pleaded under

dant succeeds

of Action.

that if any such matter shall, upon demurrer joined, be CHAP. XXXI. judged insufficient, costs shall be given at the discretion of the court (m); or if a verdict shall be found upon any issue 4 & 5 A. c. 16, in the said cause for the plaintiff, or defendant in replevin, and Defencosts shall also be given in like manner, unless the judge on one to the who tried the said issue shall certify that the said defendant entire Cause or plaintiff in replevin had a probable cause to plead such matter (n). Where the defendant pleads several pleas in bar, each going to the whole declaration, if he succeed upon any one sufficient plea, he must have judgment upon the whole declaration, although the plaintiff succeed upon the other pleas, because by his plea he has shewn that the plaintiff had no sufficient cause of action against him; and in such a case he is entitled to the postea, and the costs of the cause (o), with the exception of the costs of such part of the pleadings and briefs, and of such of the witnesses, &c., as are applicable only to the issues found for the plaintiff (p). And by virtue of the above clause of the stat. 4 & 5 A. c. 16, if the plaintiff also succeed, either upon demurrer or by verdict, upon any of the other pleas, he shall have his costs of the issue or issues upon which he has so succeeded, to be deducted from the defendant's costs, unless the judge certify that the defendant had probable cause for pleading those pleas upon which the plaintiff succeeded (q); and the same as to a defendant or avowant in replevin (r). Thus, in trespass, where defendant pleads "not guilty," and son assault demesne, and has a verdict on the latter plea, he is not entitled to the costs of the former (s). And in slander, where defendant pleads "not guilty" and a justification, and succeeds on "not guilty" only, the plaintiff is entitled to his costs on the other issue, notwithstanding 21 J. 1, c. 16, s. 6(t). The costs in these cases are the costs of such part of the pleadings and briefs, and of such of the witnesses, &c., as are applicable to the issues found for the plaintiff (u).

In a recent case, where, to a declaration in two counts, defendant pleaded two pleas to the first count and one to the second, issues were joined on one plea to the first count, and on the plea to the second count; the other plea was demurred to the plaintiff took the issues of fact to trial, and a verdict was found for the plaintiff on the issue on the first count, and damages assessed, and for the defendant on the issue on the second count: afterwards on the demurrer to the other plea to the first count the defendant had judgment:-it was held, that the plaintiff was entitled to all the costs of the trial on the issue on which he had succeeded, including (in addition to the pleading) briefs, witnesses, &c.; and that no objection arose from his having tried the issues in fact before that in law;

(m) See Duberley v. Page, 2 T. R. 391. (n) See the words of the act, ante, Vol. 1. 172; Bull. N. P. 334; Hullock, 99 to 119.

(0) Ragg v. Wells, 8 Taunt. 129: Cross v. Johnson, 9 B. & Cres. 613: Frankum v. Lord Falmouth, 4 Dowl. 65: Staley v. Long, 5 Dowl. 616.

tp) See Kirk v. Nowill, 1 T. R. 266; and the cases post, 1159, 1160.

(9) Duberley v. Page, 2 T. R. 301: Jones v. Davies, Barnes, 141; Hullock, VOL. II.

100-108: Bennett v. Coster, 1 B. & B. 465.
(r) Dodd v. Joddrell, 2 T. R. 235:
Bright v. Jackson, Barnes, 144: Stone v.
Forsyth, 2 Dougl. 709, n.: and see Bird v.
Higginson, 5 Ad. & El. 91.

(8) Mullins v. Scott, 5 Bing. N. C. 423.
(t) Skinner v. Shoppy, C. P., M. 1839;
3 Jurist, 1127.

(u) See the cases cited post, 1159, 1160: Cartwright v. Cook, 1 Dowl. 529: Richards v. Cohen, Id. 533: Brooke v. Willett, 2 H. Bl. 435: Vollum v. Sampson, 2 B. & P. 368.

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 Certificate under

4 & 5 A. c. 16.

Where there are several Counts or

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 1s. 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 (y).

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 (z), even although all the issues be found for him (a).

