SECT. 2. matter of form (y). And in a late case, where the names of CHAP. XXX. the deponents were omitted in the jurat, through the inadvertence of the judge's clerk, the judge allowed an amendment (z). If there is a defect in intitling affidavits produced on shewing cause against a rule, the court will sometimes allow the rule to be enlarged, in order that the title may be amended (a). And in a recent case, the title of an affidavit on which a rule had been obtained was allowed to be amended on payment of costs, the opposite party having leave to file affidavits in reply (b). If the affidavit be re-sworn, it seems that it can only take effect from the date of the new jurat (c). (y) See Austin v. Grange, 1 H. & W. 670, where it was held to be no objection to an affidavit that the words "before me" in the jurat were struck out, and by the court" inserted. (2) Er p. Smith, 2 Dowl. 607. As to amending in the Exch. see 1 Tyrw. Rep. 261. (a) Anderson v. Ell, 3 Dowl. 73: see Davies v. Skerlock, 7 Dowl. 592. (b) Rex v. Warwickshire Justices, 5 Dowl. 382: see Davies v. Skerlock, 7 Dowl. 592. (c) See Wood v. Stephens, 3 Moore, 326, per curiam, CHAPTER XXXI. COSTS. BOOK IV. Costs not al mon Law. 1. Statutes and Rules, as to, | 2. Taxation of—continued. 1138. Notice of Taxation, Affidavit of Increase, &c., 1162. What Costs allowed, &c., 1163. Directions to Taxing Officers, where Costs under 201., 1167. Reviewing Taxation, 1168. 3. Remedies for Costs, id. 1. Statutes and Rules as to. AT common law, neither the plaintiff nor the defendant was entitled to costs. In all actions, however, in which damages lowed at Com- were recoverable, the plaintiff, if he had a verdict, was in effect allowed his costs; for the jury always computed them in the damages. But the defendant was wholly without remedy for any expenses he had been put to, if he had a verdict, or the plaintiff were nonsuited, the amercement to which the plaintiff was subjected in such a case, pro falso clamore suo, going entirely to the crown. Now allowed by Statute. This, however, has since been remedied by statute. By stat. Gloucester, (6 Ed. 1, c. 1), the plaintiff, in all actions in which he recovers damages, shall also recover against the defendant his costs of suit(a); which statute extends to all cases in which single damages have been given by a subsequent statute (b), and also to cases where an action is given to a party grieved (c), but not to actions by a common informer (d). The circumstance that the plaintiff's cause has been conducted by one who is not an attorney, does not, in general, deprive the plaintiff of his right to full costs against the defendants (e). As to defendants, they are also now by stat. 23 H. 8, and 4 Jac. 1, entitled to costs if they have a verdict, or if the plaintiff be nonsuited after appearance, in all actions in which the plaintiff would be entitled to costs if he recovered (ƒ). (a) See Garland v. Jekyll, 2 Bing. 330; (b) Jackson v. Colesworth, 1 T. R. 73. (d) Shore v. Madisten, 1 Salk. 206: and N. P. 194: Ward v. Snell, 1 H. BL 10. (e) Reader v. Bloom, 3 Bing 9: 10 Moore, 261, S. C.: Anon. v. Šerton, 1 Dowl. 180: Bayley v. Thompson, 2 Dowl 665: Hill v. Mills, Id. 696: sed vide Young v. Dowiman, 3 Y. & J. 24: ante, Vol. I. 35: and see Patterson v. Powell, 3 Moo. & Sc. 195: Meekin v. Whalley, 4 Id. 494: Humphrys v. Harvey, Id. 500. (f) 4 J. 1, c. 3: 23 H. 8, c. 15. But the statute of Gloucester, giving costs to the plaintiff in CHAP. XXXI. all cases where he recovered damages, as above mentioned, was Not allowed found to have the effect of encouraging, suits for very trifling to Plaintiff in causes; and the legislature, therefore, were obliged to interfere, certain Cases. and have in some measure remedied the evil, by enacting that if the plaintiff, in certain cases, recover less than 40s. damages, he shall be entitled to no more costs than damages. The statutes making this provision shall be mentioned particularly in the course of the present Chapter. Having made these few observations upon the subject of costs generally, and observing that the costs of particular actions, and in particular proceedings, have for the sake of convenience been treated of under the respective titles throughout this Work, we shall now consider the following branches of the subject which have not elsewhere been particularly noticed: viz. On Verdict for Plaintiff.] The general rule, established by After Verdict the statute of Gloucester, as above mentioned, is, that the plaintiff for Plaintiff. is entitled to his costs in all cases where he recovers damages. In General. The operation of this rule is, however, in many cases modified by subsequent statutes; and, first 43 El. c. 6, under 40s. By 43 El. c. 6, s. 