1842. NORMAN V. vent, and unable to pay the costs of the successful defendant. [Tindal C. J. I cannot see what objection there can be to the course proposed, except on the part of Tiffin, who might not like to have the costs to which CLIMENSON. he is entitled, swallowed up by their being deducted from those of the plaintiff against the two other defendants.] Here, the defendants pleaded jointly, and appeared by the same attorney and counsel. In Hughes v. Chitty (a), where, on a joint plea of not guilty to trespass and assault, one defendant was found guilty, with 1s. damages, and 1s. costs, and the other was acquitted, it was held that the latter was only entitled to 40s. costs; Le Blanc J. and Dampier J. observing, "that if the defendants had pleaded separately it might have been different, but, as they had pleaded jointly, it would be making the plaintiff pay the costs of the other defendant, to allow increased costs to this defendant." Undoubtedly since then the rule has been laid down in Gambrell v. Earl Falmouth (b), that a successful defendant is primâ facie entitled to his separate costs, and to his proportion of the joint costs. There, it was said by Lord Denman C. J. "We have considered the matter, and think ourselves bound by the rule laid down by Mr. Baron Bayley in Griffiths v. Kynaston (c), and afterwards confirmed in Griffiths v. Jones (d), viz. that the successful defendant is to be allowed all his separate costs, and, primâ facie, an aliquot part of the joint costs, unless the master is satisfied that some smaller proportion should be allowed, by reason of any other special circumstances." Here, the special circumstances, on which the master seems to have decided, are, that the defendants had but one attorney and one counsel. In Gambrell v. Earl Falmouth, there were separate at (a) 2 M. & S. 172. (b) 5 A. & E. 403.; 6 N. & M. 859. (e) 2 Tyrwh. 760. (d) 5 Tyrwh. 1092.; 2 Cr. M. & R. 333.; 4 Dowl. P. C. 159. 1842. NORMAN v. torneys and separate counsel. Here, the claim to deduct one third of the costs is made, not for Tiffin, but for the three defendants jointly. The two unsuccessful CLIMENSON. defendants would have been put to the same expense for the briefs, witnesses, &c., supposing Tiffin had not been included in the action. [Cresswell J. In case Tiffin had been the only defendant, the expense of the defence would have been the same, and the plaintiff would have had to pay the whole. You must look at it in both ways.] TINDAL C. J. It seems to me that the correct rule is laid down by the court of Queen's Bench in Gambrell v. Earl Falmouth. Let it therefore be referred to the master to see if there are any special circumstances in this case to take it out of that rule; for if not, then Tiffin will be entitled to a deduction of one third of the costs of the joint defence. The rest of the court concurred. Rule absolute accordingly. Bompas Serjt., who was to have supported the rule, referred also to Starling v. Cozens (a), Lees v. Reffitt (b), and Bartholomew v. Stephens. (c) (a) 5 Tyrwh. 823.; 2 C. M. & R. 445. ; 3 Dowl. P. C.782.; Starving v. Cousins, 1 Gale, Exch. 159. (b) 3 A. & E. 707.; Lees v. Kendall, 5 N. & M. 340. (c) 5 M. & W. 386. PRYME V. BROWNE. 1842. May 7. THIS was an action for a libel published in The Cam- Upon an apbridge Chronicle. The defendant having suffered plication to judgment by default, a writ of inquiry was executed set aside a certificate for costs granted by the sheriff under the before the undersheriff of Middlesex, when the jury assessed the damages at a farthing. The undersheriff having certified that the "grievance in respect of which 3 & 4 Vict. the action was brought was wilful and malicious," under c. 24. 8. 2., on the ground the 3 & 4 Vict. c. 24. s. 2., in order to give the plaintiff that he at first his costs, the same were taxed and paid by the defend- refused to ant under protest. grant it, and afterwards gave it, out of deference to the wishes of court will require the facts to be proved beyond all doubt. The proper course in such a case, seems to be, for the party making Channell Serjt., on a former day in this term, obtained a rule calling on the plaintiff to shew cause why the others, the certificate, the taxation of costs, and the allocatur should not be set aside, and why the costs paid should not be repaid to the defendant, or to his attorney. The affidavits, on which the motion was grounded, stated, that on the verdict being returned, the plaintiff's counsel applied to the undersheriff to certify; when, after hearing the defendant's counsel, the undersheriff refused the application, and the defendant's counsel indorsed his brief the applicaaccordingly, and was in the act of leaving the court, when the plaintiff's counsel appealed to the undersheriff to alter his decision, suggesting that the jury, in find- from the ing the verdict they did, were evidently influenced by the belief that such verdict would carry costs; that the undersheriff immediately, and without reference to the defendant's counsel, turned to the jury and asked them if such had been their impression; that one of the jury replying in the affirmative, the undersheriff ob tion to ascertain what occurred, sheriff himself. 1842. PRYME บ. BROWNE. served that he was desirous of carrying out their view, and should therefore certify. Bompas Serjt. now shewed cause upon affidavits, which stated that the certificate was granted within two or three minutes after the verdict was pronounced, some discussion having taken place as to whether or not the under-sheriff had power to certify; that the undersheriff never did, in fact, refuse to certify, or appeal to the jury, as suggested in the affidavits on the other side; though it was admitted that the jury had intimated their understanding and intention that the verdict they gave should carry costs; and that the defendant had since been informed by the undersheriff that he did not at any time refuse to certify. Channell Serjt., in support of the rule, submitted that the affidavits on the part of the defendant were not answered, as the counter-affidavits contained no distinct denial that the undersheriff had altered his decision in consequence of what fell from the jury. TINDAL C. J. Upon the affidavits the case is left in some degree of uncertainty, whereas, considering the nature of the application, the facts should have been placed beyond all doubt. The defendant, when about to make the present motion, should have applied to the undersheriff, and ascertained from him distinctly whether he had ever refused to grant the certificate. As the case now stands, I do not think that we ought to interfere. COLTMAN J. The granting of the certificate was a matter entirely in the discretion of the undersheriff'; and very strong evidence should be given before we set it ERSKINE J. The ground on which the rule was granted was, that the undersheriff had exercised his own discretion, not in granting, but in refusing the certificate; and that he subsequently granted it only out of deference to the wishes of other parties. If that had been so, the court would have set the certificate aside, on the ground that he had not exercised his own judgment. But, according to the affidavits on the part of the plaintiff, the hesitation of the undersheriff proceeded, not from any doubt as to whether the certificate ought to be granted, but as to whether he had the power to give it. I think that a sufficient ground has not been laid for the court to interfere with the discretion of the presiding judge. CRESSWELL J. concurred. Rule discharged, with costs. 1842. PRYME v. BROWNE. WILSON V. NISBETT. ASSUMPSIT, against the defendant, as the acceptor of a bill of exchange for 127. 12s., and on an account stated. as May 7. Where upon the issue is teste and return of the The defendant denied his acceptance of the bill of blanks for the exchange; and, to the second count, pleaded non sumpsit; whereupon issue was joined. The plaintiff's attorney having obtained an order to try the cause before the sheriff of Middlesex, on the 7th writ of trial, and the de fendant re tains it without making any objection, he cannot afterwards complain of the omission, even supposing the blanks in the issue to amount to an irregularity. A notice of trial by continuance before the sheriff, need not specify the place or hour, as it will be taken to refer to the place and hour mentioned in the original notice. |
