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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE 
 
 LAW OF COSTS 
 
 lit 
 
 CIVIL ACTIONS.
 
 \^^/H:t7/i/ '- "x^^^t^ 
 
 jtJ^- 
 
 T il E 
 
 jm 
 
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 I N 
 
 CIVIL ACTIONS, 
 
 ^y WILLIAM TIDDj 
 
 Of the Inner Temple. 
 
 LONDON: 
 
 JPRlNTED BY A. STRAHAN AND W. WOODFALL, 
 \.AW-PRINTERS TO THE KING'S MOST EXCELLENT MAJtSTTf 
 
 FOR WHIELDON AND BUTTERWORTH, 
 IN FLEET-STREET. 
 
 1793^
 
 J I L li m i M il «. I I W 1I. i Bl f ««B 
 
 PREFACE. 
 
 ' J ^ H E following flieets were 
 intended to have made part 
 of the PraElicc of the Court of 
 King's Bench : but the import- 
 ance of the fubjed feeming to 
 require a diftind: invefligaticn, 
 the Author was induced to pub- 
 Jilh them in their prefent form. 
 
 In. this treatife, he has briefly 
 confidered, ia what cafes the 
 
 parties
 
 VKi PREFACE. 
 
 parties in a civil adlion are en- 
 titled to cofts, what thofe cofts 
 are, and the means of taxing and 
 recovering them, i. as betv^een 
 party and party; and 2. as be- 
 tween attorney and client. 
 
 Short as the work is, the Au- 
 thor is not without his hopes, 
 that it may be of fome utility 
 to the Frofeffion. 
 
 Inner J'emple, 
 Nov. 1792,
 
 ANALYSIS. 
 
 C^OSTS, in civil cafes y what. i. 
 as between party and party, i. 
 
 attorney and client, i- 
 interlocutory. i 
 final, 
 
 for the plaintiff y 
 
 at common law. 2. 
 . by the ftatute of Gloucejler. 2, 
 
 where double or treble damages 
 are given, or a certain penalty, 
 by a fuhfequent ftatute. 3, 4. 
 where fingle damages are given, 
 by a fuhfequent ftatute. 5. 
 
 in wafte. 6. 
 
 debt, for not fet ting out tithes. 7. 
 fcire facias. 8. 
 prohibition. Id. 
 
 Copt
 
 ANALYSIS. 
 
 Cojis^ for the plaintiffs 
 rejlrainedy 
 
 hy the 43 Eli-z.. c. 6, - 10. 
 court of confcience a5fs, ii. 
 
 21 Jac. I. c. 16. in anions 
 for words. 17. 
 
 22 i^ 23 Car. 2. c. 9. in 
 trefpafs. 19. 
 
 extended^ 
 
 hy the ^ i£ s ^^- ^ -^" 
 r. 23; - 27. 
 8 y 9 /F. 3. f. II. - 28, 
 en federal counts, 29. 
 ^t/" double pleading. 3 o. 
 
 /"^r //j£' defendant y 
 at common law. 37. 
 by the Jiatute of Marlberge. Id, 
 in error. Id. 38. 
 replevin. Jd. 39. 
 
 hy the 23 Hen. 8. r. 15. - 41. 
 when plaintiff fues as a pau- 
 per^ 42. 
 executor or adminijlrator. 44. 
 /y //??<? 8 Eliz. c. 2. - 46. 
 18 Eliz. c. 5. ?>?z penal ac- 
 tions. 47. 
 4 Jac. I. c, 3. - 48.
 
 ANALYSIS. 
 
 CoJiSy for the defendant^ 
 
 by the 13 Car. 1. fiat. 2. c. 2. § 3. 
 on a nonpros. 49. 
 8 C5* 9 /F. 3. c. II. on demur- 
 rer. 50. 
 where there are Jeveral defend- 
 ants. 5 1 . 
 ^n a feigned ijjiie. 53, 4. 
 double or treble^ for the plaintiff. 55. 
 
 defendant. 56. 
 
 Mode of taxing cofis, bctivccn .party mid 
 
 party. 58. 
 Means of recovering them, 
 
 by a5ficn or execution. 59. 
 attachment. Id. 
 
 Of fiaying -proceedings, until fcciirity be given 
 for cofis. 61. 
 until payment of cofis of a former a5iion. ^1^, 
 
 ^f f^t^^^Z ^ff ^^fi^ againfi cofis. 6^. 
 Remedies for the recovery and taxation of cofis, 
 between attorney and client. (>6. 
 
 in what cafes the bill may be taxed. 73. 
 
 mode of taxing it, 78. 
 
 cofis of taxation. 79. 
 
 lien for the balance. So. 
 
 la
 
 JLato of CoCs. 
 
 IN the profecution and defence of civil 
 adlions, for it is not my intention to 
 treat of criminal proceedings, the par- 
 ties are neccffariiy put to certain ex- 
 pences, or, as they are commonly called, 
 Cojls ; confining of money paid to the 
 king, for fines and ftamp-duties, to 
 the officers of the court, and to the 
 counfel and attornies, for their fees, ^c, 
 
 Thefe cods may be confidered either 
 as between attorney and client^ being 
 what are payable in every cafe to the at- 
 torney by his client, whether he ulti- 
 mately fucceed or not ; or as between 
 party and party^ being thofe only which 
 are allowed, in fome particular cafes, to 
 B the
 
 2 Jim of coft0. 
 
 the party fucceeding againfl: his adver- 
 fary. As between party and party, they 
 are interlocutory qx final \ the former are 
 given on various interlocutory motions 
 and proceedings, in the courfe of the fuit ; 
 the latter, of which I fhall principally 
 treat, are not allowed till the conclufion 
 of it. 
 
 Of the ;./«/«- No cofts were recoverable by the plain- 
 l?L!v,*!?„ ^ ^^ tiff or defendant at common law ^, But 
 
 common 
 
 law', and by by the ftatute of Gloucefter, (6 Edw. i.) 
 
 the lUtuteof . . • T , u u u j 
 
 Gloucefter. c. f. § 2. it IS provided, *' that the de- 
 mandant may recover againft the tenant 
 the cofts of his writ purchafed (which,. 
 by a liberal interpretation, has been con- 
 ftrued to extend to the whole cofts of his 
 fuit ^), together with the damages given 
 by that ftatute i and that this a6l Jljall 
 hol'l place i in all cafes ivhere a man recovers 
 damages!'* This was the origin of cofts 
 de incremento^. And hence the plaintiff* 
 has, generally fpeaking, a right to cofts, 
 in all cafes where he was entitled to 
 
 •\ 
 
 ' 2 Inft. 288. Hardr. 152. 
 
 '^ 2 Inft. 288. "■ Gilb. Eq. Rep. 195. 
 
 damages,
 
 Hatu of Coil^. 
 
 damages, antecedent to, or by the pro- 
 vifions of, the ftatute of Gloucefter '' ; 
 as in afj'umpjit, covenant, debt on con- 
 trail, cafe, trefpafs, replevin, ejectment, 
 ^c. ; or where, by a fubfequent ftatute, 
 double or treble damages are given, in a 
 cafe where Jingle damages were before 
 recoverable % as upon the 2 Hen. 4. 
 c. II. for fuing in the admiralty court ^ 
 upon the 8 Hen. 6. c. 9. for a forcible 
 entry S or upon the 2 & 3 W. & M. 
 feff. I. c. 5. for refcuing a diflrefs for 
 rent ^ And he has alfo a right to cofls, 
 in all cafes where a certain pejialty is 
 given by ftatute to the party griev- 
 ed ' ; for otherwife the remedy might 
 prove inadequate. 
 
 But the ftatute of Gloucefter did not 
 extend to cafes where ito damages were 
 
 ^ 10 Co. u6.a. « Id. 2 Irft. 289. Cowp. 36S. 
 
 *" 10 Co. 116. a. b. Dyer, 159. b. Carth. 297. 
 
 K 10 Co. 115. b. Co. Lit. 257. b. 2 Inlt. 2S9. 
 Cro. EI. 582. 
 
 •» Carth. 321. I Salk. 205. i Ld. Raym. 19. 
 Skin. 555. Holt, 172. S. C. 
 
 * Cro. Car. 560. i Roll. Abr. 574. Skin. 363. 
 Carth. 230. I Salk. 206. i Ld, Raym. 172. Say. 
 Cods, II. H. Black. 10. 
 
 B 2 recover-
 
 la'co of CofiiEf. 
 
 recoverable at common law, as \n fcire 
 f<icias^ prohibition ", &c. ; nor where double 
 or treble damages were given by a fub- 
 fequent ftatute, in a new cafe where 
 faglc damages v^'ere not before recover- 
 able ; as -in ivafle againft tenant for life 
 or years ', upon the ftatute of Gloucefter, 
 (6 Edw. I.) c 5 J for not fetting out 
 tithes", upon the 2 & 3 Edw. 6. c. 13; 
 or for driving a diftrefs out of the hun- 
 dred ", upon the I & 2 Ph & M. c. 12. 
 Nor does this ftatute extend to popular 
 adions, where the whole or part of a pe- 
 nalty is given by ftatute to a common 
 informer °; as, upon the 5 Eliz. c.4. §31. 
 for exerciftng a trade, without having 
 ferved an apprenticefhip ; or upon the 
 ftatute of ufury, 12 Ann. ftat. 2. c. 16. 
 In thefe and fuch like cafes, therefore, 
 
 ^ Comb. 20. 
 
 * 2 Hen. 4. 17. 9 Hen. 6, 66. b. lo Co. ii6. b. 
 2 Inft. 289. 
 
 "• Moor, 915. Noy, 136. Hardr. 152. 
 
 " 2 Inft. 289. Dyer, 177. But fee Cro. Car. 560, 
 1 Roll. Abr. 574. 
 
 ° I Roll. Abr. 574. I Vent. 133. Carth. 231. 
 I Salk. 206. I Ld. Raym. 172. Caf. Pr. C. B. 87, 
 Barnes, 124. S. C. Cowp. 366, H. Black. 10. 
 B.N. P. 333. 
 
 the
 
 lent) of €oGi8^. 
 
 the plaintiff is not entitled to cofts, un- 
 lefs they are exprefsly given him by the 
 ftatute ; but wherever they are fo given, 
 he is of courfe entitled to them. 
 
 Where fmgle damages are given by a 
 ftatute, fubfequcnt to the ftatuie of Glou- 
 cefter, in a new cafe wherein no damages 
 were previoufly recoverable, it has been 
 doubted whether the plaintiff fliall .un- 
 cover cofts, if they are not mentioned 
 in the ftatute. The rule in PiIfold\ 
 cafe is, that he /hall not ^ ; and accord- 
 ingly it is holden, that he is not entitled 
 to cofls in qtiaj^e impcdit "^j wherein da- 
 mages are given by the ftatute of 
 Wei^m. 2. (13 Edw. i.) c. 5. § 3. But 
 the rule in Piifold\ cafe is con trad idled 
 by lord Coke himfelf ', who fays, that 
 *' this claufe (refpe£ting the ftatute of 
 Gloucefler's holding place, in all cafes 
 where a man recovers damages) doth 
 extend to give cofts, where damages are 
 
 P !o Co. 1 16. a. 
 
 •J 2 Hen. 4. 17. 27 Hen. 6. lo. lo Co. ii6. a. 
 2 Infl. 289. 362. Barnes, 14.0. And fee Cro. Car. 360. 
 Carth. 231. Cowp. 367, 8. ' 2 Inft. 289. 
 
 B 3 given
 
 6 Lata of Cofl^f. 
 
 given to any demandant or plaintifF, in 
 any adion,by any ftatute made after this 
 parliament." And the rule has been fince 
 narrowed, by feveral modern decifionsi 
 1 from whence it may be colleded, that the 
 
 plaintiff is entitled to cofts, in all cafes 
 where fingle damages are given by fta- 
 tute to the party grieved ', although 
 cofts are not particularly mentioned in 
 the ftatute. 
 
 Of the cofls In feveral of the foregoing cafes, 
 ^Ig^Tfornot therein cofts were not recoverable by 
 fetting out ([^q plaintiff at common law, they are 
 fada's, and exprcfsly givcn him by the ftatute 8 & g 
 prohibition. YV^^2. c. II. by which it is enaded, 
 that " in all actions of ijoajle^ and actions 
 of debt upon the ftatute for not fetting 
 forth tithes^ wherein the fmgle value or 
 damage found by the jury ftiall not ex- 
 ceed the fum of twenty nobles ; and in 
 all fuits upon any writ or writs of Jcire 
 Jacias, and fuits upon prohibitions^ the 
 
 » 2 Wilf. 91. Barnes, 151. S. C. 3 Bur. 1723. 
 1 T. R. 71. But fee the opinion of JJion, Juft. cont, 
 Cowp. 367, 8. 
 
 plaintiff
 
 lalu of Cofljsf. 
 
 plaintlfF obtaining judgment, or any 
 award of execution, after plea pleaded 
 or demurrer joined therein, fhall likewife 
 recover his cofts of luit ; and if the plain- 
 tiff fhall become nonfuit, or fuffer a dif- 
 continuance,or a verdict fhall pafs againft 
 him, the defendant fhall recover his 
 cofts, and have execution for the fame 
 by capias ad fat'isfaciendumt fieri facias^ 
 or elegit.'*' 
 
 Upon this ftatute there have been the 
 following determinations : 
 
 In an adion of debt for the penalty of 
 the ftatute 2 & 3 Edw. 6. c. 13. for not 
 fetting out tithes, with a count for the 
 fingle value, after a demurrer to the de- 
 claration the parties fubmitted to arbi- 
 tration, and the arbitrator awarded the 
 fingle value to ht lefs than twenty nobles 
 (61. 13s. 4d.) ; the court held, that 
 the plaintiff was not entitled to cofts on 
 the counts for the penalty, under the 
 ftatute 8 & 9 W. 3, c. ir. the value 
 not having been found by the jury ; but 
 B 4 ■ they
 
 Laui of €oft0. 
 
 ihey allowed liim to have the cofts 
 taxed, on the count lor the fingle 
 value '. 
 
 In Scire facia: ^ the plain tifF is not 
 entitled to cofts, unlefs the defendant 
 has appeared and pleaded : And no cofts 
 are payable by the plaintifF, on moving 
 to quafh his own writ before plea % nor 
 after a plea in abatement". 
 
 In Vrohihltion^ the rule is, that the 
 plaintifF, fucceeding after plea pleaded or 
 demurrer joined, ought to have his cofts 
 from the time of the fuggeftion, or firft 
 motion for a prohibition, and all cofts 
 incident and fubfequent thereto ^ . And 
 where the defendant pleaded nothing to 
 the merits, but only that he did not pro- 
 ceed in the fpiritual court after the pro- 
 hibition, the court held this not to be a 
 plea within the ftatutc, but a mere fliam 
 plea, and ordered the defendant to pay 
 
 * H. Black. 107. And fee Barnes, 150. 
 » Caf. Pr. C.B. 74. 
 
 V I Str. 638. 
 
 * Caf. Pr. C. B. u. 1 Str. 82. 2 Str. 1062. 
 
 the
 
 Eato of Coff.^. 
 
 the plaintiff's cofts of the proceedings 
 in prohibition \ Where the defendant 
 in prohibition lets judgment go by de- 
 fault, the plaintiff is entitled, by the com- 
 mon law, to a writ to inquire of his 
 damages ^ for the contempt in proceeding 
 after the prohibition delivered ; and, of 
 confequence, by the ftatute of Gloucefter, 
 to h;s cojli ^ . In this cafe, however, the 
 plaintiff is only entitled to cofts, from 
 the time that the rule for a prohibition 
 was made abfolute, as the defendant 
 could not poffibly be in contempt be- 
 fore ^ And where the plaintiff was 
 nonfuited, it was holden, that the de- 
 fendant ought only to have the cofts of 
 the nonfuit, and not what were incurred 
 by oppofing the rule to fhew caufe, why 
 the writ of prohibition fhould not be 
 granted '. If judgment be given for the 
 plaintiff, as to part of what is in iffue, 
 he is entitled to cofts, although a con- 
 fultation be granted as to the refidue **. 
 And, in like manner, if the defendant 
 
 ' Barnes, 148. 
 
 y Caf. Pr. C.B. 20. ^ Id. 21. 
 
