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have recourse to an assessment of damages in any case; and the omission in the former Statute, to give the defendant his costs on a demurrer, is rectified.

The Statute 1 Will. IV. c. 21, does not entitle a party, who has declared in prohibition and succeeded, to his costs incurred in the ecclesiastical Court (a); nor does it entitle either party to costs where the writ of prohibition is directed to issue at once, and the applicant is not directed to declare in prohibition: it only gives costs where there are pleadings (b). If a rule for a prohibition is discharged, it may of course be discharged with costs, as already mentioned, without the authority of any Statute, just as in mandamus or quo warranto.

Since the above Statute, it being no longer necessary to allege the proceeding to be on the part of her majesty as well as of the plaintiff, the Statute, 4 Anne, c. 16, s. 4, (being the Statute as to double pleading by defendants,) is applicable to the action of prohibition, so that the defendant may plead several pleas under that Statute (c); and it follows as a consequence that the plaintiff, though he fail on the whole, is entitled to costs of issues found for him. If he succeed in part and fail in part, he is entitled to costs because he obtains judgment in respect of what he succeeds upon. This was so before the above Statute (d).

The defendant is entitled to costs of issues. If the issues found for him go to the whole, he is of course entitled to judgment and the general costs; but if the issues only go to part, the Statute will entitle him to judgment as to that part, and consequently to the costs of the issues going to it as in ordinary actions. This also was the case before the above Statute (e).

The Statute 8 & 9 Will. III. c. 11, s. 5, exempted executors and administrators from its operation (f); and that Statute is

(a) Tessimond v. Yardley, 5 Bar.& Adol. 458.

(b) Rex v. Kealing, 1 Dow. P. C. 440.

(c) Hall v. Maule, 7 Adol. & E. 721; 3 N. & P. 459, S. C.

(d) Middleton v. Croft, Andr. 57;

2 Str. 1062, S. C.

(e) Malton v. Acklam, 2 Barnes, 138; Brymer v. Atkins, 2 Tidd's Pr. 983.

(f) Scammell v. Wilkinson, 3 East, 202.

not repealed by the more recent one, 1 Will. IV. c. 21; but as the latter Statute contains nothing to exempt executors or administrators from its operation, it seems that they now enjoy no particular exemption from liability to costs.

In a case where the plaintiff had prepared and actually tendered a declaration to the defendant, but the latter was desirous of submitting without further litigation, the Court stayed the proceedings without payment of costs (a). It may be doubted whether that case would be followed now.

CHAPTER LIII.

COSTS UPON QUO WARRANTO INFORMATIONS.

THE Statute 9 Anne, c. 20, s. 5, enacts, that "in case any person or persons, against whom any information or informations, in the nature of a quo warranto, shall be exhibited for usurping, intruding into, or unlawfully holding and executing the offices of mayors, bailiffs, portreeves, and other offices within cities, towns corporate, boroughs, and places within that part of Great Britain called England and Wales, in the Court of Queen's Bench, the Courts of Sessions of Counties Palatine, or in any of the Courts of Grand Sessions in Wales, shall be found or adjudged guilty of an usurpation or intrusion into, or unlawfully holding and executing any of the said offices or franchises, it shall be lawful for the said Courts respectively, as well to give judgment of ouster against such person or persons, of and from any of the said offices or franchises, as to fine such person or persons respectively, for his or their usurping into, &c., any of the said offices or franchises; and also to give judgment, that the relator or relators, in such information named, shall recover his or their costs of such prosecution; and if judgment shall be given for the defendant or defendants in such information, he or they for whom such judgment shall be given shall recover his or their costs therein (a) Gegge v, Jones, 2 Str. 1149.

expended against such relator or relators; such costs to be levied by capias ad satisfaciendum, fieri facias, or elegit."

By the 32 Geo. III. c. 58, s. 1, it is enacted, "That it shall and may be lawful for the defendant or defendants to any information in the nature of a quo warranto for the exercise of any office or franchise in any city, borough, or town corporate, whether exhibited with leave of the Court, or by his Majesty's AttorneyGeneral or other officer of the crown, on behalf of his Majesty, by virtue of any royal prerogative or otherwise, and each and every of them severally and respectively, to plead that he or they had first actually taken upon themselves, or held or executed the office or franchise which is the subject of such information, six years or more before the exhibiting of such information, such six years to be reckoned and computed from the day on which such defendant so pleading was actually admitted and sworn into such office or franchise; which plea shall and may be pleaded either singly or together with and besides such plea as he or they might have lawfully pleaded before the passing of this Act, or such several pleas as the Court on motion shall allow; and if, upon the trial of such information, the issue joined upon the plea aforesaid shall be found for the defendant or defendants, or any of them, he or they shall be entitled to judgment, and to such and the like costs he or they would by law have been entitled to if a verdict and judgment had been given for him or them upon the merits of his or their title."

