on a replevin bond under the stat. 11 Geo. II. c. 19, s. 23, may be stayed on payment of the penalty and costs of that action without the payment of the costs in the replevin suit, although the latter greatly exceed the penalty (a); and on the other hand, the Court will stay proceedings in an action against the sureties on the bond, on payment of the appraised value of the goods and the costs of the action of replevin (6). CHAPTER XVII. COSTS IN PARTICULAR ACTIONS—(continued). COSTS OF ACTIONS IN QUARE IMPEDIT. UNTIL the reign of King William IV. neither party was entitled to costs in quare impedit; but by the statute 4 & 5 Will. IV. c. 39, after reciting that "the delay and expense of recovering advowsons, and the right of patronage and presentation to ecclesiastical benefices, by actions of quare impedit, are much increased by reason of the defendants in such actions not being liable for the payment of costs, and the true patrons are thereby frequently deterred from the prosecution of their just rights; and it is also expedient to afford further protection to incumbents of advowsons from vexatious and unfounded proceedings to disturb them in the enjoyment thereof," it is enacted, "That in all writs and actions of quare impedit issued or brought from and after the passing of this Act in England, Wales, or Ireland, where a verdict shall pass or be given for the plaintiff or plaintiffs in every such writ or action, the plaintiff or plaintiffs in every such writ or action, in addition to the damages to which he or they is or are by law now entitled, shall also have (a) Branscombe v. Scarborough, 6 Q. B. 13. (b) Hunt v. Round, 2 Dowl. 558; Miers v. Lockwood, 9 Dowl. 975. judgment to his or their full costs and charges against the defendant or defendants therein, to be assessed, taxed, and levied in such manner and form as costs in personal actions are now by law assessed, taxed, and levied; and where in any such writ or action the plaintiff or plaintiffs therein shall discontinue, or be nonsuited, or a verdict shall be had against him or them, that then the defendant or defendants in every such writ or action shall have judgment to recover his or their full costs and charges against the plaintiff or plaintiffs therein, to be assessed, taxed, and levied in manner as aforesaid: Provided always, that no judgment for costs shall be had against any archbishop, bishop, or other ecclesiastical patron or incumbent, if the Judge who shall try the cause, or if there shall be no trial by a jury, the Court in which judgment shall be given, shall certify that such archbishop, bishop, or other ecclesiastical patron or incumbent had probable cause for defending such action; but in no case where the defence to any such action shall be grounded upon a presentation or presentations, collation or collations previously made to any benefice, shall such presentation or presentations, collation or collations, be deemed or considered probable cause for defending such action." It will be observed that this statute makes no provision for costs on demurrer, but by a previous statute, 3 & 4 Will. IV. c. 42, s. 34, it is enacted, 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 judgment shall be given shall have judgment to recover his costs in that behalf. This enactment applies to the action of quare impedit (a). (a) Edwards v. The Bishop of Exeter, 6 Bing. N. C. 146. CHAPTER XVIII. COSTS IN PARTICULAR ACTIONS—(continued). ACTIONS AND PROCEEDINGS RELATING TO PATENTS. "THE Patent Law Amendment Act, 1852" (15 & 16 Vict. c. 83, s. 41), enacts, that "in any action in any of her Majesty's superior Courts of Record at Westminster or in Dublin, for the infringement of letters patent, the plaintiff shall deliver with his declaration particulars of the breaches complained of in the said action; and the defendant, on pleading thereto, shall deliver with his pleas, and the prosecutor in any proceedings by scire facias to repeal Letters Patent shall deliver with his declaration, particulars of any objections on which he means to rely at the trial in support of the pleas in the said action, or of the suggestions of the said declaration in the proceedings by scire facias respectively; and at the trial of such action or proceeding by scire facias no evidence shall be allowed to be given in support of an alleged infringement, or of any objection impeaching the validity of such letters patent, which shall not be contained in the particulars delivered as aforesaid: Provided always, that the place or places at or in which and in what manner the invention is alleged to have been used or published prior to the date of the letters patent shall be stated in such particulars." And section 43 enacts, that "in taxing the costs in any action in any of her Majesty's superior Courts in Westminster or in Dublin, commenced after the passing of this Act, for infringing letters patent, regard shall be had to the particulars delivered in such action; and the plaintiff and defendant respectively shall not be allowed any costs in respect of any particular, unless certified by the Judge before whom the trial was had to have been proved by such plaintiff or defendant respectively, without regard to the general costs of the cause (a); and it shall be lawful for the Judge before whom any such action shall (a) This provision does not put objections on the same footing in respect of costs as issues; for though it deprives the party entitled to the