 * Say. Cofls, 137. '' 2 Str. 1062, 3. 
 
 prevail
 
 lo lain of CofiiGf. 
 
 prevail as to/'^r/, he is entitled to colls '. 
 But it feems, that if the defendant fuc- 
 ceed upon demurrer, he is not entitled to 
 cofts \ this being a cafis omijj'us out of 
 the ftatute. There is a provifo in the 
 llatute % that it fliall not extend to ex- 
 ecutors or adminiftrators ; and hence it 
 has been determined, that in fcire facias ^ 
 or prohibition ^ they are not liable, when 
 plaintiffs, to the payment of cofts. 
 
 Of the fta- The plaintiff's general right to cofts 
 tutes re- beine ihus fettled and eftablifhed, upon 
 
 llraming the ° ^ » r 
 
 plaintiiF's the footing of the ftatute of Gloucefter, 
 c<§ls! ^° ^^^ httn fince altered, reftrained, and mo- 
 dified, by fubfequent ftatutes. The firft 
 ftatute that reftrained the plaintiff's right 
 to cofts, was the 43 Rliz. c. 6. (extended 
 to Wales i and the counties palatine ^ by 
 the 1 1 & I2\V. 3. c. g.) ; by which it is 
 enaded, that '^ if in any perfonal adlion, 
 to be brought in any of her majefty's 
 courts of Weftminfter, not being for any 
 
 <= Barnes, 138, 139. 
 
 '' Brymer and Atkyns, H. 29 G. 3. C. B. 
 « § 5. ^ I Str. 188. 
 
 s CaC Pr. C.B. 158. Pr. Reg. iiS. Barnes, 127. 
 129. S. C. 
 
 title
 
 ILato of CoSisf, 
 
 title or intereft of lands, nor concerning 
 the freehold or inheritance of any lands, 
 nor for any battery, it fliall appear to the 
 judges of the fame court, and be fo figni- 
 fied by the juftices before whom the 
 fame fhall be tried, that the debt or da- 
 mages to be recovered therein fhall not 
 amount to the fum of forty (hillings, 
 that in every fuch cafe the judges or 
 juftices, before whom fuch action fhall 
 be purfued, (hall not award to the plain- 
 tiff any more cofls than the fum of the 
 debt or damages fo recovered fhall 
 amount to, but lefs at their difcretion.*' 
 The intention of this ftatute was to con- 
 fine trifling adtions to inferior courts ^ ; 
 and a certificate may be granted upon it, 
 at any time after the trial of the caufe '. 
 The firfl inftance of a certificate being 
 granted, upon this ftatute, was in the cafe 
 of White V. Smith, E. 17 G. 2. ; wherein 
 Willes Ch. Jc certified in an adion for 
 taking fand ''. And fince that time, cer- 
 
 »• Gilb. Eq. Rep. 196. 
 
 *Say. Cofts, 18. 3 T.R. 38. ('^;. 
 
 k 2 Str. 1232. 1 Wilf. gi. S. C. 3 Wilf. 325. 
 
 S tificates 
 
 II
 
 12 LalD of Co(!2f. 
 
 tificates have been not infrequent *. But 
 as the judges, for a long time, were un- 
 willing to certify upon this ftatute, think- 
 ing it hard to deprive a plaintiff of his 
 right to corts, merely becaufe he had re- 
 forted to a fuperior court, when perhaps 
 he could not have obtained juftice in an 
 inferior one, the legiflature was obliged 
 to interpofe its authority, flill farther to 
 guard againft trifling and vexatious 
 adions. 
 
 Of the court Thus, by the 3 Jac. i. c. 15. §4. 
 
 tif con/cience j^ jg enaded, that " if in any adion of 
 debt, or action upon the cafe upon an 
 affurjipfu for the recovery of any debt, to 
 be fued or profecuted againft any citizen 
 and freeman of the city of London, or 
 any other perfon, being a vidualler, 
 tradefman, or labouring man, inhabiting 
 within the faid city or the liberties 
 thereof, in any of the king's courts at 
 Weftminfter, or elfewhere, out of the 
 court of requefts for the fame city, it 
 Ihall appear to the judge or judges of 
 
 » Id. Say. Rep. 250. 2 Wilf. 3^3. 3 T. R. 37. 
 
 the
 
 Hato of dLOil^* 13 
 
 the court where fuch adlion (hall he fued 
 or profecuted, that the debt to be reco- 
 vered by the plaintiff fhall not amount 
 to the fum of forty fliijlings, and the de- 
 fendant fhall duly prove, either by fufE- 
 cient teflimony or his own oath, that at 
 the time of commencing fuch a(5lion, the 
 defendant was inhabiting and refiant in 
 the city of London or the liberties there- 
 of, the faid judge or judges fhall not 
 allow to the plaintiff any cofts of fuit, 
 but fliall award the plaintiff to pay fo 
 much ordinary cofls to the defendant, 
 as the defendant fhall juflly prove, be- 
 fore the faid judge or judges, it hath 
 truly coft him in defence of the fuit," 
 Which ftatute has been fince extended, 
 by the 14 Geo. 2. c. 10. to *' every 
 citizen and freeman of the city of Lon- 
 don^ and every other per fan and perfons 
 inhabiting within the faid city or its li- 
 berties, and alfo to perfons renting or 
 keeping any fliop, (hed, ftall, or ftand, 
 or feeking a livelihood there, who have 
 debts owing them, not exceeding the 
 fum of forty fhillings, by any perfon or 
 perfons inhabiting or feeking a liveli- 
 hood
 
 14 lato of CofiiGf. 
 
 hood within the faid city or its liberties, 
 during their refpedlive inhabitancy or 
 feeking a livelihood as aforefaid.'* 
 
 And towards the latter end of the laft 
 reign, feveral ads of parliament were 
 made, eftablifliing courts of confcience 
 in various diftrids, in and about the 
 metropolis ; as in the town and borough 
 of Southwa7'kj &c. by the 22 Geo. 2. 
 c. 47. ; in the city and liberty of We/l- 
 m'lnflery and part of the dutchy of Lan^ 
 cajier^ by the 23 Geo. 2. c. 27. (explain- 
 ed and amended by the 24 Geo. 2. 
 c. 42.) ; and in the Tower-hamlets^ by 
 the 23 Geo. 2. c. 30. And by the 
 23 Geo. 2. c. 33. the county court of 
 Middleftx w^as put on a different footing, 
 for the more eafy and fpeedy recovery of 
 fmall debts. 
 
 In thefe ads of parliament there are 
 exceptions, refpeding the canfes and per^ 
 Jons, of which and over whom the courts 
 are to have jurifdidion. Thus, in the 
 7 Jac. I. c. 15. there is an exception or 
 provifo", that " it fhall not extend to any 
 
 "• §6. 
 
 debt
 
 Lato of CoG^. ijT 
 
 debt for rent upon any leafe of lands or 
 tenements, or any other real contrads, 
 nor to any other debt that (hall arife 
 by reafon of any caufe concerning a tef- 
 tament or matrimony, or any thing con- 
 cerning or properly belonging to the 
 ecclefiaftical court, although the Tame 
 be under forty fhillings." And there is 
 a fimilar exception in the court of con- 
 fcience ail for the Tower- hamlets ^ ; 
 %A7hich exception has been conftrued to 
 apply to an action for ufe and occupa- 
 tion **. And it is a conftant and invari- 
 able rule, that none of the court of con- 
 fcience adts extend to cafes, where the 
 fum recovered is reduced under forty 
 {hillings, by means of a fet-ofF^, or ten- 
 der'. Refpeding/'^r/jjwi, the court in one 
 inftance permitted a fuggeftion to be en- 
 tered on the roll, in an adtion brought by 
 an adminiflrator \ But in an adion 
 brought againft an executor ^ they refufed 
 it ' j faying, it could not be meant to s;ive 
 the court of confcience a jurifdidioa 
 
 ■ Doug. 0^, 245. 9 Id. 244. 
 
 f 2 Str. 1191. I Wiir. ig. S. C. 2 Wi!f. 68. 
 3 Wilf. 48. 
 *» Doug. oa. 448, 9. » Id. 246. » Id, 263. 
 
 over
 
 i6 M\y) of Cote. 
 
 over executors ; and that if there wa5 no 
 exprefs exception, there was one imphed 
 from the nature and reafon of the thing. 
 , An attorney is not fubjedl to the jurifdic- 
 
 tion of the county court of Mtddlefex ' ; 
 but in IVeJlminJler'^ ^ and the Tower-bam^ 
 iets^^ he is exprefsly fubjeded thereto. 
 And in Middle/ex, if he be fued in a fu- 
 perior court, for a debt under forty {hil- 
 lings, he may, according to a late deter- 
 mination"', move the court to ftay the 
 proceedings. 
 
 By the Wejlrn'mjler court of confcience 
 a£t, the mode prefcribed for a defendant 
 to obtain his cofts is by plea ; and if 
 that mode be not adopted, the court will 
 not, after verdid, enter a fiiggejllon on 
 the record, that the defendant lived 
 within the jurifdidion, or flay the pro- 
 ceedings*. But in general, where the 
 a6l is not pleaded, the proper mode is, 
 for the defendant to apply to the court, 
 
 * 2 Wiir. 42. Doug. 0^. 380. 3 Bur. 1533. 
 Semb, contra. 
 
 " Doug. kf?. 380. V Stat. 19 G. 3. C.68. f. 24. 
 
 ^'4T.R. 495. ''sT.R. 452. 
 
 by
 
 Hato of Cofii^. i; 
 
 by affidavit, for leave to enter a fuggef- 
 tion on the roll, of the fads necefTary to 
 entitle him to the benefit of the adt^: 
 which fuggeftion may be traverfed or 
 demurred to. And v^/here the plaintiff 
 demurred to the fuggeflion, which was 
 adjudged againfl him, the cofls of the 
 application were allowed, as well as of 
 the trial and former proceedings * ; 
 though not, llridly fpeaking, cofls of 
 the defence. But where the inqueft is 
 taken by default, there can be no fug- 
 geftion on the roll ^ ; for the defendant 
 is out of court, as to all purpofes, but 
 that of having judgment againft him. 
 
 By the 21 Jac. i. c. 16. It is enaded, ofcoftsm 
 that ** in all adions upon the cafe for ^^^-'""^ ^^^ 
 Manderous words, to be fued or profe- 
 cuted in any of the courts of record at 
 Weftmlnfter, or in any court what- 
 foever that hath power to hold plea of 
 the fame, if the jury upon the trial of 
 the ifTue in fuch adion, or the jury that 
 
 y I Str. 47, 50. 2 Str. 1 120- Barnes, 353. Say. 
 Rep. 273. 2Wiir. 68. 
 
 * 2 Str. 1120. * I Sir. 46. 
 
 C fliall
 
 iS- tm of CcG<:?. 
 
 fhall inquire of the damages, do find or 
 affefs the damages under forty fliillings, 
 then the plaintiff or plaintiffs in fuch ac- 
 tion Ihall have and recover only fo much 
 cofts as the damages fo given or affeffed 
 amount unto, Vv'ithout any further in- 
 creafe of the fame ; any law, ftatute, or 
 ufage to the contrary notwithflanding." 
 The operation of this ffatute is confined 
 to adions for flanderous words fpoken of 
 the pe?'Joji^ and does not extend to actions 
 for flander of title **, &c. wherein the 
 fpecial damage is the gifi: of the action r 
 neither, for the fame reafon, does it ex- 
 tend to an adtion for fpecial damage, in 
 confequence of words not in themfelves 
 adionable ^ ; though, Vvhere the words,- 
 are adionable in themfelves, a fpecial 
 damage will not take the cafe out of the 
 ftatute '*. This ftatute applies to a writ 
 of inquiry^ as well as a trial y where the 
 damages are under forty (hillings " -, and 
 
 ^ Cro. Car. 141. 163. 
 
 1 Str. 645. 
 
 ^= 2 Ld. Raym. 831. 
 
 1 Salk. 2c6. 7 Mod. 129. 
 
 S. C, Earnes, I'^j. 
 
 
 ' d 2 Ld. Raym. 1588. 
 
 2 Srr. 936. S. C. Bar.nes, 
 
 132. 142. 3 Bur. 168S. 
 
 2 Blac. R?p. IC62. Caf. 
 
 Tr. C. B. 137. contra. 
 
 « 2 Str. 934. 
 
 ' •• 7 
 
 a>/-
 
 ilatD of Coli.cf. 19 
 
 2i j lift i fie at ion found for the plaintiff t\'ill 
 not, in that event, entitle him to full 
 cofts \ 
 
 But the prwcipal ftatute, made for of the cofts 
 reftraining the plaintiff's right .to cofts, ^^ ^'^f^"-^^' 
 is the 22 & 23 Car. 2. c. 9. (extended to 
 JVales, and the counties palatine, by the. 
 II & 12 W. 3. c. 9.) ; by which it is 
 enaded, that '* in all ad:ions of trefpafs, 
 affault and battery, and other perfonal 
 a£llons, wherein the judge, at the trial 
 of the caufe, fhall not find and certify 
 under his hand, upon the back of the re- 
 cord, that an affault and battery was 
 fufficiently proved by the plaintiff againfl 
 the defendant, or that the freehold or 
 title of the land mentioned in the plain- 
 tiff 's declaration was chiefly in queflion; 
 the plaintiff, in cafe the jury fliall hnd 
 the damages to be under the value of 
 forty fhillings, fhall not recover or ob- 
 tain more cofls of fuir, than the damages 
 fo found fhall amount unto." It feems 
 to have been the intention of this flatute, 
 
 ^ Barnes, 128. 
 
 C 2 that
 
 20 £ato of Coflisr. 
 
 that the plaintiff fhall have no more cofls 
 than damages, in any perfonal action 
 whatfoever, if the damages be under 
 forty fliillings, except in cafes of battery 
 or freehold ; and not even in thefe, with- 
 out a certificate. And this conflrudion 
 was adopted, in fome of the firft cafes that 
 arofe upon the flatute^ But a different 
 conftrudion foon prevailed ; and it is 
 now fettled, that the ftatute is confined 
 to actions of affault and battery ; and ac- 
 tions for local trefpaffesj wherein it is 
 poffible for the judge to certify, that the 
 freehold or title of the land was chiefly 
 in queftion ^ Therefore it does not ex- 
 tend to actions of debt, covenant, aff'ump- 
 Jitj trover ', or the like ; or to adions for 
 a mere affault ^ ; or for criminal conver- 
 fation ', or battery of the plaintiff's fer- 
 vant '"j fcr quod conjonium vel Jervitium 
 mnijit, 
 
 9 3 Keb. J21. 247. 
 
 *> T. Raj'jn.487. T. Jon. 232. 2 Show. 258. S. C. 
 3 Mod. 39. I Salk. 208. i Str. 577. Gilb. Eq. 
 Rep. 195. Barnes, 134. 3 Wilf. 322. S. C. H. 
 Black. 294. ' 3 Keb. 31. 1 Salk. 208. 
 
 " 3T. R. 391. ' 3 Wllf. 319. 
 
 ■» 3 Keb. 184. r Salk, 208. i Str. 192. 
 
 la
 
 In actions for local trefpafles, the fta- 
 tute applies, wherever an injury is done 
 to the freehold ", or to any thing grow- 
 mg° upon, or qfixeJ^ tOj the freehold : 
 and in a modern cafe "^ it was carried ftill 
 further. That was an a<n;ion of trefpafs 
 qtiare claufumfregit : the firft count ftat- 
 €d, that the defendants broke and en- 
 tered the clofe of the plaintiffs, and the 
 grafs of the plaintiffs there then growing, 
 with their feet in walking, trod down, 
 fpoiled, and confumed ; and dug up and 
 got divers large quantities of turf, peat, 
 fods, heath, ftones, foil and earth of 
 the plaintiffs, in and upon the place in 
 which, &c. i and took and carried azvay 
 the fame^ and converted and difpofed of 
 th€ fame to their own ufe. There was 
 
 " 2 Vent. ;i8. Com. Rep. 19. i Salk. 208. 1 Str. 
 577. 633. 645. Gilb. Eq. Rep. 195. 2 Str. 726. 
 2 Ld. Raym. 1444. S. C. 
 
