the plaintiff, but the defendant obtained a verdict on one issue CHAP. XXXI. which covered the entire cause of action, it was held that the plaintiff was entitled to six-sevenths of the costs of copying, transcribing, &c., those objections, and the costs of the issues found for him, but that the defendant was entitled to the costs of the issues found for him, and the general costs of the cause (y).

In actions on statutes by parties aggrieved, the plaintiff, if In Actions on he have a verdict, is entitled to costs, as in other cases, Statutes. though the statute on which the action is founded be subsequent to the statute of Gloucester (z). But, in actions by an informer, the plaintiff is not entitled to costs unless expressly given to him by statute (z).

ting out

Before the 8 & 9 W. 3, c. 11, in an action on the statute On 2 & 3 Ed. of 2 & 3 Ed. 6, for not setting out tithes, the plaintiff was not 6, for not setin any case entitled to costs of suit(a). But sect. 3 of that Tithes. act enacts, "that in all actions of debt for not setting forth of tithes, wherein the single value found by the jury shall not exceed the sum of twenty nobles, (i. e. 67. 13s. 4d.), the plaintiff obtaining judgment, or any award of execution after plea pleaded, or demurrer joined therein, shall recover his costs of suit." The enactment is, it seems, confined to cases where the plaintiff obtains judgment after a plea or demurrer, and does not apply to a case where a defendant suffers judg ment by default(b). And where a declaration contained three counts,-first, for the treble value of the tithes of corn, grain, hay, hops, and beans, not set out by the defendant; secondly, for tithes bargained and sold; and lastly, on an account stated; and the defendant having suffered judgment by default, the jury, on a writ of inquiry, assessed the plaintiff's damages at 17. 4s. 9d. for the treble value, and the sum of 97. for the single value of the other tithes, but found no costs,-the court were of opinion that the statute did not apply to a judgment by default, but they ordered the return of the inquisition to be amended by the insertion of nominal damages as to the last two counts of the declaration, on which it was held, that costs de incremento might be taxed as being applicable to the last two counts, without reference to the first count (c). So, where an action of debt under the statute was brought to recover the treble value of the tithes, there was also a count in the declaration for the single value: the defendant demurred to the declaration, but the parties afterwards agreed to submit to arbitration, and judgment was entered to stand as a security for costs: the arbitrators determined the single value of the tithes, and awarded treble that sum to the plaintiff, together with the costs of the reference, and that he might sue out execution: upon an application to the court to allow the plaintiff's costs of suit to be taxed under the statute of 8 & 9 W. 3, the court held, that the statute was confined to the case of the single value, or damages being found by a jury, and therefore re

(y) Losche v. Hague, 7 Dowl. 495.

(a) Ward v. Snell, 1 H. Bl. 10: Shore v. Madisten, 1 Salk. 206: ante, 1138.

(a) Day v. Peckwell, Moo. 915; 1 E. & Y. 154, S C.: Dagy v. Penkevon, Cro. Ja. 70; 1 É. & Y. 162, S. C.

(b) See 2 Eagle on Tithes, 331: Barnard v. Moss, I H. Bla. 107; 2 E. & Y. 357, S. C.: Bale v. Hodgetts, 7 Moore, 602; 3 E. & Y. 1089, S. C.

(c) Bale v. Hodgetts, supra.

PART I.

BOOK IV. fused to grant a rule as far as it respected the counts for the penalty, but allowed the costs to be taxed on the count for the single value (e). By the common law, or by the statute of 23 Hen. 8, c. 15, a defendant in an action of debt upon the statute was not entitled to costs in any case. But by the 8 & 9 W. 3, c. 11, s. 3, "if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs, and have execution for the same in like manner as aforesaid."

In other Actions.

In case of Ar

rest without Cause, 43G. 3,

probable

c. 46, s. 3.

The right of the plaintiff to costs in ejectment, replevin, and scire facias, has been treated of under those heads respectively. (See Index).

