entitled to such costs, and said that judgment having been given against the defendant, he was liable to pay the costs of the plea and demurrer; that the plaintiff had done him a favour, by relieving him from the payment of those costs; and that there was no pretence for the defendant's seeking to receive any at the hands of the plaintiff; and the rule was discharged.

In the case of Burdon v. Flower (a), which was an action of trespass, the defendant pleaded not guilty and a justification. The latter plea was demurred to, and on the argument judgment was given for the plaintiff. The cause afterwards went to trial on the plea of not guilty, and at the trial a juror was withdrawn by consent. A rule was afterwards obtained to show cause why the plaintiff should not be at liberty to enter up judgment for himself, so as to obtain the costs of the demurrer; but it was held that he could have no such remedy without the consent of the defendant, and he refused to give his consent. If the plaintiff in a case of this kind means to insist on the costs of the demurrer, he ought to stipulate expressly for their payment at the time he agrees to withdraw a juror. In the above case it seems the plaintiff consented to withdraw a juror, because, from an intimation of the Judge, he did not expect a verdict which would carry costs. If he had tried the cause, and recovered less than 40s. and the Judge had not certified under Lord Denman's Act, the plaintiff would, it seems, have been entitled to the costs of the demurrer (b). But now, without a certificate, under the County Court Acts, in cases affected by those Acts, he would not be entitled, under such circumstances, to the costs even of the demurrer (c). Whether the Common Law Procedure Act (15 & 16 Vict. c. 76) affects this question seems to be a matter worthy of consideration. That statute (sect. 81) enacts, as already shown, that the costs of any issue, either of fact or of law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of

(a) 7 Dowl. 786.

(b) Poole v. Grantham, 8 Scott, N. R. 722; 14 L. J. (N. S.), C. P. 24;

2 D. & L. 622, S. C.

(c) Abbey v. Dale, 21 L. J. (N. S.), C. P. 107. See Chapter IX. post.

the other issue or issues. Now the costs of an issue of law cannot be determined independently of the issues of fact, if the question whether a plaintiff is to receive his costs of the former, is to depend on the verdict as to the latter. If, on the other hand, it be said that the above section of the Common Law Procedure Act applies only to such actions as are properly brought in the superior courts, still the difficulty is not removed, for the question whether the action is so properly brought can only be determined by the result of the issues of fact, and indeed may never be raised at all; for if the verdict on the issues of fact should be for the defendant, the plaintiff would be entitled to his costs of the demurrer (a), although the facts might be such that if the plaintiff had succeeded in obtaining a verdict on the issues of fact, he would not have been entitled to costs of either the issues of fact or law.

It may be observed, in concluding this chapter, that the Common Law Procedure Act, which empowers (sect. 80) either party, by leave of the Court or a Judge, to plead and demur to the same pleading at the same time, and provides that it shall be in the discretion of the Court or a Judge to direct which issue shall be first disposed of, will probably give rise to questions of costs: the 62nd of the Rules of Practice o Hilary Term, 1853 (b), seems, however, to make some provision on this subject.

CHAPTER VII.

OF COSTS, WHERE THERE ARE SEVERAL DEFENDANTS.

ALTHOUGH the statutes 23 Hen. VIII. c. 15, and 4 Jac. I. c. 3, were passed in order to give costs to defendants, it was held, that under them a plaintiff was not liable to pay costs to a defendant who had a verdict, provided he obtained a verdict against another defendant in the action, the Court construing those Acts only to extend to the case of a verdict or judgment (b) Ante, p. 17.

(a) See ante, p. 85.

for all the defendants in a suit (a). This was remedied in some degree by the statute 8 & 9 Will. III. c. 11, s. 1, by which it was enacted, "That where several persons shall be made defendants to any action or plaint of trespass, assault, false imprisonment, or ejectione firma, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person or persons so acquitted shall have and recover his costs of suit, in like manner as if a verdict had been given against the plaintiff, and acquitted all the defendants; unless the Judge before whom such cause shall be tried shall immediately after the trial thereof, in open court, certify upon the record, under his hand, that there was a reasonable cause for the making such person or persons a defendant or defendants to such action or plaint."

This statute, however, operated only as a partial remedy; for it was decided that it did not extend to actions on the case (a), nor to replevin (b), and one or more of several defendants for whom the verdict passed in such an action (others having a verdict against them) had no remedy for costs until the passing of the statute 3 & 4 Will. IV. c. 42.

The evil did not exist in actions ex contractu, because in such actions the plaintiff was bound, as against each defendant, to make out the liability of all; and therefore in general, if there was a verdict for one defendant, there must have been a verdict for all.