 ° Hillv. Ree'vest B. N. P. 330. Barnes, 144. 
 
 P Birch V. Daffey, B. N. P. 330. I Sir. 633. Caf. 
 Pr. C. B. 86. Barnes, 121. 
 
 ■J Doug. C(^. 779. And fee i Str. 633. 645. Gilb. 
 Eq. Rep. 197, 8. B.C. 3 Bur. 1282. accord. But fee 
 2 Vent. 215. Skin. 66. Com. Rep, 19. 1 Salk. 208. 
 J Str. 192. femb, contra. 
 
 c 3 another
 
 lato of Cofts^. 
 
 another count, upon a fimilar trefpafs, in 
 another clofe. The defendants pleaded 
 the general iffue to the whole declaration, 
 and two fpecial pleas to the /?'6'(9/?J count. 
 And, on the trial, a verdict was found 
 for the plaintiffs on the general iffue, 
 with one iliilling damages; and for the 
 defendants on the fpecial pleas, and the 
 judge had not certified. Per lord Manf- 
 Jield : " The queftion on this record is, 
 whether the plaintiffs are entitled to any- 
 more cofts than damages, under the fla- 
 tute 22 & 23 Car. 2. c. 9. ? There is a 
 puzzle and perplexity in the cafes on this 
 part of the ftatute, and a jumble in the 
 reports; and as the queftion is a general 
 one, we thought it proper to confult all 
 the judges; and they are all of opinion, 
 that this cafe is within the ftatute, and 
 that the plaintiffs ought to have no more 
 cofts than damages. You will obferve, 
 that what has been called an ajportavit 
 in this declaration, is a mode or qualifi- 
 cation of the injury done to the land. 
 The trefpafs is laid to have been com- 
 mitted on the land by digging, &c. and 
 the ajportavit as part of the fame a6t 5 
 
 and,
 
 Ia^j3 of Co0j8?. 23 
 
 and, on the trial of the iffue, the free- 
 hold certainly 777igbt have come in quef- 
 tion. This is clearly diftinguifhable from 
 an afportavit of perfonal property, where 
 the freehold cannot come in queftion, 
 and which therefore is not within the 
 a£t. Thus, after trees are cut down, 
 and thereby fevered from the freehold, 
 if a trefpafler comes and carries them 
 away, that cafe is not within the ftatute ; 
 becaufe the freehold cannot come in 
 quefiion : here it might." 
 
 Where an injury is done to a perfonal 
 chattel, it is not within the (latute '; nor 
 where an injury to a perfonal chattel is 
 laid, in the fame declaration, with an 
 alTault and battery, or local trefpafs '. 
 And confequently, in thefe cafes, though 
 the damages be under forty ihillings, 
 the plaintiff is entitled to full coils, 
 without a certificate. But then it muft 
 
 ' 3 Keb. 389. 469. T. Jon. 232. I Salk. 208. 
 I Str. 534. Gilb. Eq.Rep. 197. S C. 
 
 * 3 Mod. 39. 1 Salk. 208. i Str. 192. 551. Gilb. 
 Eq. Rep. 197. S. C. Barnes, 119, 120. 134. 3 Wilf. 
 322. S. C. 2 Str. 1 130. Say. Colls, 39. 
 
 c 4 be
 
 24 JLato of COG0. 
 
 be a fubftantive and independent injury : 
 for where it is laid, or proved, merely in 
 aggravation of damages, as a mode or 
 qualification of the aifault and battery, 
 or local trefpafs \ or there is a verdidt 
 for the defendant, upon that part of the 
 declaration which charges him with an 
 injury to a perfonal chattel", it is within 
 the ftatute. So where a laceravit^ or 
 tearing of the plaintiff's cloaths, is laid 
 in the declaration % or found by the 
 jury"^, to be merely in confeqiience of an 
 affault and battery, the plaintiff, recover- 
 ing lefs than forty fliillings damages, is 
 not entitled to full cofts, without a cer- 
 tiiicate. 
 
 The certificate required by this flatute 
 need not, it feems, be granted at the trial 
 of the caufe *. And where the defendant 
 lets judgment go by default'', or jujiifies 
 the affault and battery, or pleads in fuch 
 a manner, as to bring the freehold or 
 
 * I Str. 624. Ante, 22. 
 
 « 2 Vent.180.195. Caf.Pr.C.B.118. vSay. Rep. 91. 
 ^ I T. R. 655. and fee H. Black. 291. 
 
 • U Mod. 190. » B. N. P. 329. 
 
 title
 
 ILm of €o{t.£?. 2jr 
 
 title of the land in queftion, on the face 
 of the record, or a view is granted % a 
 certificate is holden to be unneceflary; 
 as alfo, where, to a plea of a right of 
 way, there is a replication of extra 
 viam *. But where, in an adion for an 
 aflault and battery, the defendant jufti- 
 fies the aflault only % or an aflault only 
 is certified by the judge '', the plaintiff^, 
 recovering Icfs than forty fliillings, is 
 not entitled to more cofts than damages ; 
 though, in the latter cafe, to entitle 
 him to full cofts, the judge may cer- 
 tify, on the 8 8c 9 W, 3. c. 11. that the 
 aflTault was wilful and malicious'. The 
 award of an arbitrator is not tantamount 
 to a judge's certificate, under the 22 & 
 23 Car. 2. c. 9.'' 
 
 Where the plea or iflTue, though fpe- 
 cial, is collateral to the queftion of free- 
 hold or title to the land, as where the 
 
 y I Ld. Raym. 76. 2 Salk. 665. S. C. 
 ^ 2 Lev. 234. 2 Ld. Raym. 1444. 2 Str. 726. 
 5.C. Id. 1 168. Say. Rep. 251. 
 
 * 3T. R. 391. ^ 2 Lev. loz. 
 
 c 3 Wilf. 326. ' 3T.R. 138. 
 
 defendant
 
 o6 jLalflj of Ccfisf. 
 
 defendant juilines an entry as bailifl' un- 
 der procefs, and iffue is joined upon the 
 door^s being fhut'', or where, upon a 
 plea of a diftrefs for rent, there is an 
 iffue on the defendant's being bailiff S a 
 certificate is neceflary, to entitle the 
 plaintiff to full cofts : and it is alfo ne- 
 ceffary, where the plaintiff recovers lefs 
 than forty fhillings damages, on a plea 
 of not guilty to a new affignment ^. 
 But where the plaintiff is entitled to 
 cofts upon the new affignment, he is en- 
 titled to the cofts of all the previous 
 pleadings ''. 
 
 None of the fcatules, made for retrain- 
 ing the plaintiff's right to cofts, extend 
 to adlions brought in an injerior court, 
 •and removed by the defendant into ay^^- 
 perior one ' : and it has been holden, that 
 the 21 Jac. I. c. 16." and the 22 & 23 
 Car. 2. c. 9.' only reftrain the court from 
 
 • 2 Barnard. K. B. 277. ^ Say. Rep. 250. 
 S Barnes, 124. 129. S. C. Id. 149. B. N. P. 330. 
 * hi T.R, 636. 
 
 ^ 2 Lev. 124. 4 Mod. 378, 9. 1 Ld. Raym. 395. 
 Caf. Pr. C.B. 45. («). 
 ^ 1 Salk. 207. 1 Caf. Pr. C.B. 45. 
 
 award-
 
 tm of Cofti^, ^7 
 
 awarding more cofls than damages ; but 
 the jury, not being reftrained thereby, 
 may give what cofts they pleafe. 
 
 The reftraint put upon the plaintiff's Of cofls, on 
 general right to cofts, by the 22 & 23 w &^^ 
 Car. 2. c. g. has been fince partly taken c. 23. 
 off, by fubiequent ftatutes. Thus, by the 
 flatute 4 & 5 W. & M. c. 23. § 10. 
 after reciting, that great mifchiefs enfue 
 by inferior tradefmen, apprentices, and 
 other diiTolute perfons, negleding their 
 trades and employments, who follow 
 hunting, filliing, and other game, to the 
 ruin of themfelves and damage of their 
 neighbours, it is enacted, that *' if any 
 fuch perfon fnall prefume to hunt, hawk, 
 fifh, or fowl (unlefs in company with the 
 mafter of fuch apprentice, duly qualified 
 by law), fuch perfon fhall be fubjedl to 
 the penalties of this ad, and iliall or may 
 be fued or profecuted for his wilful trei- 
 pafs, in fuch his coming on any perfon 's 
 land; and if found guilty thereof, the 
 plaintiff fhall not only recover his da- 
 mages thereby fuftained, but his full 
 cofls of fuit J any former law to the con- 
 trary
 
 28 ialD of Coa^. 
 
 trary notwuhftanding.'* It has been 
 hoklen, that a clothier is an inferior 
 tradefman, within the meaning of this 
 ftatutc ™ ; and it is faid, that the words 
 ** inferior tradefmeif extend to every 
 tradefman who is not qualified to kill 
 game ^ : but this was doubted in a fub- 
 fequent cafe ", wherein the judges were 
 divided in opinion, upon the queftion, 
 whether a furgeon and apothecary (liould 
 be confidered as an inferior tradefman. 
 
 ofcofis, on So, by the 8 & 9 W. 3. c. 11. §4. 
 
 the 8 & 9 £qj. j^g preventing of wilful and mali- 
 cious trefpalTes, it is enacted, that *' in all 
 actions of trefpafs, to be commenced or 
 profecuted in any of his majefty's courts 
 of record at WeRminfter, wherein at the 
 trial of the caufe it fliall appear, and be 
 certified by the judge under his hand, 
 upon the back of the record, that the 
 trefpafs, upon which any defendant fliall 
 be found guilty, was wilful and jnali- 
 cious, the plaintiff fhall recover not only 
 his damages, but his full cofls of fuit ; 
 
 ■ Barnes, 125. 
 
 » 2 Wilf. 70. Say. Cofts, 54. S. C. 
 
 any
 
 iLato of CoSjf. 2 
 
 any former law to the contrary notwiih- 
 ftanding." The certificate, required by 
 this ftatute, need not be granted at the 
 trial of the caufe ° ; and it is faid, that 
 the ftatute extends to every trefpafs, that 
 is not accidental as well as trifling ". 
 
 I fliall next proceed to confider in 
 what cafes the plaintiff is entitled to 
 cofts, where there are fcveral counts or 
 pleasy the iflues upon which are fonie of 
 them found for the plaintiff, and fome 
 for the defendant. 
 
 In the commo?2 pleas, where the deck- ofthecoft; 
 ration confifts of feveral counts, and the *^" Several 
 
 counts. 
 
 plaintiff fucceeds upon any one of them, 
 he is entitled to the cofts of the whole de- 
 claration''; though the defendant fucceed 
 upon the other counts. But it is other- 
 wife in the kings bench ; for there, nei- 
 ther party is allowed cofts, as to thofc 
 counts, the iflues upon which are found 
 
 o Snxjinnerton v. Jar'zh, E. 22 G. 3. C. P. 1 T. R. 
 636. K. B. but fee 2 Wilf. 2j. Doug. oil. io3. 
 n. contra. p- 6 Mod. 153. 
 
 « B.N. P. 335. 2 Blac. Rep. itoo. 119^. 
 
 for
 
 3cfc Jim of CoC0. 
 
 for the defendant ^ In the latter court, 
 where the plaintiff's declaration confifted 
 of two counts, to one of which the de- 
 fendant pleaded the general iffue, which 
 was found for the plaintiff, and to the 
 other a juffincation, to which the plain- 
 tiff den^urred, and judgment was there- 
 upon given for the defendant ; the court 
 agreed, that the defendant could have no 
 coils upon the demurrer '. But if there 
 be two diftind caufes of adion, in two 
 feparate counts, and as to one the de- 
 fendant fuffers judgment to go by de- 
 "• fault, and as to the other takes iffue, and 
 
 obtains a verdidi:, he is entitled to judg- 
 ment for his cofts on the latter count, 
 notwithftanding the plaintiff is entitled 
 to judgment and cofts on the firft count'. 
 
 Of the cofts By the ftatute for the amendment of 
 jLtfng. the law, (4 Ann, c. 16. § 4, 5.) it is 
 enaded, that " it fhall and may be law- 
 ful for any defendant or tenant in any 
 
 ' Say. Colls, 212. Doug. ojf?. 677. but fee iWilf. 331. 
 * Say. Cofts, 211. 2 Bur. 1232. S.C. Tamen quare, 
 and fee the flat. 8 & 9 W. 3. c. 1 1. § 2. 
 ' 3 T.R. 654. 
 
 adion
 
 ta\Q of dToSiSf. 
 
 2iCuon or fulr, or for any plaintiff in fe- 
 pkvhi, in any court of record, with the 
 leave of the fame court, to plead as many 
 feveral matters thereto, as he iliail think 
 necefTary for his defence." 
 
 " Provided neverthelefs, that if any 
 fuch matter fhall, upon a demurrer johi- 
 ed, be judged infufKcientj cofts fhall be 
 given at the difcretion of the court ; or 
 if a verdid: fhall be found, upon any 
 iffue in the faid caufe, for the plaintiff 
 or demandant, coRs fhall be alfo given in 
 like manner, imlefs the judge, who tried 
 the faid iffue, fhall certify, that the faid 
 defendant or tenant, or plaintiff in re- 
 pJevin, had a probable caufe to plead 
 fuch -matter, which qpon the faid iffue 
 fhall be found againft him." 
 
 The certificate upon this flatute is not 
 required to be made in court, at the trial 
 of the caufe " ; and, where the judge re- 
 fufes to grant it, the court have not a dif- 
 cretionary pov;cr, whether they will 
 
 " Birnes, 141. 
 
 '. . allow
 
 32 ILa'to of (2tote. 
 
 allow the defendant any cofts at all ; 
 but are bound by the ftatute to allow 
 him fime cofts, though the quantum is 
 left to their difcretion ''. The intention 
 of the legiflature was, that if there be 
 feveral matters pleaded, fome of which 
 are found for the plaintiff, he fhall be 
 entitled to the cofts of thofe '% not- 
 •withftanding other matters are found 
 for the defendant, which entitle him 
 to judgment upon the whole record j 
 unlefs the judge, before whom the caufe 
 was tried, fliall certify, that the defend- 
 ant had a probable caufe to plead the 
 matters which are found againft him. 
 That this is the true conftrudion of the 
 llatute, will appear from the following 
 cafes. 
 
 In trefpafsy the defendant pleaded not 
 guilty and feveral juftifications ; upon 
 
 " Barnes, 140. 2 T, R. 394, 5. 
 
 " In Sayer^s Law cf Cofts, p. 223. it is faid, he fhafl 
 have the cofts not only of liro/e matters, but alfo of the 
 diets, notwithftandmg they are found for the defend- 
 ant. But this feems to be a miftake ; for the defendant, 
 being entitled to judgment upon the matters found for 
 him, is confe^uently entitled to the cofts of them. 
 
 the
 
 tm of COfliE?. 33 
 
 the trial, the plaintiff not proving his 
 poffeffion of the Icciis in qiio^ the defend- 
 ant had a verdid j and, by dired;ion of 
 DejiifoHy J. the verdi6l was entered upon 
 the general Iffue only; upon which there 
 was a motion for a renire de novo: but 
 the court refufed the motion, faying, the 
 verdict was complete, and determined 
 the caufe ; that the plaintiff was not en- 
 titled to damages, though, they faid, he 
 might have infiiled to have a verdi<fl: en- 
 tered on the other iffues, for the fake of 
 ccfus^ which he would be entitled to, un- 
 lefs the judge certified, that the defend- 
 ant had probable caufe to plead fuch 
 plea *. But where the defendant, in 
 trejpofs^ pleaded three different juftifica- 
 tions, to three different counts, and, on 
 iffue joined, had a verdid for him on iwoy 
 and againft him on \\\t third \ on mo- 
 tion, this was holden not to be a cafe 
 within the adt, and that the plaintiff was 
 entitled to cofts at common law, on the 
 niohole declaration ^ 
 
 * B. N. P. 335. 
 
 y Id. ibid, but note, this was in the common pleas- 
 
 D Where
 
 34 iLab) of CoG^. 
 
