further proceedings in the action shall be stayed; and as, consequently, there is no judgment for either party, neither is entitled to costs. This entry has been usually made where the defendant became insolvent pending the action, and most frequently where that circumstance was disclosed in answer to an application by the defendant for judgment as in case of a nonsuit under the Statute 14 Geo. II. c. 17, s. 1; the Court giving the defendant the alternative of having his rule discharged with costs, or consenting to a stet processus.

Wherever both parties are desirous of putting an end to the action and the dispute, neither calling on the other for costs, nothing further is required than that they should agree to a stet processus; that implies that the dispute and action is at an end, without costs being paid on either side, and no longer or more special agreement is necessary to effect that object.

SECT. 3. Discharge of the Jury.

Where a defendant has pleaded several pleas under the Statute of 4 Anne, c. 16, and issues are joined on them, and at the trial it appears that the verdict must be for the defendant on one plea, which goes to the whole cause of action, it is very common for the parties to consent that the jury shall be discharged as to the other issues. Where that course is followed the defendant is entitled to the general costs of the cause, but he is not entitled to the costs of the issues on which the jury is discharged (a), and of course the plaintiff is not entitled to the costs of those issues; if the issues were tried and found for either party, that party would be entitled to the costs of them, and therefore it is not always that both parties will in such a case consent to the jury being discharged from giving a verdict on issues which, though they have become

(a) Vallance v. Evans, 1 C. & M. 856; 3 Tyr. 865; 2 L. J. (N. S.), Exch. 272; 2 Dowl. 118, S. C.;

Allenby v. Proudlock, 4 Ad. & E. 326; 5 N. & M. 636; 5 L. J. (N. S.),

K. B. 45.

immaterial so far as the plaintiff's right to recover in the action is concerned, are material with a view to the costs of them. The question has been raised whether a judge at nisi prius has power, without consent of the parties, to discharge the jury from giving a verdict on the issues in such a case, and it has been supposed by a very high authority that the Judge has such a power. In giving judgment in the case of Rex v. Johnson (a), in the Exchequer Chamber, Lord C. J. Tindal makes use of this language: "Indeed the case of Powell v. Sonnett (b) in error, in the House of Lords, furnishes a decisive authority that when the jury have found their verdict on all the material issues joined, the remaining issues being perfectly immaterial as between the parties, the jury may be discharged by the Judge who tries the cause, from returning any verdict on such immaterial issues, without the consent of the parties." It is apprehended, however, that the case cited is not an authority to that extent; there was a writ of error in that case, and the facts were, that it appeared on the record that the Judge had discharged the jury on several issues which could have been material only as to the costs, and it did not appear on the record that it had taken place by consent of the parties. And in Tinkler v. Rowland (c), Mr. Justice Patteson says, that the case of Powell v. Sonnett is no authority for the position in question; and he points out that the ground of the decision in that case, in the Exchequer Chamber (d), was, that as it did not appear on the record that the parties had not consented, the Court would presume that all which ought to have been done had been done.

The case of Powell v. Sonnett, therefore, does not support the Lord Chief Justice's position, and no authority has been found which does support it. In cases referred to arbitration, the arbitrator is in general bound to award on every issue, or at least it must appear from his award that every issue has been considered by him, and that the result is sufficiently certain to enable the costs of every issue to be taxed (e).

(a) 5 Ad. & E. 488.

(b) 1 Bligh, N. S. 552.

(c) 4 Ad. & E. 869.

(d) 3 Bing. 381.

(e) See post, Chapter on Awards.

It is difficult to understand on what ground a Judge can have power to discharge the jury, seeing that the plaintiff's right to the costs of such issues is expressly given by the Statute 4 Anne, c. 16, s. 5 (a); and the party's right to insist on having the verdict of the jury appears to have been affirmed by a decision in the year 1751 (6), and in a more recent case Lord Abinger said, "If a plaintiff fails in proving his case under the general issue, the defendant may go on and give evidence in support of those issues the proof of which rests with him. I can say, that in my experience parties have gone on and had the other issues submitted to the jury, though it is by no means the usual course" (c). If the party had not this right, great injustice might be done. Suppose an action for slander, to which the defendant has pleaded not guilty and a justification; that he has brought a body of witnesses at great expense to prove the justification, and is in a situation to do so, but the plaintiff fails to prove the slander: the injustice to the defendant, if the Judge were to discharge the jury from giving a verdict on the justification, is obvious. It may be said that in such a case a Judge would not take that course; but surely as a right to costs to some extent must depend on the finding of the issues, it is matter of right in the party to have them tried. If the costs which would be recovered are not of any considerable amount, the parties will not in general insist on the issues being tried, and often they may be deterred from insisting on it by the doubt whether they will succeed or not; but to one or other of these circumstances must be trusted the chance of getting rid of the necessity of trying issues under the circumstances which have been discussed, and not by interfering with what is a party's strict right (d).

