taxing a defendant's costs, according to the scale there given, the court will not interfere. In an action to recover the sum of 51. for a fine alleged to be payable to the lord of a manor on the admittance of the defendant as tenant in remainder in fee to certain copyhold premises, in which action the plaintiff had obtained a rule for a special jury, a verdict was taken subject to the opinion of the court upon a special case; and it was referred to a barrister to ascertain and state the amount of the annual value of the premises, and any deductions proper to be made in respect thereof the arbitrator to have power to certify that the cause was proper to be tried before a judge of a superior court and not before the sheriff. Upon a special case, the decision of the court was in favour of the defendant, but no certificate was obtained from the arbitrator. The master having taxed the costs upon the full scale: Held, that he had acted within his authority, and exercised a proper discretion.

Assumpsit by the plaintiff, the lord of the manor of Chipping Barnett and East Barnett, to recover from the defendant 51., being the amount of the fine alleged to be payable on the admission of the de-[713]-fendant as tenant in remainder in fee to certain copy hold premises within and parcel of the manor. The sum indorsed on the writ of summons was 51.

At the trial before Tindal C. J., at the Middlesex sittings after Michaelmas term 1841, a verdict was taken for the damages laid in the declaration, subject to the opinion of the court upon a special case, with liberty for the court to draw such inferences as a jury might draw: and it was referred to a barrister to ascertain and state the amount of the annual value of the copyhold premises mentioned in the pleadings, and all questions touching the same, and any deductions or deduction claimed by the defendant as proper to be made in respect of such premises: and it was ordered that the arbitrator, if required by either party, should state upon the face of his award the finding as well as the principle of such finding, and that such award should be introduced into the special case: the arbitrator to have the same power as a judge sitting at nisi prius, to amend the record and to certify that the cause was proper to be tried before a judge of the superior courts, and not before the sheriff or judge of an inferior court, and likewise, if necessary, that the cause was proper to be tried by a special jury.

Upon the argument of the special case, two questions were raised, first, whether certain extracts from the court-rolls of the manor, which were set out in the case, were sufficient evidence of the existence of a custom in the manor for the payment of a fine by a remainder-man on admittance to a copyhold-secondly, whether the fine assessed was a reasonable fine. After taking time to consider, the court held, as to the first question, that by the custom of the manor a fine was due on the admittance of a remainder-man, whether he prayed admittance, and was admitted, at the same time as the tenant of the particular estate, or during the continuance [714] of such estate. But, upon the second question, they were of opinion that the fine claimed was unreasonable, inasmuch as in calculating it no allowance had been made for the expense of repairs and they thereupon directed that a nonsuit should be entered (ante, vol. v. 485. 6 Scott, N. R. 419).

On the taxation of the defendant's costs before the master, it was contended for the plaintiff, that, as the sum sought to be recovered was only 51., the costs should be taxed upon the reduced scale provided by the directions to the taxing officers in Hilary Vacation, 4 W. 4 (1834). The taxation having been adjourned, in order to give the defendant an opportunity of applying to the Lord Chief Justice for a certificate that the cause was proper to be tried before him, application was accordingly made; but his lordship, declined to give such certificate, on the ground that, by the order of nisi prius, the power of certifying had been transferred to the arbitrator. The arbitrator having made his award, it was assumed that his power to certify had ceased (see Astley v. Joy, 9 Ad. & E. 702, 1 P. & D. 460. But see also Hallen (or Wallen) v. Smith, 5 M. & W. 159, 7 Dowl. P. C. 394). On a second attendance the master taxed the costs upon the usual unreduced scale.

Bompas Serjt., in Trinity term last, obtained a rule nisi to review the taxation, on the ground that, as the action was brought to recover the sum of 51. only, and neither the judge nor the arbitrator had certified that the cause was a proper one to be tried before a judge of a superior court, the master ought to have taxed the costs upon the

reduced scale. He referred to Parsons v. Pitcher (4 N. C. 306, 6 Scott, 298, 6 Dowl. P. C. 600), and Williamson v. Heath (4 Q. B. 402, 3 Gale & D. 474).

[715] Channell Serjt., now shewed cause. The directions as to taxation of H. V. 4 W. 4 apply only to the costs of plaintiffs. It is true that where, as in one of the cases cited when this rule was obtained, the master has adopted the lower scale in taxing a defendant's costs, the courts have refused to interfere with his discretion; but it is not therefore to be assumed that they will interpose where he has thought proper to tax them on the usual scale. It is impossible to say that this was a case which could properly have been decided by a sheriff's jury. [Tindal C. J. The test of these directions is not whether a writ of trial will lie.] If the plaintiff had succeeded, he clearly would have been entitled to the higher scale of costs.