 "Where the defendant pleads not guilty, 
 and a juftification to which the plaintiff' 
 demurs, and the plaintiff has judgment 
 on the demurrer, but is nonfuitcd on 
 the plea of not guilty, he fhall never- 
 thelefs be allowed the colts of the de- 
 murrer, which fliall be deducted out of 
 the cofls allowed to the defendant^. 
 And if one of feveral pleas> pleaded by 
 defendant, be adjudged bad, on a de- 
 murrer to plaintiff's replication, the 
 plaintiff is entitled to have the cofts of 
 thofe pleadings deducted, from the cofls 
 taxed for the defendant upon the poflea^ 
 if afterwards, upon the trial of the iffues 
 joined on the other pleas, the defendant 
 fhould have a verdidt ; even though it 
 fhould appear, on the whole of the re- 
 cord, that the plaintiff had no caufe of 
 a<5tion *. But if the plaintiff take iffue 
 on feveral pleas, one of which is infiif- 
 fieient in law, and has a verdict on all the 
 iffues, except that joined on the infufE- 
 cient plea, which is found for the de- 
 fendant, and afterwards judgment is en- 
 
 ^ Barnes, 136. » 2 T. R. 591. 
 
 tered
 
 *£atu of €0^0. 35, 
 
 tered for the plaintiff, ftill he fhall not 
 be allowed any cofls, upon the iffue 
 found for the defendant ^ And it has 
 been refolved, at a meeting of all the 
 judges, that if there be a certificate upon 
 the 43 Eliz. the plaintiff fhall not have 
 the cofts of any plea, pleaded with leave 
 of the court ; although the iffue there- 
 upon joined be found for him, and the 
 judge have not certified, that the defend- 
 ant had a probable caufe for pleading the 
 matter therein pleaded \ 
 
 In cnm. con. the defendant pleaded 
 tvvo pleas, 'ciz. not guilty, and not guilty 
 within Jix years ; on the former, the 
 plaintiff joined iffue, and obtained a ver- 
 di6t, but to the latter there was a de- 
 murrer, and judgment againft him-, and 
 it was holden, that the defendant diould 
 liave the cofls of the demurrer, but, upon 
 the trial, there fbould be no cofls on 
 either fide*^. 
 
 The 
 
 '■* I T. R. 266. but fee Barnes, 133. 
 ' Say. Rep. 260. 
 
 « 2 Bur. 753. 2 Wiir. 85. S. C. The authority of 
 
 this cafe ftems to be queflicnablc, as to ihc cous of the 
 
 * o 2 i^ial.
 
 ^^ lato of CoSisf. 
 
 The nvowmit or defendant in replevin, 
 though not withui the words, is plainly 
 within the meaning, of the ftatute 
 4 Ann. c. 16. And accordingly, where 
 fome iflues in replevin are found for 
 the plaintiff, which entitle him to judg- 
 ment, and fome for the defendant, the 
 latter muft be allowed the cofts of the 
 iflues found for him, out of the general 
 cofts of the verdid:; unlefs the judge 
 certify, that the plaintiff had a pro- 
 bable caufe for pleading the matters, 
 on which thofe ifTues are joined ^ : and 
 the general rule is faid to be this, 
 ■where feveral matters are pleaded by 
 the plaintiff, fome of which are found 
 for him, and others for the defendant, 
 fo that the plaintiff is entitled to judg- 
 ment; if the judge who tried the caufe 
 certify, that there was a probable caufe 
 for pleading thofe pleas, the mafter is 
 
 trial, from a fimilar one that was differently determined, 
 in the court of common pleas, (Barnes, 141.) as well 
 as from the reafoning that prevailed in feveral of tKe 
 foregoing cafes. 
 
 f 2T,R. 235. 
 
 not
 
 EalD of COOlBf. 37 
 
 not to deduit the cofts of the Iffues (o 
 found tor the defendant, but if there be 
 no certificate, the defendant is entitled to 
 have thofe cofts dedudted for him^ 
 
 It has already been obferved ^, that of the ^g- 
 no cofts were recoverr.ble by a defeiidant A"'!^"^ * 
 
 ' -^ right 10 cofts. 
 
 at common law : and the reafon feems to 
 be, that if the plainf'T failed in his fuit, 
 he was amerced to the Ww^profalfo da- 
 more^ which was thought to be a fofh- 
 cient punifhment, witnout fu^jedting him 
 to the payment of cofts. The frfi- in- 
 ftance of cofts being given lo a defend- 
 ant, was in a writ of right o^ ward, by 
 the ftatute of Marlberge^ (52 Hen. 3.) 
 c. 6. Afterwards, cofts were given to 
 the defendant in error, by the 3 Hen. 7. 
 c. 10. and in replevin ^ by the 7 Hen. 8, 
 c. 4. and 21 Hen. 8. c. 19, ^c. But 
 in one of thefe cafes, the defendant is to 
 be confidered as an ad:or ; and in the 
 
 t 2 T. R. 2^7. and fee Barnes, 141. 144. 146. 
 poug. o<?. 703, 9. in noiisy accord. ^ Ante., 2. 
 
 D 3 other
 
 «> 
 
 8 iLato of Coa0, 
 
 other of them, the provifion is virtually 
 for the benefit of the plaintiff in the ori- 
 ginal action '. 
 
 in error. 
 
 Ofthecoils \n Error y brought by the defendant 
 before " execution> or by the plaintiff 
 upon a judgment for the defendant, if 
 the judgment be affirmed, the writ of 
 error difcontinued, or the plaintiff ia 
 error nonfuited, the defendant in error 
 is entitled to cofts, by the 3 Hen. 7. c. 10. 
 and 8 & 9 W. 3. c. 1 1. § 2. ; upon the 
 former of which ftatutes it has been, 
 holden, that cofts are recoverable in 
 error, for the delay of execution, al- 
 though none were recoverable in the 
 original adion'. By the 13 Car. 2. 
 flat. 2. c. 2. § 10. if the judgment be af- 
 firmed after verdict, the plaintiff fliall 
 pay to the defendant in error, his double 
 cods. And by the 4 Ann. c. 16. § 25. 
 for preventing vexation, from fuing out 
 
 i Say. Coils, 70. ^ Cro. Jac. 6^6. 
 
 ' Dyer, 77. Cro. Eliz. 617. 659. 5C0. loi.S.C. 
 Cro. Car. 145. 1 Str. 262. 2 Str. 1084. but fee Cro. 
 Car.425. I Lev. 146. 1 Vent. 38. 166. 4Mod.245. 
 Carth. 261. S. C. femb. contra. 
 
 defedive
 
 £atO of CoCi^. 39 
 
 defective writs of error, it is ena£l:ed, that 
 *' upon the quafliing of any writ of error, 
 for variance from the original record, or 
 other defed:, the defendant fhall recover 
 againfi: the plaintiff in error his cofts, 
 as he fhould have had, if the judgment 
 had been affirmed, and to be recovered in 
 the fame manner ^ :'* which coils include 
 thofe of the motion, for quadung the 
 writ of error ". And though no cofts 
 were recoverable in the original adlion, 
 they are payable, on quafhing a writ of 
 €rror °. Fut where the defendant in 
 error enters continuances, to defeat the 
 writ of error, the plaintiff in error is not 
 liable to cofts, oh quafhing it''. And 
 none of the ftatutes before mentioned give 
 cofts, upon the re-verjal of a judgment*^. 
 
 In Replevin^ or fecond deliverance, the Ofthecofls 
 
 dr 1 ^ 1 • • in replevin, 
 
 erendant, making avowry, cognizance, ^^.^ 
 
 or juftification, for rents, cuftoms, or fer- ; 
 
 "■ 2 Str. 834. Q'i.LTemp. Hardw. 137. 
 " 2 Ld. Raym. 1403. i Str, 606. 8 Med. 316. 
 S C. ° 1 Str. 262. 
 
 P 1 Str. 139. 2 Str. 834. Barnes, 250. 
 1 1 Str. 6i7. 
 
 D 4 vices,
 
 40 LaUJ of CoSiS. 
 
 vices, or for damage feafant, is entitled 
 to cofts, by the 7 Hen. 8. c. 4. and 
 21 Hen. 8. c. ig. § 3. if the avowry, 
 cognizance, or juftification be found for 
 him, or the plaintiff be nonfuit, or other- 
 wife barred : which fiatutes extend to 
 avowries, &c. made by an execntor \ or 
 for an ejiray\ and, as it fhould ieem, for 
 an amercement by a court leet ' ; but not 
 to pleas ot prifel en auter lieu, upon which 
 the writ is abated ", or to pleas of pro- 
 perly in the thing diftrained'. By the 
 17 Car. 2. c. 7. § 2. the defendant ob- 
 taining judgment thereon, for the arrear- 
 ages of rent, or value of the goods di- 
 ftrained, is alfo entitled to hi5 full cofts 
 of fuit. And by the 11 Geo. 2. c. 19. 
 § 22. if the defendant avow, or make 
 cognizance, according to that ftatute, 
 upon a difirefs for rent, relief, heriot, or 
 other fervice, and the plaintiff be non- 
 fuit, difcor.tinue his adion, or have judg- 
 ment againft him, the defendant fhall re- 
 cover d'ou^ie coCis of fuit. But this latter 
 
 ■■ z Rol. R?p. 437. » Cro. El;z. 330. 
 
 * Cro. Jac 520. but fee Cro. Eliz. loo.fernb. cov.tra. 
 
 " Com. Rep. 122. v Hardr. 153. 
 
 ftatute
 
 £ato of €0^0. 4^ 
 
 {latute does not extend to Sifeiztire for a 
 heriot cu/Iom ''. 
 
 At length, by the fiatute 23 Hen. 8. f)r cofts on 
 c. I J. § I. it was enaded, that ** in ^^e ^3 "• s. 
 trefpafs upon the ftatute 5 Rich. 2. debt, 
 covenant, detinue, account, trefpafs on 
 the cafe, or upon any ftatute for an of- 
 fence or wrong perfonal, immediately 
 fuppofed to be done to the plainiifi, if the 
 plaintiff, after the appearance of the 
 defendant, be nonfui«:ed, or a verdidt 
 pafs againft him, the defendant (hall have 
 judgment to recover his coits againft the 
 plaintiff, to be alfelled and taxed by the 
 difcretion of the judge or judges of the 
 court, where fuch adion Ihall be com- 
 menced or fued ; and fhall have fuch 
 procefs and execution, for the recovery 
 of the fame, againft the plaintiff, as the 
 plaintiff ihpujd or might have had 
 againft the defendant, in cale judgment 
 had been given for the plaintiff." 
 
 But by § 2. of the fame ftatute, it is 
 provided, that *' every poor perfbn, being 
 
 ^ Barnes, 148. 
 
 plaintiff
 
 ^z 3Lai!3 of €0^0. s 
 
 plaintiff in any fuch adion, who at the 
 commencement of his fuit Ihall be ad- 
 mitted, by the difcretion of the judge or 
 judges where the action is purfued, to 
 have his procefs and counfel of charity, 
 without paying money or fee for the 
 fame, fhall not be compelled to pay any 
 cofts, by virtue of this flatute ; but fhall 
 fuffer other puniihment, as by the dif- 
 cretion of the juflices, before v.'hom the 
 fuit fhall depend, fhall be thought rea- 
 fonable." 
 
 Q[ /'au/ers. A faiiper ox poor perfon, in the eye of 
 the law, is one who will fwear that he is 
 not worth ten pounds, after all his debts 
 are paid, except his wearing apparel, and 
 the fabj€<fl matter of the adlion ^ ; and 
 fuch a one may, upon petition, and affi- 
 davit of his extreme poverty, fupported 
 by a certificate of his caufe of adtion, be 
 admitted to fue in Jor-md pauperis: 
 which admiflion may be either at the 
 commencement of the fuit, or afterwards 
 pendente lite^ , And upon his being io 
 
 ' 2 Lil. p. R. 633. 
 
 y Say. Cofts, 90. 3 V/ilf. 24. 
 
 8 admits
 
 lalo of €q^0. 43 
 
 admitted, an attorney and counfel fhall 
 be affigned him> purfuant to the ftarute 
 J I Hen. 7. c. 12. ; and he fliall be per- 
 initted to carry on the proceedings gratis^ 
 without uiing ftamps ^, or paying fees 
 to the officers of the court, unlefs he ob- 
 tain a verdld for more than ten pounds, 
 and then the officers fhall be paid their 
 court fees, and for paffing the record, 
 ^c. Neither, as we have juft feen, is a 
 pauper liable to pay cofts to the defend- 
 ant, if he be nonfuited, or have a verdi(^ 
 againft him ; but Oiall fuffer other pu- 
 nifhment at the difcretion of the jufiices. 
 It has been faid, that if a pauper be non- 
 fuited, he fhall pay cofts or be whipped * : 
 but this punifhment does not appear to 
 have been ever iniiided ''. If the pauper 
 do not proceed to trial according to no- 
 tice, or other wife mifbehave himfelf, the 
 court will order him to be difpaupered*5 
 but until this be done, they will not 
 
 ^ Stat. 5 W. & M. c. 21. § 14, ^'C. 
 
 ^ I Sid. 261. 2 Salk. 506. 7 Mod. 114. 
 
 ^ Id. ibid, 
 
 f 2 Lil. P. R. 633. 2 Salk. 506. zStr. 1122. 
 
 make
 
 44 
 
 Halo ijf CoftjBi. 
 
 make any rule about cofts '^. And, un- 
 Jefs ihe pauper's conduct appear to have 
 been vexatious, the court will not flay 
 the proceedings in a fecond adion, until 
 the co(h are paid, of a nonfuit in a prior 
 one, for the fame caufe '^ : nor, it the 
 pauper fhould fucceed in the fecond ac- 
 tion, will they dedud: the cofts of the 
 ill ft, out of thofe recovered in the 
 fecond '. 
 
 Of executors 
 and admi^ 
 nijhators. 
 
 Executors and iidminijirators are not 
 particularly excepted out of the ftatute 
 23 Hen. 8. c. i6. yet, as that ftatute 
 only relates to contrads made with, or 
 wrongs done to the plaintitf *, it has 
 been uniformly holden \ that they are 
 not liable to cofts, upon a nonfuit or ver- 
 di6i, where they neceftarily fue in their 
 reprefentative charader, and cannot bring 
 the adion in their own right ; as upon a 
 
 ' 2 Str. 878. 3 Wilf. 24. but fee Caf. Pr. C. B. 47. 
 I Str. 420. femb. contra. 
 
 • 2 Str. 878. 1121. 3 Wilf. 24. but feeaT. R. 511. 
 ' 2 Str. 891. 5 2 Str. 1 107. 
 
 ^ Cro. Eliz. 503. Cro. Jac. 229. 2 Bulft. 265, 
 I Salk. 207. 314. 3 Bur. 1586. Say. Cofts, 97. 
 
 contradi
 
 ILala of CoGief. 45 
 
 contraB entered into with the teftator or 
 inteflate ', or for a wrong done in bis 
 lifetime^. But where the caufe of adtion 
 arifes after the death of the teftator or in- 
 teftate, and the plaintiff may fue thereon 
 in his own right, he (hall not be excufed 
 from the payment of cofts, though he 
 bring the a<ftion as executor or admini- 
 Itrator ; as upon a contraSl ', exprefs or 
 implied, or in trover " for a converfion, 
 after the death of the teiiator or inteftate. 
 An executor or adminiftrator is liable to 
 cofts, upon a judgment of 7ion pros^ : 
 and where he has knowingly brought a 
 wrong a£tion, or otherwife been guilty 
 of a wi'ful default, he fhall pay cofts 
 upon a difcontinuance °, or for not pro- 
 
 *T. Jon. 47. 2 Ld. Raym. 1414. i Str. 682. S. C. 
 Caf. Pr. C. B. 157. Pr. Reg. 118. S. C. Barnes, i^i. 
 
 ^ Barnes, 129. 
 
 » 6 Mod. 91. 181. I Salk. 207. S. C. iLd.Raym. 
 436. I Str. 682. Barnes, 119. 2 Str. 1106. 4 T. R. 
 277. 
 
 « Com. Rep. 162. Caf. Pr. C. B. 61. Barnes, 132. 
 Caf. Temp. Hardw. 204. But fee 3 Lev. 60. /em^. 
 contra. 
 
