claims more than such fixed sum, in which case the costs shall be taxed in the ordinary way. So also (sect. 28) where the writ is not specially indorsed, although the claim is such that it might have been, and the defendant does not plead, final judgment may be signed; and the same provision as to costs applies, with this additional stipulation, that if the costs are taxed in the ordinary way, the plaintiff is not entitled to more costs than if he had made such special indorsement, and signed judgment upon nonappearance. Where the nature of the claim is such that a writ of inquiry is necessary, the costs are taxed after final judgment in the same manner and on the same principles as upon a verdict on a trial, with the same distinctions between an inquiry before the Judges of assize and an inquiry before the sheriff as exist between a trial at the assizes and a trial before the sheriff. The questions arising with respect to costs on a judgment by default, are chiefly where the defendant has suffered judgment by default as to part of the cause of action only, or where there are several defendants, one or more of whom have suffered judgment by default and the others have proceeded to trial. Before the now annulled Rule of Hil. T. 2 Will. IV. r. 74 (a), it was held that where there are two distinct causes of action in two counts of a declaration, and as to one the defendant suffers judgment by default, and as to the other takes issue and obtains a verdict, the defendant is entitled to judgment for his costs on the latter count, including the costs of the trial, and the plaintiff is only entitled to judgment and costs on the first count (b). And the same rule applies where the declaration contains a single count. Thus, in an action of covenant, the defendant admitted, as to part of the count, that he had broken the covenant, and he pleaded as to the residue, and the venire was awarded as well to try the issue joined as to assess the damages on that part on which (a) See ante, p. 16. (b) Day v. Hanks, 3 T. R. 654; House v. Commissioners of Thames, 3 the defendant had suffered judgment by default. On the trial of the issue the defendant obtained a verdict; and on an application to the Court of Common Pleas, it was held that the defendant was entitled to the costs on the issue found for him (a). The right of the defendant to costs in such a case rests on the Statute 4 Jac. I. c. 4, the true construction of which has been already pointed out (b). Independently of the Statute 3 & 4 Will. IV. c. 42, s. 32, which gives costs to one or more of several defendants (c), and of the previous Statute 8 & 9 Will. III. c. 11, s. 1, it was held that where one of several defendants suffered judgment by default, and a verdict was found for the others, the latter were entitled to their costs (d). Under the Statute 3 & 4 Will. IV. they would be clearly entitled to such costs. In general, the plaintiff under the above circumstances is entitled to costs against the defendant who suffers judgment by default (e). There are some cases, however, in which a verdict for the other defendants protects the co-defendant from liability to the costs on the judgment by default. Thus, if one of several defendants permit judgment to go by default, and the other plead a plea, which goes to the whole declaration, and shows that the plaintiff had no cause of action, and such plea be found for the party pleading it, he shall have costs; and the plea pleaded being an absolute bar to the (a) See Judgment of Le Blanc, J., Griffiths v. Davies, 8 T. R. 466; and Wright v. Smithies, 13 East, 193, n. (¿). (b) Ante, p. 16. (c) See ante, Chap. VII. p. 91. (d) Price v. Harris, 10 Bing. 557; 2 Dowl. 804, S. C. (e) By sect. 33 of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), the plaintiff may, in the case of several defendants, one or more of whom suffers judgment by default, issue execution against him or them and abandon the action against the others (see ante, p. 271); or the plaintiff may, "before issuing such execution, declare against such defendant or defendants as shall have appeared, stating, by way of suggestion, the judgment obtained against the other defendant or defendants who shall not have appeared; in which case the judgment so obtained against the defendant or defendants who shall not have appeared shall operate and take effect in like manner as a judgment by default obtained before the commencement of this Act against one or more of the several defendants in an action of debt before the commencement of this Act." action, the other defendant shall have the advantage of it, and shall not pay costs to the plaintiff upon the judgment by default (a). As where, in an action of covenant against two for not erecting a house, one suffered judgment by default, and the other pleaded performance and obtained a verdict, it was held that the defendant who pleaded should have his costs, and that the plaintiff was not entitled to any costs or damages