of which enacts, "That in all suits upon any writ or writs of scire facias the plaintiff obtaining judgment or any award of execution, after plea pleaded or demurrer joined therein, shall likewise receive his costs of suit; and if the plaintiff shall become nonsuit or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs, and have execution for the same by capias ad satisfaciendum, fieri facias, or elegit." In sect. 5, it is provided that the Statute shall not extend to executors or administrators. This Statute, therefore, did not render executors or administrators liable to costs, either when plaintiffs or defendants (a), and it applied merely to civil suits, and therefore did not apply to a sci. fa. to repeal a patent prosecuted in the name of the King (6). It only gave the plaintiff costs after plea pleaded or demurrer joined, and therefore he did not recover costs under it if he obtained judgment by default; but, by Stat. 3 & 4 Will. IV. c. 42, s. 34, it is enacted, "That in all writs of scire facias the plaintiff obtaining judgment or an award of execution shall recover his costs of suit upon a judgment by default, as well as upon a judgment after plea pleaded or demurrer joined." This latter Statute seems merely intended to render a defendant liable to costs where he suffers judgment by default, in the same cases in which he would be liable to them after plea pleaded or demurrer joined; and therefore it does not appear to render a defendant who is sued as executor or administrator liable to costs. It is, however, a questionable point, and will require a decision to settle it. but Formerly, where upon a plea in abatement the plaintiff by leave quashed the writ of scire facias, he paid no costs (c); now, by the Practice Rules of Hilary Term, 1853, (r. 78), “ A plaintiff shall not be allowed a rule to quash his own writ of scire facias or revivor after a defendant has appeared, except on payment of costs." Where a sci. fa. was unnecessarily sued out, but the defendant's attorney on his behalf proposed terms of compro (a) Bellew v. Aylmer, 1 Str. 188; Smith v. Harmer, 1 Lill. Prac. Reg. 475, G.; Acc. 3 East, 202; Hullock on Costs, (2nd ed.), 305. (b) The King v. Miles, 7 T. R. 367. (c) Pocklington v. Peck, 1 Str. 638. mise, on which the party for a time acted, it was held that the defendant could not afterwards object to pay the costs of the scire facias (a). The Common Law Procedure Act, 1852, enacts, that "all writs of scire facias issued out of any of the superior Courts of law at Westminster against bail on a recognizance, ad audiendum errores; against members of a joint-stock company or other body, upon a judgment recorded against a public officer or other person sued as representing such company or body, or against such company or body itself; by or against a husband to have execution of a judgment for or against a wife; for restitution after a revival in error; upon a suggestion of further breaches after judgment for any penal sum, pursuant to the Statute passed in the session holden in the eighth and ninth years of the reign of King William the Third, intituled An Act for the better preventing frivolous and vexatious Suits,' or for recovery of land taken under an elegit, shall be tested, directed, and proceeded upon, in like manner as writs of revivor" (b). SECT. 2. Costs of Proceedings by Revivor. The Common Law Procedure Act, 1853, has limited the necessity for proceedings by scire facias, by allowing execution to issue in certain cases without a revival of the judgment, and in some other cases by substituting a writ of revivor or entry of suggestion. "During the lives of the parties to a judgment, or those of them during whose lives execution may at present issue within a year and a day without a scire facias, and within six years from the recovery of the judgment, execution may issue without a revival of the judgment" (c); and "in cases where it shall become necessary to revive a judgment by reason either of lapse of time, or of a change, by death or otherwise, of the parties entitled or liable to execution, (a) Brewster v. Meaks, 2 Dowl. 612. (b) 15 & 16 Vict. c. 76, s. 132. (c) 15 & 16 Vict. c. 76, s. 128. the party alleging himself to be entitled to execution may either sue out a writ of revivor in the form hereinafter mentioned, or apply to the Court or a Judge for leave to enter a suggestion upon the roll, to the effect that it manifestly appears to the Court that such party is entitled to have execution of the judgment and to issue execution thereupon; such leave to be granted by the Court or a Judge upon a rule to show cause, or a summons to be served according to the present practice, or in such other manner as such Court or Judge may direct" (a). Upon such application, in case it manifestly appears that the party making the same is entitled to execution, the Court or Judge shall allow such suggestion to be entered in a form prescribed, or to the