adding, afterwards, that he had not any knowledge or notice whatsoever of them. All these averments point to actual notice alone. Now, if this be so, the replication is not an argumentative denial of this notice, but consists of a statement of facts which shew, that, by the agreement to which the defendant has become a party, no such notice need be given to him, and that the plea, which is in substance that the circumstances under which the judgment was obtained were contrary to natural justice, cannot be supported; for that it is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have had actual notice of them. We, therefore, think the replication sufficient; and it is not necessary, consequently, to give any opinion on the objections made by Mr. Phipson to the plea. Judgment for the plaintiff. 1849. VALLEE V. DUMERGUE. PARTRIDGE V. Gardner. July 6. PHIPSON had obtained a rule calling upon the defend- To a declaration de ant to shew cause why the plaintiff's costs should not be taxed on the issues found for him, and be paid by the defendant, after deducting the amount allowed to the fendant. The plaintiff had declared in assumpsit. The defendant pleaded seven pleas. The first was non assump sit. The second, third, fourth, fifth, and sixth respectively, traversed allegations in the declaration. The seventh was a plea in confession and avoidance. The plaintiff having in assumpsit the defendant pleaded several pleas, upon which issues were joined; and also a plea, to which the plaintiff demurred. The issues were tried, and found for the plaintiff, and, afterwards, judgment was given for the defendant on the demurrer, the Court holding the declaration insufficient:-Held, that the plaintiff was not entitled under the 4 Anne, c. 16, s. 5, to the costs of the issues found for him, as no issue in fact had been found for the defendant also. VOL. IV. X EXCH. 1849. PARTRIDGE t. GARDNER. joined issue on the first five pleas, and demurred to the sixth and seventh, obtained a verdict on all the issues in fact, with contingent damages; but afterwards, on argument of the demurrer, failed, the Court holding that his declaration was insufficient, and expressly giving judgment against him accordingly, on the ground of such insufficiency. Keating and Ogle shewed cause (May 23).—The 4 Anne, c. 16, enables defendants to plead several matters. By sect. 5 it is provided, "that, if any such matter shall upon a demurrer joined be judged insufficient, costs shall be given at the discretion of the Court; or, if a verdict shall be found upon any issue in the said cause, for the plaintiff or demandant, costs shall be given in like manner, unless the Judge who tried the issue shall certify." According to the true construction of that section, the verdict must be found upon issues in respect of which there may be judgment. Bird v. Higginson (a) is relied upon by the other side. There the declaration contained two counts, and there were 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 to the first count was demurred to. The issues in fact were tried, 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 the defendant had judgment on the demurrer, and it was held that the plaintiff was entitled to the costs of the issue on which he had succeeded. That case is generally considered as overruling Cooke v. Sayer (b), where the defendant pleaded to the whole declaration two pleas, upon one of which the plaintiff joined issue, and to the other demurred. The issue was tried and found for the plaintiff, and after wards the defendant had judgment on the demurrer; and it was held, that neither party was entitled to the costs of the trial. All the previous cases, however, are distinguishable from the present, inasmuch as in none of them was the declaration bad. If, instead of demurring, the defendant had joined issue and gone to trial, and afterwards the Court had arrested the judgment, on account of the insufficiency of the declaration, it is clear that the plaintiff could have had no costs. Then how can the circumstance of there being judgment against him on the whole record entitle him to them? The case is analogous to that of immaterial issues found for a defendant, and judgment afterwards entered for the plaintiff non obstante veredicto, when neither party is entitled to costs: Goodburne v. Bowman (a). [They also cited Elderton v. Emmens (b) and Vivian v. Blake (c).] Phipson, in support of the rule.