general costs of the costs of an objection if he fails upon it, it does not give the other party the costs incurred in meeting it. be tried to certify on the record that the validity of the letters patent in the declaration mentioned came in question; and the record, with such certificate, being given in evidence (a) in any suit or action for infringing the said letters patent, or in any proceeding by scire facias to repeal the letters patent, shall entitle the plaintiff in any such suit or action, or the defendant in such proceeding by scire facias on obtaining a decree, decretal order, or final judgment to his full costs, charges and expenses, taxed as between attorney and client, unless the Judge making such decree or order, or the Judge trying such action or proceeding, shall certify that the plaintiff or defendant respectively ought not to have such full costs (b).” (a) This seems to make such a Record evidence although it is inter alios. Unless it does so the provision can only operate where the second action is between the same parties as the first; but this can scarcely be the construction, seeing that the Record is made admissible in a scire facias, which in form cannot be between the same parties. (b) The stat. 5 & 6 Will. IV. c. 83, contained somewhat analogous provisions, which although impliedly repealed by the above statute, with respect to actions commenced subsequently to the passing of the recent Act (1st July, 1852), are still in force as to actions commenced before; and also it seems to letters patent granted in respect of applications made before the commencement of the new Act (1st October, 1852), see 15 & 16 Vict. c. 83, s. 52; the language of the 6th section of the 5 & 6 Will. IV. c. 83, is, "that in any action brought for infringing the right granted by any letters patent, in taxing the costs thereof, regard shall be had to the part of such case which has been proved at the time which shall be certified by the Judge before whom the same shall be had; and the costs of each part of the case shall be given according as either party has succeeded or failed therein, regard be ing had to the notice of objections as well as the counts in the declaration, and without regard to the general result of the trial." The notice of objections referred to in this section, is required by the 5th section to be given by the defendant in an action for infringing letters patent, and by the plaintiff in a scire facias to repeal them. It has been observed that this Act seems to have been framed under a supposition that the objections would be taken under the plea of the general issue, and that the legislature appeared to have forgotten the then new rules as to pleading which remained unaltered, the object of the statute being to make the objections separate issues, the costs of each of which were to follow their respective results, an effect already produced by other provisions (per Parke, B., Losh v. Hague, 5 M. & W. 387; 7 Dowl. 496, S. C.). The objections therefore under this statute were in general mere repetitions of the special pleas, the costs following the result in each. In a case in which the defendant obtained a verdict on an issue covering the whole cause of action, and the Judge certified under this statute in favour of the plaintiff with respect to six out of seven objections, which six objections were com It will be seen that the first part of the above section relates to all actions for the infringement of patents; and that the subsequent part above set out is confined to actions brought for the infringement of patents where the validity of the patent had been already in question, and the Judge had certified to that effect. The right of the plaintiff in such a case to full costs, as between attorney and client, has been already stated. There is no judgment for costs in a scire facias to repeal letters patent, but before a private party is allowed to prosecute such a scire facias he is required to give a bond conditioned to pay costs if the proceeding fails; this bond, however, cannot be proceeded upon without the consent of, and only under the conditions imposed by, the Master of the Rolls. It is to be observed that an action on the case for the infringement of a patent is within Lord Denman's Act, 3 & 4 Vict. c. 24, s. 2 (a), and also within the County Courts Acts. In almost any successful action of this kind, however, a Judge would not hesitate to certify that it was to try a right besides the mere right to recover damages, and that there was good reason for bringing it in a superior Court. CHAPTER XIX. COSTS OF FEIGNED ISSUES. WHEN a feigned issue is tried by the direction of the Court of Chancery the costs are in the discretion of that Court, and the Court of law does not interfere with them. When a feigned issue is tried in order to determine a fact or facts material to the decision of some question pending before a Court of law, the general rule is that the costs abide the event of the verdict on the issue, although nothing be said about prised in three pleas found for the plaintiff, it was held that the certificate did not affect the defendant's right to the general costs of the cause; and that the plaintiff being entitled independently of the statute to the costs of the issues found for him, all that he became entitled to by the certificate was six sevenths of the costs of copying, transcribing, &c., those six objections (Losk v. Hague, supra). (a) Ante, p. 107. |