The statutes 4 Anne, c. 16, and 15 & 16 Vict. c. 76, s. 81, which enable a defendant to plead several matters, also provide for the payment by him of costs of issues found against him.

Such are the foundations of a plaintiff's right to costs in general. It is obvious that many questions arise in the progress of a suit, with respect to a plaintiff's right to costs, requiring a detailed consideration. For example, the right of a plaintiff to costs on demurrers and on issues under the statute of Anne and the Common Law Procedure Act 1852, is dependent upon particular circumstances. Separate chapters will be, therefore, devoted to their consideration, as well as to those enactments which control and restrain the operation of the Statute of Gloucester.

SECT. 2. Of a Defendant's Right to Costs.

With the exception of some statutes giving costs to defendants in error and replevin, and which will be noticed elsewhere, there was no law made, entitling a defendant to his costs, from the time of the Statute of Gloucester until the passing of the statute 23 Hen. VIII. c. 15.

By the first section of that statute it is enacted, "That if, -in any action, bill, or plaint, of trespass upon the statute of King Richard the Second, for entries into lands and tenements where no entry is given by law,-or of debt or covenant, upon any specialty made to the plaintiff or plaintiffs, or upon any contract supposed to be made between the plaintiff or plaintiffs, and any other person or persons, or of detinue of any goods or chattels on a supposed right of property, or of account charging the defendant as bailiff or receiver, or upon the case, or upon any statute for any offence or wrong personal immediately supposed to be done to the plaintiff,-the plaintiff, after appearance of the defendant, be nonsuited, or that any verdict happen to pass, by lawful trial, against the plaintiff, the defendant, in every such action, bill, or plaint, shall have judgment to recover his costs against the plaintiff, to be assessed and taxed at the discretion of the court, and

shall have such process and execution for the recovery and having his costs against the plaintiff, as the plaintiff should or might have had against the defendant, in case the judgment had been given for the plaintiff" (a).

The next and principal statute in favour of defendants on the subject of costs, is the 4 Jac. I. c. 3, which enacts, "That if any person shall commence or sue in any court of record, or in any other court, any action, bill, or plaint of trespass, or ejectione firma, or any other action whatsoever, wherein the plaintiff or demandant might have costs (in case judgment should be given for him), and the plaintiff or demandant in any such action, bill, or plaint, after appearance of the defendant, be nonsuited, or that any verdict happen to pass, by any lawful trial, against the plaintiff or demandant, that then the defendant in every such action, bill, or plaint, shall have judgment to recover his costs, to be assessed, taxed, and levied in manner and form as costs in the said recited actions are to be assessed, taxed, and levied in and by the law of the three-and-twentieth year of King Henry the Eighth."

It is to be observed that these statutes give a defendant costs, only in cases where he has a verdict, or the plaintiff is nonsuited. The statute 4 Jac. I. c. 3, extends to every case where the plaintiff would have had costs if he had succeeded, which the statute 23 Hen. VIII. c. 15, did not. Of these, the statute of James is, therefore, the important one, as it is more extensive, and, indeed, includes the other, but as it may be proper to notice some decisions which took place upon the 23 Hen. VIII. c. 15, s. 1, before the other statute was passed, the section is given above. We shall, therefore, now proceed to notice such questions as have arisen on these statutes, indiscriminately.

Where judgment is given for the defendant upon a special verdict, he is entitled to his costs, there being no difference under these statutes between a special verdict and a general verdict (b).

(a) The 24 Hen. VIII. c. 8, exempts plaintiffs, suing to the use of the king in any action whatsoever, from the

payment of costs, in case they be nonsuited, or a verdict pass against them. (b) Alsop v. Cleydon, Cro. Eliz. 465.

If the plaintiff be nonsuited, the defendant shall have costs, although he may have pleaded an insufficient plea in bar (a).

Where the defendant obtains judgment of non pros. the plaintiff is nonsuited within the meaning of these statutes, and therefore is entitled to his costs (b). The statute of 13 Car. 2, st. 2, c.2, s.3, is often referred to as the one entitling the defendant to costs upon non pros., but in truth it in effect only regulated the time for signing a non pros. for want of declaration. It is thereby enacted, that "Unless the plaintiff, who has sued a writ, bill, or process out of the Court of King's Bench or Common Pleas, shall put into the court from whence such writ, bill, or process did issue, his bill, or declaration against the person thereupon arrested, in some personal action, or ejectione firma of lands or tenements, before the end of the term next following after appearance, a nonsuit may be entered in the said courts respectively, and the defendant shall have judgment to recover his costs against such plaintiff, to be assessed, taxed, and levied in such manner and as it is provided by the statute for costs made in the twenty-third year of king Henry the Eighth." The words giving costs therefore seem to be superfluous; and unless this be so, a defendant upon a judgment of non pros. for want of declaration in the Court of Exchequer would not be entitled to costs at the present day, for this statute does not mention that court. In the case of Davies v. James, above referred to, Mr. Justice Buller, speaking of a non pros. for want of declaration states, "that the stat. 4 Jac. I. c. 3, says that if a party is entitled to his judgment, he is entitled to costs," and that "the question is, whether the defendant is entitled to a judgment," and he goes on to show that where by the writ each party had a day in court (as on a recordari facias loquelam) the defendant might appear and demand the plaintiff; and if the plaintiff did not appear, the defendant was entitled to judgment of non pros. Now it seems not improbable that the statute of Charles II. was intended by its framers to authorise a judgment of non pros. to be signed in cases where it was considered it could not before be signed; but if this were so, it would not show that upon a