 " Caf. Pr. C.B. 14. 157, 8. 3 Bur. 1585. 
 
 o CDf. Pr. C. B. 79. 3 Bur. 145 1. i BUc. Rep. 
 451. S.C. 
 
 ceeding
 
 46 latJJ of €o^^, 
 
 cceding to trial according to notice^? 
 but othervvife he is njt liable to cofts, in 
 either of thefe cafes '^. Nor, where he 
 merely fues en aider drott^ is he liable to 
 co(U, upon a judgment as in cafe of a 
 nonfuit '. 
 
 Of cofts, oh The flatute 23 Hen. 8. c. 15. only rd- 
 ^^ 3^' ' * lates to cafes where the plaintiff is non- 
 fuited, or has a verdid: againft him. But 
 by the Mature 8 Eliz. c. 2. *' upon pro- 
 cefs iffuing out of the court of king's 
 bench, if the plaintiff do not declare in 
 three days after bail put in, or if after 
 declaration he do not profecute his fuit 
 Tvith effedt, but willingly fuffer the fame 
 to be delayed or difcontinued, or he be 
 nonfuited therein, the judges, by their 
 difcretions, fhall award to the defendant 
 his cofts, damages, and charges in that 
 behalf fuftained." This ftatute does not 
 extend, any more than the former, to 
 actions brought by executors and admi- 
 
 P Caf. Pr. C.B. 158. 3 Bar. 15F5. 
 
 ^ 2 Sir, 87!' Barnes, 133. 4 Bar. ^<)^'>^ 
 
 ' 4 Bur. 1328. 
 
 niftrators,
 
 LatD cf COQ0. 47 
 
 niftrators % in their rcprefentative cha- 
 lader. But if the plaintiff enter a nolle 
 profequi^ the defendant is entitled to cofts 
 upon this ftatute \ 
 
 The plaintiff, we may remember, is ofthede- 
 not entitled to cofts in a popular adion, ^^"^^""^'8 
 
 ^ ■' colts in a /•- 
 
 for the whole or part of a penalty, given puUr aftiou. 
 by ftatute to a common informer, un- 
 lefs they are exprefsly given him by the 
 ftatute". Nor was the defendant entitled 
 to cofts, in fuch an adion, until the fta- 
 tute 18 Eliz. c. 5. § 3. (made perpetual 
 by the 27 Eliz. c. 10.) by which it ia 
 enadedj that " if any common informer 
 fhall willingly delay his fuit, or fhall dif- 
 continue or be nonfuit, or fliall have 
 the matter pafs againft him therein by 
 verdid or judgment in law, the faid in- 
 former (hall pay to the defendant his 
 cofts, charges, and damages, to be affign- 
 ed by the court in which the fuit ftiali 
 be attempted :'* with a provifo, that 
 *' this ad fliall not extend to any ofticer 
 
 • Cro. Eliz. 69. Cra. j'c. ",6i. 
 ^ 3 T. R . 5 1 1 . " Ants. 
 
 who.
 
 4^ La'o) of ^odi^. 
 
 who, in refpedt of his office, has here- 
 tofore ufually fued upon penal laws ; 
 nor to any officer fuing only for matters 
 concerning his office *." This law ex- 
 tends to actions brought upon ^fublequent 
 ftatute'', or one that is repealed'' \ and 
 alfo to adlions qui tam^ for part of a pe- 
 nalty, as well as where the w/W(? is given 
 to a common informer ^: but it does not 
 extend to actions, brought by the party 
 grieved, upon a reuiedial ftatute % 
 
 Of cofts, on There being ftill many cafes, in w^iich 
 the4jac. I. ^^ defendant was not aided by the pro- 
 vifions of the before-mentioned ftatutcs % 
 it was enaded by the ftatute 4 Jac. i . c. 3* 
 that *' if any perfon lliall commence in 
 any court, any action of trefpafs, eje^lione 
 Jirm<^^ or any other action whatfoever, 
 wherein the plaintiff or demandant might 
 have cofls, in cafe judgment fhould be 
 
 V 2 Ld. Raym. 1353. B. N. P. 334. 
 
 "" I Wilf. .77. 
 
 ^ Hutt. 35,6. 2 Keb. 106. y Cowp. 366. 
 
 * I And. 116. 2 Lecn. 116. 4 Lecn. 55. Cro. 
 El. 177. Hu:t. 22. I Salk. 30. 
 
 * 2 Leon. 9. 3 Leon. 92. B. N. P. 334. 
 
 given
 
 given for him, and the plaintiff fhall be 
 nonfuited therein, after the appearance 
 of the defendant, or a verdid fliall pafs 
 againft him by lawful trial, that then the 
 defendant, in every fuch adtion, fhall have 
 judgment to recover his cofts againft the 
 plaintiff or demandant, to be affeffed and 
 levied in like manner as upon the 23 
 Hen. 8. c.15." By this ftatute the defend- 
 ant is entitled to cofts, on a nonfuit or 
 verdidt, in all cafes where the plaintiff 
 would have been entitled to them, if he 
 had obtained judgment. And though the 
 declaration be infuincient, fo that the 
 plaintiff could not have had cofts thereon, 
 the defendant is neverthelefs entitled to 
 cofts, for the unjuft vexation ^, 
 
 By the 13 Car. 2. ftat. 2. c. 2. § 3. of thecofls 
 it is enaded, that " upon an appearance °" ^ ""''^'■''' 
 entered for the defendant, by attorney, 
 of the term wherein the procefs is re- 
 turnable, unlefs the plaintiff fhall put 
 
 '^ Moor, 625. iBulft. i?9. 3Bulft. 248. Hob. 219. 
 Ilutt. 16. S.C. Cro. Car. 175. But fee do. Jac. 
 158, ^. /e.'nl>. centra. 
 
 E into
 
 so fim of CoGief. 
 
 into the court, from whence the procefs 
 iflued, his bill or declaration againft the 
 defendant, in fome perfonal action, or 
 ejedment of farm, before the end of the 
 term next following after appearance, a 
 nonfuit for want of a declaration may be 
 entered againft him ; and the defendant 
 fhall have judgment, to recover cofts 
 againft the plaintiff*, to be taxed and le- 
 vied in like manner as upon the 23 Hen. 8. 
 c. 15." 
 
 Of cofts for And ftill further to difcourage the 
 
 the defend- . . c r - ^ • 
 
 ant on ^f- bringing of frivolous and vexatious ac- 
 tions, it is enacted by the ftatute 8 & 9 
 W. 3. c. II. § 2. that ** if any perfon 
 fliall commence or profecute any adion, 
 in any court of record, wherein upon 
 demurrer, either by plaintiff" or defendant, 
 demandant or tenant, judgment fhall be 
 given by the court againft the plaintiff^ or 
 demandant, the defendant or tenant (hall 
 have judgment to recover his cofts, and 
 liave execution for the fame by capias ad 
 fatisfaciendum, fieri facias, or elegit.''* 
 This ftatute does not ei^tend to demur- 
 rers 
 
 murrer.
 
 LattJ of €o^0> 51 
 
 rers to pleas in abatement " ; nor in any 
 adlion, wherein the defendant would not 
 have been entitled to cofts, upon a non- 
 fuit or verdidt ''. 
 
 Where there are feveral defendants, ofcoas, 
 who fucceed in the adion, the plaintiff ^^t^V.rir 
 may pay cofts to which of them he defendants, 
 pleafes ' : and if they fail, each of them 
 is anfwerable for the whole cofts. Thus, 
 where an ejectment was brought againfl: 
 feveral defendants, who defended feve- 
 rally, and at the aflizes one of them con- 
 fefTed leafe entry and oufter, and had a 
 verdid againft him, but the others did 
 not confefs ; the court upon application 
 faid, the officer muft tax the fame cofls 
 againft all the defendants; and that if the 
 plaintiff, after he had fatisfadlon againft 
 one, fhould take out execution againft 
 another, the latter might apply to the 
 court '. 
 
 * 1 Ld. Raym. 337. 1 Salk. 194. 12 Mod. 195. 
 Comb, j^'iz. S. C. 2 Ld. Raym. 992. i Salk. 194. 
 6 Mod. 8;5. S. C. 
 
 •" Caf. Pr. C.B. 25. IJ. ^.contra. 
 
 ' I Scr, 516. 2 Scr. 1203. ^ B. N. P. 335, 6. 
 
 E 2 Where
 
 52 lalD of CoQfif. 
 
 Where one of feveral defendants lets 
 judgment go by default, and the other 
 pleads a plea which goes to the whole, 
 and fhews that the plaintiff had no caufe 
 of adion, if this plea be found for the 
 defendant who pleaded it, he fhall have 
 cofts ; and being an abfolute bar, the 
 other defendant fhall have the benefit of 
 it, and fhall not pay cofts to the plain- 
 tiff ^ But where the plea does not go to 
 the whole, but is merely in dtfcharge of 
 the party pleading it, there the other 
 party iliall not have the benefit of it; 
 but fliall pay cofts, though it be found 
 againft the plaintiff'. 
 
 Before the ftatute 8 & 9 W. 3. c. 11. 
 if one of feveral defendants was acquitted^ 
 he was not entitled to his cofts ; the 
 courts conftruing the former ads to re- 
 late only to the cafe of a total acquittal, 
 of all the defendants \ This being found 
 
 ^ Co. Lit. 125. Cro. Jac. 134. 1 Lev. di. \ Sid, 
 76. 1 Keb. 284. S. C. 2 Ld. Raym. 1372. 1 Str. 
 6(0. 8 Mod. 217. S. C. Caf. Pr. C. B. IC7. Pr. 
 Reg. 102. S. C. 
 
 i Id. ibid. I Wllf. 89. 3 T. R. 656. 
 
 '* z Str. 1005. and fee 1 Salk, 194. 
 
 incon-
 
 HattJ of €oGi8f. 53 
 
 inconvenient, it was- enadted, by the 
 fame ftatute, § i. that " where feveral per- 
 fons fliall be made defendants, to any ac- 
 tion of trefpafs, aflault, falfe imprifon- 
 ment, or ejeciione Jirma, and any one or 
 more of them fhall be, upon the trial 
 thereof, acquitted by verdid, every per- 
 fon fo acquitted Ihall recover his cofts of 
 fuit, in like manner as if the verdidl had 
 been given againfl: the plaintiff, and ac- 
 quitted all the defendants ; unlefs the 
 judge, before whom the caufe is tried, 
 fhall immediately after the trial thereof, 
 in open court, certify upon the record 
 under his hand, that there was a reafon- 
 able caufe for making fuch perfon a de- 
 fendant." This ftatute is confined to 
 the particular adlions therein mentioned; 
 and does not extend to an adion of tref- 
 pafs upon the cafi \ nor confequently to 
 an adion of trover "" : neither does it 
 extend to an adion of replevin °, 
 
 When 2i feigned ifTue is ordered by a of the cofts 
 court of law. whether it be in a civil or ^[^ f^'g"'^ 
 
 ' 2 Str. 1005. ^ Barnes, 139. 
 
 " 3 Bur, 1284.. I Blac. Rep. 355. S C. 
 
 E 3 criminal
 
 54 lato of CofiiSf. 
 
 criminal proceeding, the cofts always 
 follow the verdidt, and muft be paid to 
 the party obtaining it°. But when a 
 feigned iffue is ordered by a court of 
 equiji the cofts do not follow the ver- 
 didt, as a matter of courfe ; but the find- 
 ing of the jury is returned back, to the 
 court which ordered it, and the cofts 
 there are in the difcretion of the court °. 
 Where the iffue is ordered by a court of 
 law, on a rule for an information '', or 
 motion for an attachment "■, the cofts of 
 the original rule, or motion, do. not in 
 general follow the verdid, but only the 
 cofts of the feigned iflue; which cofts are 
 to be reckoned, from the time when the 
 feigned iflue was firft ordered and agreed 
 to'. Yet, where it was ordered, by the 
 confent rule, that the cofts fhould abide 
 the event of the ifl'ue, the court directed 
 the whole cofts to be paid under it % 
 
 • Still and Rogers, l Lil. P. R. 344, Per Holt, Ch.J. 
 Barnes, 33a. 1 Wilf. 261. 331. Say. Rep. 24. iWilf. 
 324. S. C. 
 
 P Say. Rep. 229. 1 Bur. 603. 
 
 q Say. Rep. 253. ^ i Bur. 604. 
 
 9 Z Bur. 1021. 
 
 Having
 
 treble colls. 
 
 lalu of Coflfif. S5 
 
 Having thus fhewn, In what cafes the 
 parties are entitled to cofts, I fhall pro- 
 ceed to confider, what cofts they are re- 
 fpedtively entitled to, how they are taxed, 
 and the means of recovering them, as 
 between farty and party ; and fhall then 
 conclude, with the refpedive remedies 
 for the recovery and taxation of cofts, as 
 between attorney and clie?2t. 
 
 Where the plaintiff^ recovers Jingle OfMlejuid 
 damages, he is only entitled to Jingle 
 cofts ; unlefs more be exprefsly given 
 him by ftatute. But if double or treS/e 
 damages be given by ftatute, in a cafe 
 wherein Jingle damages were before re- 
 coverable, the plaintiff^ is entitled to double 
 or treble cofts, although the ftatute be 
 filent refpeding them ' ; as in an a(Sion 
 upon the 2 Hen. 4. c. 11. ^t. " In 
 fome cafes, double and treble cofts are ex- 
 prefsly given to the plaintiff'; as upon 
 the game laws, by the ftatute 2 Geo. 3. 
 c. 19. §5. and wherever a plaintiff^ is 
 entitled to double or treble cofts, the cofts 
 
 ' Say. Cofls, 228. " Ante^ 3. 
 
 E 4 given
 
 56 . Lato of CofijGf. 
 
 given by the court de incremento are to be 
 doubled or trebled, as well as thofe given 
 by the jury ^ But double or treble cofls 
 are not to be underitood to mean, accord- 
 ing to their literal import, twice or thrice 
 the amount of fingle cofts. Where a 
 ftatute gives double cofts, they are calcu- 
 lated thus : J. the common cofts ; and 
 then half the common cofts. If treble 
 cofts, I. the common cofts; 2. half of 
 thefe } and then half of the latter ''. 
 
 Double or treble cofts are alfo in fome 
 cafes exprefsly given to the defendant ; 
 as in adtions againft parifti officers, by 
 the 43 Eliz. c. 2. § 19. againft juftlces of 
 the peace, conftables, G?^. by the 7 Jac. i. 
 c. 5. for diftreff'es for rents and fervices, 
 by the 11 Geo. 2. c 19. § 21, 2. and 
 againft ofiicers of the excife or cuftoms, 
 
 V 2 Leon, 52. Cro. Eliz. 582. 3 Lev. 351. Carth. 
 297. 321. 2 Str. 1048. but fee i T. R. 252. 
 
 '^ Table of cods, in prindpio. This table is a valu- 
 able acquifition to the profeffion, as it exhibits a col- 
 lection of bills of coftj, accurately drawn, and metho- 
 dically arranged j by which the praflifer may not only 
 know how to charge for his bufinefs, but may fee before- 
 hand ia what manner it h to be doa». 
 
 by
 
 ILato of Coa^of. 57 
 
 by the 23 Geo, 3. c. 70. § 34. and 
 24 Geo. 3. feff. 2. c. 47. § 35. In thefe, 
 and fuch like cafes, where it does not ap- 
 pear, on the face of the record, that the 
 defendant is entitled to the benefit of the 
 ad, (as where he pleads the general 
 iffue.) and there is no particular mode 
 appointed for recovery of the cofts, 
 the proper mode, after a nonfuit or ver- 
 dld for the defendant, is to apply to the 
 court, upon an affidavit of the fads, for 
 leave to enter a fuggeftion on the roll ^'. 
 And it cannot be done by rule of court ^, 
 unlefs where the plaintiff moves for leave 
 to difcontinue on payment of cofts ; in 
 which cafe, the court may make it part 
 of the rule, that he fliall pay double or 
 treble cofts % But where a particular 
 mode is appointed by ftatute, for the re- 
 covery of double or treble cofts, as by the 
 certificate of the judge who tried the 
 caufe, on the 7 Jac. i. c. 5. there that 
 
 « I Str. 49, 50. Caf. Pr. C. B. i6. Caf. Temp. 
 Hardw. 125. Id. 138. 2 Str. 1021. S.C. Say. Rep, 
 
 214. 3 wiir. 442. 
 
 y 1 Str. 50. 
 
