The to be borne in mind, with respect to this statute of Elizabeth, that at the time of passing it, the statute 23 Hen. VIII. c. 15, only was in force, and not the statute of 4 Jac. I. c. 3. statute 23 Hen. VIII. only extended to certain specified actions, whereas the statute 8 Eliz. was not so confined; and therefore in no view was it without operation, although the subsequent and more extensive statute 4 Jac. I. afterwards rendered its operation immaterial; and for the reasons already given it is conceived, that in no case does the right to costs rest upon it at the present day (a). Doubts were entertained whether, if a nolle prosequi was entered as to one or more out of a greater number of defendants, he or they as to whom the nolle prosequi was entered, were in all the courts entitled to their costs, although it had been decided in one case (b) that they were so entitled ; it was, therefore, by the statute 3 & 4 Will. IV. c 42, s. 32, enacted, "That where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, . every such person shall have judgment for, and recover his reasonable costs." It had been decided (c) that where the nolle prosequi was only to a portion of the counts in the declaration, the defendant was not entitled to the costs of those counts; the same statute (sect. 33) therefore enacts, "That where any nolle prosequi shall have been entered upon any count, or as to part of any declaration, the defendant shall be entitled to, and have judgment for, and recover his reasonable costs in that behalf." By the same statute, 3 & 4 Will. IV. c. 42, s. 32, it is enacted, "That where several persons shall be made defendants in any personal action, and any one or more of them. 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 "the Judge before whom such cause shall be tried, shall certify upon the record (a) See post," Costs on Non Pros." (b) Jackson v. Chambers, 2 Moore, 718. (c) Hubbard v. Briggs, 16 East, 129. under his hand, that there was a reasonable cause for making such person a defendant in such action." The statute of 8 & 9 Will. III. c. 11, s. 2, after reciting that "forasmuch as for want of a sufficient provision by law for the payment of costs of suit, divers evil disposed persons are encouraged to bring frivolous and vexatious actions," enacts, "That if any person shall commence or prosecute in any court of record, any action, plaint, or suit, wherein upon any demurrer, either by the plaintiff or defendant, demandant or tenant, judgment shall be given by the Court against such plaintiff or demandant," the defendant or tenant shall have judgment to recover his costs, and have execution for the same by capias ad satisfaciendum, fieri facias, or elegit. The above was the first enactment giving a defendant costs upon a demurrer; but it was decided that the following cases were not included in it, and therefore that in those cases the defendant was not entitled to costs :-1st. If the demurrer were on a plea in abatement, in which case the judgment did not proceed on the merits, nor determine the right, the defendant was not entitled to costs under this statute (a). 2ndly. It was decided, that under this statute the defendant could not have costs, if it were a species of action in which the plaintiff, if the judgment were for him, could not have costs; formedon (b) or quare impedit (c), for instance. 3rdly. Under this statute the defendant could have no costs, if his demurrer only went to, and disposed of part of the cause of action, if the plaintiff had judgment in his favour on the residue (d). But now, by the statute 3 & 4 Will. IV. c. 43, s. 34, it is enacted, "That in all writs of scire facias the plaintiff obtaining judgment on an award of execution shall recover his costs of suit upon a judgment by default as well as upon a judgment after a plea pleaded or demurrer joined; and that where judgment shall be given either for or against a plaintiff or demandant, or for or against a defendant or tenant, upon any demurrer joined in any action whatever, the party in whose favour such (a) 2 Tidd's Pr. 8th edit. 1019. (b) Miller v. Seagrave, Cas. Pr. C. P. 25. (c) Thrale v. The Bishop of Lon don, H. Bla. 530. (d) Astley v. Young, 2 Bur. 1233; Postan v. Stranway, 5 East, 264. judgment shall be given shall also have judgment to recover his costs in that behalf." This enactment, it is apprehended, now gives costs in all cases of demurrer followed by final judgment, not only to a defendant, but to a plaintiff. The statutes relating to the law of costs on a nolle prosequi and on discontinuance, and the rights and liabilities of a defendant to costs on demurrer, on issues as well under the statute of Anne as otherwise, and of one of several defendants, and also as to costs in particular actions, and in error and scire facias, will be treated of in subsequent chapters. CHAPTER II. OF THE COSTS OF ISSUES. SECT. 1. Costs of Issues in general. SECT. 2. Costs of Issues under the Statutes 4 Anne, c. 16, & 15 & 16 Vict. c. 76, s. 81. SECT. 3. Costs of Issues under the Pleading Rules of Hilary Term, 1853. SECT. 1. Costs of Issues in general. THE right to costs depending on positive enactment, the extent to which the statutes on the subject were lost sight