that he is in possession of the land, either by himself or his tenant, as the condition on which a person not named in the writ may, by leave of the Court, be admitted to defend, still it it is clear that such leave of the Court may be granted on terms as to security for costs or otherwise.

After verdict, the Court will sometimes order the costs to be paid by the real defendant, although not a party to the record; for he will not be permitted to put a mere pauper into possession, merely to evade the costs (a).

Thus, where three ejectments were brought against a landlord and his two tenants, and the landlord obtained a rule for the consolidation of the three actions, and that the ejectment against one of the tenants, who was a pauper, should abide the event of the ejectment against the other, and that action was tried, and the lessor of the plaintiff obtained judgment, and took possession of all the tenements, the Court compelled the landlord to pay the costs of that ejectment (b). So, also, where the premises recovered were claimed by two parish officers, and inhabitants of the township in which they were situated, and the defendant, a pauper, had been put into possession by them, and the action defended at the expense of the inhabitants, the parish officers were ordered to pay the costs (c).

With respect to the mode of recovering costs in the action of ejectment it will be seen that the sections of the Procedure Act already cited, expressly give the power to issue execution for them. It is also enacted, that "it shall not be necessary before issuing execution upon any judgment under the authority of this Act, to enter the proceedings upon any roll, but an incipitur thereof may be made upon paper, shortly describing the nature of the judgment according to the practices heretofore used, and judgment may thereupon be signed, and costs taxed, and execution issued, according to the practice heretofore used: Provided nevertheless, that the proceedings may

(a) Per Lord Tenterden, C. J., Berkeley, v. Dimery, 10 B. & C. 113; and see Thurstout v. Nixon, Id. p.

112.

(b) Thurstout v. Shenton, 10 B. & C. 110.

(c) Doe d. Masters v. Gray, 10 B. & C. 615.

be entered upon the roll whenever the same may become necessary for the purpose of evidence, or of bringing error, or the like" (a).

And "upon any judgment in ejectment for recovery of possession and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs, at the election of the claimant” (b).

CHAPTER XVI.

COSTS IN PARTICULAR ACTIONS- -(continued.)

REPLEVIN.

As a plaintiff in the action of replevin recovered damages at common law previous to the Statute of Gloucester, 6 Edw. I. c. 1, he by that statute became entitled to recover his costs; but although a defendant in replevin was in many cases, where an avowry or cognizance was made and a return prayed, an actor, yet he could not recover damages at common law; therefore, notwithstanding judgment might be given in his favour, the Statute of Gloucester afforded him no right to costs. was in a great measure remedied by the Statutes 7 Hen. VIII. c. 4, s. 3, and 21 Hen. VIII. c. 19, s. 3, which in certain cases therein enumerated, put defendants and plaintiffs in replevin upon the same footing with respect to damages and costs.

This

These two statutes did not extend to all actions of replevin but only to certain specified cases. There were, therefore, many cases not within either statute, and many questions arose as to whether particular cases were within them or not. Those cases are now of no practical importance, so far as the defendant's right to costs is concerned, although as questions might possibly arise whether the defendant in particular actions

of replevin ought to take judgment for damages, it may be useful to mention that they will be found in Hullock on Costs, chap. iv. s. 1; but they need not be noticed here. It has been said that the cases on the above statutes of Hen. VIII. are of no practical importance on the subject of costs, and the reason is, that the statutes of 4 Jac. I. c. 3 (a), 8 & 9 Will. III. c. 11 (6), and 3 & 4 Will. IV. c. 43, s. 34 (c), give the defendant an indisputable right to costs whenever judgment is given in his favour upon verdict, demurrer, or nonsuit, whatever be the cause for which the distress was taken. By the first-mentioned of these statutes, a defendant obtaining judgment upon verdict or nonsuit is entitled to recover costs in every species of action wherein the plaintiff, if he had prevailed, might have recovered them; and as a plaintiff in replevin might have recovered damages before the Statute of Gloucester, the defendant may now by the statute 4 Jac. I. c. 3, recover costs where he succeeds. And by the statutes 8 & 9 Will. III. c. 11, s. 2, and 3 & 4 Will. IV. c. 43, s. 34, costs are given to a defendant if judgment pass for him upon any demurrer either by plaintiff or defendant.

The law with respect to costs of issues in replevin is in every respect the same as in other actions (d), and calls for no particular remark (e).

The 8 & 9 Will. III. c. 11, s. 1, which gave costs to one of several defendants, did not extend to actions of replevin (ƒ); but this was remedied by the 3 & 4 Will. IV. c. 42, s. 32, which includes all personal actions (g).

