BOOK IV. РАКТ 1. What a sufficient Arrest within the 43 G. 3, c. 46, s. 3. give the defendant his costs (o). The onus of proving that the arrest was made without reasonable or probable cause rests on the defendant (p). The 43 G. 3, c. 46, s. 3, does not extend to cases where the defendant has not been actually arrested as well as held to special bail (q). It is, however, a sufficient arrest, if the officer meets the defendant, states that he has a warrant, goes with him to defendant's house, and a bail-bond is executed (r). And, it seems, that taking a bail-bond is a sufficient arrest, but not, perhaps, where the copy of the capias served is afterwards set aside for irregularity (r). It is questionable, whether a defendant who has been arrested and imprisoned, and discharged in consequence of a defect in the affidavit to hold to bail, can be said to have been arrested and held to special bail within the meaning of the act (s). The act does not extend to actions originally brought in an inferior court, (as the Palace Court, &c.), and removed into the courts at Westminster (t). There are various acts of parliament establishing Courts of taken away by Requests for the recovery of small sums throughout the kingdom; some prohibiting parties from bringing actions in any other court, others depriving the plaintiff of his costs, and others making him pay defendant's costs if he sue in any other court. The general principles applicable to the construction of these statutes, and the practice as to entering suggestions under them, will be found post, 1173, 1176. When Costs Court of Request Acts. Welsh Judicature Act repealed. Where Cause made a Remanet, &c. Special Jury. On Verdict for Defendant. The Welsh Judicature Act (u), which enacts that the plaintiff shall be nonsuited, and pay defendant his costs in certain actions brought in the superior courts out of the principality of Wales, for causes of action arising in the principality, &c., not amounting to 50%., is virtually repealed by the 11 G. 4 & 1 W. 4, c. 70. As to the costs incurred in bringing up witnesses, attendances, &c., where a cause is made a remanet, or goes off upon any other occasion, without the fault, contrivance, or acquiescence of the parties, and is afterwards brought to trial, see post, 1166. As to the costs of a special jury, see Vol. I. 255. On Verdict for Defendant.] By the stat. 4 Jac. 1, c. 3, in all cases in which a plaintiff would be entitled to costs if he recovered, the defendant shall have his costs if a verdict be found for him (v). Also, by stat. 18 Eliz. c. 5, in actions upon penal statutes by common informers, the defendant is entitled to his costs, if he have a verdict (x), though the plaintiff would not be entitled even if he succeeded. (0) Greenwood v. Johnson, 3 Dowl. 606. (r) Reynolds v. Matthews, 7 Dowl. 586. Adamson, 6 B. & Cres. 528; 9 D. & R. 558, S. C.: Wilson v. Broughton, 2 Dowl 631. (t) Costello v. Corlett, 4 Bing. 474; 1 Moo. & P. 315. S. C.: Handley v. Levey, 8 B & C. 637; 3 M. & R. 37, & C James v. Dawson, 1 Dowl. P. C. 341: Connell v. Watson, 2 Dowl. 139. (u) 5 G. 4, c 106. (r) See also 23 H. 8, c. 15: Millar v. Yerraway, 3 Burr. 1723: 2 Bac. Abr Costs, D.: Hullock, 121, 134. (r) Hullock, 214, 220: see Kirkham v. Wheeley, 1 Salk. 30: Wilkinson v. Allett, Cowp. 366: Garland v. Burton, 2 Str. 1163. Defendants. By the 3 & 4 W. 4, c. 42, s. 32 (y), "where several persons CHAP. XXXI. shall be made defendants in any personal action, and any one Where there or more of them shall have a nolle prosequi entered as to him or are several them, or upon the trial of such action shall have a verdict pass for him or them, every such person shall have judgment for, and recover, his reasonable costs, unless, in the case of a trial, the judge before whom such cause shall be tried shall certify upon the record, under his hand, that there was a reasonable cause for making such person a defendant in such action." It has been decided since this act, that where several defendants are sued in trespass, and a verdict is found for the plaintiff on some of the issues against some of the defendants, and against him on all the other issues, the plaintiff is entitled to the balance only of the costs after deduction of all the costs of