 * 2 Str. 974. Caf. TVw/, Hardw. 125. 
 
 particular
 
 58 tm Cf CofljEf. 
 
 particular mode mud: be obferved ' : fo 
 that if the judge certify, there is no need 
 of a fuggeftion ; and if he do not, it is 
 ufelefs, except where judgment goes by 
 default'. 
 
 Moieoftax- Cofts are taxed, as between party and 
 twfeen party' P^rty, by the mo/Ier in the king's bench, 
 and party. ^j. j^y qj^^ of the prothonotaHes in the 
 com.mon pleas, upon a bill made out by 
 the attorney for the party entitled ; or 
 more frequently, without a bill, upon a 
 view of the proceedings : and if there 
 have been any extra expenccs, which do 
 not appear on the face of the proceed- 
 ings, there fhould be an affidavit made 
 of fuch expences, to warrant the allow- 
 ance of them ; which is called an affi- 
 davit of increafed cofts '. It is ufual, 
 among fair pradifers, to give notice to 
 the oppofite attorney, of the time when 
 the cofts are intended to be taxed ** ; but 
 
 » 2 Vent. 45. Doug. oSi, 307, 8. but fee Doug. o<?. 
 308. n. 
 
 "^ Caf. 'J'emp. Hardw. 13^9. 
 
 « Imp. K.B. 348. */</. 34.9. 
 
 in
 
 iLato of Coasf. . S9 
 
 m order to enforce it, there muft be a rule 
 to be prefent at taxing cods : which rule 
 is obtained from the clerk of the rules - 
 in the king's bench, or one of the fe- 
 condaries in the common pleas, and 
 fhould be duly ferved ; after which, if 
 the cods are taxed without notice, the 
 taxation is irregular, and the attorney 
 liable to an attachment. 
 
 The means of recovering coils, as be- Means of 
 tween party and party, are by a^ion or f^^°^^''J^''S 
 execution, upon a judgment obtained for tween party 
 them ; or by attachme^U, upon a rule of ^" ^"^^* 
 court. Thus, in cjeSiment^ where there 
 is a verdid and judgment againft the te- 
 nant, an adion may be brought, or exe- 
 cution taken out thereon, for the cofts ^ : 
 but where the plaintiff is nonfuited, for 
 not confefTmg leafe entry and oufter, 
 the leffor of the plaintiff mufl: proceed 
 by attachment, upon the confent rule^. 
 And fo where the nominal plaintiff is 
 nonfuited upon the merits, or has a ver- 
 di6t and judgment againft him, the only 
 
 * Run. Ejed. 140, i4r. 
 
 ^ Id, ibid. 1 Salk. 259. Barnes^ 182. 
 
 remedy
 
 Go lalo of Coils?. 
 
 remedy is by attachment, agalnft the 
 . Jeffor of the plaintiiT ^ 
 
 In proceeding by attachment^ a copy 
 of the rule, with the officer\s allocatur 
 thereon, fhould be pcrfonally " ferved, on 
 the party liable to the payment of cofts ; 
 and at the fame time, the original rule 
 fhould be ihewn to him ', and a dem.and 
 made of the payment of them "^ : which 
 demand may be made by the ading at- 
 torney in the caufe, although he ad: in 
 the name of another attorney '. And if 
 the cofts be not paid, the court, upon an 
 aflSdavit of the circumftances, will grant 
 an attachment. In the king's bench, the 
 rule for an attachment is abfolute in the 
 firft inftance ^ ; and may be moved for, 
 on the laft day of term "*. 
 
 Befides the ordinary method of pro- 
 ceeding, there are certain auxiliary mesins 
 
 s Run. EjeCl. 142, ^. 7'il/y and Bailj, Mich. 6 
 Geo. 2. ^ 3 T. R. 35 1. 
 
 ' lii. thid. ^' Barne?, 120. 
 
 J" Say. Rep. 95. « Per Buller, Jufl. M. 24 G. 3. 
 
 ^ 5 Bur. 26S6. 
 
 for
 
 tm of orofl^. 6£ 
 
 for the recovery of cods, as betweea 
 party and party. Thefe means are by 
 moving to (lay the proceedings, until 
 fecurity be given for the payment of 
 cofts, or until the cofts are paid of a for- 
 mer adion for the fame caufe ; or by de- 
 ducting the cofts of one adlion, from 
 thofe of another. 
 
 In ejeBfnefit °, and adions qui tarn **, of flaying 
 where the plaintiff, or his leffor, is un^ [ngsfundl ' 
 hiown to the defendant, the latter may Security be 
 
 y^ r r 1 • r 1 given for 
 
 call for an account or his rendence, or payment of 
 place of abode, from the oppofite attor- ^°^^* 
 ney ; and if he refufe to give it, or give 
 in a fiditious account, of a perfon who 
 cannot be found, the court will ftay the 
 proceedings, until fecurity be given for 
 the payment of cofts. And in ejeElment^ 
 where the leftbr of the plaintiff is an /«- 
 fant'^y dead', or reftdent abroad \ the 
 
 « I Str. 68i. 
 
 «• Id. 6gj. 705. Barnes, 126. 
 
 < 1 Str. 694. 2 Str. 932. 1206. 1 Wilf. 13c, 
 Cowp. 24. Barnes, 183. B. N. P. n i. but fee Cowp. 
 128. "■ Barnes, 147. 
 
 » 2 Bur. 1177. Say. Cods, 153, 
 
 court
 
 62 tm of Ccfisf. 
 
 court will (lay the proceedings, until a 
 real and fubftantial plaintiff be named* 
 or ibme refponfible perlbn undertake for 
 the payment of cofts. A fimilar under- 
 taking is alfo required, in an adtion for 
 the mefne profits, brought in the name of 
 the nominal plaintiff in ejedment *. 
 
 But except in ejeBment ", or adions 
 qni ta?n^, it was not formerly ufual to 
 require fecurity for cofts, where the plain- 
 tiff refided abroad " : for it was confider- 
 ed, that fuch a proceeding might affe£t 
 trade, by excluding foreigners from our 
 courts J and would be a means of clog- 
 ging the courfe of juftice. But now, 
 although a plaintiff is not compellable to 
 give fecurity for cofls, merely as a fo- 
 reigner, if he refide in this country, yet 
 whether he be a foreigner or native, if 
 he refide abroad, out of the reach of the 
 procefs of the court, the proceedings may 
 
 t Say. Rep. 78. 
 
 « 2 Bur. 1177. Say. Cofls, 153. 
 
 V 1 Sir. 697. 2 Str. 1206. I Wilf. 266. 
 
 ''2Str. i2o6. I Wiir. 266. Say. Coils, 155. 2 Bar. 
 1026. 4Bur. 2ioj. Covvp. 24. 158. 
 
 be
 
 Liilo of CodiSf. 63 
 
 be flayed, till his return, or fecurlty be 
 given for the payment of cofls "". Thefe 
 are the only grounds upon which the 
 proceedings can be ftayed, for want of 
 fecurity for cofts : it being holden, that 
 they fhall not be ftayed, even in a qui tarn 
 adtion, merely on account of the plain- 
 tiff's poverty ^ ; or in ejeclment, where 
 the leiTor of the plaintiff is known, of 
 full age, and refident in this country ''. 
 
 \n z. fecond ejectment, the court will of (laying 
 ftay the proceedings, until the cofls are !^^ proceed- 
 
 •' ^ ^ ° mgs, until 
 
 paid of a prior one, for the fame caufe * ; payment of 
 and that whether it be brought in the mf/adfon^r 
 fame or a different court ". And where 
 the defendant in ejed:ment brings a writ 
 of error, before he has quitted poffeflion, 
 the court will ftay the proceedings, 
 pending the writ of error'. But the 
 
 « I T. R. 267. 362, 491. 
 
 y Cowp. 24. Barnes, 126. * i T. R. 491. 
 
 » I Salk. 255. 1 Str. 548. 554. 2 Str. 1152. I2c6. 
 
 1 T. R. 492. K. B. Pr. Reg. 174. Barne.s 133. 
 
 2 Blac. Rep. 304. 1158. 1180. C. B. 
 * U. ibid. 
 
 « 1 Salk. 258,9. and f.e 1 Str. 554. 
 
 vexation
 
 64 iLalo of Coftitf. 
 
 vexation of the party is faid to be the 
 ground of thefe rules "^ : and therefore, 
 if the fecond ejedlment be brought by 
 the defendant, or there appears to be no 
 vexation, the court will not make a rule 
 for flaying the proceedings, until the cofts 
 are paid of the former ejectment'. 
 
 In other cafes, it was not formerly 
 ufual to flay the proceedings, in a fecond 
 action, until the cofts were paid of a 
 prior one, for the fame caufe*; and 
 particularly, if the merits did not come 
 in queftion, on the former trial ^. But 
 of late years, it has been done, in feveral 
 inftances, on the ground of vexation^: 
 and in one cafe ^y where an adion was 
 brought by hufband and wife, the court 
 flayed the proceedings, until the pay- 
 
 '^ 4 Med. 379. 2 Str. 1 152. 
 
 * 4 Mod. 379. 1 Str. 681. 2 Str. IC99. 1121. 
 Barnes, i8o. 
 
 * 2 Str. 1206. Cowp. 322. 1 T. R. 491, 2. K. B. 
 Barnes, 125. C. B. but fee i Vent. 100. 
 
 ^ I Ld, Raym. 697. 
 
 g 2 T. R, 511. K. B. Say. Cofts, 245. 247. 
 2Blac. Rep. 741. 3 Wilf. 149. S. C. C.B. 
 *• LamfJey k wife v. Sands, H. 25 G, 3. K. B. 
 
 13 ment
 
 "£aVo of OTolliQ?. 6s 
 
 ment of cofts in a former adion, at the 
 fuit of the hiifband only ; it being for 
 the fame demand. 
 
 The pra<flice of deduding or fctting OffettingofF 
 off the cofts in one ad ion againft thoie coiiL^^ 
 in another, however agreeable to natural 
 juftice, does not fcem to have obtained, 
 till lately, in the court of king's bench". 
 But, in the court of common pleas, it 
 has been frequently allowed ; and that 
 not only where the parties have been the 
 fame \ but alfo where they have been in 
 fome meafure di^erent. Thus a party 
 has been permitted to fet off a feparate 
 demand, for cods payable to himfelf 
 alo?:3, againft a jci?2t demard, for cofts 
 payable by himfelf and others "* : and he 
 has alfo been permitted to fet off a joint 
 demand, for cofts payable to himfelf and 
 another, againft a feparate demand, for 
 damages and cofts payable by himfelf 
 
 ^ 2 Str. B91. 1:03. B.N. P. 336. 4T. R. 124, 
 A Barnes, 145. 2 B!ac. Rep. 826. B. N. P. 336, 
 •'" Barnes, 146. but fee Barnes, 130. 
 
 F only.
 
 66 
 
 LalD of CofliJ. 
 
 only ". But where, in an adion of tref- 
 pafs againft four defendants, the plaintifiF 
 obtained a verdict againft one, and the 
 other three were acquitted, the court 
 would not fuffer the cofts of the three 
 defendants, who were acquitted, to be 
 dedudled out of the plaintiff's cofts, 
 againft that defendant who was found 
 guilty ; declaring the motion to be un- 
 precedented °. 
 
 Where the application is nnade by the 
 party to whom the larger fum is due, the 
 rule is for a ftay of proceedings, on ac- 
 knowledging fatisfadion for the leffer 
 fum ^. But where the lejfer fum is due 
 to the party applying, the rule is to have 
 it deduded, and for a ftay of proceed- 
 ings, on payment of the balance \ 
 
 Remedies for As between attorney and client^ the 
 the recovery foj-Q^er mav maintain an adion againft 
 
 and taxation J ^ 
 
 of coils, as 
 
 « Say. Coftf, 254. 2 Blac. Rep. 827. S. C, cited. 
 
 « Barnes, 145. B. N. P. 336. 
 
 P B. N. P. 336. 
 
 s Say. Cofl^ 254. and fee 4 T. R. 124. 
 
 the 
 
 between at- 
 torney and 
 client.
 
 iato of €oQiS^. . ^7 
 
 the latter, for the recovery of his cofts '. 
 But, by the flatute 3 Jac. i. c. 7. §1. 
 *' all attornies and folicitors ihali give a 
 true bill unto their mafters or clients, or 
 their affigns, of all charges concerning 
 the fuits which they have for them, fub- 
 fcribed with their hands and names, be- 
 fore fuch time as they or any of them 
 fhall charge their clients, with any the 
 fame fees or charges." Upon this fta- 
 tute it was a good plea, to an adtion . 
 brought by an attorney for his fees, 
 that no bill had been delivered to the 
 defendant ' ; or the ftatute might have 
 been given in evidence, on non ajj'umpjit '. 
 But if an attorney had delivered his bill 
 to the defendant, after the arreH: and be- 
 fore the bill filed, it was well enough " : 
 and this ftatute did not extend to attor- 
 nies in inferior courts, but only to thofe 
 in ilie courts at Weftminiler ''. It 
 
 ' Cro. Car. 159, 160. 
 
 * 3Keb. m3. 514. T. Raym. 245. 3 Salk. 19, S. C. 
 but fee Carch. 57. 1 Show. 48. Comb. 126. S. C. 
 
 • 1 Show. 338. 
 
 " I Lil. P. R. 145. but fee i S:r. 633. Caf. Pr. 
 C.B. 27. S.C. 
 "" Carth. 14-. I Shew. 96. i Salk. 86. S. C. 
 
 F 2 fhould
 
 68 L^Xo of €oa0. 
 
 fhould alfo fecm, that an attorney's bill 
 could not have been taxed, unlefs an ac- 
 tion was depending thereon, nor without 
 bringing the amount of it into court. 
 To remedy thefe manifold inconvenien- 
 cies, it was enabled, by the ftatute 
 2 Geo. 2. c. 23. § 23. (made perpetual 
 Delivery of by the 30 Geo. 2. c. 19. § 75.) that 
 bill of colls, tt j^Q attorney of the court of king's 
 
 bench, common pleas, or exchequer, &V. 
 nor any jGlicitor in chancery, ^c. fhall 
 commence or maintain any adion or 
 fuit, for the recovery of any fees, charges, 
 or difburfements, at law or in equity, 
 until the expiration of one month or 
 more, after fuch attorney or folicitor re- 
 fpe^Lively fhall have delivered, unto the 
 party or parties to be charged therewith, 
 or left for him, her, or them, at his, her, 
 or their dwelling-houre, or laft place of 
 abode, a bill of fuch fees, charges, and 
 difburfements ^ ^ written in a common 
 legible hand, and in the Englifli tongue, 
 except law terms and names of writs, 
 and in words at length, except times and 
 
 * BAfnes, 243. Id. 123. 
 
 fums;
 
 %m of ccdsf. 69 
 
 fums ; which bill fliall be fubfcribed, 
 with the proper hand of fuch attorney or 
 folicitor refpe^tively. 
 