By the 43 Geo. 3, c. 46, s. 3, if the plaintiff do not recover the amount of the sum for which he "arrested and held the defendant to special bail," the court, upon motion, shall direct that the defendant be allowed his costs, if it be made appear upon hearing the parties by affidavit, to the satisfaction of the court, that the plaintiff had not any "reasonable or probable cause" for holding the defendant to bail in such amount as aforesaid; and if the court make a rule or order to this effect, the plaintiff shall thereupon be disabled from suing out execution, excepting for the excess of the sum recovered by him, above the costs taxed for the defendant; or if the costs taxed for the defendant exceed the sum recovered by the plaintiff, the defendant may have execution for the excess (ƒ). If, for instance, two persons be mutually indebted to each other, and one of them hold the other to bail for the whole amount of the debtor side of the account, instead of for the balance merely, the court, upon application, will allow the defendant his costs under this statute (g). So, where the plaintiff caused the defendant to be arrested for 1,1237. when he had means of knowing that only 7157. was due, the court allowed the defendant his costs, though the accounts were complete (h). And the same, where the defendant was arrested for 867., and the plaintiff recovered 151. only, and it appeared that the cause of action was for unliquidated damages, for which the defendant ought not to have been arrested (i). And, where an attorney held his client to bail for 500l., but his bill on a reference for taxation was taxed at 2997., the court on an application under this statute referred it to the master to say, whether there was reasonable and probable cause for holding the defendant to bail for 5007., and on the master's reporting in the negative, the court allowed the defendant his costs (k). So, where a defendant was holden to bail for the amount of board and lodging, charged at the rate of 21. per week, and at the trial it was proved that the plaintiff had expressly agreed to charge at the rate of 17. per week only,

(e) Barnard v. Moss, 1 H. Bla, 107; 2 E. & Y. 357; 2 Eagle, 331, S. C.

(f) See Clarke v. Fisher, 1 Smith, 428: Younie v. Mallison, Id. 521: Anon., 2 Id. 261, 267: Thompson v. Atkinson, 6 B. & C. 193: Robinson v. Elsam, 5 B. & Ald. 661. See the form, Chit. Forms, 644.

(g) Dronefield v. Archer, 5 B. & Ald. 513; 1 D. & R. 67, S. C.: and see Austin v. Debnam, 4 D. & R. 653; 3 B. & C. 139, S. C.: Ashton v. Naull, 2 Dowl. 727; 3

Moo. & Scott, 114, S. C. (in that case the defendant had refused to furnish plaintiff with an account of his set off): Sima v. Jaquest, 4 Moo. & Sc. 380; 2 Dowl, 800, S. C.

(h) Foster v. Weston, 6 Bing. 527. (i) Bear v. Binkus, 4 Nev. & M. 845. (k) Robinson v. Elsam, 5 B. & Ad. 661. See case of publican improperly supplying drink, Erle v. Wynne, 2 Dowl. 23

and there was a verdict accordingly, the court upon applica- CHAP. XXXI. tion allowed the defendant his costs under this statute, although 43 G. 3, c. 46, the plaintiff denied by his affidavit that he had made any such s. 3. agreement as that proved at the trial (?). So, where on a motion for costs under the act, (the plaintiff having arrested defendant for 351. and recovered only 197.), affidavits were put in for the plaintiff, sworn by himself and others, contradicting the evidence given at the trial for the defendant, and impeaching the credit and competency of his principal witness; no motion had been made by the plaintiff for a new trial, or to increase the damages: it was held, that the verdict was primâ facie evidence of the want of cause for arresting; and that the court could not try, upon affidavit, whether or not such verdict was well founded (m). And where the plaintiff had sold goods to the defendant, to be paid for, half in ready money, and half by bill at three months; and the defendant having refused to pay the half in ready money, the plaintiff arrested him for the full price of the goods; the court held he had no reasonable or probable cause for so doing, and that the defendant was entitled to his costs pursuant to the above statute (n). So, where a builder was employed in altering the defendant's house, and, during the progress of the work, the defendant countermanded the employment, and, on the refusal of the defendant to appoint a valuer, the builder completed the work, and arrested for the whole amount, but recovered only for the work done previously to the countermand, the court allowed the defendant his costs (o). So, where the defendant objected to receive the goods sold to him by the plaintiff because they were badly manufactured, and the plaintiff agreed to take them back, but after they were returned he sent them again to the defendant, and then arrested him for the amount, the plaintiff having recovered less than the sum for which he had arrested, the court held that the defendant was entitled to his costs (p). And where defendant was arrested for a sum in respect of the greater portion of which the plaintiff knew at the time that the defendant had obtained a discharge under the Insolvent Debtors' Act, the court gave the defendant his costs under the above statute (q). And where the defendant was arrested for 201. 2s. 1d. for goods sold, and defendant pleaded his infancy, to which plaintiff replied, necessaries: at the trial the plaintiff succeeded in proving the delivery of certain articles only in his bill of particulars, and got a verdict for 107. only: on an affidavit of the defendant that he never owed the plaintiff 207., the court gave him his costs nnder the above act, notwithstanding the plaintiff swore that all the articles in the bill of particulars were delivered to the defendant (r). And a party is not warranted in arresting another for a debt of which he has not, at the time of making

(1) Glenville v. Hutchins, 1 B. & C. 91: and see Linley v. Bates, 2 C. & J. 660: Anon., 2 Smith, 261.

