. Costs of obtaining admission of documents, and of giving notice to produce documents at the first trial of an action, are costs in the cause; but costs of preparing briefs may be allowed as costs of the trial when the necessity for doing so is shewn (7). Where there have been two trials, and the successful party is entitled to the costs of the second trial only, the master, in taxing costs, may allow fees on the second trial with reference to those given on the first (m). Costs of resisting an unsuccessful application for a new trial are costs in the cause (n). 5. Venire de novo. 5. Venire de novo. The venire de novo is the old common law mode of proceeding to a second trial, and differs materially from the granting a new trial, inasmuch as the venire de novo is awarded for some defect appearing upon the face of the record, while a new trial is granted for matter entirely extrinsic. A venire de novo is not awarded for every defect appearing upon the face (f) Meule v. Goddard, 5 B. & Ald. 766. (g) Gibbons v. Phillips, 8 B. & C. 437: see Robinson v. Day, 5 B. & Ad. 814. (h) Semble, Loader v. Thomas, 1 C. & J. 54. (i) Doe Davie v. Haddon, Tidd, 9th ed. 915. (k) Bland v. Warren, 6 Dowl. 21. (1) Lord v. Wardle, 6 DowL. 174. (m) Wilkinson v. Malin, 2 Dowl. 6: see Lord v. Wardle, 6 Dowl. 174. (n) Eyre v. Thorp, 6 Dowl. 768. of the record, but for a defective finding in the verdict only (o). CHAP. XXVII. If a verdict be entered generally on all the counts in a declaration, and entire damages given, and one of the counts be bad, the court will not arrest the judgment, but will award a venire de noro(p). But a venire de novo cannot be awarded, where general damages are assessed, upon a declaration containing a misjoinder of counts (q). And it cannot be granted by a court of error, on a proceeding out of an inferior court (r). But it may be granted on error out of a superior court, such as the Queen's Bench, Common Pleas, or Exchequer. Thus, where on a bill of exceptions as to the admissibility of evidence, the evidence was held inadmissible, the court awarded a venire de novo(s). And the same where there was a misdirection(t). And the same, where, on a bond conditioned for the performance of covenants under the 8 & 9 W. 3, c. 11, the jury omitted to assess damages for the breach (u). Where the verdict can be amended, a venire de novo is never awarded (x). An application for a venire de novo may be made by the plaintiff on a subsequent day, in the same term, after a rule for arresting the judgment has been made absolute (y). Where a venire de novo is awarded, the party succeeding at the second trial is not entitled to the costs of the first (≈). (0) Goodtitle v. Jones, 7 T. R. 52: Witham v. Lewis, 1 Wils. 55: see Rex v. Woodfall, 5 Burr. 2661: Holt v. Scholefield, 6 T. R. 691: Crowder v. Rooke, 2 Wils. 144: Hicks v. Keats, 6 D. & R. 68; 4 B. & C. 69, S. C.: Eichorn v. Lemaitre, 2 Wils. 367. (p) Ante, Vol. I. 324. (q) Corner v. Showe, 6 Dowl. 688; 4 M. & W. 163, S. C. (r) Trevor v. Wall, 2 Doug. 732, n.; 1 T. R. 151, S. C.: per Coltman, J., Strother v. Hutchinson, 4 Bing. N. C. 92: see Davies v. Pierce, 2 T. R. 125; 2 Doug. 732, n.: Roles v. Rosewell, 5 T. R. 540: Hardy (8) Davies v. Pierce, 2 T. R. 125. (2) Edwards v. Brown, 1 C. & J. 354; CHAPTER XXVIII. BOOK IV. What and in what Cases granted. The Motion, Argument, Rule, &c., for. Form of, and Writ of Inquiry on. JUDGMENT NON OBSTANTE VEREDICTO. WHERE the defence put upon the record is not a legal defence to the action in point of substance, and the defendant obtains a verdict, the court, upon motion, will give the plaintiff leave to sign judgment notwithstanding the verdict, provided the merits of the case be very clear. But where the plea contains no confession of the cause of action, the proper course is to award a repleader, and not to give judgment non obstante veredicto (a). And after a reference at Nisi Prius, and award, the plaintiff cannot move for judgment, non obstante veredicto, on an issue directed to be entered for the defendant; the power of the arbitrator being complete and final (b). And it seems that the defendant cannot in any case obtain judgment non obstante veredicto, however insufficient the plaintiff's pleadings may be; and that his proper course is to move in arrest of judgment (c). By R. H., 2 W. 4, r. 65, “no motion in arrest of judg ment, or for judgment non obstante veredicto, shall be allowed after the expiration of four days from the time of trial, if there are so many days in term; nor in any case after the expiration of the term, provided the jury process be returnable in the same term." Where a cause is tried in vacation, the motion must be made within the first four days of the ensuing term; inasmuch as the above rule applies to cases in vacation as well as in term (d). The motion is for a rule to shew cause; which, after argument, is made absolute or discharged, as in ordinary cases. On this motion the court will look at the record as it stood at the time of trial, and not as it stood at the time of pleading; ex. gr. where there were two counts for 107. each, and damages were laid at 201., and defendant pleaded payment of 10l., and plaintiff entered a nolle prosequi as to one count before trial, and defendant obtained a verdict, the court refused to give judgment non obstante veredicto (e). The judgment is interlocutory; after which a writ of inquiry must be executed, and final judgment signed, as in ordinary cases (ƒ). If the plaintiff obtain judgment on all the pleas, he may execute a writ of inquiry to assess his damages without leave of the court; but if the defendant has succeeded on any of his pleas, he will be entitled to retain his verdict on them; and there must be a venire de novo(g). If the damages be not material, as if the action have been (a) Plummer v. Lee, 2 M. & W. 495. (d) See Thomas v. Jones, 4 M. & W. 28: (e) Wright v. Acres, 1 Nev. & P. 761. (f) See Clement v. Lewis, 3 B. & B. 297: 7 Moore, 200, S. C. There is no decasion for leave of the court to execute the inquiry. (Shephard v. Ha'ls, 2 Dowl. 453). See the forms, Chit. Forms, 624. (g) Per Parke, B., Shephard v. Halla, 2 Dowl. 453. |