 ** And, upon application of the party Taxing it. 
 or parties chargeable by fuch bill, or of 
 any other perfon in that behalf authoriz- 
 ed, unto the lord high chancellor, or 
 mailer of the rolls, or imto any of the 
 courts aforefaid, or unto a judge or baron 
 of any of the faid courts refpeLlively, in 
 which the bufmefs contained in fuch bill, 
 or the greateft part thereof in amount or 
 value, fhall have been tranfaded ; and 
 upon the fubmiffion of the faid party or 
 parties, or fuch other perfon authorized 
 as aforefaid, to pay the whole fum, that 
 upon taxation of the faid bill (liall appear 
 to be due, to the faid attorney or folicitor 
 refpedtively ; it fhall and maybe lawful 
 for the faid lord high chancellor, mafler 
 of the rolls, or any of the courts afore- 
 faid, or for any judge or baron of any 
 of the faid courts refpe6tively, and they 
 are hereby required, to refer the faid 
 bill, and the faid attorney's or folicitor's 
 demand thereupon, although no adion 
 F ^ or
 
 70 ilab) of OLoftiEf. 
 
 or fuit fliall be then depending in fuch 
 court, touching the fame, to be taxed 
 and fettled by the proj)cr oIFicer of fuch 
 court, without any money being brought 
 into the faid court for that purpofe : and 
 if the faid attorney or folicitor, or the 
 party or parties chargeable by fuch bill 
 refpe(^ive]y, having due notice, lliall re- 
 fufe or negled to attend fuch taxation, 
 the faid officer may proceed to tax the 
 faid bill ex parte ; pending which refers 
 ence and taxation, no adion fhall be com- 
 menced or profecuted, touching the faid 
 demando 
 
 Payment of '' And, upon the taxation and fettle- 
 ihe balance. ^^^^ ^^ ^^^l^ ^-jj ^^^ demand, the faid 
 
 party or parties fliall forthwith pay to 
 the faid attorney or folicitor refpe(flively, 
 or to any perfon by him authorized to 
 receive the fame, that fhall be prefent 
 at the faid taxation, or otherwife unto 
 fuch other perfon or perfons, or in fuch 
 manner, as the refpedtive court afore- 
 faid fhall dired, the whole fum that fliall 
 be found to be or remain due thereon, 
 which payment ihall be a full difcharg? 
 
 of
 
 Ealo of €oa^. 7£ 
 
 of ihe fald bill and demand : and In de- 
 fault thereof, the fald party or parties 
 fhall be liable to an attachment or pro- 
 cefs of contempt, or to fuch other pro- 
 ceedings, at the eledion of the faid at- 
 torney or folicitor, as fuch party or par- 
 ties was or were before liable unto. 
 
 " And if, upon the faid taxation and Refunding 
 fettlement, it fhall be found, that fuch pij/^^^' 
 attorney or folicitor fhall happen to have 
 been overpaid, then the faid attorney or 
 folicitor refpedively fhall forthwith re- 
 fund, and pay unto the party or parties 
 entitled thereunto, or to any perfon by 
 him, her, or them authorized to receive 
 the fame, if prefent at the fettling thereof, 
 or otherwife unto fuch other perfon or 
 perfons, or in fuch manner, as the re- 
 fped:lve court aforefaid fhall direct, all 
 fuch money as the faid ofHcer fhall cer- 
 tify to have been fo overpaid ; and in 
 default thereof, the faid attorney or fo- 
 licitor refpedively fhall, in like manner, 
 be liable to an attachment or procefs of 
 contempt, or to fuch other proceedings, 
 at the eleflion of the faid party or par- 
 F 4 ties,
 
 Uion. 
 
 72 JLau) of Coaaf. 
 
 ties, as he would have been fabjedl unto, 
 if this a(^ had not been made. 
 
 Coii5oftax> '* And the faid refpecflive ccarts are 
 hereby authorizeci, :o award the cofts of 
 fuch ta::ations to be paid by the parties, 
 according to ttie event of the taxation of 
 the bill ; that is to fay, if the bill taxed 
 be lefs, by 2.fjxth part, than the bill de- 
 livered, then the attorney or folicitor is 
 to pny the cofts of the taxation , but if 
 it fliali not be Icfs, the court, in their 
 difcretion, fliall charge the attorney or 
 client, in regard to the reafonabienefs or 
 unreafonablenefs of fuch bill.'* 
 
 ons 
 
 Abbreviatl- But, by the 12 Geo. 2. c, 13. § 5. 
 *' it fhall and may be lawful to and for 
 every attorney, clerk in court, and foli- 
 citor, to write his bill of fees, charges, 
 and difburfements, with fuch abbrevia- 
 tions as are now commonly ufed in the 
 Englifh language; any thing in any for- 
 mer law to the contrary notwithftanding.'* 
 
 And by § 6. " the faid ad: of the /- 
 
 ccnd year of his prefent majefty, for the 
 
 15 better
 
 lato of Co^0. 
 
 better regulation of attornies and foU- 
 citors, or any claufe, matter, or thing 
 therein contained^ fliall not extend to 
 any bill of fees, charges, and difbarfe- 
 ments, due from any attorney or foli- 
 citor, to any other attorney or folicitor, 
 or clerk in court; but that every fuch 
 attorney, folicitor, or clerk in court, may 
 life fuch remedies for the recovery of 
 his fees, charges, and difourfements, 
 againft fuch other attorney or folicitor, 
 as he might have done before the mak- 
 ing of the faid aQ." 
 
 Upon the latter claufe, there is a cafe in what cafes 
 in PFii/on \ where a judge of the court ^"attorney's 
 
 ■>' ' JO hill may be 
 
 .of king's bench having made an order, taxeJ, by his 
 to refer an Ctge?if% bill to be taxed, and 
 the mafter not having obeyed it, the 
 court was applied to, and held that the 
 order was irregular i tne mafter declar- 
 ing, that he had never taxed a bill for 
 agency. But it is now the uniform prac- 
 tice of both courts \ to refer an agent's 
 
 » I wiir. 266. 
 
 f Doug. cc'i. 199, 200. an J the cafes there ciLed in 
 notis. 
 
 bill
 
 
 laU) of CoGjo^. 
 
 bill to be taxcJ, upon the defendant's 
 bringing into court the fum claimed by 
 the plaintiff. It is not neceiTaiy how- 
 ever, that luch a bill fliould be figned, 
 or delivered, before the commencement 
 of an adion *. 
 
 If the whole l)ill be for conveyancing % 
 or for bufinefs done at the quarter Jcf" 
 Jiiyns ^ ^c. it cannot be taxed. But 
 where an attorney had delivered two fe- 
 parate bills, one of which was for fees 
 and diiburfements in caufes, and the 
 ether for making conveyances, a rule was 
 made for taxing both ^ And fo, where 
 it was moved, that the mafler might be 
 diredled to tax thofe articles in an attor- 
 ney's bill, which related to conveyancing 
 and parliamentary bufinefs, the reft be- 
 ing for management of caufes in the 
 court of king's bench, lord Mansfield faid, 
 there was no doubt but the mafter might 
 tax the whole : that he recolleded a cafe, 
 
 ' Doug, net, 199. in notis. 
 
 ^ M. 12 G. 2. Anon. K. B. B'.rnes, 141, 2. C. B. 
 
 ^ 4T. R, 124. JC. B. Barnes, 122. C. B. 
 
 '* S?.y.Rep. 233. Say. Cods, 320. S. C. 
 
 where
 
 iLato of Coii.3i, 
 
 v^'liere the fees paid to a prodor, for bu- 
 finefs done in the ecclefiaftical court, 
 made part of the bill ; and it was deter- 
 mined, that, as the whole bill had been 
 referred to the mailer, he might tax that 
 part of.it \ 
 
 It is not neceflary for the executor or 
 adminijlrator of an attorney, to deliver a 
 bill of cofts, for bufinefs done by his tef- 
 tator or inteftate, before the commence- 
 ment of an adion ^; the ftatute 2 Geo. 2. 
 c. 23. § 23. being confined to ad:ions 
 brought by the attorney himfelf, and not 
 extending to his perfonal reprefentatlves. 
 And, in the court of common pleas, they 
 *vvili not fufFer fuch a bill to be taxed ': 
 but in the court of king's bench it is 
 otherwife ^ ; for there, the bill may be 
 referred to be taxed, on the defendant's 
 undertaking to pay what is due. An 
 attorney delivered his bill, and, after 
 his death, application was made to tax 
 it, and above a fixth part was taken off; 
 
 '' Doug. o£l. 199. innotis, 
 
 ^ Caf. Pr. C. B. 58. *" Barnes, 119. 122. 
 
 ? 2 Str. 1036. Say. Cofts, 324, 5. Imp. K. B. 4^2. 
 
 ic 
 
 /:>
 
 76 ILatu cf €oa^. 
 
 it was moved that the executrix might 
 pay the cofts, but the court held Ihe 
 fhould not, for the words of the adt 
 2 Geo. 2. c. 23. § 23. impofe them upon 
 the attorney or folicitor only, and the 
 executrix is not to blame, if (he Hand 
 upon his bill, or make out one from his 
 
 book 
 
 h 
 
 s . 
 
 After an attorney's bill has been fettled 
 and paid, and the payment has been 
 long acquiefced under, the court will 
 not refer it to be taxed, ^s a matter of 
 coiirje ■. So where a bond had been 
 given for the debt, five years before, arid 
 the vouchers had been delivered up> the 
 court would not refer the bill to be taxed, 
 faying, an attorney at this rate could 
 never be fife^ And it is a general rule, 
 that an attorney's bill cannot be taxed, 
 at the trial of an adlion brought upon it, 
 nor after verdi6l^; for if the bufinefs 
 v^'as really done, (which muft be proved 
 
 ^ 2 Str. 1056. Say. Cods, 327. 
 
 ^ Say. Coft.s 323, Doug. oa. 199. 
 
 J' Caf. Pr. C. E. 109 Pr. Reg. 37. S. C. 
 
 ^ Dcug. otl. 199. K.B. Bainsf, 124. C. B.
 
 £a\i3 of CoG0. 
 
 at the trial,) the delay of the defendant, 
 for more than a month, in objeding to 
 the quantum^ is an admifiion that he 
 thinks it to be reafonable. But though 
 an attorney's bill has been fettled and 
 paid, yet the court, under fpecial cir- 
 cnmfiances^ will refer it to be taxed; for 
 the client may, by affidavit, fhew, that 
 the bufmefs charged was never perform- 
 ed, or that the charges are fraudulent: 
 and where that is the cafe, neither pay- 
 ment, nor a releafe, nor a judgment for 
 the money due, will preclude the court 
 from referring the bill to be taxed "*. 
 It may alfo be taxed, though there was 
 a fpecial agreement, between the attor- 
 ney and his client, that the former 
 fliould be paid for his time, at a certain 
 rate by the day, befides his expences^i 
 or though he has obtained a warrant of 
 attorney from his client, for confeffing 
 judgment for the money due upon his 
 bill, and has entered up judgment there- 
 upon °. 
 
 ^ Say. Cofts, 323. Doug. oa. 199. S. P. 
 » Say. Colb, 321. ° Id. 322. 
 
 The
 
 78 iLalo of €oft.^» 
 
 The Aaiute 2 Geo. 2. c. 23. § 25, 
 only requires the delivery of a bill, for 
 the bringing of an adlion ; and therefore, 
 though an attorney cannot bring an ac- 
 tion on his bill, till it has been delivered 
 a month, that circumftance is not necef- 
 fary to enable him to Jet it off'. But he 
 muft not produce it at the trial by fur- 
 prize. It is fufficient, in fuch cafe, to 
 deliver it time enough, for the plaintiff 
 to have it taxed before the trial **. 
 
 Mode of tax. If an attorney refufe to deliver a bill 
 mganat. ^^ j^- ^\\q^. ^j^g latter may compcl him, 
 
 torney s bill, ' . 
 
 by his client, by taking out a fummons before a judge; 
 and if the attorney, on being ferved 
 therev^iih, do not attend, an order will 
 be made for delivering it, within a rea- 
 fonable time "*. If he ftill negledt to de- 
 liver it, the order (hould be made a rule 
 of court ; and on ferving the fame, and 
 making affidavit tliereof, the court on 
 motion will grant an attachment*^. The 
 bill being delivered, the client may apply 
 
 P Doug. o£l. 199. innotis, 
 1 Imp. K. B. 479. 
 
 for
 
 Halo of CoOsf. 79 
 
 for a judge's fammons, to fliew caufe, 
 why it Ihould not be referred to the 
 proper officer to be taxed ; upon which 
 an order will be mads, the client under- 
 taking to pay what fliall appear to be 
 due upon fuch taxation '. If the attor- 
 ney do not attend, an order will be made 
 of courfe. But the client cannot have a 
 fummons for delivery of the bill, and 
 taxing it, together '. It was formerly 
 neceffary, in the king's bench, to have 
 three appointments, in cafe the attorney 
 did not attend, before the mafter could 
 proceed ex parte. But, by a late rule \ 
 it is ordered, that " on every appoint- 
 ment to be made by the mafter, the party 
 en whom the fame fliall be ferved, and 
 required to attend, (liall attend fuch ap- 
 pointment, without waiting for a fecond; 
 or in default thereof, the mafter fhall 
 proceed ex parte on the firft appoint- 
 ment." 
 
 If a fixth part of the bill be taken off, of the cr,jis 
 the attorney is to pay the coOs of tax- °^ taxauou. 
 
 ' Imp. K.B.479, 4S0. "■ U. \lo. Barnes, 126. C.n. 
 « H. 32 Geo. 3. 4T. R. 5S0. 
 
 ation ;
 
 So Eata of Cote 
 
 ation ; but if lefs, the cods are in the 
 difcretion of the court ". In the cxcrcife 
 of this difcretion, however, the courts are 
 governed by the ftatute : and accord- 
 ingly, the cofts of taxation have been 
 always reciprocally given to the client or 
 attorney, as a fixth part has, or has not 
 been taken oiT ^. 
 
 Ofansttor- To affift the attorney, in recovering 
 v^^u-n%^^^ his cofts, he has a lien for the amount of 
 
 his bill of ' 
 
 coih. his bill, upon the deeds, papers, and 
 
 writings in his hands, belonging to his 
 client'": and until that be paid, the court 
 •will not order them to be delivered up"". 
 Nor can an attorney be changed by his 
 client, without leave of the court, or 
 order of a judge, on payment of his bill, 
 to be taxed by the proper officer ^. An 
 attorney has alfo a lien^ on the money 
 recovered by his client, for his bill of 
 cofts \ ]f the money come to his hands, 
 he may retain it, to the amount of his 
 
 ^ See the ftatute. v Barnes, ii8. 147, 8. 
 
 ^ 4 T, R. 124. Doug. o£i. 104, 5. but fee Id. 197. n, 
 '^ I Lil. P. R. 142. 3 T. R. 275. 
 y 1 Lil. P.R. 141. Dcug.ctS. 217. 
 * 4 T. R. i^A. 
 
 bill :
 
 JLattj of CToGiGi. 8 1 
 
 LIll: he may (lop It in tranjku^ if he can 
 lay hold of it : if he apply to the court, 
 they will prevent its being paid over, till 
 his demand is fatisfied ^. And lord 
 Mansfield declared he was inclined to go 
 ftill further, and to hold, that if the at- 
 torney give notice to the defendant, not 
 to pay the money recovered by his client, 
 till his bill be fatislied, a payment by the 
 defendant, after fuch notice, would be in 
 his own wrong, and like paying a debt 
 which has been affigned, after notice "", 
 So, in a late cafe % where the defendant 
 applied to fet off the debt and cofts in 
 one ad:ion, againft thofe in another, the 
 court would not fuffer it to be done, 
 until the attorney's bill was firft dif- 
 charged. But the court will not go be- 
 yond thefe limits. And therefore where 
 the defendant, not having had any notice 
 to the contrary, compromifed the debt 
 and cofts with the plaintiff, before his 
 attorney had been paid, the court would 
 not oblige the defendant to pay him"^, 
 
 * Doug. loo, loi. •*/</. 226, 7. 
 
 « 4 T. R. 123, 4. «* Doug. 226.
 
 [ 8^ ] 
 
 ADDENDUM. 
 
 TN page 25, a certificate is faid to be unneceflary, 
 on the ftatute 22 h 23 Car. 2. c. 9. where, to 
 a plea of a right of way, there is a replication of 
 extra viam. But the contrary was determined, by 
 the court of king's bench, in the cafe of Cochran v. 
 Harrifon^ T. 22 G. 3. of which the author has 
 been favoured with a manufcript note, fmce this 
 work was printed ofF. That was an action of tref- 
 pafs quarc ckufum fregit^ wherein the defendant 
 pleaded not guilty, and a right of way, fet out under 
 an inclofure adi-, defcribing it by metes and bounds. 
 To the latter plea, the plaintiff replied extra v'lam ; 
 and iflue being joined thereon, there v/as a verdidl 
 for the plaintiff, with 30s. damages and 303. cofts. 
 The judge not having certified, the court were una- 
 nimoufly of opinion, that the plaintiff was entitled to 
 no more cofts than damages. And Buller Ju(t, 
 grounded his opinion. on the former determinations 
 being wrong ; becaufe, after the replication of extra 
 vliir/i^ the cafe was exadly the f^me, as if not guilty 
 had been originally pleaded ; and upon this iflue the 
 title could not have come in queftion.
 