Now by the statute 3 & 4 Will. IV. c. 42, s. 32, it is enacted, "That where several persons shall be made defendants in any personal action, and any one or more of them". upon the trial of such action shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs," unless "the Judge before whom such cause shall be tried, shall certify upon the record, under his hand, that there was a reasonable cause for making such person a defendant in such action."

Previous to the passing of this statute it was held, in cases within the 8 & 9 Will. III. c. 11, s. 1, that where two de

(a) Dibdin v. Cooke, 2 Strange, 1005.

(b) Murray v. Nichols, 6 Bing. 530; Ingle v. Wordsworth, 3 Burr. 1284.

fendants defended jointly, one of whom was acquitted, and the other had a verdict against him, the defendant who was acquitted was only entitled to 40s. in the shape of costs (a). The reason given appears to have been, that as the defendants had pleaded jointly, it would be making the plaintiff pay the costs of the defendant who was not acquitted, to allow increased costs to the defendant who was. It is to be observed, that this would be a sufficient and satisfactory reason, provided the defendant against whom the verdict passed had alone employed the attorney, and the defendant who was acquitted was not liable either to the attorney or to his co-defendant for the costs of the defence or any share of them; but if the two defendants jointly employed the attorney, they would both be liable to him for the costs of the defence, and as between themselves each would have to pay a moiety. In such a case, therefore, it would be unjust that the defendant who was acquitted should not be allowed, as against the plaintiff, that portion of the joint costs which he was liable to pay. But besides this, the Court, in the case of Hughes v. Chitty (b), seem to have admitted that if the defendants had defended separately, the one acquitted would have been entitled to his costs, and therefore, because they join in one defence and so the plaintiff is only called on for one half of what he would have to pay if they had defended separately, the plaintiff is to pay nothing, or at least only the nominal sum of 40s., according to the decision of that case. These reasons were urged to the Court of Exchequer in a subsequent case (c), and the Court yielded to the force of them, and directed the Master to allow the defendant who was acquitted in that case an aliquot portion of the costs incurred in the joint defence, on satisfying the Master that he was not indemnified by the other defendants who had failed in the action, and therefore was really liable to pay his portion of the costs. This ruling has since been followed in other cases (d). In one of them (Norman v. Climenson,) the (a) Hughes v. Chitty, 2 M. & Sel.

172.

(b) Supra.

(c) Griffiths v. Kynaston, 2 Tyr. 757.

(d) Griffiths v. Jones, 2 C. M. & R.

333; Starling v. Cozens, Id. 445; Gambrell v. The Earl of Falmouth, 5 Ad. & E. 403; Norman v. Cli menson, 4 Scott, N. R. 735; 1 Dowl. N. S. 718, S. C.; Alderson v. Waistell, 2 D. & L. 127.

Master was to inquire whether the defendant who was acquitted was indemnified by the other defendants. In the case of Starling v. Cozens (a), the inquiry the Master was directed to make was, whether the attorney was employed by the defendants who were acquitted; but the substantial thing to be ascertained in such cases is, whether the acquitted defendant is really liable to pay a share of the costs of the defence; and if he is not, whether that be from his being indemnified by the other defendants, or from his not joining in the retainer of the attorney, he can have no claim on the plaintiff, having been put to no costs, although it is perhaps necessary in the judgment to award him a nominal sum for costs. The way in which the rule is laid down in the later cases (b) is, that primâ facie the successful defendant is to be allowed an aliquot part of the joint costs, unless the Master is satisfied that some smaller proportion should be allowed by reason of special circumstances. The special circumstances alluded to, it is apprehended, are circumstances showing that the successful defendant himself is not liable to pay an entire aliquot part of the joint costs. But besides being allowed his aliquot part of the joint costs, the successful defendant is sometimes entitled to be allowed something in addition. He may have been obliged to incur some separate costs; for instance, he may have had witnesses whose evidence went to his defence alone, and did not touch the case of the other defendants. Such separate costs, therefore, ought not to be brought into the general bill of which the defendant is to be allowed an aliquot part, but after the aliquot part of the general bill is ascertained, the separate costs should be added to it, and the aggregate allowed as the defendant's costs (c). In the above-mentioned case of Starling v. Cozens, there were four defendants, defended by the same attorney jointly; three were acquitted, and one was convicted. The Master having refused to allow the three defendants who

(a) 2 C. M. & R. 445; 4 L.J. (N.S.), Exch. 223.

(b) Gambrell v. The Earl of Falmouth, 5 Ad. & E. 403; Norman v. Climenson, 4 Scott, N. R. 735; 1 Dowl. N. S. 718, S. C.

(c) Griffiths v. Kynaston, 2 Tyr. 757; Cain v. Adams, 5 L. J. (N.S.), K.B. 252; Ridley v. Harris, 2 L. J. (N.S.) Exch. 89; Gambrell v. The Earl of Falmouth; Norman v. Climenson, supra.