introduced where any one bar was found for the defendant, which would give him the general costs of the cause, except for this provision; but where all the issues were found for the plaintiff, he did not want any new provision to give him the costs of the pleadings. And this shows that the statute of Anne was not meant to apply to such a case. Where, indeed, the case is within the 5th section of that statute, as if upon a demurrer joined the matter be judged insufficient, the costs are in the discretion of the Court, only as to the quantum ; that is to be taxed by the proper officer, as in other cases, or if a verdict be found upon any issue for the plaintiff, &c., which is to be understood in the sense I have before mentioned, unless the Judge who tried the said issue shall certify,' &c., and in that case the defendant shall be exempted from the costs of those issues found for the plaintiff, which he would otherwise have been obliged to pay. But here the certificate under the statute of Eliz. has taken away from the plaintiff all the costs as to all the issues, to which he would have been entitled without the aid of the 5th section of the statute of Anne."

The other Judges expressed their decided opinions that the 5th section of the statute of Anne had no reference to this case, where all the issues were found for the plaintiff; and Lawrence, J., added, that the question ought not to be disturbed, after having been decided by the opinion of all the Judges, as reported in the case in Sayer; and the rule was therefore discharged.

And in a still more modern case (a), where the facts raised precisely the same point, it was contended, that the 7th rule of Hil. T. 4 Will. IV., coupled with the statute 3 & 4 Will. IV. c. 42, s. 1, entitled the defendant to the costs of the special pleas and subsequent proceedings thereon; but the Court of Exchequer, although no case was cited either at the bar or by the bench, decided otherwise, and in accordance with the former case.

Where there are issues joined upon demurrer, and also issues of fact, the issues of fact going to the whole cause of (a) Simpson v. Hurdiss, 2 M. & W. 84.

action, and judgment is given for the plaintiff on the demurrer, but at the trial either the plaintiff is nonsuited (a) or the defendant has a verdict upon the issues of fact (b), the plaintiff is entitled to his costs of the demurrers, although the defendant is entitled to judgment on the whole record.

An important question upon this statute has récently been discussed in the Courts of Common Law, resulting in a conflict of opinion. In two cases (c) decided by the Court of Exchequer the question may be stated thus:-To a declaration the defendant under the statute pleads four pleas, one of which is either demurred to or results in a demurrer ; on each of the others an issue of fact is joined; on the argument of the demurrer judgment is given for the defendant. On the trial a verdict is found for the plaintiff, on all three issues of fact. Is the plaintiff entitled to the costs of the issues found for him? The Court of Exchequer decided that he was not entitled to the costs of those issues, or of either of them. The Court conceded, that if one or two only of the three issues had been found for the plaintiff, the other or others being found for the defendant, the plaintiff would have been entitled to the costs of the issue or issues found for him; but it said that the statute gave the costs of the issues of fact found for him to the plaintiff, only in case some issue or issues of fact were found for the defendant. The Court of Queen's Bench (d) and the Court of Common Pleas (e) decided differently, holding that the plaintiff was entitled to his costs. This conflict of opinion arose upon the construction of the statute 4 Anne, c. 16, s. 5; but it is unnecessary to enter into an examination of the cases, for the question is set at rest by the 62nd of the Practice Rules of Hilary Term, 1853 (), and the 81st section of the Common Law Procedure Act, to be presently noticed. It will be convenient, however, to mention here, that one of the

(a) Greenhoe v. Isley, Barnes, 136. (b) Duberley v. Page, 2 T. R. 391. (c) Partridge v. Gardner, 4 Exch. 303; 18 L. J., Exch. 415, S. C.; Howell v. Rodbard, 4 Exch. 309; 19 L. J., Exch., 350, S. C.

83.

(d) Bird v. Higginson, 5 Ad. & Ell.

(e) Clarke v. Allatt, 4 C. B. 335; Callander v. Howard, 20 L. J., C. P. 66.

