issue on which the defendant has succeeded, which costs the defendant will be entitled to have deducted from the plaintiff's costs. And it is further to be observed, as to the costs of the witnesses, that where a plaintiff succeeds on one of several issues, and the defendant succeeds on the others, but the defendant's witnesses are as necessary on the issues found against him as on the issues found for him, the plaintiff will be entitled to the costs of all his witnesses upon the issues found for him, and the defendant to none of his (y). But, in such a case, the defendant has been held to be entitled to the costs of his witnesses, if their evidence was substantially directed towards the issues found for him, although they gave some slight evidence on the issues found against him (z). In a late case, however, where the plaintiff substantially succeeded, the Court of Exchequer recognised and acted upon the rule laid down by Bayley, B., in Lardner v. Dick (a), that where some issues are found for the plaintiff, and some for the defendant, the latter is not entitled to the expense of his own witnesses, unless their evidence related exclusively to the issues found for him (b). The converse of the same rule would be applicable to the taxation of costs, if the defendant were substantially the successful party in the cause; in such case, he would be entitled to the general costs of the cause, and to the costs of the witnesses called in support of the issue on which he has substantially succeeded, although they may also have given evidence on the other issues (c). The defendant is entitled to the costs of all issues found for him, although they exceed the plaintiff's costs, notwithstanding the above rule, H. T., 2 W. 4, uses the word "deduct" (d); and if they exceed the plaintiff's costs, the defendant may have judgment and execution for their recovery (e). It may be here added, that, in general, the question as to whether particular costs incurred in relation to the trial of the cause, are referable to one issue or another, is a question of fact for the decision of the master alone, and the court will not interfere with it (ƒ). Double and treble Costs.] Only single costs were allowed by the statute of Gloucester, but double and treble costs have since that act, in some cases, been expressly given by statute. Also, where a statute gives double or treble damages, where damages were recoverable at common law, the plaintiff shall also have double or treble costs (g), but not where damages were not recoverable at common law (h). And not only the costs given by the jury shall be doubled or trebled, but also the costs de incremento (i). But it is only the ordinary costs (y) Richards v. Cohen, 1 Dowl. 533: (2) Eades v. Everett, 3 Dowl. 687. (d) Milner v. Graham, 2 Dowl. 422: see Twigg v. Potts, 4 Id. 266. (e) See Twigg v. Potts, 4 Dowl. 966. (f) Doe Smith v. Webber, 4 Nev. & M. 381; 2 Ad. & El. 448; 1 H. & W. 10, S. C. (g) 2 Bac. Abr., Costs, C.; Bull. N. P. 334: see Butterton v. Furber, 4 Moore, 296; 1 B. & B. 517, S. C. (h) Okely v. Salter, Noy, 137: see Butterton v. Furber, 1 B. & B. 517; 4 Moore, 296, S. C.: Charrington v. Meatheringham, 5 Dowl. 313. (i) Smith v. Dunce, 2 Str. 1048. of the cause that are thus doubled or trebled; and, therefore, CHAP. XXXI. where the plaintiff changed the venue to X., on undertaking to pay the defendant's extra costs of trying at X., and the defendant obtained a verdict, and was entitled by statute to double costs, it was held that the extra costs of trying at X., should not be doubled (k). Where a statute gives double costs to defendants, in case the plaintiff fails, the defendants who obtain a verdict, are entitled to their double or treble &c. costs, though the plaintiff obtains a verdict against the others (7). In an action upon a statute which gives double costs, if a new trial be granted, nothing being said on the subject of costs, the party who succeeds on both trials is entitled to double costs of both (m). Where the declaration contained several counts, and the defendants obtained a general verdict, it was held that they were not entitled to treble costs on the counts which complained of acts prohibited by the statute which entitled them to treble costs in case of success (n). mated. By double or treble costs, however, are meant, not double How estior treble the single costs; the true mode of estimating the amount of the double costs is, first to allow the prevailing party, the single costs, including the expenses of witnesses, counsel's fees, &c., and then allow him one half of the amount of the single costs, without making any deduction on account of counsel's fees, &c.