By sect. 2, it is provided and enacted, "That in every such case the prosecutor of such information may reply to such plea any forfeiture, surrender, or avoidance by the defendant of such office or franchise happening within six years before the exhibition of such information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid.”

It should be noticed, that all cases of quo warranto are not within these Statutes (a). It should be also observed, that

(a) As to what cases are or not within them, see Tidd's Practice 8th edit. 986; Hullock on Costs, 2nd edit.

p. 597; and Reg. v. Grimshaw, 17 L. J. (N.S.), Q. B. 19; 5 D. & L. 249.

G G

the defendant cannot plead double under the latter Statute, except in cases to which the former extends (a).

It has been decided, that it is not discretionary with the Court to give or not give costs under the above Statute of 9 Ann. c. 20, s. 5; but that the Court is bound in cases within the Statute to award costs (b).

As the defendant may, in cases within the above Statutes, plead several pleas, and as the crown may take traverses on each of those pleas, it is obvious that various issues of fact may arise, some of which may be found for the crown and some for the defendant, and in such a state of things it may be either that the crown is entitled to the general judgment notwithstanding some of the issues are found for the defendant, or that the defendant is entitled to the general judgment notwithstanding some of the issues are found for the crown. Now it has been decided, that if any one of several issues in a quo warranto information be found for the crown upon which judgment of ouster is given, the relator is entitled to costs on all the issues. In the case in which the above decision was given (c) eight issues were joined on the pleadings on an information in the nature of a quo warranto, calling on the defendant to show by what title he exercised the office of Bridge Master of the borough of Bridgnorth. At the trial, six of the issues were found for the defendant, and the two last, which were on the election and admission of the defendant, were found for the prosecutor.

This case, it is apprehended, cannot be sustained. Where a party in any litigation is entitled to his costs, either on succeeding in attaining the object for which the litigation was instituted, or on succeeding in defending himself, and showing that there was no ground for the litigation, he is only entitled to such costs as were necessarily incurred in order to attain the object or make good the defence. If the plaintiff in an ordinary action seek to recover two distinct debts, for instance, the price of a horse and the price of a cow, and call one

(a) The King v. Richardson, 9 East, 469.

(b) The King v. Amery, 1 Anst.

178, 182.

(c) The King v. Downes, 1 T. R. 4.53.

witness to prove the case as to the horse, and another to prove the case as to the cow, if he succeed in establishing his demand for the horse, but fail in his demand for the cow, he cannot be allowed the costs of the witness to the latter demand, simply because his evidence was unnecessary to enable the plaintiff to recover what he did recover. So, in the above case, the issues found for the defendant were issues raised either by the prosecutor making untrue and therefore unnecessary allegations in his pleadings, which the defendant traversed, or by the prosecutor falsely traversing true allegations in the defendant's pleadings; the expense the prosecutor went to in doing either was clearly unnecessary, for it was unnecessary to his success in the cause that he should do that which caused the expense, and a Statute which gives costs can only mean to give necessary costs, and not any useless costs which a party may choose to incur in the course of the proceedings. This principle has been acted on in other cases, although the Courts have not in those cases expressly propounded it.

It is altogether a different question whether the defendant is entitled to the costs of such issues; unless they are given to him by Statute, he is not, and therefore the question arises whether the defendant is entitled to the costs of issues found for him in a quo warranto; if he succeed in the general result the Statute clearly gives them, but in that case, for the same reason that the prosecutor is not entitled, when he succeeds in the general result, to the costs of issues found against him, the defendant is not entitled to the costs of issues found against him, although he succeeds in the general result. Now it is clear, upon the wording of the Statute of 9 Anne, c. 20, s. 5, that it gives no costs to the relator, unless he succeed in the general result by convicting the defendant of usurpation and obtaining judgment of ouster, and the Statute of 32 Geo. III. c. 58, s. 1, which allows the double pleading, does not, like the Statute 4 & 5 Anne, c. 16, s. 5, make the defendant liable to the costs of the pleas found against him, and therefore there is nothing to give the relator costs of issues found for him where the defendant has the general verdict, and there is no judgment of ouster against him; and it seems very clear,

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