all the defendants (z). Also, where there are several defendants, and one of them gets a verdict, he will be entitled to all his separate costs, and also primâ facie to an aliquot portion of the joint costs of the defence, unless the master is satisfied that some smaller portion should be allowed by reason of any special circumstances; and he will be thus in general entitled to his costs, although he has pleaded the same pleas, and by the same attorney as the other defendants; although formerly, in the latter case, only 40s. used to be allowed him (a). Where two defendants in trespass severed in pleading, but pleaded the same pleas, all going to the whole action, and one succeeded upon all the issues, the other upon one only, each defendant was considered entitled to his separate costs of the issues in which he succeeded; but the defendants having appeared by separate attornies and counsel, the attornies being members of the same firm, and the briefs and evidence substantially the same, the master taxed the costs as if the parties had appeared by the same attorney: it was admitted by the court, that the taxation of the costs in that respect could not be disturbed (b). Notwithstanding a judge certifies under this act in an action against officers of (y) By statute 8 & 9 W. 3, c. 11, if in trespass, assault, false imprisonment, or ejectment, there were several defendants, and one of them was acquitted, the defendant so acquitted might (as he now may since that act) recover his costs, in the like manner as if a verdict had been given against the plaintiff, unless the judge, immediately after the trial, in open court, certified upon the record that there was a reasonable cause for making such person a defendant (See Aaron v. Alexander, 3 Camp. 35; Hullock, 140, 144). This statute, however, was confined to the particular actions mentioned in it, and did not extend to replevin (Mariner v. Barrett, 3 Burr. 1284: Ingle v. Wordsworth, 1 W. Bl. 355), or to an action on the case for a tort, (Dibben v. Cooke, 2 Str. 1005), or trover, (Poole v. Boulton, Barnes, 139), or to debt on bond against executors, where one of them was acquitted on the plea of plene administravit præter. (Norfolk, Duke of, v. Anthony, Tidd, 986). In cases within the statute, if the defendants had pleaded jointly, only 40s. costs were allowed to the defendant acquitted. (Hughes v. Chitty, 2 M. & Sel. 172). Upon the stat. 52 G. 3, c. 113, s. 93, (Birmingham Pav ing Act), which gives costs in all cases (2) Starling v. Cozens, 2 C., M. & R. (a) See Griffiths v. Jones, 4 Dowl. 159: Starling v. Couzens, ubi supra. see (b) Gambrell v. Earl Falmouth, 5 Ad. & BOOK IV. PART I. Where Defen dant succeeds going only to on a Plea part. Where Judge certifies under the 43 Eliz. C. 6. The Certifi cate under especially as a judge at chambers had refused an application, by the defendant, to order the trial of the issues in fact to be postponed till judgment was given on the demurrer (v). Where to trespass the defendant pleaded, 1st, the general issue; and, 2ndly, a special plea, to which the plaintiff replied a prescriptive right; and issue was thereupon joined; there was a verdict for plaintiff with 18. damages on the general issue, and for the defendant on the second issue; but the latter going to the whole cause of action, the court held that the plaintiff was not entitled to the costs of the cause (r). And the same has been decided in an action for a libel, where the defendants pleaded the general issue and a justification (§). What has now been said, however, as to costs, where there is double pleading under the statute of Anne, must be considered as applicable only to cases where the defendant succeeds upon a plea which goes to the whole declaration; if he succeed on a plea which only goes to part, and the plaintiff succeed on any other part of the declaration, the plaintiff will be entitled to the postea and his general costs, according to the rule first above laid down. So, where the defendant pleads several pleas, each going to the whole of the declaration, and the plaintiff new assigns upon one of the pleas: as the new assignment must be considered in the nature of a new count, if the defendant do not succeed, as well upon some plea which is a bar to