 TABLE 
 
 OF THE 
 
 PRINCIPAL MATTERS. 
 
 Abatement. 8, so, sr. 
 
 ABBREVIATIONS. 72. 
 ACCOUNT. 4-1. 
 ACQUITTAL. 52, 66. 
 ACTION, 
 
 for cofts. 59 . 
 
 fees. 66, 68, 70, 
 perfonal. 19. 
 popular. 4, 47. 
 qui tarn. 48, 6r. 
 for ufe and occupation. 15. 
 v/ords. 17. 
 ADMINISTRATORS. 10, 15, 44, 45, 46, 75. 
 G 2 AFFX-
 
 84 T H E T A B L E. 
 
 AFFIDAVIT, of increafed cods. 58. 
 AGENCY bill. 73. 
 ALLOCATUR. 60. 
 AMERCEMENT. 40. 
 
 pro falfo clamor e. 37. 
 ANALYSIS. Inprlnclpio. 
 APPOINTiMENTS, by the mafier. 79. 
 ARBITRATOR. 25. 
 aSPORTAVIT. 22, 23. 
 ASSAULT, 20, 25, 53. 
 
 and battery. 19, 20, 23, 24, 25. 
 
 wilful and malicious. 25. 
 ASSUMPSIT. 3, 12, 20. 
 ATTACHxMENT. 54, 59, 71, 78. 
 
 for non-payment of cofts. 59, 60. 
 
 ATTORNEY, 16,60. 
 
 his bill. See title Bill of cofts. 
 adion upon. 66. 
 lien for. 80. 
 changing. Id. 
 AVOWANT. 36. 
 AWARD. 25. 
 
 BAPON and FEME. 64. 
 BATTERY, of plaintiff's fervant. 20. 
 
 BILL of Cofts. 67, 68, 72, 73. 
 when taxable. 73, 76, 77. 
 how taxed. 58, 68, 69, 70, 78, 79. 
 
 CASE.
 
 THETABLE. 3$ 
 
 CASE. 3, 41, 53. 
 
 CERTIFICATE, on the 43 Ellz. c. 6. 11, 35. 
 
 7 Jac. I. c. 5. - - 57, 58. 
 22 &c 23 Car. 2. c. 9. 19, &c. 24, 25. 
 
 8 & 9 W. 3. c. II. § I. - 53. 
 
 § 4. 25, 28, 29. 
 4 Ann. c. 16. § 5- - - 3»> 37- 
 CLOTHIER. 28. 
 COMMON informer. 4, 47. 
 COMPROMISING debt and cofls. 81. 
 CONSTABLES. 56. 
 CONSULTATION. 9. 
 CONTEMPT, procefs of. 71. 
 CONTINUANCES. 39. 
 CONVEYANCING bill. 74. 
 COSTS, what. i. 
 
 divfion of. Sec the Analyfis. 
 
 de incremento. 2, 56. 
 
 fingle. 55. 
 
 double. Id. 
 
 treble. Id. 
 
 how taxed. 58. 
 
 recovered. 59. 
 
 of taxation. 72, 76, 79, 80. 
 COUNTIES palatine. 10, 19. 
 COUNTS. See title Several counts. 
 COURT of confcience acls, 12. 
 COVENANT. 2, 20, 41. 
 
 G 3 CRIM.
 
 ^6 T H E T A B L E. 
 
 CRIM. CON. 20, 35. 
 CUSTOMS, officers of. 56. 
 
 DAMAGES, fingle. 3,4,5. 
 double. 3, 4. 
 treble. Id. 
 
 DEBT. 3, 12, IS, 20, 41. 
 DECLARATION, 29, 33, 46. 
 
 infufficient. 49. 
 DEDUCTING cofts. See title Setting off cofts. 
 DEFAULT. See title Judgment by default. 
 DEFENDANTS. See title Several defendants. 
 DELIVERY of bill of cofts. 68. 
 DEMAND ofcofts. 60. 
 DEMURRER. 10, 17, 30, 31, 34, 35, 50. 
 DETINUE. 41. 
 
 DISCONTINUANCE. 45,46,57. 
 DISSOLUTE perfons. 27. 
 DISTRESS. 3, 4, 25,40,56. 
 DOUBLE cofts, what. 56. 
 
 when recoverable, by the plaintiff. 55. 
 defendant. 56^ 
 
 how recovered. 57. 
 
 in error. 38. 
 
 on the II Geo. 2. c 19. § 22. 40. 
 pleading, cofls of. 30. 
 
 EJECTMENT, 3, 48, 51,53, 59. 
 Haying, proceedings in. 61, 63. 
 
 ERROR,
 
 THETABLE. 8; 
 
 ERROR, 37, 38. 
 
 pending, ftaying proceedings. 63. 
 
 quafhing writ of. 39. 
 ESTRAY. 40. 
 EXCISE officers. 56. 
 EXECUTION. 59. 
 EXECUTORS. 10,15,40,44,45,46,75. 
 
 EXTRA via7n. IS:, 82. 
 coils. 58. \ 
 
 FALSE imprifonment. 53. 
 FEES, bill of. See title Bill of cofts. 
 FEIGNED ifTue. 53, 54. 
 FORCIBLE entry. 3. 
 FOREIGNERS. 62. 
 
 GAME laws. 27, 55. 
 GLOUCESTER, ftatute of. 2,4. 
 
 HERIOT cuftom. 41. 
 fervice. 40. 
 HUNTING. 27. 
 HUSB AN D and WIFE. See title Baron and Feme. 
 
 IMPRISONMENT. See title Falfe imprifonment. 
 INCREASED cofts. 58. 
 INFANT leflbr. 61. 
 INFERIOR court. 26, 67. 
 
 tradefmen. 27, 28. 
 
 G 4 INFOR-
 
 88 THETABLE. 
 
 INFORMATION. 54. 
 
 INQUEST by default. See title Judgment by 
 
 default. 
 INQUIRY. See title Writ of inquiry. 
 ISSUE, collateral. 25. 
 
 on an infufficient plea. 34. 
 JUDGA4ENT, affirmed. 38. 
 revcrfed. 39. 
 by default. 17. 
 
 in prohibition. 9. 
 trefpafs. 24. 
 for words. 18. 
 to one of feveral counts. 30. 
 againft one of feveral defendants. 52. 
 as in cafe of a nonfuit. 46. 
 JUSTICES of the peace. 56. 
 JUSTIFICATION, in trefpafs. 24. 
 
 for words. 19. 
 LACERAVir. 24. 
 LANCASTER, dutchy of. 14. 
 LIEN, for an attorney's bill. 80. 
 LOCAL trefpafles. 20, 21, 23, 24. 
 LONDON court of confcieace aft. 12. 
 
 MARLBERGE, ftatute of. 37. 
 MESNE profits, adion for. 62. 
 MIDDLESEX county court. 14, 16. 
 
 MOTION for attachment. Ste title Attachment, 
 prohibition. 8. 
 
 NEW
 
 THETABLE. Sg 
 
 NEW aflignment. 26. 
 NOLLE profequi. 47. 
 NON pros. 45, 49. 
 
 NOTICE of claim, by an attorney for his cofts. 8i« 
 taxing cofts. 58. 
 
 OFFICERS. 47, 48. See alfo titles Conftables, 
 Cuftoms, Excife officers, Juftices 
 of the peace, and Parifli officers. 
 
 ORDER, for delivering bill of cofts. 78. 
 taxing it. Id, 79. 
 
 PARISH officers. 56. 
 
 PARLIAMENTARY bufinefs, bill for. 74. 
 PAUPER, what. 42. 
 
 how he fues. Id. 
 
 not fubje£l to cofts. 41, 42,43. 
 
 PAYMENT, of taxed cofts. 70. 
 cofts of a former acflion. 53. 
 
 PENALTY. 3,4, 47,48. 
 PERSONAL aclions. 19. 
 
 chattels, injuries to. 23. 
 PILFOLD's cafe, examined. 5. 
 PLACE of abode. See title Refidence, 
 PLEA, in abatement. 8, 50, 51. 
 
 bar or difchargc, by one of feveral defendants. 52. 
 oi prifel en auter lieu. 40. 
 property. Id. 
 
 Weftminfter court of confcience a£l. 16. 
 PLEAS feveral. See title Several pleas. 
 
 POPULAR
 
 *jO 
 
 THE TABLE. 
 
 POPULAR aaions. 4,47. 
 PRISEL en aider lieu. See title Plea. 
 PROCEEDINGS flayed, for 2 debt under 40 s. 16. 
 
 till fecurity be given for cofts. 61. 
 
 payment of colts of a former adion, 44, 63. 
 PROCESS. 26. 
 
 of contempt. 71. 
 PROCTOR'S fees. 75. 
 PROHIBITION. 4, 6, 8, 10. 
 PROPERTY. See title Plea. 
 
 ^ARE I MP ED IT. 5. 
 QUASHING fclre facias. 8. 
 
 writ of error. 39. 
 ^I T/IM. See title Adion. 
 
 REFERENCE, of bill of cofts to be taxed. 69. 
 REFUNDING money overpaid, 71. 
 RELIEF. 40. 
 REMEDIAL ftatute. 48. 
 
 REPLEVIN. 3. 31*36, 37^39' 53- 
 RESIDENCE of the plaintifF, calling for. 61. 
 RETAINER, for an attorney's bill. 80. 
 RIGHT of ward, writ of. 37. 
 RULE to difcontinue. See title Difcontinuance. 
 to be prefent at taxing cofts. 59. 
 for an attachment, for non-payment of cofts. 60. 
 fetting ofF cofts. 66. 
 information. See title Information, 
 
 prohibition, q. 
 
 7 SCIRE
 
 THE TABLE. 
 
 SCIRE FACIAS. 4, 6, 8, 10. 
 SECOND deliverance. 39. 
 
 ejeftment. See title Ejeclment. 
 SECURITY for cofts. 61. 
 SERVICE, of rule to pay cofts. 60. 
 SESSIONS bufmefs, billfor. 74. 
 SET OFF. 15,78, 81. 
 SETTING ofF cofts. 65. 
 SEVERAL counts. 29. 
 
 defendants, cofts for and againft. 51, 66. 
 
 pleas. 30. 
 
 in replevin. 36. 
 trefpafs. 32, 33. 
 
 SIGNING bill of cofts. 69. 
 
 for agency. 74. 
 
 SINGLE cofts. 55. 
 
 damages. See title Damages. 
 SLANDER, of title. 18. 
 SOLICITOR'S bill. 68. 
 SOUTH WARK court of confcience a6l. 14. 
 STATUTES of Marlberge, (52 Hen. 3. ) c. 6. 37. 
 Gloucefter, (6 Edw. i.) c. 1 . §2. 2, &:c. 
 c. 5, 4. 
 
 Weftm. 2. (13 Edw. i.) c 5. § 3. 5. 
 5 Rich. 2. - ^ 41. 
 
 2Hen. 4. c. ir. - 3,55. 
 
 8 Hen. 6. c. 9. - - 3. 
 
 3 Hen. 7. c. io. - - 37, 38. 
 
 II Hen. 7. c. 12. - - 43. 
 
 7 Hen. 8. c. 4. - - 37, 40. 
 
 STA^ 
 
 91
 
 9t 
 
 THE TAB 
 
 L E. 
 
 
 STATUTES 
 
 
 
 
 of 21 Hen. 8. c. 19. § 3. 
 
 
 - 
 
 37' 40. 
 
 23 Hen. 8. c. 15. § i. 
 
 
 4I: 
 
 , 44) 46. 
 
 §2. 
 
 
 
 41. 
 
 2 & 3Edw. 6. c. 13. 
 
 
 - 
 
 4> 7- 
 
 I & 2 Ph. k M. c. 12. 
 
 
 - 
 
 4- 
 
 fEliz. c. 4. § 31. 
 
 
 - 
 
 Id, 
 
 8 Eliz. c. 2. 
 
 
 - 
 
 46. 
 
 iSEliz. c. 5. §3. 
 
 
 - 
 
 47- 
 
 27 Eliz. c. 10. 
 
 
 - 
 
 Id. 
 
 43 Eliz. c. 2. § 19. 
 
 
 - 
 
 56. 
 
 c. 6. 
 
 
 - 
 
 10, 35. 
 
 3Jac. I. c. 7. § I. 
 
 
 - 
 
 67. 
 
 c. 15. §4. 
 
 
 - 
 
 12. 
 
 4 Jac. 1. c. 3. 
 
 
 - 
 
 48. 
 
 7 Jac. I. c. 5. 
 
 
 - 
 
 56> 57. 
 
 c. 15. 
 
 
 - 
 
 14. 
 
 21 Jac. I. c. 16. 
 
 
 - 
 
 17, 26. 
 
 13 Car. 2. flat. 2. c, 2. ^ 
 
 3- 
 
 
 49. 
 
 § 
 
 10 
 
 
 38. 
 
 17 Car. 2. c. 7. § 2. 
 
 
 - 
 
 40. 
 
 22 & 23 Car. 2. c. 9, 
 
 
 - 
 
 19, &c. 
 
 2&3W. &M. fefT. I. 
 
 c. 
 
 5- 
 
 3- 
 
 4&5 W. &M. c. 23. 
 
 §: 
 
 10. 
 
 27. 
 
 8&9 W. 3. c. II. § 
 
 I. 
 
 
 52. 
 
 § 
 
 2. 
 
 
 38) 50- 
 
 § 
 
 3- 
 
 
 6,7. 
 
 § 
 
 4- 
 
 
 25, 28. 
 
 11 & 12 W. 3. 0.9. 
 
 
 - 
 
 10, 19. 
 
 4 Ann. c. 16. § 4. 
 
 
 - 
 
 30- 
 
 §5. 
 
 
 - 
 
 3i» 36. 
 
 §25- 
 
 
 - 
 
 38. 
 STA-
 
 THE TABLE. 
 
 STATUTES 
 
 of 12 Ann. flat. 2. c. 16. - 4. 
 
 2 Geo. 2. c. 23. § 23. 68, 75, 76, 7J?. 
 
 II Geo. 2. c. 19. § 21. - 56. 
 
 §22. - 40,56. 
 
 14 Geo. 2. c. 10. - 13. 
 
 22 Geo. 2. c. 47. - 14. 
 
 23 Geo. 2. c. 27. Id, 
 
 c. 30. - Id. 
 
 c. 33. « Id. 
 
 24 Geo. 2. c. 42. - Id. 
 30 Geo. 2. c. 19. §75. - 6B. 
 
 2 Geo. 3. c. 19. §5. - 55. 
 
 2 3 Geo. 3. c. 70. § 34. - 57. 
 
 24 Geo. 3. fefl". 2. c. 47. § 35. Id. 
 
 STAYING proceedings. See title Proceedings. 
 
 SUGGESTION, for prohibition. 8. 
 
 on the court of confcience afls. 15, 16, 17. 
 for double and treble cofls. 57. 
 
 SURGEON and APOTHECARY. 28, 
 
 TABLE of cofls. 56. 
 TAXATION. See title Bill of cofls. 
 TENDER. 15. 
 TOWER-hamlets. 14, 15, 16. 
 ri?y^A^5/rt/, floppage in. 81. 
 TREBLE cofls, what. 56. 
 
 when recoverable, by the plaintiff. 55. 
 defendant. 56. 
 
 how recovered. 57. 
 
 TRES- 
 
 93
 
 94- THETABLE. 
 
 trespass. 3,19,21,41,53,66. 
 
 feveral pleas in. 32, ^2' 
 
 wilful and malicious. 28. 
 TROVER. 20,45,48,53. 
 TYTHES. 4,6,7. 
 
 UNDERTAKING, by the client, on taxino 
 
 cofts. yg. 
 
 USE and occupation. Sec title Adion. 
 
 - USURY. 4, 
 
 VIEW. 25. 
 
 WALES. 10,19. 
 
 Vv^ASTE. 4,6. 
 
 WAY, right of. 25. 
 
 WESTMINSTER court of confcience aa. 14, 16. 
 
 WILFUL and malicious trefpafs. 27, 28. 
 
 default. 45. 
 WORDS, aflion for. See title Adion. 
 WRIT of inquiry, in prohibition. 9. 
 trefpafs. o^. 
 for words. 18. 
 
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