CHAPTER XIV.

OF ENFORCING THE STATUTES TAKING AWAY OR GIVING COSTS, BY ENTERING A SUGGESTION.

In many cases, where the plaintiff is disentitled to any costs, or on the other hand, where a defendant is entitled to a particular class or amount of costs, under the provisions of one or other of the statutes mentioned in the preceding chapters, the facts which entitle or disentitle the party, appear upon the record; but in, perhaps, a more numerous class of cases, it is obvious that those facts do not appear. For example, a plaintiff who in an action of trespass, or trespass on the case, recovers less than 40s. damages, without a certificate from the Judge, is, under the 3 & 4 Vict. c. 24, not entitled to costs; and as the record would show the form of action and the amount recovered to be within that statute, the officer of the court would not tax the plaintiff his costs. In that case the plaintiff would prima facie be disallowed his costs, and it would lie upon him to show that the case was within the exception of the statute referred to, if in fact it were so (a). So, if the Judge in an action not within the 3 & 4 Vict. has granted a certificate under the statute of Elizabeth to deprive the plaintiff of more costs than damages, no further proceeding is necessary; the certificate indorsed on the record sufficiently showing that the plaintiff is not entitled to more costs than damages. On the other hand, before the 13 & 14 Vict. c. 61, a plaintiff who, in an action founded on contract, obtained a verdict for less than 201., or in an action founded on tort, obtained a verdict for less than 57., was primâ facie entitled to costs, although the facts might have brought the case within the Small Debts Act, 9 & 10 Vict. c. 95, because there was nothing on the record to show the existence of those facts, which, by the operation of the statute, disentitled the plaintiff to costs. So also, before

(a) See ante, pp. 131, 132.

the 1 & 2 Vict. c. 110, where a defendant was arrested and held to bail for a larger sum than the plaintiff subsequently recovered by verdict, it was necessary, in order to entitle the defendant to costs under the statute 43 Geo. III. c. 46, s. 3, to show the facts on the record (a). Again, under "the London (City) Small Debts Extension Act, 1852" (b), in order to deprive the plaintiff of costs in certain actions where the plaintiff recovers a sum between 207. and 507., the fact must be legally averred (c).

The general rule is, that whenever the Statute of Gloucester, which gives a successful plaintiff his costs of suit, is departed from, some reason for that departure must appear by a suggestion on the record, in order to reconcile the contradiction that would otherwise appear on its face, and also that the other party may have an opportunity of traversing it; but when the alteration sought to be made is merely one which increases or diminishes the amount of the plaintiff's costs, such a course is unnecessary (although in some of the old cases it was held otherwise), for the Master ascertains the amount on taxation (d).

Where, however, the statute depriving the party of costs, is general in its operation, it is of course cognizable, and forms part of the general existing law as fully as the Statute of Gloucester, which gives costs. Thus Lord Denman's Act (e) applies to all actions of trespass and tresspass on the case; and therefore, as already stated, where a plaintiff in those actions recovers less than 40s. no suggestion is necessary to deprive the plaintiff of costs (f), for there is no contradiction on the record, there being no statute to give costs in such cases. On the other hand, where a statute takes away costs in certain actions brought against persons filling particular offices (g),

(a) See Ricketts v. Noble, 3 Exch. Rep. 521.

(b) 15 Vict. c. lxxvii.

(c) See the observations on this statute, ante, p. 162.

(d) Per Parke, B., in Brooker v. Cooper, 3 Exch. Rep. 115; and in Maberly v. Titterton, 7 M. & W.

542; and see Watson v. Quilter, 11 M. & W. 767; and ante, p. 185.

(e) 3 & 4 Vict. c. 24, ante, Ch. VIII. (f) See Bowyer v. Cook, 4 C.B.236; 16 L. J., C. P. 177; 4 D. & L. 816, S. C.

(g) See post, as to actions by and against parties sued in a particular

character.

then the office or character of the defendant does not (in general at least) appear on the record, and in that case a suggestion is necessary to show that the defendant is a person protected by the statute.

Where therefore a party, either plaintiff or defendant, seeks to shift the burthen of costs, the mind of the Court must be informed of the facts. This is done (where no other mode is expressly given by statute) by entering a suggestion on the roll, of the facts relied upon, and the Court has no power by rule to order the payment or non-payment of the costs (a).

This proceeding by suggestion has been more than once incidentally alluded to in the previous parts of the work. Its mode and effect form the subject of the present chapter.

In order to enter a suggestion on the roll, the party seeking to do so must apply to the Court for a rule to show cause why the plaintiff (supposing the application to be by the defendant) should not bring the postea into Court and carry in the roll, so that the defendant may enter a suggestion thereon. Although there is no rule laid down as to the time within which the motion for the suggestion must be made, it should be made as promptly as possible after verdict or interlocutory judgment (as the case may be), and in general before final judgment (b). The reason why it cannot in general be made after final judgment is, that the costs form part of the judgIt would, therefore, be absurd to ask to enter a suggestion to deprive the plaintiff of costs for which it appears on the record he has already got judgment (c).

ment.