2, if in a personal action "not being for Where Judge any title or interest of lands(g), nor concerning the freehold or certifies under inheritance of any lands, nor for any battery," it shall be cer- s.2, that Debt tified by the judge, (not the sheriff or judge of an inferior court or Damages trying under the 3 & 4 W. 4, c. 42, s. 17(h), nor on a writ of inquiry (i), before whom it shall be tried (k)), that the debt or damages to be recovered therein do not amount to 40s., the plaintiff shall have no more costs than damages, but less at the discretion of the court (1). The object of the statute was to confine trifling suits to inferior courts, or, in other terms, to prevent the bringing of actions which, in point of principle, ought not to be commenced at all (m). It has been holden to apply to all personal actions not expressly excepted from it (n). Even in actions upon statutes giving the plaintiff "full costs of suit," the judge may certify under this statute, which will have the effect of giving the plaintiff no more costs than damages(). In an action against an attorney, where there is a verdict for less than 40s. damages, the judge may certify under this statute, although the defendant could only be sued in the superior court (p). And he may certify, though one of the defendants suffer judgment by default (9). And although the (g) A right to take water from a well, by reason of the occupation of a dwelling-house, and for the more convenient occupation thereof, is an interest in land. (Tyler v. Bennett, 5 Ad. & El. 377). (h) Claridge v. Smith, 4 Dowl. 583; 1 H. & W.667, S. C. (i) Wardroper v. Richardson, 1 Ad. & Ell. 75: Story v. Hodson, 5 Dowl. 558: Jones v. Bond, 2 M. & W. 813; 5 Dowl. 455, S. C. (k) Therefore, on a trial before the sheriff, where a verdict is given for less than 40s., the court has no power under the act to deprive the plaintiff of his costs. (Story v. Hodson, 5 Dowl. 558). (1) See Hallock, 19, 27: Walker v. Ro binson, 2 Str. 1232; 1 Wils. 93, S. C.: How- (m) Per Burrough, J., in Pyeburn v. (n) See Dand v. Sexton, 3 T. R. 37: Pyeburn v. Gibson, 8 Moore, 450, and the cases infra. (0) Irwine v. Reddish, 5 B. & Ald. 796; 1 D. & R. 413, S. C.: see Simpson v. Hurdis, 2 M. & W. 85; 5 Dowl. 304, S. C. (p) Wright v. Nuttall, 10 B. & C. 492; 5 M. & R. 454, S. C.: and see Pyeburn v. Gibson, 8 Moore, 450. (q) Harris v. Duncan, 4 Nev. & M. 63; 2 Ad. & E. 158, S. C. BOOK IV. PART I. defendant has pleaded several pleas, embodying the same defence, contrary to R. H. T., 4 W. 4, s. 7 (which would otherwise entitle the plaintiff to his costs (r). And a plea of justification does not, it seems, necessarily prevent the judge from certifying (s). The form of the declaration may shew that the case is within the statute, but does not conclusively shew that it is not; and in order to determine whether or not the case is within the statute, the pleadings, and if they be not conclusive, then the evidence must be considered: therefore, if the action be for assault, battery, and false imprisonment, yet if no battery be admitted or proved, the judge may certify (t); and even where a battery is proved, the judge may certify as to the assault and false imprisonment, and then by the 22 & 23 C. 2, (see post, 1142), the plaintiff will be deprived of his costs upon the battery also (u). And the same has been held in an action for an injury to a right of common by digging turves, the title, &c., not coming into question (x). And where to an action of trespass quare clausum fregit, "not guilty" was pleaded since the rule H., 4 W. 4, r. 5, s. 2, and the title, &c., did not come in question, it was held that the judge might certify (y). But if from the pleadings it appear that the title or interest in the lands, or the freehold or inheritance therein, necessarily came in question, or if a battery be admitted, the judge cannot certify; or if he do certify, the court, upon application, will direct the master to tax the plaintiff his costs, notwithstanding the certificate(). Thus, where to trespass for breaking and entering a house, the defendant pleaded, 1st, not guilty; 2nd, that the messuage was not the plaintiff's; 3rdly, Liberum tenementum, and the plaintiff replied a demise from defendant, on which issue was joined, the plaintiff was held to be entitled to his full costs, notwithstanding a certificate under 43 Eliz. (a). And where to trespass quare clausum fregit, with a count de bonis asportatis, the defendant pleaded the general issue and accord and satisfaction, the question at the trial being, whether a term for years had expired, and the jury found a general verdict for the plaintiff, with damages under 40s., and the judge certified the amount of the damages under the statute 