(m) Tipton v. Gardner, 4 Ad. & Ell. 317: see Twiss v. Osborn, 4 Dowl. 107.

(n) Day v. Picton, 10 B. & C. 120; 5 M. & R. 31, S. C.: see Gompertz v. Denton, 1 Dowl. 623.

(0) Russell v. Atkinson, 2 Nev. & M. 667. (p) Linley v. Bates, 2 Tyr. 753; 2 C. & J. 660, S. C.

(q) Lord Huntingtower v. Heeley, 7 D. & R. 369.

(r) Ballantine v. Taylor, 1 Nev. & P. 219; 5 Ad. & Ell. 792, S. C.

BOOK IV.
PART I.

s. 3.

the arrest, some evidence besides his own personal knowledge of its existence; and therefore a plaintiff arresting a defend43 G. 3, c. 46, ant for a large sum of money, and having, at the time of arrest, evidence only as to a small portion of the amount, was held liable to costs under the act, although at the time of the trial some evidence of a subsequent acknowledgment by the defendant was given (s). It is not necessary, to bring a case within this act, to prove malice; the absence of reasonable or probable cause is sufficient (t). It applies even to executors (#); though, for obvious reasons, the court will require a strong case to be made out to induce them to allow the defendant his costs against an executor (x).

On the other hand, the court will not, in general, allow the defendant his costs under this act of 43 G. 3, c. 46, s. 3, unless the sum for which the defendant was held to bail was materially larger than that found to be due (y). Nor where the plaintiff is defeated by a defence not going to the merits, and which he had no means of knowing at the time, or which the defendant has induced him to believe that he will not set up. Thus, where the defendant being arrested for 500/., set up her coverture as her defence, and plaintiff recovered only 38. for money advanced after the death of her husband; upon an application by defendant for costs under the above act, the plaintiff having deposed that he was ignorant of the coverture, and not being contradicted, the court would not grant the application (2). And where the defendant, by his admissions of the debt and promises, deceived and deluded the plaintiff into a belief that he did not mean to set up the Statute of Limitations as a defence, but afterwards pleaded that statute, the court would not give him his costs (a). In an action by the indorsee against the maker of a promissory note for 1007, the defendant pleaded, that, by agreement between him and the payee, the note was not to be enforced, except on certain terms, which the payee had not complied with, and that the plaintiff had received the note without consideration; the plaintiff entered a nolle prosequi as to all, except 491., for which he had given value to the payee, and had a verdict for that sum; it did not appear that the plaintiff was cognizant of the agree ment, and the court refused to allow the defendant his costs (b). And it seems that the court will not allow the defendant his costs under the act, where the evidence is conflicting as to the amount due; thus, where the arrest was for 20ễ., and, at the trial, the evidence of the witnesses for the plaintiff and for the defendant, as to the value of the goods, for the price of which the action was brought, was conflicting, and the jury struck a balance between their estimates, and found a verdict for 8/., the plaintiff swearing that there was an agreement for the

(8) Griffiths v. Pointon, 2 Nev. & M. 675: see White v. Prickett, infra, n.: Robinson v. Whitehead, 6 Dowl. 292.

(t) Donlan v. Brett, 10 B. & C. 117; 4
M. & R. 29, S. C.: Hall v. Forget, 1 Dowl.
696: Earle v. Wynne, 1 C. & M. 532.

(u) Feeley v. Reed, 5 B. & A. 515, n.
(r) See per Heath, J., in Foulkes v.
Neighbour, 1 Marsh, 21.

y) Per Tindal, C. J.:

Sherwood v.

Taylor, 6 Bing. 281; 3 Moo. & P. 641,
S. C.: see Roper v. Shevely, 2 Dowl. 14.

(2) Spooner v. Dank, 7 Bing. 772; 5 Moo. & P. 701; 1 Dowl, 232, §. C.: and see Roper v. Sheasby, 1 C. & M. 496.

(a) White v. Prickett, 4 Bing. N. C. 237.

