CHAPTER XXXI.

COSTS ON PLEAS IN ABATEMENT.

If an issue of fact on a plea in abatement is found for the plaintiff, he is entitled to costs by virtue of the Statute of Gloucester; and if he is nonsuited, or the issue is found against him, the defendant is entitled to costs (a). But where there is a plea in abatement which the plaintiff confesses to be true, no costs are allowed (b). If upon a plea in abatement to a scire facias the plaintiff by leave quashes the writ, he pays no costs (c). The Statute 8 & 9 Will. III. c. 11, only extended to demurrers in bar, and not to those in abatement; therefore no costs were allowed under that Statute on demurrers to pleas in abatement, either to the plaintiff or the defendant (d). But, by Statute 3 & 4 Will. IV. c. 42, s. 34, it is enacted, that where a 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 also have judgment to recover his costs in that behalf. It is apprehended that this Statute gives either the plaintiff or defendant his costs where he succeeds upon a demurrer to a plea in abatement.

A defendant may plead in abatement as to one or more counts of a declaration and in bar as to others, or he may plead in abatement as to part of the cause of action contained in one count and in bar as to the residue (e). Such a plea in abatement, like one to the whole declaration, may be confessed by the plaintiff, and a nil capiat per breve

(a) Aplin v. Constable, Ca. Pr. C. P. 35; Hullock on Costs, 2nd edit. p. 127.

(b) Greenhill v. Shepherd, Ca. Pr. C. P. 9; Allen v. Moxey, 1 Barnes, 92.

(c) Pocklington v. Peck, 1 Str. 6, 38. (d) Thomas v. Lloyd, 1 Salk. 194; Anon., Ca. Pr. C. P. 36.

(e) Hill v. White, 6 Bing. N. C. 26; 8 Scott, 249; 8 Dowl. 13, S. C.

entered to so much of the cause of action as it extends to, or an issue of fact may be taken on it, or it may be held good on demurrer, or it may be held bad on demurrer. If the plaintiff confesses the plea, it seems the defendant can have no costs on it (a).

In ascertaining the costs of issues, where one or more of them arises on pleas in abatement, the principles applicable to other cases will be found a sufficient guide. It is to be observed that issues on pleas in abatement are not of frequent occurrence. The Common Law Procedure Act, 1852, empowers the plaintiff, where the nonjoinder of any person as a coplaintiff is pleaded in abatement, or where the defendant at or before the time of pleading has given notice in writing that he objects to such nonjoinder (specifying therein the name or names of such person or persons), to amend the writ and other proceedings before plea, by adding the name of such person, and to proceed in the action without any further appearance, on payment of the costs of and occasioned by such amendment only, the defendant having liberty to plead de novo (b). Power is also given, where there is no plea in abatement, to add or strike out, at or before trial, the names of any parties as plaintiffs with their consent, on such terms as the Court or Judge may impose (c).

The provisions of the same Statute, as to amendment of the writ and declaration and the right to costs, in case of a plea in abatement for nonjoinder of co-defendants, have been already noticed in the Chapter on Several Defendants (d).

(a) Greenhill v. Shepherd, Ca. Pr. C. P. 9; Allen v. Moxey, 1 Barnes, 92; Hullock on Costs, 2nd edit. p. 126.

(b) 15 & 16 Vict. c. 76, s. 36.
(e) Ibid. ss. 34, 35.
(d) See ante, p. 103.

CHAPTER XXXII.

SECURITY FOR COSTS.

SECT. 1. Where the Plaintiff is out of the Jurisdiction of the Court.

SECT. 2. Where the Plaintiff is in Insolvent Circumstances, and sues on Behalf of another.

We have now to consider the equitable control which the Courts exercise over the costs of actions, in order either to secure their due payment, or to prevent parties from being vexatiously harassed by them. These different objects are attained, in some cases, by calling on the parties to find security for the costs; in others by staying proceedings until payment of costs; and on the other hand, by compelling parties to pay and receive costs where the action is settled, without proceeding to a formal judgment, or where several actions are consolidated, or where the debt and costs in one of them has been satisfied.

security for

By the general rule of law, every person may sue without giving security for costs; but, in some cases, a plaintiff will be called upon to give such security. There are two principal classes of cases in which the Court will so interfere on behalf of a defendant, to oblige the plaintiff to give costs, and stay his proceedings until he does so. where the plaintiff resides abroad; the second, plaintiff is in insolvent circumstances, and is suing as the mere nominee or for the benefit of a third party (a).

The first is,

where the

SECT. 1. Where the Plaintiff is out of the Jurisdiction of the

Court.