The certificate mentioned by the stat. of Anne may be given 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 dePleas, and no fence, we have seen (ante, Vol. I. 147) that, by the rule of distinct Mat- all the courts of H. T., 4 W. 4, r. 5, "several counts shall plaint or De- not be allowed, unless a distinct subject-matter of complaint fence, R. H., is intended to be established in respect of each; nor shall se

ter of Com

4 W. 4, r. 5.

veral 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. 260. (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 bona 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, s. 7(c).

Plaintiff of

Costs of Issues on which he

succeeds.

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 his costs, and, in others, of disallowing the defendant's costs 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,

(c) 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: Pustan v. Stanway, 5 East, 261: Penson v. Lee, 2 B. & P. 333; 4 B. & Ald. 43, 700: Rer v. 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.
Young, 2 Burr. 1232.

(e) Cor v. Thomason, 1 Dowl. 575; 2 C.
& J. 498, S. C.: Knight v. Brown, 1
Dowl. 733: Ward v. Pell, 1 C. & M. 848;
2 Dowl. 76, S. C.: Knight v. Brown, 2
Moo. & Scott, 797; 9 Bing. 643: Doe v.
Webber, 4 Nev. & M. 381.

BOOK IV.
PART I.

and the verdict was for the plaintiff on the two first counts,
and for the defendants on the others, which became im-
material when the plaintiff recovered for the entire value
of the property, it was held that the defendant was en-
titled to deduct the costs of those issues from the plain-
tiff's costs (f). Where, in case for a libel on the gene-
ral issue, the jury found for the plaintiff, and also found
as a fact that a great part of the declaration did not apply
specifically to the plaintiff, though there were innuendos by
which it was endeavoured to connect him with the matters
complained of; it was held that the defendant was entitled
to the costs of that part (g). So, in ejectment, where there
was but one count, and the lessor of the plaintiff recovered
judgment for part only of the lands claimed, the court held
that the defendant was entitled to have his costs, as to the
part found for him, set off against the costs of the lessor of
the plaintiff, under the above rule (h). And the same, where
there were several demises, and the jury found for the plaintiff
on some, and for the defendant on others (i). So, in covenant,
if there be several breaches assigned, the defendant will be
entitled to the costs of the issues found for him(k). And the
same, where to trespass for breaking and entering the plain-
tiff's house, and converting his goods, the defendant, among
other pleas, pleaded that the house and goods were not plain-
tiff's, and the jury found for the plaintiff as to the entering
the house and taking one parcel, and for the defendant as to
the other parcel (1). But where in an action against owners
of a ship for negligently stowing &c. certain casks, the de-
fendants traversed the breach of contract, and the jury found
for the plaintiff as to one cask, and for the defendant as to
the residue, it was held that the issue was not divisible, so
as to entitle the defendant to costs of the portion found for
him (m). On the other hand, if the defendant plead the ge-
neral issue, and several special pleas, and the jury find for
him on the general issue, and for the plaintiff on the special
pleas, the latter is entitled to the costs of the pleadings and
witnesses on those pleas, though the defendant would get
the general costs of the cause (n). Where, in replevin, the
defendant pleaded that the goods belonged to himself and
others, as assignees under a commission of bankruptcy, and
also avowed for taking goods, as a distress for rent in arrear;
a verdict having been found for the plaintiff on the issue
joined on the plea, and for the defendant on the avowry,
the court refused to allow the defendant costs on the issue
found for the plaintiff (o). Where, in trespass for seizing
goods, the defendants pleaded two pleas, one justifying upon

(f) Newton v. Harland, 5 Dowl. 644.
(g) Prudhomme v. Fraser, 1 Harr. &
W. 5; 4 Nev. & M. 512; 2 Ad. & El. 645,
S. C. and see Doe Smith v. Payne, 1 H.
& W. 10.

(h) Doe v. Errington, 4 Dowl. 602; 1
H. & W. 502, S. C.: see Doe v. Webber, 4
Nev. & M. 381.

(i) Doe v. Webber, 4 Nev. & M. 381; 1
H. & W. 10, S. C.

(k) Daubuz v. Rickman, 4 Dowl. 129.
(1) Routledge v. Abbott, 8 Ad. & El. 592:

see form of postea, Ibid.

(m) Anderson v. Chapman, Exch, M. 1839; 3 Jurist, 1154.

