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succeeds in the cause, and is entitled to the general costs of the cause (a). The cases, therefore, which have been discussed in a former part of this work, with reference to that subject, are applicable in deciding this point (b). A recent case in the Court of Exchequer, with reference to the costs of a special jury, illustrates the general rule. A declaration in trespass contained five counts, to all of which the defendant pleaded not guilty and not possessed. A rule for a special jury was obtained by the plaintiff (under the former practice), but before the trial the defendant amended his pleas, and suffered judgment by default as to two counts of the declaration. At the trial the plaintiff had a verdict upon the plea of not guilty, and the defendant upon the plea of not possessed. The damages upon the counts on which judgment passed by default were assessed at forty shillings. The Judge certified for a special jury, and the Master allowed the costs of it. The Court, however, made absolute a rule for reviewing the taxation, because, as the defendant obtained the verdict on the plea of not possessed, the plaintiff lost the cause, and therefore the certificate was of no avail; and although the plaintiff obtained 40s. damages on the judgment by default, that could not carry the costs of the special jury, for if that had been the only matter in the cause, there could have been no special jury, the Statute not providing for one in a mere case of judgment by default (c).

In an action for a libel, imputing that the plaintiffs were insolvent, and also reflecting on them in their business of dispensers of medicines, the defendant pleaded two pleas of justification, the one as to the insolvency, and the other as to the character of the medicines, and the plaintiff obtained a verdict with

(a) In a case decided under the repealed pleading rules, Hil. T. 4 Will. IV., and no longer applicable as regards the particular question there raised, Mr. Justice Coleridge threw out an opinion that a plaintiff might be entitled to the costs of a special jury, although deprived of all the costs of the cause in consequence of the Judge cer

tifying, under the 7th Rule, that it was not intended to establish distinct matters of complaint on the several counts in the declaration. Dewar v. Swabey, 11 A. & E. 919.

(b) See ante, Chapter III., sect. 2,

p. 35.

(c) Walters v. Howells, 8 Exch. Rep. 284; 22 L. J. (N. S.), Exch. 96.

damages on the one plea, and the defendant obtained a verdict on the issue as to the other plea of justification. The cause was tried by a special jury, moved for by the defendant, and although the Judge granted a certificate, it was held that the defendant was not entitled to have the costs of the special jury included in the taxed costs of the issue found for him (a). It is quite clear that he was not entitled, because the plaintiff had succeeded in the cause; on the other hand, it is equally clear that if the plaintiff had procured the special jury he would have been entitled to the costs of it (b).

The costs of a special jury cannot be apportioned, but must be allowed in full to the plaintiff or defendant. When the plaintiff, who obtained the special jury, succeeded at the trial on a single issue, which entitled him to nominal damages, but not to the general costs of the cause, (the damages being under 40s. and there being no certificate,) and the Master having allowed the defendant all his costs connected with the special jury, on the ground that he succeeded on all the issues which rendered a special jury proper; it was sought to set aside the taxation, on the ground (inter alia) that the defendant being only entitled to the costs of the issues on which he succeeded, could not be entitled to the whole of his costs of the special jury, they being, as alleged, applicable as well to the issue on which the plaintiff succeeded, as to those on which the defendant succeeded; but the Court refused to interfere (c). And this seems to be the correct course where it is plain that if the issue on which the plaintiff succeeded had been the only issue in the cause, a special jury never would have been thought of.

In a case which was not gone into, the Judge would not certify that it was a fit cause to be tried by a special jury, merely because the declaration was for penalties to a very large amount, and because persons of considerable rank were called upon their subpoenas (d). And where a case turned

(a) Morrison v. Harmer, 5 Scott, 410.

(b) It is necessary to state this, as the marginal note of the case upon his point is incorrect.

(c) Fazakerley v. Rogerson, 1 L. M. & P. 747.

(d) Orme v. Crockford, 1 C. & P.

537.

solely on a question of law, and there was no fact in dispute between the parties, a certificate was refused (a).

The power to grant a certificate does not extend to a case where the record has been withdrawn, and where, consequently, there is no verdict (b); nor did it extend to cases where the plaintiff was nonsuited (c); but by Stat. 3 & 4 Will. IV. c. 42, s. 35, the provision of the 6 Geo. IV. c. 50, and everything therein contained, is made applicable "to cases in which the plaintiff shall be nonsuited, as well as to cases in which a verdict shall pass against him."

