or tort (a), but the plaintiff cannot evade the effect of the rule by a merely colourable or fictitious claim; for instance, by indorsing on his writ, and including in his particulars, another and larger claim, which he knows he cannot support, and so driving the defendant to pay the smaller sum into Court instead of making the application now under consideration. In that case, if the plaintiff takes the smaller sum out of Court, abandoning the larger claim, the Courts will interfere to deprive him of costs (b).

If the plaintiff denies by affidavit that the claim is under 40s., the Court will not inquire into the amount really due, but will discharge the rule with costs (c).

CHAPTER XI.

OF THE LIMITATION OF COSTS (continued).

COSTS OF ACTIONS ON JUDGMENTS.

Before the statute about to be noticed there was nothing to restrict a party who had obtained a judgment for either debt, damages, or costs, from bringing another action on the judgment, instead of issuing execution upon it; and so incurring the costs of another action unnecessarily. Probably this course was sometimes resorted to for the mere purpose of making costs, although in particular cases it might be necessary. To prevent this abuse, it was enacted by the statute 43 Geo. III. c. 46, s. 4, that in actions on judgments recovered "the plaintiff or plaintiffs in such action on the judgment shall not recover or be entitled to any costs of suit, unless the Court in which such action on the judgment shall be brought, or some Judge of the same Court, shall otherwise order."

This statute extends only to judgments recovered by plaintiffs, and therefore does not apply to an action brought to recover the costs of a judgment of nonsuit (d).

(a) Lowe v. Lowe, 1 Bing. 270; 8 Moore 220, S. C.

(b) Thompson v. Gill, 6 Dowl. 155.

(c) Brunker v. Massey, 2 Price, 8 Tidd. 565, 8th edit.

(d) Bennett v. Neale, 14 East, 343.

If there be any real necessity shown for pursuing the course of bringing an action on the judgment, not arising from the plaintiff's own neglect or misconduct, the Court or a Judge will, in the exercise of the discretion given them by this statute, grant the costs.

Thus, where a defendant against whom judgment had been obtained sued out a writ of error, and on the plaintiff bringing an action on the judgment the defendant pleaded nul tiel record, on an application for the costs it was urged that the defendant having pleaded this plea, it might be inferred that the only purpose of the writ of error was delay, and the Court granted the costs, observing that the defendant, instead of pleading nul tiel record, ought to have applied to stay the proceedings (a). But if the plaintiff is seeking by the action to rectify some mistake or negligence on his part (as where, under the former practice of the Courts, the plaintiff had omitted to charge the defendant in execution, the doing which would have obviated the necessity for an action), the Court will not grant the costs (b). ·

Where the plaintiff having brought an action for the sum of 157. 38. 6d., the defendant suffered judgment by default, but having no effects, the plaintiff, in order to take the defendant's person, brought an action upon the judgment for the debt and costs, which exceeded 201., and in that action the defendant pleaded a false plea of nul tiel record, the Court compelled the defendant to pay the costs of the action on this judgment (c). On the other hand, where the plaintiff, having brought an action of debt in one of the superior Courts on a judgment recovered in an inferior Court, and the defendant pleaded nul tiel record, the Court refused to grant the costs, on the ground that the plaintiff, instead of bringing an action, might have removed the judgment to the superior Court and then have issued execution (d). It may be observed, that there seems little reason for enforcing this Act strictly in cases where a (a) Garnwell v. Barker, 5 Taunt. Armstrong v. Fuller, 1 Chitty's Rep. 264. 190.

(b) See Hall v. Pierce, 5 Dowl. 603. (c) Slater v. Mackie, 8 C. B. 553; 19 L. J. (N. S.), C. P. 88; and see

(d) Hanmer v. White, 12 M. & W 519; 1 D. & L. 653; 13 L. J. (N. S.), Exch. 110, S. C.

writ of revivor would be necessary, since the plaintiff in such writ is entitled to recover his costs (a); and an action of debt on the judgment seems not to be a more expensive proceeding.

The application for costs under this Act must be made to the full Court, or to a Judge at Chambers, and not to the Judge at Nisi Prius (b). The Court will, in the first instance, grant only a rule nisi (or a summons to show cause, if the application be at Chambers), to give the defendant an opportunity of resisting the application (c); and the plaintiff is not entitled to a rule without an affidavit to show why, instead of bringing an action of debt, he has not issued an execution upon the judgment already obtained (d); and where judgment was signed, and execution taken out for costs, in an action on a judgment without leave of the Court or Judge, it was held irregular (e).