The reason why the Court will require a plaintiff residing abroad to give security for costs is, that if a verdict be given

(a) In Doe d. Selby v. Alston, 1 T. R. 491, Buller, J., states, that where an infant sues, the Court will oblige the prochein amy, or guardian, to give

security for the costs; but this is an erroneous form of expression. The prochein amy is liable for the costs, but it is only in exceptional cases that

against him he is not within the reach of our law, so as to have process served upon him for the costs (a). For the same reason, a plaintiff residing in Ireland (b) or in Scotland (c) is within the rule (d).

And as the principle applies to a foreigner as well as to a British subject resident abroad, the Sovereign of a foreign state who sues in this country may be called on to give security for costs (e).

To come within this rule, the plaintiff's general residence must be abroad, and a mere temporary absence after the commencement of the action will not be sufficient (ƒ).

What amounts to more than a mere temporary absence depends upon circumstances. Security has been refused in the case of a seafaring man, without any fixed place of abode, and a foreigner by birth, but sailing to and from English ports (g). And the Courts will not call upon an officer of the army or navy, or a private soldier, who is absent on service, to give security for costs he stands in the same situation as if his absence were compulsory (h); in which case security is not required, as, for example, if an English subject be a prisoner abroad (i).

And a private in the East India Company's service is within the same exemption, although it was sworn in the affidavits that the men in the Company's service enlist for life, and therefore it was urged in argument that it could not be said they were abroad involuntarily (k).

King of Greece v. Wright, 6 Dowl. 12.

(f) Anon., 2 Chitt. 152; Cole v. Beale, 7 Moore, 613; Taylor v. Fraser, 2 Dowl. 622; Frodsham v. Myers, 4 Dowl. 280.

(g) Nelson v. Ogle, 2 Taunt. 253; Durell v. Matheson, 8 Taunt. 711; 3 Moore, 33, S. C.; and see Henschen v. Garves, 2 H. Bla. 384; Jacobs v. Stevenson, 1 B. & P. 96.

(h) Lord Nugent v. Harcourt, 2 Dowl. 578; Evering v. Chiffenden, 7 Id. 536; O'Lawler v. Macdonald, 8 Taunt. 736.

(i) Tullock v. Crowley, 1 Taunt. 18. (k) Garwood v. Bradburn, 9 Dowl. 1031.

The cases in which a plaintiff is excused from giving security for costs, on the ground that his absence from England is only temporary, are those in which he has left this country after the commencement of the action (a). When he is absent at the time of the commencement of the action he may be called upon to give security, although he be only temporarily absent and intends to return shortly (b).

The Courts will not require the plaintiff to give security for costs when he is resident in this country at the time he sues, although generally resident abroad (c), and only came to this country for the purpose of bringing the action (d), and although he may be about to go abroad (e). A prisoner of war confined in this country has been held not compellable to give security for costs of an action for wages earned on board an English ship (f). So an ambassador from a foreign court to this country will not be called upon to give security for costs (g), not because of his rank but because he is generally resident at the court to which he is accredited (h).

If the plaintiff during the progress of the suit goes to reside permanently abroad, he may be called upon to give security for costs (i). Where a plaintiff after issue joined received sentence of transportation, which was being carried into effect, he or his attorney was ordered to find security for costs (k); and in one case, where the plaintiff absconded to avoid a criminal charge, security was required (1). On the other hand, where the plaintiff was a scafaring man, and there was reason to believe that the vessel in which he was engaged would not return for eighteen months, the Court made a rule

(a) Per Patteson, J., Wells v. Barton, 2 Dowl. 160.

(b) Wells v. Barton, supra.

(c) Anon., 8 Taunt. 737; 3 Moore, 78; Dowling v. Harman, 6 M. & W.

131.

(d) Tambisco v. Pacifico, 7 Exch. Rep. 816, overruling to that extent Oliva v. Johnson, 5 B. & Ald. 908; 1 D. & R. 560, S. C.

(e) Viragno v. Hassan, 6 Taunt. 20. (f) Maria v. Hall, 2 B. & P. 236.

(g) The Duke de Montellano v. Christin, 5 M. & Sel. 503.

(h) See Emperor of Brazil v. Robinson, 6 A. & E. 801; 1 N. & P. 817; 5 Dowl. 522, S. C.

(2) Kemble v. Mills, 8 Dowl. 836; 1 Scott, N. R. 402, S. C.; Gurney V. Key, 3 Dowl. 559; Frodsham v. My ers, 4 Dowl. 280.

(k) Harvey v. Jacob, 1 B. & Ald.

159.

(1) Rogers v. Banger, 4 Dowl. 411.