-By the 5th section of the 4 Anne, c. 16, costs are given as a condition of the privilege which a defendant enjoys under that Act, of pleading more pleas than one. The language of the section is not, "if the plaintiff shall have judgment," but " if a verdict shall be found." There is no authority to shew that the plaintiff would not have been entitled to the costs of these issues, if the judgment had been arrested on the ground of the insufficiency of the declaration. The object of the statute of Anne was to confer a benefit on defendants, and at the same time to provide that it should not be prejudicial to plaintiffs: Duberley v. Page (d). In Richmond v. Johnson (e), Lord Ellenborough, C. J., said, "That statute meant to give an advantage to a defendant of pleading several matters, though, in so doing, it provided that such privilege should not be exercised vexatiously to the 1849. PARTRIDGE V. GARDNER. 1849. PARTRIDGE v. GARDNER. plaintiff; therefore, it says, that, if any issue shall be found for the plaintiff, he shall have costs &c., unless &c.; by which I understand, that, if any one or more of several issues be found for the plaintiff, the rest being found for the defendant, the plaintiff shall have his costs of those pleas found for him." Bird v. Higginson (a) is identical with the present case: there, also, the declaration was bad in arrest of judgment, yet that circumstance was not relied on either in the argument or judgment. Cameron v. Reynolds (b), which decided, that, where judgment is arrested each party pays his own costs, was not a case within the statute of Anne. Besides, a judgment on demurrer is not for this purpose equivalent to an arrest of judgment. The entry on the record does not shew that judgment was given on account of the insufficiency of the declaration, but is simply " that the said plea is sufficient in law" (c). In arrest of judgment the entry is, that the Court "omitting to give judgment upon the verdict aforesaid, it is told to the parties aforesaid by the said Court here, that they do go thereof without day" (d), &c. Goodburne v. Bowman has no application to the present case. At common law a defendant was not entitled to costs, but the 23 Hen. 8, c. 15, s. 1, provided, that he should have judgment for his costs, "if the plaintiff be nonsuited or a verdict pass against him." Before the rule of Hilary Term, 2 Will. 4, s. 74, a defendant had no costs, unless he succeeded on the whole cause of action; the object of the rule was to correct that injustice, by giving him the costs. of the issues found for him; but, nevertheless, he had judgment for them by virtue of the statute of Hen. 8: Twigg v. Potts (e), Postan v. Stanway (f). (a) 5 A. & E. 83. Cur. adv. vult. (d) Chit. Forms, 616. (f) 5 East, 261. The judgment of the Court was now delivered by PLATT, B. (After stating the facts as above set forth, his Lordship proceeded):-On this state of the record Mr. Phipson sought to obtain for the plaintiff his costs of the trial of the issues, and, as an authority in support of the application, cited Bird v. Higginson (a). A plaintiff's right to costs in an action of assumpsit is derived either from the Statute of Gloucester, 6 Edw. 1, c. 1, s. 2, or the 4 Anne, c. 16, s. 5. As, however, the plaintiff in this action has not recovered damages, he is not entitled under the Statute of Gloucester; and as all the issues in fact have been found for him, the construction which, in Richmond v. Johnson (b), Lord Ellenborough and the rest of the Judges of the King's Bench unanimously put on the 5th section of the 4 Anne, c. 16, and which, since the decision of that case, until that of Bird v. Higginson, has been invariably adopted, equally excludes him from any right to costs under that section. All the authorities adduced in the judgment of the Court of King's Bench, in Bird v. Higginson, as bearing upon the question of the plaintiff's right to costs under the Statute of Anne, except Yates v. Gun (c), consist with that construction. In Cooke v. Sayer (d) the defendant did not obtain a verdict on any issue in fact, but was entitled to judgment on the whole record. The Court, therefore, consistently with the above-mentioned construction, held, that the plaintiff was not entitled to the costs of the trial. In Jones v. Davies (e) some issues in fact were found for the defendant. The plaintiff was, under the 5th section, entitled to tax and deduct the costs of the issues found for him. In Bartlett v. Spooner (ƒ) the plaintiff was not entitled to the de (a) 5 A. & E. 83. (b) 7 East, 583. (e) 2 Barnes, 122. (d) 2 Burr. 753. 1849. PARTRIDGE v. GARDNER. |