A party is not bound to avail himself of the power to set off the costs, as the rule is not compulsory; and if the opposite party has not allowed them, they may be recovered by a rule of Court, or other appropriate remedy. And where a defendant is taken in execution for the debt and costs recovered in an action, he is entitled to recover interlocutory costs in that action, which have not been deducted on taxation (a). CHAPTER LXIII. OF THE MODE OF RECOVERING COSTS IN GENERAL. WHERE a judgment has been obtained for costs, either alone, or together with a sum recovered in the action, execution may be awarded, and issue for the amount, just as in any other case. As there are no peculiarities attendant upon execution for costs on a judgment, it is unnecessary to take any further notice of the subject in this work (b). With respect to the costs of execution, it would be beyond the limits of this work to enter into the question of what a party is entitled to; but it may be mentioned that, by the Common Law Procedure Act, 1852, "in every case of execution, the party entitled to execution may levy the poundage fees and expenses of the execution, over and above the sum recovered" (c). (a) Beard v. M'Carthy, 9 Dowl. 136. (6) It may be mentioned, however, that under the 7 & 8 Viet. c. 96, s. 57, which enacts, that no person shall be taken or charged in execution upon any judgment in the superior Courts, &c., in any action for the recovery of any debt, wherein the sum recovered shall not exceed the sum of 201. exclusive of the costs recovered by such judgment, an objection was taken that no person could be arrested on a judgment for costs alone; but this objection was overruled by the Court of Exchequer Chamber. Lord A. Conyngham 'v.` Newton; 5 D. & L. 765; 5 C. B. Rep. 749. (c) 15 & 16 Vict. c. 76, s. 123. The word "levy" is not strictly applicable to execution against the person, but it is apprehended the statute applies to a ca. sa., &c., as well as to a fi. fa. Where a Judge at nisi prius grants immediate execution, the plaintiff cannot issue execution for the debt and then, when the costs are taxed, another execution for the costs (a). With respect to the remedy for costs under a rule of Court, the 1 & 2 Vict. c. 110, s. 18, enacts, "That all decrees and orders of Courts of Equity, and all rules of Courts of Common Law, and all orders of the Lord Chancellor or of the Court of Review in matters of Bankruptcy, and all orders of the Lord Chancellor in matters of Lunacy, whereby any sum of money, or any costs, charges, or expenses shall be payable to any person, shall have the effect of judgments in the superior Courts of Common Law; and the persons to whom any such monies or costs, charges or expenses shall be payable shall be deemed creditors within the meaning of this Act, and all powers hereby given to the Judges of the superior Courts of Common Law, with respect to matters depending in the same Courts, shall and may be exercised by Courts of Equity with respect to matters therein depending, and by the Lord Chancellor and the Court of Review in matters of Bankruptcy, and by the Lord Chancellor in matters of Lunacy; and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, charges, or expenses, are by such orders or rules respectively directed to be paid." Although, under this section, it has been held that the power of issuing execution on a rule for the payment of a sum of money is confined to cases where the money payable by the rule is expressed in the rule itself, it is not necessary that the amount of the costs which stand on a peculiar footing should be expressed in the rule; and therefore, if a sum of money and costs are ordered to be paid, or costs alone of any proceeding, to be taxed, and the costs are taxed under such rule or order, execution may issue for the amount, and it is not necessary that there should be any rule or order to pay after they are taxed by the officer (b). (a) Smith v. Dickinson, 5 Q. B. Rep. 602. (b) Jones v. Williams, 8 M. & W. 349, 358; 9 Dowl. 702, (recognizing the decision of the Court of Queen's Bench in another case, of Jones v. Wil It has been held that this Statute does not render any persons liable to costs who were not so previously, and that consequently a consent rule under the old action of ejectment being merely a personal liability to pay costs, could not be enforced as a judgment under the Statute, by or against the administrators of either party (a), although such consent being embodied in a rule of Court might have been enforced as a judgment as between the original parties (b). The Practice Rules of Hilary Term, 1853, provide forms of writs of fi. fa. on rules for payment of money, and of money and costs, under this Statute, in lieu of the forms of Hilary Term, 2 Vict. (c). Where it is sought, under this Statute, to enforce the payment of costs left to the discretion of an arbitrator, and awarded by him, it is necessary to obtain a rule of Court for the payment, as the submission to arbitration, although made liams, 11 A. & E. 175; 4 P. & D. 217;) (a) Doe d. Harrison v. Hampson, 17 L. J. (N. S.), C. P. 147; 5 D. & L. 484. (b) Doe d. Pennington v. Barrell, 10 Q. B. Rep. 531; 4 D. & L. 755. (c) By a Judge's order a judgment signed by a plaintiff was set aside, with costs to be taxed, to be paid by the plaintiff to the defendant. The costs were taxed at 67. 