(f) Ante, p. 17.

cases in the Court of Exchequer was removed by writ of error into the Exchequer Chamber (a), and was there decided upon a point which had not formed any ground of the judgment in the court below. It appeared that the judgment on the demurrer which was in the defendant's favour, was on the ground that the declaration was bad. The subsequent proceedings and pleadings, which went to issues of fact and the issues thereon, were therefore immaterial and useless to the decision of the cause, and the Court of Error looked upon them in the same way as upon similar pleadings and proceedings where judgment was arrested; in which case the plaintiff, although he succeeded at the trial upon the issues of fact, was not entitled to the costs of them; and upon that ground held that the plaintiff in the particular case was not entitled to the costs of the issues found for him. But this ground is now removed, for by the 145th section of the Common Law Procedure Act (15 & 16 Vict. c. 76) where there is judgment non obstante veredicto, or the judgment is arrested, the costs of the abortive and useless issues are to be paid by the party against whom such issues are found, to the party in whose favour they are found. It is therefore apprehended that in all cases such as those here discussed, the plaintiff will be entitled to his costs of the issues of fact, whether the judgment for the defendant be on the ground of the insufficiency of the declaration or of any subsequent pleading.

The 81st section of the Common Law Procedure Act (15) & 16 Vict. c. 76), already referred to, enacts that "the plaintiff in any action may, by leave of a Court or a Judge, plead in answer to the plea or the subsequent pleading of the defendant, as many several matters as he shall think necessary to sustain his action; and the defendant in any action may, by leave of the Court or a Judge, plead in answer to the declaration or other subsequent pleading of the plaintiff as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application, or his attorney, if required by the Court or Judge, to the

(a) Partridge v. Gardner, in error, 6 Exch. 621; 20 L. J., Exch. 307, S. C.

effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact; provided that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues." The principles which have been already explained as to the right to costs of issues, seem sufficient for the determination of any questions which may arise on this enactment: it gives to both parties the privilege of pleading double; but that was the case in replevin before, and therefore the section does not in reality introduce any new principle.

It remains to notice one or two other points decided on the statute of Anne.

In the case of The Queen v. The Mayor, &c. of Malmesbury (a), which arose upon a mandamus to a corporation to admit a burgess, the corporation made a return containing three distinct allegations, which negatived three distinct statements in the writ of mandamus, any one of which allegations would have been a sufficient return to the writ; the prosecutor traversed, as he was bound to do, each of the three allegations in the return, and issues were joined on the traverses. At the trial a verdict was found for the prosecutor on two of the issues, and for the corporation on the third; the corporation therefore succeeded generally; the prosecutor moved for his costs of the issues found for him under the statutes of 4 Anne, c. 16, s. 5, and 9 Anne, c. 20, s. 2 (b). The Court held, however, that he was not entitled to costs. The corporation could not be considered as defendants within the 4 & 5 Anne, as far as regards the return, which was not made under the authority of that Act, but at common law, and would have been just the same if that Act had never been passed, and there was not in truth any pleading by the corporation in this case, except the joining in a similiter to the traverse.

(a) 11 L. J. (N. S.), Q. B. 318; reported also 3 Q. B. Rep. 577.

(b) See this latter statute, noticed in the Chapter on Mandamus.

Neither was the prosecutor entitled under the 9 Anne, c. 20; for that Act gives the party suing out the writ of mandamus his costs only when he succeeds on the whole, so as to have damages and general costs as if he had brought an action for a false return, whereas here if he had brought such action he would have failed, and would not have had the general costs.

In applying this case it is important (for a reason which will be stated in a subsequent part of the work) to bear in mind the fact stated in the report, that the corporation had not applied for or taxed their costs.

With respect to the Judge's power to certify to deprive the plaintiff of costs of pleas pleaded by the defendant under this statute of Anne, it is to be observed, that the certificate need not be given at the trial, but will be effective if made afterwards before judgment (a); it may be made ex parte (b), and even after the taxation of the costs has commenced (c). As, however, the power to give this certificate is not to be found in the Common Law Procedure Act, 1852, under sect. 81 of which double pleading is allowed, it seems to be a question whether in effect the power is not gone.

SECT. 3. Costs under the Pleading Rules of Hilary Term, 1853.

By the statutory rules of pleading of Hilary Term, 1853, (taking effect from the first day of Trinity Term, 1853,) the three following rules and regulations are provided :

:

"1. Except as hereinafter provided, several counts on the same cause of action shall not be allowed, and any count or counts used in violation of this rule may, on the application of the party objecting, within a reasonable time, or before an order made for time to plead, be struck out or amended by

(a) Cremer v. Dent, Barnes, 141; Fry v. Monckton, supra.

(b) Robinson v. Messenger, supra.

(c) Cobbett v. Grey, 19 L. J. (N. S.), Exch. 137.