REPORTS OF CASES

ARGUED AND DETERMINED

IN

The Courts of Exchequer

AND

Exchequer Chamber.

MICHAELMAS TERM, 5 VICTORIÆ.

Exch. of Pleas, 1841.

HAZLEWOOD v. BACK.

Nov. 3.

ed, and one of

amounts to an

whole cause of

WHITEHURST had obtained a rule, calling on the Where several plaintiff to shew cause why the Master should not review pleas are pleadhis taxation. The declaration contained one count, for them, which removing the defendant's son from the plaintiff's school answer to the without a quarter's notice. The defendant pleaded general issue, and two special pleas of justification. verdict was found for the plaintiff on the first and third pleas, and for the defendant on the second, which was an answer to the whole cause of action.

the action, is found A for the defend

The Master, on taxation, allowed the plaintiff one half of his counsel's fees, a consultation fee upon the first issue, a portion of the costs of drawing and copying the briefs, and also the costs of subpoenaing a witness to prove the prospectus of the plaintiff's terms.

Knowles shewed cause.-The defendant having denied

VOL. IX.

B

M. W.

ant, and others

for the plaintiff, titled to the

the latter is en

costs of the issues found for

him, including

a portion of the briefs and coun

sel's fees.

Exch. of Pleas, the contract by the general issue, and that plea having

1841.

HAZLEWOOD

ย.

BACK.

been found against him, the Master is right in allowing the plaintiff the costs occasioned by that issue. In Hart v. Cutbush (a), it was held, that if a defendant pleads the general 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. That decision was recognized in Spencer v. Hamerton (b), where, on consideration, the Court held, that where several pleas are pleaded, and one party obtains a verdict on some of the pleas, entitling him to the general costs of the cause, he is liable to pay the opposite party on the issues found for him, not only his costs of the pleadings, but also his costs of preparing evidence on those issues; and that the law has not been altered by the general rule, 1 Reg. Gen. H. T. 2 Will. 4, s. 74. By that rule it is ordered, that "no costs shall be allowed on taxation to the plaintiff, upon any count or issues upon which he has not succeeded, and the costs of all issues found for the defendant shall be deducted from

the plaintiff's costs." Othir v. Calvert (c) is relied upon by the other side; but Parke, B., in Hart v. Cutbush, expresses doubt as to the correctness of that decision. Some difficulty may exist in the apportionment of the costs, but the principle is clear, that the plaintiff is entitled to be reimbursed the expense to which he has been put by the defendant's pleading an unfounded plea, although the latter may be entitled to the general costs of the cause.

Whitehurst, in support of the rule.-Admitting that the plaintiff is entitled to the costs of the pleadings and evidence, there is no authority to shew that he is also entitled to a portion of the briefs. Othir v. Calvert decided, that where costs in the cause are adjudged to the defendant,

(a) 2 Dowl. P. C. 456.
(b) 4 Ad. & Ell. 413; 6 Nev.

& M. 22.

(c) 1 Bing. 275; 8 Moore, 239.