Where in an action of replevin, which was made a special jury cause by the plaintiff, the defendant at the Assizes withdrew his avowries on application to the Judge, and an order was made that he should "pay all costs," it was held that this did not include the costs of the special jury, although the case was one in which the Judge would have certified if it had gone on, for the words "all costs" meant all costs regularly due in the course of the cause, and not the costs of the special jury (d). So, also, where an indictment, removed into the Queen's Bench by the defendant, and made a special jury cause by the prosecutor, came on to be tried, and was immediately referred, and the order of reference stated, that if the arbitrator should be of opinion that the defendant was guilty, and the prosecutor entitled to costs, the defendant agreed to pay the costs, and the arbitrator did so find, it was held that the prosecutor could not recover the costs of the special jury, the Judge not having certified, and the order of reference not expressly giving the power of doing so to the arbitrator (e).

But, on the other hand, a special jury cause, of which the venue was in Middlesex, not having come on for trial at the sittings for which it was set down, the parties signed a consent that the record should be altered by changing the venue to London, and consented thereby to all necessary alterations consequent on such change of venue being made in the record,

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and that jury process should be issued, &c., as if the cause had been regularly set down for the sittings in London, and that the rule for a special jury should be amended by directing it to the sheriffs of London, and a special jury should be thereupon summoned by the sheriffs of London, and that all the costs of and occasioned by that arrangement should be costs in the cause and abide the event. The cause came on for trial at the sittings in London, and was then referred to an arbitrator, who decided it in favour of the defendant. It was held that, under the above agreement, the defendant was entitled to the costs of the special jury summoned by him in London, as costs in the cause, without any certificate for a special jury (a).

It is to be observed that the power to certify applies to criminal cases (b).

A difference of opinion appears to prevail as to the time within which the certificate must be obtained.

The Court of Exchequer has determined that, as the words of the Stat. 3 & 4 Vict. c. 24, are similar, and the certificate under that Statute being spoken of as to be given "immediately "after the trial, the Statute 6 Geo. IV. c. 50, s. 34, ought to receive a similar construction; and the Courts having held that the words in the Statute of Victoria, that the Judge shall certify immediately, may be construed to mean within a reasonable time (c), a similar latitude must be given to the corresponding words respecting a certificate for a special jury (d). The Court of Queen's Bench, however, in a subsequent case, but without referring to the decision in the Exchequer, put a different construction on the 6 Geo. IV. c. 50, and held, that where a Judge, immediately after the verdict, verbally granted the application for a certificate, but, being engaged at the time in another cause, omitted to sign the form of the certificate prepared for him, his doing so afterwards, in the interval between the first and second attendance for taxation of the costs, was too late, because the Statute made use of

(a) Geeves v. Gorton, 15 M. & W. 186.

(b) Reg. v. The Inhabitants of Pembridge, 3 Q. B. 901.

(c) See ante, p. 120 et seq.

(d) Christie v. Richardson, 10 M. & W. 688.

the word "immediately," and the verbal acceding of the Judge to the request was insufficient (a).

An arbitrator to whom a cause is referred with all the powers of a Judge at nisi prius, cannot give a certificate for the costs of a special jury, after he has made and published his award, without providing for them, as he must make his award once for all (b).

SECT. 2. Costs of a View.

The expense of a view is paid in the first place by the party who applies for it, for he must make the deposit with the Sheriff out of which the expense is paid (c); but the costs of a view are ultimately costs in the cause, like the costs of any other proceeding in a cause.

CHAPTER XL.

COSTS OF THE DAY.

Ir a plaintiff, after giving notice of trial or inquiry, does not proceed to trial, or countermand his notice in due time; or if, after entering the cause, he withdraws the record, the defendant is generally entitled to the costs of the day, which are such of the costs incurred by him in preparing to try the cause, according to the notice, as are thrown away and must be incurred over again for the purpose of a trial at a future time. The defendant is entitled to these costs by the uniform practice of the Courts. A rule as far back as Michaelmas Term, 1654, provides for them, unless the plaintiff "show cause to be al

(a) Grace v. Clinch, 4 Q. B. 606. See, however, Jones v. Williams, 13 M. & W. 420; 14 L. J. Rep. (N. S.), Exch. 76.

(b) Geeves v. Gorton, 15 M. & W. 186.

(c) See the Practice Rules, Hil. T. 1853, r. 48, 49; and post, Appendix. в в 2

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