When the plaintiff has delivered or filed his declaration, without delivering particulars or a statement of his claim, or the defendant has delivered a plea of set-off without such particulars or statement as required by the Rule of Practice (a), and a Judge afterwards orders a delivery of particulars, "the plaintiff or defendant, as the case may be, shall not be allowed any costs in respect of any summons for the purpose of obtaining such order, or of the particulars he may afterwards deliver" (b). Counts objected to on the ground that they are founded on the same cause of action may be struck out or amended on such terms as to costs or otherwise, as the Court or Judge may think fit (c); and the same with respect to pleas, replications, and subsequent pleadings (d). Where an order for leave to amend is "upon payment of costs," the payment of those costs is a condition precedent, and when the costs are taxed and ascertained by the Master's allocatur, the party, in order to avail himself of the leave to amend, must tender the full amount of the allocatur, and not a less sum, although he may be prepared to show that a mistake has been made in allowing certain items (e). But a party who has obtained an order to amend on payment of costs may abandon it without payment of costs, unless the rule be otherwise worded (ƒ); and if he abandons it after service, the opposite party has no right to costs incurred before the abandonment, on the supposition that the order would be acted upon by the party obtaining it (g). From this it will be seen that wherever an amendment is allowed, and the party amending is to pay costs, it is for the advantage of the party who is to receive the costs, that the rule or order should not be merely that the amendment is to be "on payment of costs," thereby making the payment of costs a mere condition, so that the party obtaining the order may escape the payment, if he does not make the amendment, but that it should contain an absolute order that he do pay the costs of the application and consequent thereupon; for in many cases it will happen that the parties have to incur or have incurred costs in consequence of the application, though the amendment never be made, which costs will be thrown away if the party does not act upon and carry out his order; and these costs may be lost if the rule or order be not in the form suggested. This is especially necessary to be attended to, where at the trial a party seeks to amend, and the Judge allows it on the terms of postponing the trial and paying the costs; in such a case the costs of going to the Assizes are thrown away, and therefore should be paid whether the party afterwards avails himself of his leave to amend or not. CHAPTER XXXVII. COSTS UPON THE ARREST OF A DEFENDANT. The Statute 1 & 2 Vict. c. 110, which empowers a plaintiff, in actions for 207. and upwards, to apply at any time after the commencement of the action, and before final judgment, for a Judge's order to hold the defendant to bail when he is about to quit England, and to issue a writ of capias thereupon, directs that the defendant shall be detained in custody until he shall have given a bail bond to the sheriff, or shall have made deposit of the sum indorsed on such writ of capias, together with ten pounds for costs, according to the then existing practice; and the same statute provides that all subsequent proceedings as to the putting in and perfecting special bail, or of making deposit and payment of money into Court, instead of put A A ting in and perfecting special bail, shall be according to the like practice of the said superior Courts, or as near thereto as the circumstances of the case will admit (a). Power is given to the defendant to apply to the Court or to a Judge for a rule or order for his discharge, and the Court or Judge, on making absolute or discharging such rule or order, may direct the costs of the application to be paid by either party (6). As the previously existing practice is retained (c), it is necessary to refer to it, so far as regards the payment of money as a security for the costs. The costs for which the ten pounds are deposited are "the costs which may accrue or be incurred in such action up to and at the time of the return of the writ" (d). The amount so deposited for debt and costs, is paid into Court by the sheriff (e), and if the defendant does not proceed further by putting in special bail to the action, or by making the further deposit, to be presently mentioned, then the plaintiff is entitled, upon motion to the Court, to receive the amount so deposited and paid into Court, "such payment to the plaintiff or plaintiffs to be made subject to such deductions, if any, from the sum of ten pounds, deposited and paid to answer the costs as aforesaid, as upon the taxation of the plaintiff's costs, as well of the suit as of his application to the Court in that behalf, may be found reasonable" (f). In one case, where the sheriff neglected to pay into Court the amount deposited with him, and the plaintiff, although