Requests Act, that the defendant was precluded from showing that in point of fact he resided elsewhere (a). So also, where the plaintiff in the progress of the suit applied to have the case tried before the sheriff, and the defendant resisted the application, the summons was dismissed, the defendant consenting that the taxation of costs should be on the higher scale, if a verdict were found for the plaintiff; on verdict for the plaintiff, the defendant was not permitted to enter a suggestion on the ground that the case was within the 9 & 10 Vict. c. 95 (b). Where the facts necessary to be established in order to entitle the party to enter a suggestion are contradicted or disputed by the opposite party on showing cause against the rule, the Court will not decide the disputed questions on affidavits, but will allow the suggestion to be entered, leaving the question of fact to be raised by a traverse of the suggestion (c). But where, on a motion to enter a suggestion (under the 9 & 10 Vict. c. 95) to deprive the plaintiff of costs, on the ground that the place where the contract was entered into, was within the jurisdiction of a County Court within which the defendant resided, the defendant alone swore to a conversation in the course of which he alleged the contract to have been made, without showing that any other person was present who could depose to the fact; and the plaintiff denied the contract having been then made, and alleged that it was entered into at a different time and place; the Court refused to permit a suggestion to be entered, because in that case no witnesses could have been called to speak to the facts on a traverse of the suggestion, and it would therefore be useless to permit the suggestion to have been entered merely with a view to having the doubt settled by a jury (d). Where the defendant's affidavit, on a motion under the same (a) Banks v. Newton, 4 D. & L. 632. (b) Gosling v. Conder, 19 L. J., Q. B. 323; 1 L. M. & P. 320. (c) See Nolloth v. Crook, 19 L. J. (N. S.), Q. B. 185; 1 L. M. & P. 37; Mills v. Best, 19 L. J. (N. S.), Q. B. 328; 1 L. M. & P. 43, S. C.; Broad v. Carey, 19 L. J., Exch. 283; Lewis v. Forsyth, 5 Exch. 904; 20 L. J. (N. S.), Exch. 25, S. C. (d) Caterer v. Dean, 1 L. M. & P. 38; 19 L. J., Q. B. 326, S. C.; and see observations on this case in Mills v. Best, 19 L. J., Q. B. 328. statute, stated that the plaintiff recovered "a verdict for 107. and no more, on an IO U," "and that the cause of action wholly arose" within the jurisdiction of the County Court within which the defendant dwelt, and the affidavits of the plaintiff and his wife, in answer, stated that the verdict was recovered" in respect of an item of 101. for money lent," and they showed that the sum of 107. had been lent to the defendant out of the jurisdiction; it was held that the suggestion must be entered, as it was quite consistent with the plaintiff's affidavits, that the I O U, which was a material part of the cause of action, and which for aught that appeared was the plaintiff's sole evidence, was given within the jurisdiction, although the money was lent out of it (a); and in general, if the party makes out a prima facie case, leave to enter a suggestion will be granted (b). If the rule for bringing in the postea for the purpose of entering the suggestion be made absolute, the defendant then draws the suggestion according to the facts, and it is entered upon the roll by the officer of the Court. This suggestion may be traversed by the plaintiff (c) or it may be demurred to if the facts are insufficiently stated in point of law (d). If traversed, the question of fact must be tried by a jury; and if the defendant succeeds he is entitled to the costs of the traverse or demurrer, as the case may be (e). With regard to the effect of a suggestion to deprive the plaintiff of costs in cases where there were several issues, and one or more of those issues had been found for the defendant, the case of Jenks and another v. Taylor (f) requires to be noticed. That was an action of assumpsit for goods sold and delivered. Pleas-1st, as to 17. 15s., payment into Court; 2ndly, as to 12s., a set-off. The replication as to the first plea alleged damages ultra and denied the set-off. At the trial, (a) Mills v. Best, 1 L. M. & P. Pract. Cas. 43; 15 L. J., Q. B. 328, S.C. (b) See Walker v. Wall, 4 Exch. Rep. 493; see, however, Kirby v. Hickson, 1 L.M. & P. 364; Hand v. Daniels, Id. 420. (c) Watsonv.Quilter, 11 M. & W.760, reviewing the previous authorities. (e) Hickman v. Colley, 2 Strange, before the sheriff, the plaintiff had a verdict on the first issue for 178.; the defendant had a verdict on the second issue. On the part of the defendant an application was made to the Court by his counsel for a rule to enter a suggestion on the roll to deprive the plaintiff of costs, on the ground that the action ought, under the Birmingham Court of Requests Act, 47 Geo. III. c. 14, to have been brought in the inferior Court; he sought also to have the defendant's costs of the second issue taxed for him, but the Court said, that if the defendant was desirous of keeping the case in the superior Court for one purpose he must do so for all, and if he took it away he must take it with all its legal consequences. The rule nisi for the suggestion was granted, but it is not important to notice that further; the 12th