Bompas Serjt., in support of his rule. The directions in question are applicable to the costs of defendants as well as of plaintiffs' costs. Upon this point, Parsons v. Pitcher and Williamson v. Heath are distinct authorities. [Tindal C. J. The case of Williamson v. Heath amounts only to this, that the court of Queen's Bench thought the master had not exercised an improper discretion.] It is a distinct decision that the directions, which have all the force of a rule of court, apply as well to defendants' as to plaintiffs' costs. A case can hardly occur in which the defendant will not be entitled to some costs, although the plaintiff may have the general costs of the cause. If it were held that the directions did not apply to both, two different scales of costs might be allowed in the same cause. [Maule J. If the master's discretion is in any case improperly exercised, the court may control it.]

TINDAL C. J. The question is, whether the taxation of costs in this case has been properly conducted, with reference to the directions given to the taxing officers [716] in Hilary Vacation, 1834, as to all writs issued on or after the 15th of March in that year. These directions are not, properly speaking, a rule of court: they are merely instructions given to the masters for the regulation of their conduct in a matter which, by the statute of Gloucester, has been left to the court-the costs of increase being, by that statute, given to the successful party, at the discretion of the court. Looking at these directions, it is clear that the costs of a defendant are not within their letter. The words are "In all actions of assumpsit, debt, or covenant, where the sum recovered, or paid into court and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed 201. without costs, the plaintiff's costs shall be taxed according to the reduced scale hereunto annexed." Nothing is said about the defendant's costs. The next clause provides that "at the head of every bill of costs taken to the taxing office to be taxed, it shall be stated whether the sum recovered, accepted, or agreed to be paid, exceeds the sum of 201. or not, in the following form-Debt above 201.,' 'Debt 201. or under.'" That also seems to apply only to the plaintiff's costs. Then follows the proviso, that, "in case of a trial before a judge of one of the superior courts or a judge of assize, if the judge shall certify on the postea that the cause was a proper one to be tried before him, and not before a sheriff or judge of an inferior court, the costs shall be taxed upon the usual scale." The scale of costs annexed contains no costs peculiarly or exclusively applicable to defendants: all seem to be charges or disbursements incurred or made by or on account of the plaintiff only. It is said, however, that the masters have been in the habit of taxing defendants' costs upon the same principle as that upon which plaintiffs' costs are, by these directions, required to be taxed. That certainly is [717] so: and Williamson v. Heath shews that, where the master has, in the exercise of a proper discretion, dealt with a case as falling within the spirit of the instructions, the court will not, on that account, direct the taxation to be reviewed. That is all which that case decides. There, the defendant having resisted the plaintiff's application to have the cause tried before the sheriff, the court, in the exercise of a very wise discretion, refused to relieve him from a difficulty which he had brought upon himself. The question is, whether the master has, or has not, in this case exercised a proper discretion, in taxing the defendant's costs upon the higher scale; and I am of opinion that he has. It is true, the sum sought to be recovered was only 51. but the question between the parties involved two points of some nicetyfirst, whether the extracts from the court-rolls were sufficient evidence of the existence of a custom in the manor for the payment of a fine by a remainder-man on admittance copyhold; and, secondly, whether the fine that had been assessed, was or was not a reasonable one. What could a sheriff have done with questions of that descrip

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[684] JUDITH FARMER, Executrix of James Fitzjames, Deceased, v. MOTTRAM. Nov. 8, 1843.

[S. C. 7 Scott, N. R. 408; 1 D. & L. 781; 13 L. J. C. P. 10; 7 Jur. 994.] Notwithstanding the 1 & 2 Vict. c. 110, s. 18, it is no answer to a scire facias upon a judgment for 941. 12s., that, after the obtaining of the verdict, and before the giving of the judgment for that sum, it was, by a rule of court, ordered that the verdict should be reduced to 1s., and that the defendant should pay to the plaintiff's attorney the costs of the action; and that the scire facias was sued out, after the making of the rule, fraudulently and in breach of good faith.

Scire facias, at the suit of the plaintiff as executrix, upon a judgment for 941. 12s. obtained by the testator against the defendant in this court, alleging, that, "after the obtaining of the verdict upon which the said judgment was so given as aforesaid, and within two terms of the entry of the said judgment, to wit, on the 7th of April last, the said James Fitzjames died, having first duly made and published his last will and testament, and [685] thereby constituted and appointed Judith Farmer, widow, executrix thereof; after whose death the said Judith Farmer duly proved the said last will and testament of the said James Fitzjames, and took upon herself the burthen of the execution of the same," &c.