(o). Treble costs consist of the single costs, half of the single costs, and half of that half (p). Where there are several issues, some found for plaintiff, and some for defendant, and defendant is entitled to treble costs, the proper mode of estimating them, is first to ascertain the defendant's single costs, then treble them, and then deduct the plaintiff's single costs from the amount so trebled (g). cessary. Unless the statute require it, no suggestion on the roll is, Suggestion in general, requisite to entitle the party to these costs; at for, when neleast, not if it appear by the record that the case is within the statute (r). Where a rule nisi was obtained to enter a suggestion for double costs, and it appeared on shewing cause that the double costs had been previously tendered, the rule was discharged with costs (s). for, when Where a statute requires a judge's certificate, to entitle Certificate the party to double or treble costs, such certificate need not, granted, &c. in general, be given immediately after the trial of the cause (†). Of course, the master cannot in such case tax the double or treble costs until the certificate is obtained. It may be added, that it has recently been decided by the Court of Common Pleas, confirming the old authorities, that a magistrate sued for an act done in his judicial character must, in order (k) Thomas v. Saunders, 3 Nev. & M. 572. (1) Hall v. Smith, 2 Bing. 267; 9 Moore, 477, S. C. (m) Loader v. Thomas, 1 C. & J. 54. (n) Wilson v. River Dun Company, 5 M. & W. 89; 7 Dowl. 369, S. C. (0) Staniland v. Ludlam, 4 B. & C. 889; 7 D. & R. 484, S. C. (p) Hullock, 484: see Phillips v. Bacon, 1 Chit. Rep. 137, n.: Buckle v. Bewes, 6 D. & R. 1; 4 B. & C. 154, S. C. (g) Wilson v. River Dun Co., 5 M. & W. 89; 7 Dowl. 369, S. C. (r) See Wells v. Ody, 3 Dowl. 799; 2 C., M. & R. 128, S. C. It was a case under the Building Act. (See Collins v. Poney, 9 East, 222). (8) Fosbrook v. Holt, 1 M. & W. 205; 4 Dowl. 700, S. C. (t) Norman v. Danger, 3 Y. & J. 203. BOOK IV. to obtain double costs under 7 Jac. 1, c. 5, obtain the certificate of the judge before whom the cause is tried (u). PART I. Repeal of Act Where a statute giving double or treble &c. costs is regiving double pealed during the pendency of a suit, the right to receive pending Suit. them is thereby destroyed, unless expressly saved (x). &c. Costs 2. Taxation of Costs. By whom taxed. Notice of 2. Taxation of Costs. The taxation of an attorney's bill of costs as between him and his client, has been fully considered in the first Volume, and the subject of taxation of costs, in particular instances, has been incidentally noticed in many parts of the Work. It may be well, however, to consider the practice of taxation, as between party and party, here in one view. By whom Taxed.] By the 1 Vict. c. 30, s. 3, the masters of the respective courts of law are authorized and required to tax all costs in matters of a civil nature in any of the courts, or in the Exchequer Chamber, indiscriminately, although the costs may not have arisen in respect of business done in the court, to which such masters may belong; and the judges are authorized to make rules on the subject (y). Notice of Taxation, Affidavit of Increase, &c.] By rule of T. T., 1 W. 4, r. 12, it is ordered, "that before taxation of Increase, &c. costs, one day's notice (z) shall be given to the opposite party” (a). But this rule only applies to cases in which a notice of taxation is necessary (b): and such notice is not necessary upon a cognovit, where it is given in a sum certain for the amount of debt and costs; for as to the costs of the action, they are already fixed at a certain sum (c); and as to the costs of signing judgment, a fixed sum is always marked without taxation (d). And by the R. H., 4 W. 4, r. 17, "notice of taxing costs shall not be necessary in any case where the defendant has not appeared in person, or by his attorney or guardian." And it is not necessary where the plaintiff has entered an appearance for the defendant (e). Nor, in such a case, is it necessary to deliver a copy of the bill of costs, or affidavit of increase in the Exchequer, notwithstanding the rule of that court M. 1. 1830, s. 12 (ƒ). But it is necessary where the defendant has done that which is equivalent to appearing (g). A service of this notice of taxation at any time before nine o'clock at night for the next day would suffice (h). If the opposite party, however, wishes a longer notice, he may, it seems, gain it by obtaining from the master a rule, to be present at the taxation, and serving a copy of it on the attorney of the prevailing party before the time for signing judgment (u) Penny v. Slade, 7 Dowl. 440; 5 Bing. N. C. 469. (1) Warne v. Beresford, 6 Dowl. 157: (y) See the sect. verbatim, Vol. I. 80. (e) It would be different if they were not. (See per Patteson, J., 2 Dowl. 143). (d) Griffiths v Liversedge, 2 Dowl 143: Clothier v. Ess, 3 Moo, & Sc. 216: Clarke v. Jones, 3 Dowl. 277. (e) Bolton v. Maning, 5 Dowl. 7: Burch v. Pointer, 3 M. & W. 310 ; 6 Dowl 387, S. C. (f) Burch v. Pointer, 6 Dowl. $66; 3 M. & W. 310, S. C. (g) Lloyd v. Kent, 5 Dowl. 125. has expired; the latter must then give twenty-four hours' CHAP. XXXI. previous notice of taxing costs; and if the costs are taxed without such notice, the taxation would be irregular, and the attorney liable to an attachment; but if this rule to be present is not served until the time for signing judgment has expired, he is not obliged to give more than the above one day's notice, which, as we have just seen, may be given at any time before nine at night for the next day (i). It may be as well here observed, that this notice of taxation, or the first appointment made by the master, is peremptory, and he will proceed ex parte thereon, unless sufficient cause is shewn for the postponement(). Any reasonable costs incurred in serving this notice will be allowed (k). As regards the consequences of omitting to give this notice when requisite, it seems that the omission will not afford a ground for setting aside the judgment and execution; and that all the court will do will be to refer it to the master to re-tax the costs; and if, upon the taxation, there be any reduction