section of the statute authorized certain debts to be sued for in the Birmingham Court of Requests, and the 17th section deprives the plaintiff in such cases of costs if he sues in any other Court. Although that statute is repealed by the general Act 9 & 10 Vict. c. 95, the question remains whether a defendant is bound to relinquish his claim to costs of issues found for him if he deprives the plaintiff of his costs by means of a suggestion under any statute enabling him to do so. The Court of Exchequer, it will be seen from the above case, held that he was. It is not easy, however, to understand what the Court meant by keeping the case in the superior Court or taking it away; at any rate, the language attributed to the Court is inaccurate, for the defendant did not literally or substantially seek to take the case away from the superior Court, he only sought to have such a judgment in that Court as by law he was entitled to have. The suggestion is merely a statement upon the record of one portion of the facts upon which the judgment of the Court is to proceed; until that statement appears, the state of facts for the Court to pronounce judgment upon, is not complete; but being completed by the suggestion, the question arises as to what judgment the Court is to pronounce. the Court is to give judgment in favour of the plaintiff for the damages he has recovered; there is nothing to prevent that, but it is not to give him judgment for costs. The Court of Requests Act, upon the state of facts suggested, took away Now his right to them; but that Act did not interfere with the defendant's right to costs of issues found for him; he had that right under the statute of 4 Jac. I. c. 3, as has formerly been shown, and therefore it would seem to have been error on the record if they were not awarded to him. This view does not seem to have been presented in the argument, but it will probably be worthy of consideration if the Courts be required to act upon the judgment in the case referred to. CHAPTER XV. COSTS IN PARTICULAR ACTIONS. COSTS IN ACTIONS OF EJECTMENT. THE action of ejectione firma was one in which the plaintiff recovered damages, and was consequently entitled to judgment for costs under the statute of Gloucester, and the defendant was entitled to judgment for his costs under the statute 4 Jac. I. c. 3. In many cases, however, the parties became entitled to and recovered their costs, otherwise than under these statutes. This arose from the peculiarity of the action of ejectment, in which the plaintiff hitherto was almost always a fictitious person, and consequently judgment against him for the costs would have been useless. The original defendant, that is the casual ejector, being also a fictitious person, a judgment against him for costs would have been equally useless; again, where a plaintiff was nonsuited because the defendant did not confess lease, entry, and ouster, of which the effect was that the plaintiff recovered possession and his costs, he could not recover the latter under the stat. 4 Jac. I. c. 3, for there was no judgment against the real defendant, and consequently no judgment for costs. In these cases they were recovered under the consent rule. Common Law Procedure Act, 1852 (a), (a) 15 & 16 Vict. c. 76. The provisions of the render it unnecessary o 2 to discuss the nature of the proceedings heretofore adopted in ejectment for the recovery of costs. By that Act the forms of proceeding in the action of ejectment are in effect abolished, and a new mode of procedure is substituted, in which the party bringing the action is called the claimant. The principal alteration which our subject requires us to notice is, that the action of ejectment is no longer one in which damages are recovered, and therefore the statute of Gloucester cannot operate to give the claimant his costs; and as the consent rule is abolished, both claimant and defendant are deprived of that mode of recovering costs. The framers of the Common Law Procedure Act evidently intended to include in the Act itself all necessary provisions as to costs, and did not contemplate that costs in the new action should be recovered under any other statute; but in one case the Act omits any provision for the recovery by a defendant of his costs, namely, where the claimant is nonsuited (a). The Judges, however, by the 29th of the Pleading Rules of Hilary Term, 1853, have supplied the omission; for that rule provides, that if a plaintiff in ejectment be nonsuited at the trial, the defendant shall be entitled to judgment for his costs of suit. We shall now proceed to examine the provisions of the Common Law Procedure Act, 1852, for giving costs to plaintiffs and defendants. The first thing to be observed is, that if no appearance be entered in the action, so that the claimant obtains judgment for non-appearance (b), the Act does not give the claimant any right to judgment for costs; it (no doubt intentionally) leaves him to recover them in the action for mesne profits as heretofore. If an appearance be entered, the cause at once goes to trial, without any pleadings (c); but if a sole defendant repents before trial, and determines not to carry on the defence, he may confess the action as to the whole or part, by giving a certain notice to the claimant and thereupon the latter may (a) Sect. 183. (b) Sect. 177. (c) Sect. 178. |