5s. and the Master's allocatur indorsed on the order, and the same day the order was made a rule of Court. The rule of Court named no specific sum, but recited the Judge's order verbatim, and further ordered that the plaintiff should pay the defendant the costs of that application to the Court, to be taxed. The costs of making the order a rule of Court were accordingly taxed; and on the rule of Court a writ of fi. fa. was sued out, in the Form No. 8 prescribed by Reg. Gen. Hilary Term, 2 Vict., commanding the Sheriff to levy upon the goods of the plaintiff 97. 6s. 8d., which "were by the said Court ordered to be paid," &c. It was held, however, that the writ was irregular, and should have been in the Form No. 9 of those rules (a writ of fi. fa. on an order of Court for the payment of money and costs), inasmuch as, though the amount of the costs of setting aside the judgment was a definite sum ascertained by taxation before the rule of Court was made, the costs of the rule were not then ascertained, and should therefore have been distinguished, and the taxation of them stated according to Form No. 9; Badman v. Pugh, 12 L. J. (N. S.), C. P. 126. a rule of Court, does not itself operate as a rule or order for the payment of money or costs under the Act (a). A party entitled to costs under the Interpleader Act has the alternative of proceeding under this Statute, by making the order for payment of costs a rule of Court, or of proceeding under the Interpleader Act, 1 & 2 Will. IV. c. 58, s. 7, by which orders may be entered of record and execution issued for the costs, if not paid within fifteen days after notice of taxation, and of the amount (b). Where an infant sues by prochein amy, and the defendant becomes entitled to costs, either on verdict or otherwise, he may, by rule, call upon the prochein amy to pay them; and, on obtaining a rule absolute, he may enforce it under the 1 & 2 Vict. c. 110, s. 18. To entitle him to do so, however, he must proceed in the same manner as he must formerly have done to obtain an attachment (c); and, indeed, in those cases where the remedy by rule of Court under this Statute is sought in lieu of an attachment under the former practice, the same steps are necessary to obtain the rule as were requisite to obtain an attachment. The mode of proceeding to obtain an attachment is properly the subject of works on practice, and it is not thought necessary to enter into it at large here. The remedy by attachment, as far as regards the enforcement of the payment of costs, may be considered as obsolete, the proceeding under the Statute 1 & 2 Vict. c. 110, s. 18, being much more convenient and efficacious (d). Indeed, it has been doubted whether that section has not virtually done away with attachments for non-payment of money and costs by rendering them (a) Jones v. Williams, 11 A. & E. 175; 4 P. & D. 217; Doe v. Amey, 8 M. & W. 565; 10 L. J. (N. S.), Exch. 466; and see Hawkins v. Benton, 2 D. & L. 465; and note (c), p. 468, S. C. (b) Cetti v. Bartlett, 9 M. & W. 840; 1 Dowl. N. S. 928; 11 L. J. (N. S.), Exch. 293. (c) Abrahams v. Taunton, 1 D. & L. 319. (d) Where an attorney obtained a rule absolute for payment of the amount of his taxed bill, pursuant to the Master's allocatur, in order that he might become a judgment creditor under the 1 & 2 Vict. c. 110, s. 18, the Court compelled him to abandon his remedy by attachment; Neale v. Postlethwaite, 1 Q. B. Rep. 243; 4 P. & D. 623. But this condition is not generally imposed; Burton v. Mendizabel, 1 Dowl N. S. 336. unnecessary. The question, however, is not of much practical importance, for few will prefer the proceeding by attachment to that by execution, which is at once easier, cheaper, more speedy, and more effectual (a). For this reason the proceeding for costs by attachment will not be further noticed. If costs are, by a Judge's order or order of nisi prius, ordered to be paid, and the order is disobeyed, it is necessary to make the order a rule of Court before execution can be issued under the Statute now in question, for the amount payable under it; but, in making it a rule of Court, further expense is incurred, which, as it is caused by the party disobeying the order, ought to be paid by him, and accordingly, by the practice rules of Hilary Term, 1853, r. 159, it is provided, that when a Judge's order, or order of nisi prius, is made a rule of Court, it shall be a part of the rule that the costs of making the order a rule of Court shall be paid by the party against whom the order is made, provided an affidavit be made and filed that the order has been served on the party, his attorney or agent, and disobeyed. If a Judge's order requiring the payment of costs be served on the town agent, it is a disobedience of the order within the meaning of the rule if the agent does not immediately pay the costs demanded (b). In some cases the payment of costs may be enforced by mandamus, as when an award in an action directs them to be paid by a corporate body (c); and, as the disobedience of an order of a Court of competent authority is an indictable misdemeanour, parties refusing to pay costs under such an order may be indicted (d). (a) Chitty's Archbold's Practice, 8th edit. vol. 2, p. 1518, n. (y). (b) Thompson v. Billing, 11 M. & W. 361; 2 Dowl. N. S. 824; 12 L. J. (N. S.), Exch. 301. (c) Rex v. The St. Katharine Dock Company, 4 B. & Adol. 363. When a Judge of assize ordered the costs of an indictment against a parish for nonrepair of a road to be paid out of the parish highway rate, it was held that a mandamus would not lie on such an order, as an order to pay costs generally, not ascertained, cannot be enforced by mandamus; Reg. v. Clark, 5 Q. B. Rep. 887: and Patteson, J., expressed a doubt whether a mandamus was the proper remedy in such a case. (d) See an instance, The Queen v. Mortlock, 7 Q. B. Rep. 459. |