(b) Edwards v. Jones, 2 M. & W. 414; 5 Dowl. 584, S. C.

higher rate, which he was unable to prove at the trial, the CHAP. XXXI. court refused to allow the defendant his costs (c). And the 43 G. 3, c. 46, court will not give the defendant his costs where there is a s. 3. reasonable doubt in law as to the plaintiff's right to recover part of his demand (d). Where the plaintiff omitted a count in the declaration, applicable to a part of his demand, and was thereby prevented from recovering the amount for which the defendant was arrested, the court refused the defendant his costs under the act (e). And the statute applies only to cases where the plaintiff "recovers" a less sum than that for which he arrested, by judgment (f); therefore, if, upon a compromise between the parties, the plaintiff take a less sum than that for which he arrested, the defendant will not be allowed his costs (g); and if a defendant, upon being arrested for a certain sum, pay a less sum into court, the plaintiff, by taking that sum out of court and discontinuing the action, will not thereby subject himself to costs under this statute (ƒ). Or, if the matter be referred to arbitration, before verdict, and the arbitrator award the plaintiff a less sum than that for which he had holden the defendant to bail, the court will not, in such a case, allow the defendant his costs under this statute (h). So, where the defendant, who was arrested for 3277., had tendered 250%, but did not pay it into court, and an arbitrator, to whom the cause was referred, awarded the plaintiff only 2507., the court held that this was not a case to entitle defendant to costs under the statute (i). But, if the arbitrator has power to order, and does order, a judgment to be entered up (), or if the cause be referred at Ñisi Prius, and a verdict be taken, subject to the award (7), (even if the cause and all matters in difference be referred, provided the arbitrator make a separate adjudication as to the action (m)), the court may allow the defendant his costs, unless, indeed, where the cause and all matters in difference are referred, and the costs are, by the terms of the reference, to abide the event of the award (n). Where an arbitrator, to whom a cause has been referred by order of Nisi Prius, takes no notice in his award of a power given him by the order to award the defendant his costs on the ground of an excessive arrest, but disposes of the general costs of the cause, the court will not interfere to

(c) Shotwell v. Barlow, 1 Gale, 107; 3 Dowl. 709, S. C.: and see Clare v. Cooke, 4 Bing. N. C. 269: Mantill v. Southall, 2 Bing. N. C. 74: Day v. Clark, 5 Bing. N. C. 117: 7 Dowl. 147. S. C.

(d) Stovin v. Taylor, 1 Dowl. 697; 1 Nev. & M. 250, S. C: James v. Francis, 5 Price, 1.

(e) Preedy v. M'Farlane, 1 C., M. & R. 819; 3 Dowl. 458, S. C.

(f) Brooks v. Rigby, 2 Ad. & El. 21: Rotce v. Rhodes, 2 Dowl. 384; 2 C. & M. 379, S. C.: Porter v. Pittmann, 2 D. & R. 266: Davey v. Renton, 4 D. & R. 187; 2 B. & C. 711, S. C.: Rouferoy v. Alefson, 13 East, 90: Butler v. Brown, 1 B. & B. 66: 3 Moore, 327, S. C. But sometimes the court or a judge could make the plaintiff pay the defendant's costs. (See ante, 976, 97).

(g) Linthwaite v. Bellings, 2 Smith, 667.

(h) Keene v. Deeble, 5 D. & R. 383; 3 B. & C. 491, S. C.: Payne v. Acton, 1 B. & B. 278; 3 Moore, 605, S. C.

(i) Sherwood v. Taylor, 6 Bing. 280; 3 Moo. & P. 641, S. C.: Holden v. Raith, 4 Nev. & M. 466; 1 H. & W. 8.

(k) Per Littledale, J., Holden v. Raith, 4 Nev. & M. 466.

(1) Jones v. John, 5 Dowl. 130; 2 H. & W. 119: see Turner v. Prince, 5 Bing. 191: and Silversides v. Bowley, 1 Moore, 92.

(m) Jones v. John, 5 Dowl. 130; 2 H. & W. 119. S. C.

(n) Thompson v. Atkinson, 6 B. & C. 193. See where the accounts were complicated, and the court refused costs under the statute, Turner v. Prince, 5 Bing. 191; 2 Moo. & P. 305, S. C.: and see Handley v. Levi, 8 B. & C. 637; 3 M. & R. 37, S. C.: Thompson v. Atkinson, 6 B. & C. 193; 9 D. & Ry. 347, S. C.