the whole of the new assignment, as upon a plea which is a bar to the declaration, the plaintiff will in like manner be entitled to the postea and the general costs. The statute of Anne does not operate so as to give full costs to the plaintiff in the case of double pleading, where the damages are under 40s., and the judge certifies under the stat. 43 El. c. 6, before mentioned (~), even although all the issues be found for him (a). The certificate mentioned by the stat. of Anne may be given 4 & 5 A. C. 16. out of court. The power to grant it is not affected by R. H., 4 W. 4, r. 7(b). Where there are several counts or pleas, and the party fails to establish a distinct subject-matter of complaint or defence, we have seen (ante, Vol. I. 147) that, by the rule of all the courts of H. T., 4 W. 4, r. 5, "several counts shall not be allowed, unless a distinct subject-matter of complaint is intended to be established in respect of each; nor shall several pleas, or avowries, or cognizances, be allowed, unless a distinct ground of answer or defence is intended to be established in respect of each." And to enforce this rule it is also ordered by another rule, (Id., r. 7, ante, Vol. I. 173), that "upon the trial, where there is more than one count, plea, avowry, or cognizance upon the record, and the party pleading fails to establish a distinct subject-matter of complaint in respect of each count, or some distinct ground of answer or (v) Bird v. Higginson, 5 Ad. & El. 83; 6 Nev. & M. 791, S. C. (x) Vivian v. Blake, 11 East, 263: see Edwards v. Bethel, 1 B. & Ald. 254; Other v. Calvert, 8 Moore, 239; 1 Bing. 275, S. C.; Bennett v. Coster, 4 Moore, 110; 1 B. & B. 465, S. C. (y) Alexander v. Lawson, K. B., H. T. 1829. (z) Hoard v. Cheshire, Say. 201 (a) Richmond v. Johnson, 7 East, 583 (b) Robinson v. Messenger, 3 Nev, & P. 583; 8 Ad. & E. 606, S. Č. defence in respect of each plea, avowry, or cognizance, a verdict CHAP. XXXI. and judgment shall pass against him upon each count, plea, avowry, or cognizance, which he shall have so failed to establish; and he shall be liable to the other party for all the costs occasioned by such count, plea, avowry, or cognizance, including those of the evidence, as well as those of the pleadings. And in all cases in which an application to a judge has been made under the preceding rule, (r. 6, ante, Vol. I. 173), and any count, plea, avowry, or cognizance, allowed as therein mentioned, upon the ground that some distinct subject-matter of complaint was bona fide intended to be established at the trial in respect of each count so allowed, or some distinct ground of answer or defence in respect of such plea, avowry, or cognizance so allowed, if the court or judge before whom the trial is had shall be of opinion that no such subject-matter of complaint was bonâ fide intended to be established in respect of each count so allowed, or no such distinct ground of answer or defence in respect of each plea, avowry, or cognizance so allowed, and shall so certify before final judgment, such party so pleading shall not recover any costs upon the issue or issues upon which he succeeds, arising out of any count, plea, avowry, or cognizance, with respect to which the judge shall so certify." Where to a declaration for a libel, the defendant pleaded the general issue and two special pleas, and at the trial the jury found all the issues for the plaintiff, and 1s. damages, and the judge certified, under the stat. 43 Eliz. c. 6, s. 2, the court held, that the plaintiff was not entitled to the costs of the issues found for him, notwithstanding the above rule of Hil., 4 W. 4, 8.7 (c). Plaintiff of Costs of Issues By the rule of H., 2 W. 4, r. 74,"no costs shall be allowed R. H., 2 W. 4, on taxation to a plaintiff upon any counts or issues upon which depriving he has not succeeded; and the costs of all issues found for the Costs of Issues defendant shall be deducted from the plaintiff's costs." This rule on which he fails, and givwas made for the benefit of defendants, and puts an end to the ing Defendant former unjust practice, in some cases, of allowing the plaintiff on which he his costs, and, in others, of disallowing the defendant's costs succeeds. on issues on which the defendant succeeded (d). In