Plea: That, after the obtaining of the said verdict, and before the giving of the said judgment thereupon as aforesaid, to wit, on the 31st of January, in Hilary term, in the sixth year of the reign of our Lady the now Queen, by a certain rule of the said court of our said Lady the Queen, before Her justices of Her Bench, then made in the said cause, it was ordered by the said court, that the said James Fitzjames, upon notice of the said rule to be given to him or his attorney, should shew cause to the said court, on the first day of the then next term, why the verdict found for him on the trial of the said cause at the last sittings in the said term, holden at Westminster, in and for the county of Middlesex, should not be set aside, and a new trial had between the said James Fitzjames and the defendant, and that, in the meantime, and until the said court could otherwise order, the postea should remain in the hands of the associate, and the entry of final judgment on the said verdict should be stayed:

the plaintiff. Neither request, permission, nor promise, express or implied, appear to be required by the statute.

In the principal case the plaintiffs having brought the defendant within the words of the 11 G. 2, c. 19, s. 14, the question would arise, whether by virtue of the exception in the statute of frauds, with respect to surrenders by act and operation of law, the defendant was discharged from his primâ facie liability.

Grimmann v. Legge, 8 B. & C. 324, 2 Mann. & Ryl. 438, goes further than the cases in which the granting of a new lease, with the assent of the former lessee, has been held to operate as a surrender. In those cases the acts of the lessor and lessee are treated as amounting to a recognition or assump-[684]-tion of an instantaneously precedent surrender,--though they would rather appear to constitute an actual, though tacit, contemporaneous surrender and acceptance by the parties. In Grimmann v. Legge, however, the act relied on is the very act of surrender and acceptance, which the statute requires to be in writing. The decision in Grimmann v. Legge, therefore, appears to have brought back the law as to parol surrenders of leases, to nearly the same state in which it was in the time of Lord Coke.

The surrender and acceptance, if established, would appear to be an answer to the action. At common law a surrender made and accepted before the day on which the rent would have become due, was a bar to any claim for that rent; and it is not to be presumed, that the legislature, in passing the 11 G. 2, c. 19, intended indirectly to alter the law in that respect, and to make the tenant liable for that which is substantially rent, notwithstanding an accepted surrender.

It may not, perhaps, be equally clear that the surrender is admissible in evidence under a plea of non assumpsit. As the allegation of a promise to obey a statute is immaterial, the only question upon non assumpsit seems to be, whether the plaintiff has established the state of facts which the statute requires. If he has, the surrender would rather appear to be matter of discharge to be specially pleaded.

that afterwards, and before the entry of the said judgment in the said declaration mentioned, to wit, on the 11th of May, in Easter term, in the year last aforesaid, by a certain other rule of the said court then made in the said suit, it was ordered by the said court, upon reading the said rule hereinbefore mentioned, and on hearing, and by consent of, counsel on both sides, that the last-mentioned rule should be, and the same was, thereby discharged, without the payment of any costs of and occasioned by the said application to the said court on either side; and it was further ordered, by such consent as aforesaid, that the verdict in the said cause should be reduced to 1s., and that the defendant should pay to the attorney of the [686] plaintiff in the said cause the costs of the said action, to be taxed by one of the masters of the said court: that the said rules were and each of them was made in the said action wherein the said verdict was so obtained as in the said declaration mentioned, and that the lastmentioned rule still was in full force and effect, and not in any wise altered or discharged; and so the defendant in fact said that the said writ of scire facias in the said declaration mentioned, was sued out by the plaintiff, executrix as aforesaid, after the making of the said last-mentioned rule, fraudulently, and in breach of good faith. Verification.

Replication-that, after the making of the rule in the said plea last mentioned, to wit, on the 21st of May, in the year last aforesaid, the said costs therein mentioned were taxed, by one of the masters of the said court, at a certain sum of money, to wit, 941. 11s.; and thereupon afterwards, and before the issuing of the said writ of scire facias, to wit, on the day and year last aforesaid, the attorney of the plaintiff in the said cause, to wit, E. E., requested the defendant to pay to the said attorney of the plaintiff the said amount of the said costs in the said rule mentioned, but the defendant then wholly refused to pay the same or any part thereof and that the said writ of scire facias was not issued until after the expiration of a reasonable time after the making of the said request; without this, that the said writ of scire facias in the said declaration mentioned was sued out by the plaintiff, executrix as aforesaid, after the making of the said mentioned rule, fraudulently, and in breach of good faith, in manner and form as the defendant had, in his said plea, in that behalf alleged-concluding to the country.

