party entitled to the general costs, he is entitled to be allowed that expense unless it be clear that the evidence would not have been brought if the issue on which he failed had not been on the record; and where the expense of such evidence is claimed by the party not entitled to the general costs, but to the costs of issues only, it ought not to be allowed unless it be clear that if the issues found against the party claiming it had not been on the record, the evidence would have been brought notwithstanding. The words "if it be clear," are here used advisedly, for if it be left in doubt, the party who has either substantiated a real cause of action or successfully resisted an unfounded one, in other words the party who becomes entitled to the general costs, ought not to be deprived of any expense fairly incurred in establishing his case, or which there is a fair reason for believing was so incurred.

Where a defendant by his pleadings, in addition to the general issue, traverses a fact alleged in the declaration, which is involved in the general issue, and the verdict is for him on the general issue, and for the plaintiff on the particular traverse, the defendant is not entitled to the costs of witnesses called to disprove the fact traversed, but the plaintiff, on the other hand, is entitled to the costs of witnesses in support of the allegation, as being costs of an issue found for him. Thus, in an action on the case, for deceitfully warranting that a ship was fit for a particular purpose, she not being so, the defendants pleaded, 1st, not guilty; and 2ndly, a denial of the unfitness of the ship for the purpose alleged; and there was a verdict for the defendant on the first issue, and for the plaintiff on the second, the jury being of opinion that the ship was unfit, but that the defendants did not know this when they made the representation. It was held, that the defendants were not entitled to be allowed their costs of witnesses to prove the fitness, but that the plaintiffs were entitled to their costs of witnesses to prove the unfitness (a). It was contended that the defendants, having a verdict on the plea of not guilty, must recover their costs as to all the matters comprehended in it; that the complaint which the plea was intended to an

(a) Daniel v. Barry, 4 Q. B. 59.

swer was one and entire, and could not be dissected, and it made no difference that another plea was put on the record on which the plaintiffs had succeeded: but Patteson, J., in delivering his judgment, said, "If there had been no issue but on the plea of not guilty, there being only one complaint in the declaration and one issue joined, and the plaintiffs had failed on the scienter, I do not say that that issue could have been divided so as to give them any costs: yet that would have been an injustice, many of their witnesses, probably, having been called wholly for the purpose of proving the unfitness. But here the defendants have put a distinct issue on the record, raising the question of fitness; and on that they have failed. That being so, I cannot say that the plaintiffs shall not have their costs of proving the unfitness, an expense which might perhaps have been avoided if the defendants had traversed the scienter only. Here the defendants are asking for costs of witnesses called to prove what they have evidently failed in proving." Lord Denman, C. J., in giving his judgment, observed that "the defendants in their pleading might have said, substantially, 'True it is that the ship was unfit to be classed as we had stated, but we committed no fraud.' Confining themselves to that issue, they would have been entitled to all their costs."

In direct support and confirmation of this case, is that of Nicholson v. Dyson (a). The action was brought by the assignees of a bankrupt, and the declaration contained two counts, charging the defendant with negligence as an attorney. It alleged that the defendant had accepted a defective title to certain leasehold premises, intended to be purchased by the bankrupt, the alleged defects of title being specially set out. The defendant pleaded not guilty to the whole declaration, and also a plea denying the bankruptcy. He further pleaded eleven pleas to the first count of the declaration, the last of them being a plea of the Statute of Limitations, and ten pleas to the second count of the declaration. Several of the pleas were traverses of the specific defects of title alleged in the declaration, and one of the pleas to each count alleged (a) 11 M. & W. 595.

that the defendant, before the completion of the purchase, fully explained the defects of title to the bankrupt. At the trial, a verdict was taken for the plaintiffs, subject to a reference, in the usual terms as to costs. By his award, the arbitrator directed the verdict to be entered for the defendant on the issue joined on the plea of not guilty, and also on the issue joined on the replication to the plea of the Statute of Limitations pleaded to the first count; and on the remaining twenty-two issues he directed the verdict to be entered for the plaintiffs. On the taxation of costs, the Master refused to allow to the defendant the costs of any of his witnesses but one, on the ground that they were witnesses to those facts only which were put in issue by the several pleas which were found for the plaintiffs. A rule was afterwards obtained by the defendant, calling on the plaintiffs to show cause why the Master should not review his taxation, on the ground that the matters put in issue by the special pleas were in fact also put in issue by the plea of not guilty, and also that the Master was mistaken in determining that the evidence of some of the witnesses was applicable solely to the issues found for the plaintiffs. As it appeared, with reference to the last point, that the Master was misinformed as to the particular facts which the witnesses were called to speak to, the rule was made absolute, but Mr. Baron Parke in giving judgment said, "The Master is to allow costs to the defendant on so much of the general issue as the witnesses on his part were called to prove, and on which he succeeded, but he is not to allow to the defendant the costs of so much of the general issue as is involved in the special pleas found for the plaintiffs. The lastmentioned costs are to be allowed to them." And, per Alderson, B., "The rule is this: with respect to the costs of the witnesses, which are applicable solely to issues found for the plaintiffs, they are entitled to costs; where such costs are applicable to issues on which the defendant has succeeded, he is entitled to costs. Upon so much of the general issue as is contained in the special pleas, the defendant has failed, and the plaintiffs have succeeded; therefore the defendant is not