accordance with this rule, where the general issue was pleaded to a declaration containing several counts, and the defendant succeeded under it as to some of those counts, he was held entitled to the costs occasioned by them (e); for the general issue to the whole declaration, containing several counts, tenders a distinct issue to each of the counts. Thus, where the declaration in an action for an illegal seizure and sale of plaintiff's goods under a warrant of distress contained nine counts, two of which went to the whole value of the property, while the remainder went to the injury to the goods, (e) Simpson v. Hurdis, 2 M. & Wels. 84; 5 Dowl. 304, S. C.: see the statute, ante, 1139. (d) See Butcher v. Green, 2 Doug. 677: Postan v. Stanway, 5 East, 261: Penson v. Le, 2 B. & P. 333; 4 B. & Ald. 43, 700: Rev. Commissioners of the Thames, 3 B. &B. 117; 6 Moore, 324, S. C.: Longden V. Bourne, 1 B. & Cres. 278: Cross V. Johnson, 9 B. & Cres. 278: Astley v. (e) Cor v. Thomason, 1 Dowl. 575; 2 C. BOOK IV. PART I. Where some only of the Defendants &c. the metropolitan police, for matters done in execution of the 10 G. 4, c. 44, s. 41, the officers are entitled to their costs as between attorney and client (c). Where some only of several defendants proceeded to trial, the others suffered judgment by default, and those who progo to Trial, ceeded to trial obtained a verdict, the defendants who obtained a verdict in such a case were entitled to their costs under the above statute of 4 J. 1, c. 3, and although the plaintiff had his judgment and costs against the others who suffered judgment by default (d); and this is still the law. And that act extends to an action on the case as well as other actions (e). So, if one of several defendants permit judgment to go by default, and the other plead a plea which goes to the whole declaration, and such plea be found for the defendant pleading it, he shall have costs, and such plea being an absolute bar to the action, the other defendant shall have the advantage of it; and shall not pay costs to the plaintiff upon the judgment by default (f). Where, in an action ex contractu against several defendants, who sever in their defences, judgment is obtained by one whose plea amounts to an absolute bar, the other defendants will be entitled to the benefit of it, and not liable to pay costs; but if such plea be merely a personal discharge to the party pleading it, the others will still be liable to the plaintiff for costs, if they fail on their own pleas, though the plaintiff fail as to the other (g). By and to Where there are several defendants who succeed in the what Defend- action, the plaintiff may pay costs to which of them he ants payable. pleases; and when they fail, each defendant is liable for the whole costs; but if after satisfaction from any one the plaintiff takes out execution against another, such defendant may apply to the court (h). Where the plaintiffs brought four actions against two insurance companies for a loss by fire, and a verdict was found for the former against each company on two of the causes only, the court held that costs were to be apportioned equally, although three causes only were set down for trial at the same sittings, there being a demurrer pending in the other (i). One defendant, who had given a general release to the plaintiff after the costs of nonsuit had been taxed, was ordered to pay to the other defendants their shares (k). The Costs Where several defendants obtain a verdict generally, their must be taxed costs must be taxed at the same time, though they defend at same Time. separately (). Where there Where several Where there are several Issues.] As to double pleas:-By the 4 & 5 A. c. 16, ss. 4, 5, any defendant, or plaintiff in replevin, may, with leave of the court, plead as many several matters as he shall think necessary for his defence, provided (c) Humphrey v. Woodhouse, 1 Scott, 395; 3 Dowl. 416; 1 Bing. N. C. 506, S. C. (d) Shrubb v. Barrett, 2 H. BL. 28. (ƒ) Tidd, 985: Hull, Costs, 143. (g) Noke v. Ingham, 1 Wils, 89: Başla v. Dineley, 2 Chit. Rep. 153. (h) Wilson v. Foote, Bull. N. P. 335. (i) Severn v. Olire, and Severn v. Siade, 6 Moore, 235. (k) Darlow v. Collinson, Bull. N. P. 335. (4) Smith v. Campbell, 6 Bing. 637. |