like effect, and execution to issue thereupon, "and shall order whether or not the costs of such application shall be paid to the party making the same; and in case it does not manifestly so appear, the Court or Judge shall discharge the rule or dismiss the summons, with or without costs: provided nevertheless, that in such last-mentioned case the party making such application shall be at liberty to proceed by writ of revivor or action upon the judgment" (b). The writ of revivor is directed to the party called upon to show cause why execution should not be awarded, and after reciting the reason why such writ has become necessary, it calls upon the party to appear and show cause within eight days why the party at whose instance it is issued, shall not have execution; "and the pleadings and proceedings thereupon, and the rights of the parties respectively to costs, shall be the same as in an ordinary action” (c). (a) 15 & 16 Vict. c. 76, s. 129. (b) Id. s. 130. (c) Id. s. 131. Notice in writing to the plaintiff, his attorney or agent, shall be sufficient appearance to a writ of revivor (s. 133). A writ of revivor to revive a judgment less than ten years old shall be allowed without any rule or order; if more than ten years old, not without a rule of Court or a Judge's order; nor, if more than fifteen, without a rule to show cause (s. 134). CHAPTER XLIX. COSTS UPON SPECIAL VERDICTS, SPECIAL CASES, AND QUESTIONS STATED UNDER THE POWERS OF THE COMMON LAW PROCEDURE ACT, 1852. SECT. 1. Special Verdicts. SECT. 3. Questions stated under the Common Law Procedure Act, 1852. FROM the consideration of the effect upon costs when proceedings are taken after verdict, we pass on to notice those cases in which the decision of the question between the parties, instead of being founded directly upon the verdict of a jury, is decided by some other mode; as by the Court, upon the facts as found specially either by the jury or upon a special case; or upon questions framed under the powers of the Common Law Procedure Act; or by an arbitrator selected by the parties. SECT. 1. Special Verdicts. Where the jury give a special verdict, the postea is stayed in the hands of the associate, or of one of the Masters, until the question is argued and determined, when it is delivered to the successful party; upon which he is immediately entitled to tax his costs, and take out execution as in ordinary cases (a), a (a) Tidd's Practice, 8th edit. p. 929. A plaintiff obtained a verdict with leave to the defendant to move to enter a nonsuit or a verdict for him. A rule was accordingly obtained, and on argument, the Court directed a special case, upon which they gave judgment for the defendant. The plaintiff then turned the special case into a special verdict (leave having been reserved for that purpose), and brought error upon it. The Court of Error affirmed the plaintiff being entitled to his costs under the Statute of Gloucester, where the judgment in his favour is on a special verdict, as in any other case; and the costs of settling a special verdict are allowed as costs in the cause. SECT. 2. Special Cases. Upon a special case the right to costs is the same as in ordinary cases (a); that is to say, the party in whose favour the Court decides, and for whom the judgment is entered, is entitled to the postea, and to tax his costs of the cause. Until the judgment of the Court is given, the postea is held as in the case of a special verdict, by the Master or associate. The costs of settling a special case, as in the case of a special verdict, are costs in the cause; and where, after verdict for the defendant and a new trial granted without mention of costs, the parties agreed to put the facts in a special case, upon which judgment was given for the plaintiff, it was held that the plaintiff was entitled to the costs of the trial as if the special case had been originally reserved at the trial, although that put the plaintiff in a better condition than if he had succeeded at the second trial (b). But where the first trial is abortive in consequence of the defective statement of a special case, and a new is trial ordered, the party ultimately succeeding is not entitled to the costs of the first trial (c); but where, in a similar case, the defendant judgment of the Court below. It was held that the defendant was entitled to the costs of the trial. Tobin v. Crawford, 10 M. & W. 602; 2 Dowl. N. S. 541; 12 L. J. (N. S.), Exch. 77. (a) Chitty's Archbold's Practice, 8th edit., 443. (b) Robertson v. Liddell, 10 East 416. The ground of the decision in this case was, that the agreement of the parties placed them on the same footing as if a special case had been reserved on the trial. See per Cur., in Jolliffe v. Mundy, 4 M. & W. 502; 7 Dowl. 230. (c) Hankey v. Smith, 3 T. R. 507; Smith v. Haile, 6 T. R. 71. These cases appear to be recognized by the Court of Exchequer in Jolliffe v. Mundy, 4 M. & W. 502; 7 Dowl. 229. |