entitled to the costs relating thereto. The Master should treat the general issue as distributive."

The principle, therefore, upon which the Master had proceeded was affirmed by the Court, and the case, therefore, is to be considered with respect to the main question, as if the rule for reviewing the taxation had been discharged.

CHAPTER VI.

OF COSTS, WHERE THERE ARE ISSUES OF LAW.

BEFORE the statute of 4 & 5 Anne, c. 16, allowing double pleading, a plaintiff who had judgment on demurrer was entitled to his costs, under the Statute of Gloucester (a), because he recovered damages; and it has never been doubted that he was so entitled where he so succeeded as to part of his cause of action, although the defendant succeeded in defending himself as to other part of it. After double pleading was allowed, a plaintiff might have judgment in his favour on demurrer as to some of the defendant's pleas; and yet, other pleas being established by the defendant, the plaintiff might recover no damages. In that case, the plaintiff was entitled to the costs of the demurrer under the statute of 4 Anne, c. 16, s. 5 (b).

It seems the better opinion, that before the statute 8 & 9 Will. III. c. 11, a defendant was not entitled to costs where he had judgment on demurrer (c), and that by that statute he for the first time became entitled to costs in that case.

The 2nd section of that statute, after reciting that "forasmuch as for want of a sufficient provision by law for the payment of costs of suit, divers evil-disposed persons are encouraged to bring frivolous and vexatious actions," enacts, "that if any person shall commence or prosecute in any court of record, any edit. 136; Duberley v. Page, 2 T. R. 391.

(a) Com. Dig. tit. "Costs," A. 1; Gilb. C. P. 266.

(b) Greenhow v. Ilsley, Barnes, 3rd

(c) Hullock, 2nd edit. p. 144.

action, plaint, or suit, wherein upon any demurrer, either by plaintiff or defendant, demandant or tenant, judgment shall be given by the Court against such plaintiff or demandant, the defendant or tenant shall have judgment to recover his costs, and have execution for the same by capias ad satisfaciendum, fieri facias, or elegit."

According to the construction put by the Courts upon this statute, it did not give the defendant his costs in the three following cases :—

1. Where he succeeded on a demurrer in establishing a plea in abatement (a). 2. Where the action was one in which the plaintiff would not have had costs if he had obtained judgment (b). 3. Where the demurrer adjudged in the defendant's favour went only to part of the cause of action, the plaintiff succeeding on the residue (c). But since those decisions, the statute 3 & 4 Will. IV. c. 42, has passed, by sect. 34 of which it is enacted, "That where judgment shall be given either for or against a plaintiff or demandant, or for or against a defendant or tenant, upon any demurrer joined in any action whatever, the party in whose favour such judgment shall be given shall also have judgment to recover his costs in that behalf." And now the Common Law Procedure Act, 15 & 16 Vict. c. 76, provides, sect. 81, "that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues." It will be proper to consider how far these provisions have altered the law on this subject.

The reasons given in the above case of Thomas v. Lloyd (d), for not allowing a defendant costs when he pleads in abatement, and his plea is held good on demurrer, are thus stated by the Court: "The stat. 8 & 9 Will. III. c. 11, s. 2, extends only to demurrers in bar, and not in abatement, because it speaks of suits which are vexatious, which does not appear to the Court on pleas in abatement; but on demurrers in bar,

(a) Thomas v. Lloyd, 1 Salk. 194; Hullock, 2nd edit. p. 145.

(b) Thrale v. Bishop of London,

1 H. Black. 530.

(c) Astley v. Young, 2 Burr. 1232. (d) 1 Salk. 194.