so happened that the cause was not made a remanet, the plaintiff would have succeeded, appears beside the question. If the plaintiff could have the costs of the remanet at all, it could only be that they were costs of the amendment, and if so, they were not costs of the issues found for him; but there seems no ground for holding them to be even costs of the amendment.

When a cause goes down to trial and goes off upon any occasion without the fault, contrivance, or management of the parties, and is afterwards brought down again to trial, the costs of such former abortive going down to trial are taxed and allowed to the party finally prevailing, in the same manner as if the cause had gone off on a remanet (a).

When the jury, having delivered a verdict for the plaintiff, with no damages, were sent back, and afterwards one of the jury absconded, and the plaintiff refusing to take a verdict from the eleven, although the defendant was willing, a new trial was had, and the plaintiff obtained a verdict, it was held that he was entitled to the costs of both trials (b).

It has been decided that when the Judge of his own authority discharges the jury from giving a verdict, on the ground of their not being able to agree, the party ultimately successful is not entitled to the costs of the first trial, but that the case follows the practice on the withdrawal of a juror (c).

The correctness of these decisions may, however, be well doubted; for after the discharge of the jury in such a case, the effect is, that the cause is a remanet; if after the jury has been discharged, there be time remaining to try the cause, there seems no objection to impannelling another jury, and trying it; and if this be not done only because there is not time, the cause is strictly a remanet.

Where a cause having been set down for trial in Middlesex, the defendant obtained a rule to change the venue on payment of the costs incurred, and thereupon the plaintiff withdrew the

(a) Per Cur., B. R., Burchall v. Ballamy, 5 Burr. 2694.

(b) Harrison v. Bennett, 1 Dowl.

(c) See ante, p. 290; Seely v. Powers, 3 Dowl. 372; Waite v. Spurgin, 4 Ibid. 575.

record, but the defendant not having paid the costs, he again set down the cause, and tried it, and obtained a verdict; it was held that the costs incurred in the preparation for the abortive attempt to try, were not costs in the cause, and that the plaintiff consequently was not entitled to them (a).

CHAPTER XLII.

COSTS WHERE A NEW TRIAL IS GRANTED.

HAVING in the last six chapters considered the subject of certain interlocutory proceedings in an action, previously to or independent of the verdict, with reference to costs, we now proceed to consider the right and liability to costs where there are proceedings after verdict; as where a new trial is granted, or the judgment is arrested, or the like, or there are proceedings in error, or the action is revived by scire facias, or by writ of revivor.

When a new trial is granted, the costs of the former trial are of course thrown away, that is, they have been incurred to no purpose; and as the granting a new trial is in a certain sense a matter of favour, the Court has the power of saying they will not deprive the successful party of his verdict, except on condition of his opponent paying his costs of the nugatory trial, &c. This power is in some cases exercised, and in some not.

Upon the granting of a new trial, the question with respect to the costs of the former trial rests solely in the discretion of the Court; and they will grant or refuse them according to the circumstances of the case (b). It is not meant by this, however, that the Courts have no rules by which they are in general guided in disposing of the question of costs: there are such rules, or rather there is a practice on the subject, though not inflexible.

By the Practice Rules of Hilary Term, 1853 (r. 54), “if a new trial be granted without any mention of costs in the rule,

(a) Pugh v. Kerr, 8 Dowl. 218.

(b) Hullock on Costs, 2nd edit. p. 387.

the costs of the first trial shall not be allowed to the successful party, though he succeed on the second" (a).

Where, therefore, a new trial is granted, and nothing is said about the costs of the first trial, they fall to the ground as a matter of course (b).

So, also, if after the granting of a new trial, the rule for which is silent as to costs, the defendant who obtained the rule withdraws his pleas, and suffers judgment by default, the Court has no power to allow the costs of the first trial (c). So, also, if the plaintiff, after obtaining a verdict, discontinues after a new trial has been granted, the defendant is not entitled to costs (d); and the rule applies to cases where a cause having been referred to arbitration, the award is set aside, and the cause tried again (e).

But it has been held that the rule does not apply where the new trial is granted on a particular issue, leaving a verdict on others to stand, but only applies to the case of a new trial upon the whole record,—meaning where the verdict may be the other way on the second trial. In the case of several issues, and the new trial being granted on one of them, the party who succeeded on those issues which are not affected by the new trial is entitled to his costs of those issues, whatever may be the result of the second trial (f).

The cases in which the Courts will generally grant a new trial without payment of the costs of the first trial, or rather without mention of them in the rule (which is now the same thing), are where the verdict is against law or the opinion and direction of the Judge (g); in other words, where it is a perverse verdict (h)-where the plaintiff submits to a nonsuit out

(a) This is merely a renewal of the former rule, Hil. T., 2 Will. IV., r. 64. According to the previous practice of the Courts of Common Pleas and Exchequer, but not of the Queen's Bench, a party who succeeded in both trials was entitled to the costs of the first, though the costs were not mentioned in the rule. See Loader v. Thomas, 1 C. & J. 54.