43 Eliz. c. 6, the Court of Exchequer held, that the plaintiff was entitled to costs de incremento, notwithstanding the certificate (b). So, where to trespass for breaking and entering plaintiff's stable and taking a horse, defendant pleaded "not guilty," and that the stable was not the plaintiff's, and leave and license; a verdict having been found for the plaintiff, with one farthing damages, the judge certified under the stat. 43 Eliz.: it was held, that the plaintiff was entitled to full costs, notwithstanding the judge's certificate (c). And the same in a late case, where to trespass for assault and false imprisonment the defendant (r) Simpson v. Hurdis, 2 M. & W. 84; (s) Walker v. Robinson, 1 Wils. 93. (u) Wiffin v. Kincard, 2 N. & R. 471: (x) Edmonson v. Edmonson, 8 East, 296. (y) Smith v. Edwards, 1 Har, & W. 497; 4 Dowl. 621: see Mills v. Stephens, 6 Dowl. 593. (2) Littlewood v. Wilkinson, 9 Price, 314: Bone v. Dawe, 3 Ad. & EL 711; 1 H. & W. 311; 5 Nev. & M.230, S C. Thomas v. Davies, 3 Nev. & P. 567: Dunnage V. Kemble, 3 Bing. N. C. 538; 4 Scott, 35, S. C.: Rawlings v. Till, 3 M. & W. 28. (a) Thomas v. Daries, 3 Nev. & P. 557: 8 Ad. & E. 598, S. C. (b) Wright v. Piggin, 2 Y. & J. 454. (c) Purnell v. Young, 6 Dowl 347: Pugh v. Roberts, 6 Dowl. 561. pleaded a justification under a writ of capias (d). And the CHAP. XXXI. same in an action for an assault and battery, where the battery was justified (e). Where, however, to an action for an assault and battery of plaintiff's wife, the defendant pleaded that she was not the wife of the plaintiff, it was held that this did not necessarily admit the battery, and consequently, did not preclude the judge from certifying (f). may be The certificate may be granted at or within a reasonable When the time after the trial, and before judgment (g); it has been Certificate granted even after taxation (g). It is, in general, final, if the granted. judge have power to certify, and the court will not interfere with its operation, except, as we have already seen, in cases not within the statute, and in which the judge had no power to certify (h). But it seems that the judge who has granted the certificate may, within a reasonable time, (at all events, not exceeding the first four days of the next term (i)), review and annul it; and in one case, Patteson, J., certified under the statute; but, in the ensuing term, new facts, which did not appear at the trial, being laid before him on affidavits, he granted an order to annul the certificate (k). In a later case, however, the Court of Common Pleas held, that, even assuming that the judge had power to revoke his certificate within a reasonable time, it was too late to revoke it fourteen months after the trial (7). in Assumpsit. In assumpsit and covenant, therefore, the plaintiff, if he have Effect of 43 a verdict, is, in all cases, entitled to costs, unless the damages Eliz. c.6, s. 2. be under 40s.; and, even in that case, unless the judge certify under 43 Eliz. c. 6, as above mentioned. And the same in debt on simple contract, and in debt on spe- In Debt. cialty, unless the debt and damages be under 40s., and the judge certify. But, in debt on a penal statute by a common informer, the plaintiff is not entitled to costs in any case, unless expressly given by the statute creating the penalty (m). And by stat. 43 G. 3, c. 46, s. 4, in debt on judgment, the plaintiff shall not be entitled to any costs of suit, unless the court in which such action shall be brought, or some judge of the same court, shall otherwise order; which statute, however, extends only to actions brought upon judgments obtained by plaintiffs, and not to such as are brought upon judgments of nonsuit, or the like (n). And in an action on a judgment, the court refused to stay proceedings on payment of the debt without costs, where there was probable ground for the plaintiff's claiming also interest on part of the debt (o). The court would allow the plaintiff his costs if defendant pleaded a sham plea, as nul tiel record, &c. (p). But where a defendant had (d) Rawlins v. Till, 3 M. & W. 28; 6 Dowl. 159, S. C. (e) Bone v. Dawe, 5 Nev. & M. 230; 1 H. & W. 311; 3 Ad. & El. 711, S. C. (f) Wilson v. Lainson, 3 Bing. N. C. 307; 3 Scott, 676; 5 Dowl. 339. S. C. (g) Holland v. Gore, 3 T. R. 38, n.; Say. Costs, 18: Forall v. Banks, 5 B. & Ald. 536: Whalley v. Williamson, 5 Bing. N. C. 200; which see as to reasonable time. (h) Twigg v. Potts, 4 Dowl. 266: Cann v. Facey, 5 Nev. & M. 405; 4 Ad. & El. 68; 1 H. & W. 482, S. C. (i) See per Tindal, C. J., 5 Bing. N. C. 202. (k) Anderson v. Sherwin, 7 C. & P. 527. (1) Whalley v. Williamson, 5 Bing. N. C. 200. (m) 2 Bac. Abr., Costs, E 3; Bul. N. P. (n) Bennet v. Neale, 14 East, 343 |