The Court has, however, permitted a suggestion to be entered to deprive the plaintiff of costs after final judgment and writ of execution issued, where it appeared that the defendant could not apply sooner, a Judge at chambers having refused to interfere (d). Where a trial takes place in vacation, the

(a) See Sanson v. Price, 2 Exch. Rep. 338; 17 L. J. (N. S.), Exch. 205. (b) See Watchorn v. Cook, 2 M. & Sel. 863; Calvert v. Everard, 5 Id. 510; M'Gill v. Milton, 19 L. J., C. P.

(c) Per Lord Abinger in Godson v. Lloyd, 4 Dowl. 156.

(d) King v. Erle, 5 Dowl. 595; and see Bond v. Bailey, 3 Id. 808; Godson v. Lloyd, 4 Id. 158.

application to enter a suggestion may be made in the following term; and the same rule applies to the case tried before the sheriff under a writ of trial, although no application was made to the sheriff to stay the judgment and execution under the 3 & 4 Will. IV. c. 42, s. 18 (a).

Where the Judge at a trial in vacation, in pursuance of the 1 Will. IV. c. 7, orders execution within a limited time, and judgment is thereupon entered up and execution is issued, the defendant is not precluded from applying, at the commencement of the next term, to enter a suggestion (b). Where, however, an entire term was allowed to pass, it was held that a motion in the next term was too late, although it appeared the parties were in negociation respecting the costs (c).

If the application be made after final judgment, the motion must be framed to set aside the judgment on payment of costs, and then to enter the suggestion; because it would be inconsistent if the suggestion were entered while the judgment for costs stands good (d).

But where the plaintiff recovered a verdict for 91. 28. 1d., on a writ of trial before the under sheriff, who upon application refused to stay the proceedings to enable the defendant to apply for a suggestion to deprive the plaintiff of costs under the 9 & 10 Vict. c. 95, s. 129 (the 13 & 14 Vict. c. 61, which renders a suggestion unnecessary not having then passed), and judgment having been signed and execution issued, the Court granted a rule to enter a suggestion to deprive the plaintiff of costs, which rule was afterwards made absolute without a previous motion to set aside the judgment, and the Court afterwards made a rule absolute to set aside the judgment and execution, and for the plaintiff to refund the money paid to the sheriff under the execution (e); and it is not necessary to move to set aside the judgment where merely the judgment

(a) Johnson v. Beale, 5 M. & W. 276; 8 L. J. (N. S.), Exch. 255, S. C.

(b) Baddley v. Oliver, 1 Cr. & Mees. 219; 1 Dowl. 598, S. C.

(c) Hippesley v. Layng, 4 B. & C.

863.

(d) Soames v. Cooper, 3 Exch. Rep. 38; 18 L. J. (N. S.), Exch. 38, S. C.

(e) Read v. Blayney, 8 C. B. 551; 19 L. J. (N. S.), C. P. 110.

paper has been signed, and the judgment has not been completed, or the Master's allocatur obtained (a).

The application must be in most cases supported by affidavit, clearly and distinctly showing that the case is within the operation of the particular statute relied upon (b); and a variety of other cases on the original County Court Act illustrate this rule, although a suggestion is now no longer necessary in the cases to which they refer. The facts necessary to be verified by affidavit, therefore, depend upon the language of such statute. It may be made by a stranger who is not shown to be connected with, or to have any peculiar means of knowledge, either of the facts of the suit or of the parties to it (c).

A previous application to a Judge at chambers does not prevent a party from afterwards applying to the Court upon the same or upon amended affidavits (d). So, if, upon an application to the Court, the affidavits are technically defective, the Court will discharge the rule, and the application cannot, it seems, be renewed on amended affidavits (e).

If the defendant has misled the plaintiff (as by inducing him to believe that his residence was elsewhere than it really was), he will not be permitted to show the fact in order to enable him to enter a suggestion on the roll to deprive the plaintiff of costs. Thus where, at the time the debt for which the action was brought, was contracted, the plaintiff asked the defendant where he resided, and was told by him that he resided at No. 4, Manchester-buildings, in consequence of which the goods were sent there, and repeated conversations were had with the defendant there, in none of which did he give the plaintiff any reason to think that he had any other residence, and he appeared to the writ by that description, and made no opposition to it until after trial and verdict, it was held, on motion to enter a suggestion under a then existing Court of

(a) Robieson v. Rees, 19 L. J. (N. S.), Q. B. 145.

(b) Johnson v. Ward, 7 C. B. Rep. 868; 18 L. J. (N. S.), C. P. 255; Surridge v. Ellis, Id. 1006.

(c) Walker v. Furnell, 4 Exch. Rep.

807; 19 L. J. (N. S.), Exch. 158, S. C.

(d) Peterson v. Davis, 6 C. B. 235. (e) Hand v. Daniels, 1 L. M. & P. 424; but see Parry v. Davis, Id. 424; Lloyd v. Gregory, 19 L. J., Exch. 283, contrà.