(b) Newberry v. Colvin, 2 Dowl.

415.

(c) Peacock v. Harris, 5 A. & E. 449; 1 N. & P. 240, S. C.

(d) Gray v. Cox, 5 B. & C. 458. (e) Wood v. Duncan, 5 M. & W. 87; 7 Dowl. 344, S. C.

(f) Bower v. Hill, 2 Scott, 535; 3 Dowl. 183, S. C.

(g) Hullock, 2nd edit p. 387.

(h) There is often a misapprehension as to what is meant by the term

of deference and respect to the opinion of the Judge, which nonsuit is afterwards set aside as contrary to law, and where the Judge has misdirected the jury (a).

The Courts will also grant a new trial without payment of costs where the verdict has been obtained by fraud or an unfair manœuvre at the trial, contrary to equity and good conscience, and without a trial of the real question (b); as where the party for whom the verdict was given has suppressed evidence in his possession, and which the opposite party reasonably expected to be produced (c). So, where a material witness for the defendant concealed himself in the plaintiff's house to avoid being served with a subpoena, by which means the plaintiff obtained a verdict (d). In such a case, however, the party ought to apply to the Judge to put off the trial or to withdraw the record (e); and where the plaintiff took advantage of an oversight in the form of the defendant's pleadings, in consequence of which he obtained a verdict, the Court not only granted a new trial without payment of costs by the defendant, but compelled the plaintiff to pay them (f). Such a precedent would not, however, be acted on now, the defendant having ample means of amending his pleadings before or at the trial.

So, in some cases, where there is an irregularity or miscarriage in the case, through the fault or mistake of a stranger, a new trial will be granted without payment of costs, as where there was an error in the jury panel annexed to the venire (g). "perverse verdict;" it is apprehend

ed that where no material question of fact turns out to be capable of dispute, and, consequently, the Judge directs the jury in point of law to find a particular verdict, but they find a different one, the verdict is perverse; but if the Judge leaves the evidence for the consideration of the jury, with, no matter how strong, an intimation of his own opinion upon it, and they find a verdict different from that which the Judge thinks the right one, it is apprehended the verdict is not perverse, however clearly it may be what is called a verdict against evidence.

If the Judge leave the question to
them, when he ought to have directed
them in point of law to find a verdict
one way or the other, it is misdirection.
(a) Hullock, 2nd edit. p. 388.
(b) Ibid. p. 389.

(c) Anderson v. George, 1 Burr. 352.
(d) Montpesson v. Randle, Bull. N.

P. 328.

(e) Turquand v. Dawson, 1 C. M. & R. 709.

(f) Davison v. Whitehead, Hullock on Costs, 2nd edit. 391.

(g) Brown v. Johnson, Bull, N. P. 324; Norman v. Beamont, Willes' Rep. 488.

It is to be observed, that where the new trial is granted without mention of costs, as neither party is entitled to the costs of the first trial, so, also, neither party is entitled to the costs of the rule for the new trial (a). And where the defendant, having obtained a rule absolute for a new trial, subsequently informed the plaintiff that he should not avail himself of it, it was held, that although the plaintiff was entitled to his costs of the first trial, and the postea was delivered to him (the defendant, by abandoning his rule, being in the same situation as if there was no rule at all), the Court refused to allow either party the costs of the rule for a new trial, or of the rule for giving the postea and costs to the plaintiff (6).

The effect of a plaintiff discontinuing, after a rule for a new trial, has been already considered (c).

In general, if a new trial be granted on the ground of excessive damages, or because the first verdict is without or against evidence, or upon a new ground not opened at the first trial, the condition of paying the costs of the former trial is made part of the rule (d). So, also, where it is granted on the ground of surprise (e). And there is no difference between interpleader issues and other actions, as regards the terms upon which new trials will be granted when the verdict is against the evidence (ƒ).

After a verdict for the plaintiff, the defendant obtained a new trial, on the ground of the verdict being against evidence. The defendant having at the same time also moved in arrest of judgment, upou which no opinion was given, the question of costs was reserved. The plaintiff succeeded at the second trial, and the defendant obtained a rule nisi for another trial,

(a) See Eccles v.

W. 248.

Harper, 14 M. &

(b) De Rutzen v. Lloyd, 5 A. & E. 456; 2 N. & P. 213. (c) See ante, p. 266.

(d) Hullock, 2nd edit. p. 387. (e) See Greatwood v. Sims, 2 Chit. 269; Bland v. Warren, 6 Dowl. 21.

(f) James v. Whitbread, 20 L. J. N. S.), C. P. 217; 2 L. M. & P. 407.

The second report of the Common Law Commission contains a recommendation that, except in very special cases, which may be left to the discretion of the Court, on a new trial being granted, on the ground that the verdict was against the evidence, the payment of costs should not be made a condition precedent.