(a) See ante, p. 8.
(b) See ante, p. 13.
(c) See ante, pp. 13, 14.
(d) See ante, Chapter II.

(e) The statute of Anne expressly includes plaintiffs in replevin (see ante, p. 19), and the provisions of the Common Law Procedure Act, relative to double pleading, extend to actions of replevin, avowries and recognizances being expressly mentioned in ss. 83 & 86. The 75th section of the same

statute, directing pleadings to be taken distributively (see ante, p. 68), seems to include actions of replevin. The only instance in which actions of replevin are expressly excluded from the provisions of that statute, relates to the joinder of different causes of action (see sect. 41).

(f) See Ingle v. Wordsworth, 1 W. Bla. 355.

(g) See ante, Chapter VII., as to costs of several defendants.

P

Actions of replevin were not within the statute 14 Geo. II. c. 17, s. 1, empowering defendants to sign judgment as in case of a nonsuit, but that statute, so far as relates to judgment as in case of a nonsuit, is repealed by the Common Law Procedure Act (a), and the substituted proceedings apply when issue is joined in any cause (b).

It may be mentioned that the statute 17 Car. II. c 7, SS. 2 & 3, gives the avowant costs where the value of the distress is to be inquired into; but as the other statutes are sufficient to give these costs, this Act need not be further noticed: indeed, the costs are only incidentally mentioned in it.

By the 11 Geo. II. c. 19, s. 22, after reciting that great difficulties often arise in making avowries or cognizance upon distresses for rent, quit-rents, reliefs, heriots, and other services, it is enacted, "That it shall and may be lawful to and for all defendants in replevin to avow or make cognizance generally, that the plaintiff in replevin, or other tenant of the lands or tenements whereon such distress was made, enjoyed the same under a grant or demise, at such a certain rent, during the time wherein the rent distrained for accrued, which rent was then, and still remains due, or that the place where the distress was taken was parcel of such certain tenements, held of such honour, lordship, or manor, for which tenements the rent, relief, heriot, or other service distrained for, was at the time of such distress and still remains due; without further setting forth the grant, tenure, demise, or title of such landlord or landlords, lessor or lessors, owner or owners, of such manors; and if the plaintiff or plaintiffs in such action shall become nonsuit, discontinue his, her, or their action, or have judgment given against him, her, or them, the defendant or defendants in such replevin shall recover double costs of suit."

The last-mentioned provision, so far as it gives double costs, has been repealed by the statute .5 & 6 Vict. c. 97, and the defendant in the case specified is only entitled,

(a) See 15 & 16 Vict. c. 73, s. 100. (b) See post, "Costs where the ac

tion is terminated before verdict by the act of the defendant."

under the second section of that Act, to "receive such full and reasonable indemnity as to all costs, charges, and expenses" incurred in and about the suit, as shall be taxed by the proper officer in that behalf (a).

It may be mentioned here, that replevin is within sect. 133 of the 5 & 6 Will. 4, c. 70 (the Municipal Corporation Act), giving full costs as between attorney and client to successful defendants in "all actions" brought against any person for anything done in pursuance of this Act, although in replevin a month's notice of action cannot be given, as required by another part of the section (b).

If the defendant pleads in abatement, and the plaintiff confesses the plea, the defendant is not entitled to costs. Thus, where the plaintiff declared for the taking of his cattle in a certain place called B., and the defendant pleaded in abatement, that he took them in a certain place called C., absque hoc, quod cepit in præd. loco vocat. B. prout, &c. and pro returno habendo he avows, &c. The plaintiff confessed the caption to be in C., and thereupon the avowant had judgment that the writ should abate, and for the return of the cattle; and upon application by the avowant for his costs, it was resolved by the Court that he should not have costs; "for the statute of 21 Hen. VIII. c. 19, does not extend to this case, but gives costs only when the plaintiff is nonsuited; and the statute of 7 Hen. VIII. c. 4, gives costs only when the plaintiff is barred; but here the plaintiff is neither barred nor nonsuited, but the writ only abates; and he may have a new writ, and is not put to his second deliverance" (c).

Some misconception has arisen with respect to this case, by supposing that the plea of cepit in alio loco was pleaded in bar here, as it generally is and ought to be (d); whereas this can only place the action of replevin on the same footing as other actions where a plea in abatement is confessed.

It may be observed here, that the proceedings in an action

(a) See ante, p. 182.

(b) Jones v. Johnson, 6 Exch. 133; 20 L. J. (N. S.), M. C. 169, S. C.; and see ante, p. 184.

(c) Smith v. Walgrave, Comyn's Rep. 122.

(d) See the case as reported in 2 Lord Raym. 788.