It sometimes happens that from a jury being unable to agree the Judge discharges them altogether from giving a verdict,

(a) See Spencer v. Hamerton, 4 Ad. & E. 418; 6 N. & M. 22.

(b) Bartlett v. Spooner, Bull. N. P. 335; see also Hullock on Costs, 2nd edit. 101.

(e) In Cooper v. Langdon, 1 Dowl.

N. S. 397.

(d) See observations of the Court in Spencer v. Hamerton, 4 Ad. & E. 418; 6 N. & M. 22, referring to Hart v. Cutbush, 2 Dowl. 456; and see Empson v. Fairfax, 8 Ad. & E. 296.

U

which no doubt he has power to do: in such cases the costs of the trial, thus become abortive, are not costs in the cause, but each party must pay his own (a); and the fact that the associate in such a case has indorsed the record as a remanet makes no difference (b); and the consent of the counsel to such discharge makes no difference in this respect (c); and therefore, where the cause is subsequently brought to trial, the successful party is not entitled to the costs of the first abortive trial (d).

SECT. 4. Withdrawal of a Juror.

Where a juror is withdrawn during the course of a trial, each party pays his own costs.

And although the defendant has paid money into Court, the plaintiff, not having taken it out, will not be entitled to any costs, even down to the time of the payment into Court (e).

It may be observed that the withdrawal of a juror does not necessarily put a stop to the suit (f). In general, however, the withdrawal of a juror takes place upon the parties effecting an arrangement, by which the cause is abandoned, and in such a case the Court will give effect to it (g), and even preclude the plaintiff from bringing another action; but if the

(a) Seely v. Powers, 3 Dowl. 372; Waite v. Spurgin, 4 Dowl. 575.

(b) Brown v. Clarke, 12 M. & W. 25; 1 D. & L. 409.

(c) Bostock v. North Staffordshire Railway Company, 21 L. J. (N. S.), Q. B. 384.

(d) Although an action is not necessarily terminated by the discharge of the jury generally, where there is no verdict on any issue, nor by the withdrawal of a juror, yet, as in the great majority of cases, where either of these courses is adopted, it is done as a means

of terminating the suit, the effect upon costs is properly considered under the title of this Chapter.

(e) Stodhart v. Johnson, 3 T. R. 657. This case was decided on the old rule of Court as to payment into Court, where the money was struck out of the declaration; but semble, the alteration in the rule does not make any difference with respect to the point in the text.

(f) See n. (e), supra.

(g) See Hammond v. Thorpe, 1 C. M. & R. 64; 4 Tyr. 838, S. C.

arrangement cannot be carried out, it seems the plaintiff may proceed with the original action (a).

As a cause is not terminated by the withdrawal of the record, the effect of that step will be considered in a subsequent chapter.

CHAPTER XXVIII.

COSTS UPON PAYMENT OF MONEY INTO COURT.

THE Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), enacts (sect. 70) that "it shall be lawful for the defendant in all actions, (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant,) and by leave of the Court or a Judge, upon such terms as they or he may think fit, for one or more of several defendants to pay into Court a sum of money by way of compensation or amends (6): provided that nothing herein contained shall be taken to affect the provisions of a certain Act of Parliament passed in the session of Parliament holden in the sixth and seventh years of the reign of her present Majesty, intituled An Act to amend the Laws respecting defamatory Words and Libel' " (c).

(a) See Harries v. Thomas, 2 M. & W. 32; Sanderson v. Nestor, Ry. & M. 402; Everett v. Youells, 3 B. & Ad. 349; Moscati v. Lawson, 1 H. & W. 572.

(b) See the previous enactment on this subject, 3 & 4 Will. IV. c. 42, s. 21.

(c) The 6 & 7 Vict. c. 96, s. 2, provides "that in an action for a libel contained in any public newspaper or other periodical publication, it shall be competent to the defendant to plead that

such libel was inserted in such newspaper or other periodical publication without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel; or, if the newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one