Special demurrer to this replication, assigning for causes, amongst others, that the plaintiff, in and by the replication, both traversed, and confessed and avoided, [687] the defendant's plea; that the plaintiff, in and by the said replication traversed, and attempted to put in issue, an immaterial allegation of the defendant's, inasmuch as the plea contained a sufficient answer which was not traversed, and therefore admitted, though the allegation traversed were omitted; for the plea did not rely upon any fraud or want of good faith on the plaintiff's part as an answer to the declaration, but on the facts stated in the former part of the plea, which, the defendant contended, shewed that the plaintiff was not entitled to sue out a writ of scire facias; that the replication concluded with traversing and attempting to put in issue an inference of law to be drawn from the preceding allegations in the plea, instead of traversing and putting in issue some one of the facts from which that inference was drawn; for the concluding allegation of the defendant's plea, when taken in connection with the rest of the plea, was not an independent and substantive allegation of fraud and want of good faith, but amounted merely to a statement of the legal inference arising from the facts before alleged in the plea; that the inducement to the said traverse was bad, inasmuch as, instead of being an indirect denial of the plea, it was in the nature of a confession and avoidance thereof; and that the inducement was uncertain and defective, in this, that it did not state whether the taxation of costs was made under and in pursuance of, and upon, the rule, or upon the judgment alleged in the declara tion to have been signed.

The plaintiff joined in demurrer (a).

[688] Manning Serjt., in support of the demurrer. The objection to the plea will be, that it is an attempt to avoid the effect of a judgment by matter not equally high ;

(a) The points marked for argument were:

For the defendant-That the plea was sufficient, inasmuch as by the 1 & 2 Vict. c. 110, s. 18, all rules of courts of common law are to have the effect of judgments in the superior courts of common law, and are placed, in point of remedy, upon the same footing as judgment debts; and that, upon the facts stated in the pleadings, the

and for this, the other side will rely on The King v. Bingham (3 Y. & J. 101). It was there held that the condition of a recognisance returned, and filed, and inrolled as of record, cannot be varied by a rule of court, and that the matter could not be replied. Now, however, by the 1 & 2 Vict. c. 110, s. 18, "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 moneys, or costs, charges, or expenses shall be payable, shall be deemed judgment-creditors within the meaning of this act," &c. [Maule J. Suppose your rule had been a judgment, and the court had afterwards given the judgment in question. Tindal C. J. [689] What answer is it to the judgment?] It is contended that after making the rule the court had no power to give the judgment. [Coltman J. The judgment can only be irregular or erroneous. If the latter, you may bring a writ of error; if the former, you may move to set it aside.] The judgment is a nullity. [Tindal C. J. Is it the meaning of the eighteenth section of the 1 & 2 Vict. c. 110, that rules shall have the effect of contravening formal judgments of the court? That section seems to afford no answer to a formal judgment.] Supposing the defendant had pleaded, as a reason for not complying with a judgment of Easter term, a previous inconsistent judgment pronounced in Hilary term, it could hardly be contended that the previous judgment would not have afforded a sufficient answer to the charge of not performing the later judgment. The court cannot pronounce two inconsistent judgments

TINDAL C. J. Why did you not come to the court to set aside the judgment on the ground that the plaintiff had obtained a remedy in the rule? The section referred to does not bear out your view. It does not say that the rule shall be a judgment for all purposes.

ERSKINE J. How could the plaintiff obtain the 1s. under the rule? Unless he entered up judgment, he could not recover the amount of the judgment.

MAULE J. Supposing a formal judgment could be set aside on the ground that there was a previous rule inconsistent with such judgment, there is nothing in the present rule inconsistent with the judgment. The plaintiff must proceed to judgment, to enable him to recover the 1s.

Judgment for the plaintiff.

[690] KENNEDY . WALFORD. Nov. 6, 1843.

Where the defendant pleads that he was liable to be summoned to the Westminster court of Requests, and that plea is found for him, and the plaintiff recovers on other issues less than 40s., no suggestion on the roll is necessary.

This was an action of debt, to which the defendant pleaded, first, nunquam indebitatus; and, secondly, that the defendant was liable to be summoned to the Westminster court of Requests.

A verdict having been found at the trial for the plaintiff on the first issue, to the

plaintiff ought to have taken out execution on the rule, or proceeded by attachment, and could not have a writ of scire facias.

For the plaintiff That the plea was bad in law, the facts therein stated constituting no answer whatever to the claim of the plaintiff; that the plaintiff's claim, which was founded on a record, could not be controlled or defeated by the rules of court set out in the plea; that it was not alleged in the plea that the defendant had ever paid the costs of the action, pursuant to the rule of court mentioned in the plea; that the circumstances alleged in the plea would, at most, amount to grounds for applying to the court summarily to stay the proceedings in the scire facias, upon the defendant's complying with the terms of the rule of court lastly mentioned in the plea; that the only material allegation in the plea was traversed by the replication; and that, the plaintiff having died, execution could not have legally issued on the rule lastly mentioned in the plea, and that the proper course to render the property of the defendant liable to the amount of the costs mentioned in that rule, was, by proceeding on the judgment.