It seems doubtful whether, upon application of the defendant, the Court will stay the proceedings in an action upon a judgment, upon payment of the amount of the judgment debt. without costs (f). The defendant ought at least to offer to pay interest on the judgment, at four per cent. (g).

(a) Stat. 15 & 16 Vict. c. 76, s. 131. Under the 128th section of the Common Law Procedure Act, 1852, execution may issue within six years from the recovery of the judgment, if the parties be alive, without revival.

(b) Jones v. Lake, 8 C. & P. 395.
(c) Fraser v. Moses, 4 Scott, N. R.

749; 1 Dowl. (N. S.) 705, S. C.

(d) Revell v. Wetherell, 3 C. B. Rep.

321.

(e) Armstrong v. Fuller, 1 Chitty's Rep. 190.

(f) See Wood v. Sileto, 1 Chitty's Rep. 474.

(g) See stat. 1 & 2 Vict. c. 110, s. 17.

CHAPTER XII.

OF THE LIMITATION OF COSTS (continued).

DIRECTIONS OF HILARY TERM, 1853, WITH RESPECT TO CERTAIN ACTIONS NOT EXCEEDING 201.

In addition to those statutes which operate as a penalty upon parties beginning their suits in the superior Courts, for causes of action which ought to have been decided in inferior Courts, or ought not to have been the subject of litigation at all, there are provisions which restrain the amount of costs to which a plaintiff is entitled in cases which, although properly commenced in the superior Courts, do not appear to be of such difficulty or importance as to require adjudication by means of a trial at Nisi Prius.

These provisions are contained in directions promulgated by the superior Courts. To comprehend the object of these directions, it is necessary, before setting them out, to refer to the statute 3 & 4 Will. IV. c. 42. Section 17 of that statute enacts, “That in any action depending in any of the superior Courts, for any debt or demand in which the sum sought to be recovered, and indorsed on the writ of summons, shall not exceed 201., it shall be lawful for the Court in which such suit shall be depending, or any Judge of any of the said Courts, if such Court or Judge shall be satisfied that the trial will not involve any difficult question of fact or law, and such Court or Judge shall think fit so to do, to order and direct that the issue or issues joined shall be tried before the sheriff of the county where the action is brought, or any Judge of any Court of Record for the recovery of debt in such county; and for that purpose a writ shall issue directed to such sheriff, commanding him to try such issue or issues by a jury to be summoned by him, and to return such writ with the finding of the jury thereon indorsed, at a day certain, in term or in vacation, to be named in such writ; and thereupon such

sheriff or judge shall summon a jury, and shall proceed to try such issue or issues."

In Hilary Term, 1853, the following directions were issued to the Masters of the Courts (in lieu of directions previously in force) :

"That in all actions on contract, other than cases wherein by reason of the nature of the action no writ of trial can by law be issued (a), where the sum recovered or paid into court, and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed 207. (without costs), the plaintiff's costs as against the defendant shall be taxed according to the lower scale of allowances in the schedule of costs hereunto annexed (b). Provided, that in case of trial before a Judge of one of the superior Courts or Judge of assize, if the Judge shall certify on the postea that the cause was proper to be tried before him, and not before a sheriff or Judge of an inferior Court, the costs shall be taxed on the higher scale.

"Where in like actions the sum indorsed on the summons shall be more than 207., but the plaintiff fails to recover more than that sum, and the Judge does not certify as aforesaid, the plaintiff's costs against the defendant, whether between party and party or as between attorney and client, shall be taxed as upon a writ of trial before a Judge of a Court of Record where attornies are not allowed to act as advocates, as hereinafter provided for, but the defendant's costs, if any, are to be taxed upon the higher scale; provided that in cases triable

(a) The words "other than cases wherein, by reason of the nature of the action, no writ of trial can by law be issued," were inserted in the previous directions by a regulation of the Judges of Easter Term, 1846; see 6 Q. B. Rep. 452. They were introduced because there had been conflicting decisions on the question whether the above rule, as it originally appeared, extended to actions in which there was no power to have a writ of trial under the 3 & 4 Will. IV. c. 42, s.

17. The latest decision certainly appears to have been founded on the assumption that the rule was inapplicable to cases of that description; see Walther v. Mess, 7 Q. B. Rep. 189; 2 D. & L. 961; 14 L. J. (N. S.), Q. B. 230. The insertion of the above words puts an end to the doubt, and renders it unnecessary to refer to the cases bearing upon the point.

(b) See the schedule of costs referred to, inserted in the Appendix to this work.