of, in the decision of questions depending on them, is very remarkable. Any one who has had occasion to look into the old cases on the subject of costs, cannot help seeing that the Courts exhibited great reluctance to give full and fair effect to the statutes giving costs, or at least to most of them. It was said that such statutes were to be construed strictly; and the meaning attached to that phrase seems to have been, that they should only be allowed to carry out the remedy they provided, within the narrowest possible limits. This produced a series of decisions which very greatly and very improperly limited their full and beneficial operation; and then questions of costs came to be considered, not as questions of law upon the construction of the statutes, but as mere questions of practice; and when any question on the law of costs arose, the former decisions were either blindly followed, or the master or prothonotary was consulted as to what was the practice. The consequence of this was, that the erroneous construction put upon some of the statutes relating to costs, grew so inveterate that the Courts felt it would be too strong a step for them, of their own authority, to overrule the cases establishing that construction. But when, by the statute 11 Geo. IV. & 1 Will. IV. c. 70, power was given to the Judges to make Rules binding on all the Courts, and having the force of an Act of Parliament, they were enabled to apply a remedy, which they did by promulgating the Rule which will be presently given (a). By that Rule, however, the Judges did not intend to introduce any new law, but simply to get rid of the erroneous construction which by the cases had been put upon certain statutes giving costs, and to declare and carry out the true construction of those statutes (b); and therefore, although that Rule is annulled, the cases under it are still available as decisions upon the statutes and provisions now applicable to the matter. A plaintiff could always introduce two or more counts in his declaration. When he succeeded on some or one only, he was entitled to his costs by virtue of the Statute of Gloucester, but obviously not to the costs of those counts on which he failed; yet old cases are not wanting, in which it was held that he was entitled to the costs of all the counts (c). This, however, did not ultimately become the established practice; although, from negligence or ignorance, it no doubt frequently happened that the plaintiff's costs were taxed in that way; and, therefore, it became desirable that the correct law and practice applicable to this point should be authoritatively promulgated, and thereby a correct construction in this respect put upon the Statute of Gloucester. Again, where a defendant succeeded upon several counts in a declaration, the plaintiff succeeding upon the other or others, (a) Rules H. T., 2 Will. IV. r. 74. (b) See Judgment of Parke, B., Doe d. Bowman v. Lewis, 13 M. & W. 241. (c) Bridges v. Raymond, 2 W. Bla 800; Norris v. Waldron, Id. 1199. it was held that the defendant was entitled to no costs; and that he was only entitled to costs under the statute 4 Jac. I. c. 3, if he succeeded in defeating the plaintiff upon the whole of his causes of action. Now, when it is considered that the plaintiff might be trying two entirely distinct and unconnected claims in one action, or so to speak, two actions in one, and that the bulk of the defendant's costs might have been incurred exclusively in resisting the claim which he succeeded in defeating, there seems every reason for giving the defendant his costs of the count on which he defeated the plaintiff; and the words of the statute, which in substance are, "If any verdict happen to pass by any lawful trial against the plaintiff, the defendant shall have judgment to recover his costs," are obviously sufficient to include the case; yet it was decided and firmly established, that in such a case the defendant could have no costs (a). This was considered to be an erroneous construction of the statutes 23 Hen. VIII. c. 15, and 4 Jac. I. c. 3; and therefore a rule of Court was thought necessary to correct the error, and in fact to put a right construction on those statutes. The Rule referred to is that of Hilary Term, 2 Will. IV. r. 74, by which it was ordered that "No costs shall be allowed on taxation to a plaintiff upon any counts 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." The first part of the rule seems to require no further observation; but the second part of it, viz. "the costs of all issues found for the defendant shall be deducted from the plaintiff's costs," requires a few remarks.-It does not seem to have occurred to the framer of the rule that the defendant's costs of issues might exceed the plaintiff's costs, and the rule contained no provision for the defendant's recovering the excess where that was the case. If the matter had rested simply upon the rule itself, there might have been a difficulty; but the rule was only to be looked upon as indicating the true construction of the statute 4 Jac. I. c. 3; and as that enacts (a) See Lloyd v. Doy, Barnes, 149; Judgment of Lord Ellenborough in Portan v. Stanway, 5 East, 261, and Cases there cited; and see Hullock on |