against the other (b); and so in all actions where the defendants are necessarily joined (c). The distinction is between actions of tort and actions ex contractu; in the former case the declaration is understood to allege each severally to be guilty, as well as all jointly; in an action ex contractu the declaration alleges that all contracted, and this is held to be disproved where it appears that the contract was only by some. however, it appear at the trial that one who did not join in the contract, &c. is made a defendant with others who did, the Judge has power, by the 37th section of the Common Law Procedure Act, to amend the proceedings by striking out the name of such defendant. If, But if the plea pleaded by one of several defendants be merely a personal discharge as to him, and does not constitute an answer to the action, the plaintiff will not be precluded, by a verdict on such a plea for the party pleading it, from recovering his damages and costs against the other who has suffered judgment by default (d). In actions of tort, therefore, the plaintiff is generally entitled to damages and costs against a defendant suffering judgment by default, although the co-defendant plead and obtain a verdict (e). But even in an action of tort, where one of several defendants suffered judgment by default, the judgment against him was arrested, it afterwards appearing upon the record that (a) Hullock on Costs, 2nd edit. p. 143, citing Co. Litt. 125, 126; Foster v. Jackson, Hob. 54; 2 Rolle Abr. 102. (b) Porter v. Harris, 1 Lev. 63; Boulter v. Ford, 1 Sid. 76; 1 Keble, 284, S. C.; and see Morgan v. Ed wards, 6 Taunt. 398; 2 Marsh, 201, S. C. (c) 1 Sid. 76. (d) Hullock, 2nd edit. pp, 143, 144. (e) Jones v. Harris, 2 Str. 1108; Cressy v. Webb, Ibid. 1222. the plaintiff was not entitled to maintain the action against any of them (a). In that case, however, the decision of the Court appears to have been partly founded on the fact that the damages had been assessed generally against the defendant who had suffered judgment by default, whereas the plea of the other defendant disclosed a justification for both as to the substantial cause of action. As to judgment by default to a new assignment, see post, Chap. XXX. CHAPTER XXVII. COSTS WHERE THE SUIT IS TERMINATED BEFORE VERDICT BY DEATH, OR BY CONSENT OF BOTH PARTLES. SECT. 1. Abatement by Death. SECT. 2. Stet Processus. SECT. 3. Discharge of the Jury. SECT. 4. Withdrawal of a Juror. SECT. 1. Abatement by Death. ALTHOUGH the Common Law Procedure Act, 1852, enacts that the death of a plaintiff or defendant shall not cause the action to abate, and provides for its continuance by means of a suggestion on the record, yet if the plaintiff does not make the suggestion, the action abates (b), and no costs are recoverable, because in such a case there is no judgment to support a claim to them. In the case of the death of a sole plaintiff or sole surviving plaintiff, the truth of the suggestion, if made before trial, is tried thereat together with the title of the deceased plaintiff, (a) Biggs v. Benger, 2 Lord Raym. 1372; 8 Mod. 217; 1 Str. 610, S. C. (b) See Rex v. Cohen, 1 Stark. 511; and observations of Maule, J., in Barnewall v. Sutherland, 19 L. J. (N. S.), C. P. 291. and such judgment follows upon the verdict in favour of or against the person making such suggestion, as if such person were originally the plaintiff (a). In case of the death of a sole defendant or sole surviving defendant, when the action survives, the pleadings upon the declaration and the pleadings upon the suggestion are tried together; and in case the plaintiff recovers, he is entitled to the like judgment in respect of the debt or sum sought to be recovered and in respect of the costs prior to the suggestion; and in respect of the costs of the suggestion and subsequent thereto, he is entitled to the like judgment as in an action originally commenced against the executor or administrator (b). In case of the death of one or more out of two or more plaintiffs or defendants, when the action survives, a suggestion is entered, and the action proceeds by or against the survivors (c). It may be observed, however, that the death of either party between the verdict and the judgment does not affect the right to proceed to judgment within two terms after such verdict (d); and if the plaintiff or defendant dies after interlocutory judgment and before final judgment, in an action which survives, the action may be continued to final judgment by writ of revivor by or against the executors or administrators, as the case may be (e). SECT. 2. Stet Processus. By the entry of a stet processus the parties agree that all (a) 15 & 16 Vict. c. 76, s. 137. (d) Id. sect. 139, re-enacting the 17 Car. II. c. 8, s. 1. The power to continue an action by suggestion under the above Procedure Act does not extend to the case of the death of one of two or more plaintiffs, or of one of two or more defendants, where the cause of |