informed by the defendant that the money was in the hands of the sheriff, proceeded in the action, and also compelled the sheriff to pay the money into Court, the Court of Common Pleas made absolute a rule to stay the proceedings in the cause, on the ground that under the Statute the defendant could not be permitted to suffer loss, after having paid sufficient to cover the debt and costs up to the time of his arrest (g); but in a subsequent case in the same Court, under similar circumstances, it was held that the plaintiff was justified in proceed (a) 1 & 2 Vict. c. 110, ss. 3, 4, 5. (b) Id. s. 6. (c) See Nyssen v. Ruysenaers, 20 L. J. (N. S.), Exch. 33. (d) 43 Geo. III. c. 46, s. 2. (e) Ibid. (f) Ibid. (g) Clarke v. Yeates, 3 B. & B. 273. ing, and was entitled to be allowed the subsequent costs against the defendant (a). If the defendant puts in and perfects bail to the action, the sum of money deposited and paid into Court is returned to him (b); or instead of perfecting special bail, he may pay 107. into Court, (in addition to the amount already paid in through the sheriff,) as a further security for the costs of the action, to remain in the Court to abide the event of the suit. So, if in the first instance the defendant has given bail to the sheriff, or has remained in custody, he may, instead of special bail, pay into Court, in addition to the debt, 201. as security for the costs and upon judgment for the plaintiff, the latter is entitled to receive so much as will satisfy the sum recovered by the judgment and the costs of the application; and if judgment be given for the defendant, or the plaintiff discontinues his suit, or be otherwise barred, or in case the sum paid into Court is more than sufficient to satisfy the plaintiff, the amount, or so much of it as remains, is repaid to the defendant (c). The defendant may, at any time in the progress of the cause, before final judgment, receive the amount out of Court on perfecting special bail, and payment of such costs to the plaintiff, as the said Court shall direct (d); so on the other hand, the defendant, after having perfected special bail, may in lieu of it deposit the sum necessary, supposing he had taken that course in the first instance, together with such further sum to answer the costs as the Court may direct, to abide the event of the suit (e). The Absconding Debtors Arrest Act, 1851, (14 & 15 Vict. c. 52,) which empowers Commissioners of district Courts of Bankruptcy, and Judges of County Courts, (except Judges (a) Ofley v. Weaver, 7 Moore, 557. (b) 43 Geo. III. c. 46, s. 2. (e) Ibid. s. 4. It may be observed, that the 43 Geo. III. c. 46, s. 3, which provides, that if the plaintiff fails to recover, and had not reasonable or pro bable cause for causing the defendant to be arrested and held to special bail for the amount claimed, the defendant should be entitled to costs, does not apply to arrests under the stat. 1 & 2 Vict. c. 110, and is practically inoperative. Ricketts v. Noble, 3 Exch. Rep. 521; 18 L. J. (N. S.), Exch. 201. acting in Middlesex and Surrey), to grant warrants for the arrest of absconding debtors, and provides for the issuing of writs of capias thereon, and for giving bail or making deposit, instead thereof, in the same manner as under the 1 & 2 Vict. c. 110; enacts, (sect. 7,) that such warrant shall be endorsed with the amount of debt and costs claimed by the plaintiff, in such manner as writs of capias are directed to be indorsed, and on payment of the amount so endorsed all proceedings shall be stayed, and the person so arrested be discharged from custody, and he shall be at liberty afterwards to tax the costs so endorsed, as if he had been arrested under a writ of capias. The defendant has power (sect. 8) to apply by summons or rule to any Commissioner of Bankrupt or County Court Judge, or to a Judge of the superior Courts, or to the Court mentioned in the affidavit of debt or warrant, to set aside the warrant, or for his discharge from custody, and such Commissioner, Judge, or Court, on disposing of such summons or rule, may direct the costs of the application to be paid by either party. The costs attending the warrant and the arrest thereon are costs in the cause, but (sect. 10) "no such costs shall be allowed to a plaintiff, unless the Court or a proper officer thereof is satisfied, by affidavit or otherwise, that the plaintiff had good reason to believe that he would probably have failed in causing the defendant to be arrested, if he had proceeded in the first instance by application to a Judge of one of the superior Courts for a writ of capias, without first applying to a Judge of a County Court or a Commissioner of the Court of Bankruptcy, as the case may be, under the provisions of this Act." The payment of the costs of justifying or opposing bail is regulated by the 98th and 111th of the Practice Rules of Hilary Term, 1853, and the costs of proceedings on the recognizance where the defendant is afterwards rendered are regulated by the 108th and 109th of the same Rules. |