(n) Hart v. Cutbush, 2 Dowl. 456, per Parke, J.: Spencer v. Hamerton, 6 Nev. & M. 22; 4 Ad. & Ell. 413: Robert v. Phillips, 5 Dowl. 473; 2 M. & W. 40, S. C.: Bird v. Higginson, 5 Ad. & El. 83; 6 Nev. & M. 791, S. C.

(0) Vallance v. Evans, 1 C. & M. 856; 3 Tyr. 865; 2 Dowl. 118, S. C.

a distress for rent due under a demise, at 51. a-year, and CHAP. XXXI. another for 21. 10s., and both issues were found for him, the court held that they were not inconsistent; and the judge having certified, at the trial, to deprive the plaintiff of costs, the rule for taxing to the defendants the costs of the two issues found for them was drawn up with this additional clause, “and that the costs, when so taxed, be paid by the said plaintiff to the said defendants:" but the court held that they had no power to make such an order, and they directed the record to be amended, by an entry of a judgment for the costs of those two issues, upon which the defendants might proceed to obtain their costs, if they thought proper (p). In the case of a reference to arbitration, before issue joined, the above rule must be observed on the taxation of costs (q). Neither party will be entitled to the costs of issues from the trial of which the jury have been discharged (r). And where a verdict is found in favour of the defendant, and judgment is afterwards entered for plaintiff non obstante veredicto, neither party is entitled to the costs of the immaterial issues (s). So, where the plea on which he has obtained a verdict, on being brought before the court upon a special case, is found to be bad, he will not be entitled to costs upon that issue (t); but if it be found good, he will be entitled to the costs of the special case, &c., together with the costs of the issue (u). If a defendant seek to enter a suggestion to deprive the plaintiff of costs, on the ground that the action ought to have been brought in a court of requests, he cannot, at the same time, have the costs of issues which have been found in his favour taxed for him in the superior court (v). The above rule of H. T., 2 W.4, r. 74, does not apply to paupers; and therefore, where in an action of trespass and false imprisonment, brought by a pauper against several defendants, the jury acquitted some of them, and found a verdict against the others, the court held that the costs of such of the defendants who had obtained verdicts could not be deducted from the plaintiff's costs of the cause (w).

As to costs where there are several defendants, some of Several Dewhom succeed, and some are defeated, see ante, 1153.

fendants.

some Issues

for Plaintiff

As to the mode of taxation in these cases, supposing that Mode of Tax there are several issues, and one be found for the plaintiff and ation where the other found for the defendant, if that found for the are found plaintiff be the substantial issue in the cause, he shall have and some for the postea and the general costs of the cause, with the excep- Defendant. tion of the costs of such parts of the pleadings and briefs, and of such of the witnesses, &c. (x), as are applicable only to the

(p) Twigg v. Potts, 4 Dowl. 266.

(q) See Daubus v. Rickman, 4 Dowl. 129; 1 Scott, 564; 1 Hodges, 75, S. C.: Milner v. Graham, 2 Dowl. 422: Allenby v. Proudluck, 5 Nev. & M. 636; 4 Ad. & El. 326, S. C.

(r) Vallance v. Adams, 2 Dowl. 118; 1 C. & M. 856; 3 Tyr. 865, S. C.

(8) Goodburne v. Bowman, 3 Moo. & Scott, 69; 9 Bing. 667; 2 Dowl. 206, S. C.: and see Da Costa v. Clarke, 2 B. & P. 376: Kirk v. Nowill, 1 T. R. 266.

(t) Cartwright v. Cook, 1 Dowl. 529.

(u) Gosbell v. Archer, 1 Har. & W. 559;
2 Ad. & El. 500; 4 Nev. & M. 485, S. C.
(v) Jenks v. Taylor, 1 M. & W.578.
(w) Gougenheim v. Lane, 4 Dowl. 482;
1 M. & W. 136; 1 Tyr. & G. 216; 1 Gale,
343, S. C.

(r) See Eades v. Everett, 3 Dowl. 687:
Richards v. Cohen, 1 Dowl, 533: and see
Knight v. Woore, 3 Bing, N. C. 535; 5
Dowl. 487, S. C.: Doe Smith v. Webber,
4 Nev. & M. 381; 2 Ad. & El. 448; 1 H.
& W. 10, S. C.