(a) Laiston's case, Godb. 720.

(b) Davies v. James, 1 T. R. 371.

judgment of non pros. for want of a declaration in the Exchequer, the defendant is not entitled to costs; but that such a judgment could not be signed in the Exchequer at all; a proposition which cannot be maintained in the face of the settled practice to sign such judgments.

The statute of 8 Eliz. c. 2, recites-"That whereas divers persons of their malicious minds, and without any just cause, do many times cause and procure others of the queen's subjects to be very much molested by attachments and arrests made of their bodies, as well by process of latitat, alias, and pluries capias, sued out of the court called the King's Bench, as also by plaint, bill, or other suit in the court of the Marshalsea, and within the city of London, and other cities, towns corporate, and places where any liberty or privilege is to hold pleas of debt, trespass, and other personal actions;" and many times there is no declaration or matter laid against the parties so arrested or attached, and so they are maliciously put to great expense, without just or reasonable cause, and, yet, hitherto by law, the party so grieved and vexed could never have any costs or damages. For remedy whereof, it is enacted, That when and as often as any person shall sue forth, or cause or procure to be sued forth, of the said court commonly called the King's Bench, any of the writs or process before mentioned, against any person, upon which such person shall be arrested, or appear upon the return thereof, and put in bail to answer such suit as shall be objected against him, that then in every such case, if the party, at whose suit or procurement the same writ or process was sued forth, do not, within three days next after such bail taken, put into the same court his declaration; or if, after declaration had and put into court, the plaintiff shall not prosecute the same with effect, but shall willingly and apparently to the same court suffer his suit to be delayed, or shall, after declaration, suffer the same suit to be discontinued, or be otherwise nonsuited therein, the Judges of the said court for the time being shall, by their discretions from time to time, award to every person so arrested, vexed, molested, or troubled by such writs, or suit, his costs, damages, and charges, sustained by means of any such writs, process, arrest, or suit.

same cause.

The above statute is the one generally referred to, as entitling a defendant to his costs upon a nolle prosequi, and upon a discontinuance, and in the case of Cooper v. Tiffin (a), the Court of Queen's Bench acted on it; but the objection already noticed, exists to resting the defendant's right to costs in these cases on this statute, for it extends neither to the Court of Common Pleas nor the Court of Exchequer (b), and it seems quite unnecessary so to rest it, for with respect to a nolle prosequi it is surely as much a nonsuit within the statute 4 Jac. I. c. 3, as a non pros. is. Upon a nolle prosequi the Court pronounces a judgment; and the argument urged in Cooper v. Tiffin, that it differed from a judgment of nonsuit, because in the case of a nolle prosequi the plaintiff was barred and could bring no new action, was decided by the Court in that case not to be well founded; for the Court expressly says that he might afterwards commence another action for the It seems, therefore, that a defendant's right to costs on a nolle prosequi may well rest on the statute 4 Jac. I. on the ground that the judgment is a judgment of nonsuit. With respect to an ordinary discontinuance, no statute at all seems to be necessary to enable the Court to give the defendant his costs in this case; for the plaintiff cannot discontinue without leave of the Court (c): if he attempted to do so, the defendant could proceed to obtain judgment of non pros. and so obtain his costs that way; or if the defendant applied to the Court for leave to discontinue, the Court might (and in fact does) impose the terms of payment of costs as a condition of granting it (d). Upon a discontinuance, however, there is a judgment for the defendant; it is in effect and in truth a judgment of nonsuit as much as a non pros., and there seems no reason why the statute 4 Jac. I. should not be held to give the defendant his costs as upon a judgment of nonsuit; and accordingly it is now so held where the discontinuance is of part of the cause of action, in which case the ordinary rule to discontinue is not applicable (e). It is (a) 3 T. R. 551. Leonard, 105.

(b) This fact was lost sight of in the case of Jackson v. Lady Chambers, 2 Moore, 718.

(e) Bear and Underwood's case, 1

(d) See post, Chap. XXIV.

(e) Mayor of Macclesfield v. Gee, 13 M. & W. 470.