of the amount, they will make the party whose costs are taxed pay the costs of the rule; or, if nothing be taxed off, they will not allow costs on either side (7). If the attorney for the opposite party attend the taxation, he thereby waives all irregularity as to notice (m). The master will tax the costs upon a view of the pro- Affidavit of ceedings, but if there be extra expenses incurred, which Increase. do not appear upon the face of the proceedings; such as witnesses' expenses, fees to counsel, attendances, court fees, &c., an affidavit must be made of these extra costs, otherwise the master will not be warranted in allowing them (n). Such affidavit should be left at the master's office one clear day before the day appointed for taxation (o). Copy, Bill of in Exchequer. In the Exchequer, by rule M. T. 1830 (p), a copy of the bill Delivery of of costs and affidavit of increase must be delivered to the op- Costs, and posite attorney one day previous to the taxation in the case Affidavit &c. of town posteas and inquisitions, and two days previous to the taxation in country ones. And this rule is imperative, and must be complied with, unless the opposite party waives his right under it by attending the taxation or otherwise (q). It does not, however, extend to cases where the defendant has not appeared, or when he appears himself, and not by attorney (r), or to the taxation of costs upon a demurrer; and even in cases within the rule, the omission to comply with it is not a ground for setting aside the judgment, but merely for a rule to review the taxation (s). What Costs allowed, &c. (t).] The mode of taxation and What Costs amount of costs allowed between attorney and client, have been allowed, &c. (i) 1 Sellon, 504; Tidd, 989: Edmunds v. Coates, 4 M. & W. 66. (5) R. H., 32 G. 3: 2 W. 4, r. 92. (k) Thorp v. Wordy, 2 C. & J. 488. (1) Lloyd v. Kent, 5 Dowl. 125: Bolton v. Manning, 5 Dowl. 769. (m) Wilkins v. Perkins, 2 M. & W. 315; 5 Dowl. 461, S. C. (n) See the forms, Chit. Forms, 629 to 631. (0) Chap. Prac. 156. (p) 1 C. & J. 279; 1 Tyr. 161. (q) Wilkins v. Perkins, 2 M. & W. 315; BOOK IV. Costs of re gular and necessary Proceedings. Costs of Letters. Costs of Costs of Costs of already noticed. In taxing costs between party and party, the master will allow the costs of all regular and necessary proceedings in the cause, and he will also allow all such incidental costs as are, or are to be, directed to be costs in the cause. Of course, he will not allow the costs of unnecessary proceedings(x). An attorney is entitled to his costs for writing a letter to the defendant, demanding the debt before writ issued (y), the usual practice is to allow for one letter only; even where the defendant had requested that time should be given, and every accommodation was shewn by the plaintiff's attorney, and in the correspondence, before writ issued, plaintiff's attorney had written fifteen letters, and had received fourteen from the defendant, for thirteen of which he had paid postage, he was held entitled to the costs of only one. (z). The plaintiff is entitled to the allowance of a sum, sworn to have been paid by him for the postage of foreign letters as being solely applicable to the cause; but he is entitled to the expenses of the production and translation of such letters only as are applicable to such parts of the counts as relate to the verdict (a). The master has been held to be justified in allowing the costs of two writs issued in one action against the defendant into two counties, where it was doubtful in which county he was to be found (b), it not appearing that they were concurrent writs. But now, although several writs may be issued on one præcipe, it is probable that the plaintiff would be held entitled to the costs of one only (c). The costs of all necessary pleadings will, of course, be allowed to the party who succeeds on them. The practice where there are several counts, or several pleas, has been already noticed (ante, 1154 to 1160). Where an attorney charged for a declaration as containing more folios than it really contained, and the master allowed the charge, the court ordered the taxation to be reviewed (d). The party who substantially (e) succeeds on a rule which forms part of the regular proceedings in the cause, no mention of costs being made, will be entitled, if he also succeeds in the cause, to have the costs of the rule allowed him as costs in the cause (f). But he will not be so entitled to the costs of a rule merely collateral to the action; for instance, a rule to discharge defendant out of custody on the ground of coverture, or arrest in a wrong name (g). Where the defendant obtains a rule to deliver up the bill on which the action is brought, or the like, on payment of costs, this does not make him liable to the costs of previous rules which have been decided against him, but without mention of costs (h). If an attorney shew cause on his own behalf against a rule, his client not appearing, the costs of the at (x) Jones v. Roberts, 2 Dowl 374: Hearn v. Battersly, 3 Dowl. 213: Lewis V. Woolrych, 3 Dowl. 692. (y) Morrison v. Summers, 1 Dowl. 325; 1 B. & Ad. 559, S. C. 3 M. & W. 57. (d) Morris v. Hunt, 1 Chit. 544. (e) M'Andrew v. Adams, 3 Dowl 120. (f) See Goodall v. Ray, 4 Dowl. 1: Mummery v. Campbell, 2 Dowl. 798 (g) Mummery v. Campbell, 2 Dowl (2) Capell v. Staines, 5 Dowl. 770. (b) Morris v. Hunt, 1 Chit. 544. (h) Hannah v. Willis, 5 Bing. N. C. 385. |