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plea of justification. Hailes v. Marks, 7 H. & N. 56; 30 L. J., Ex. 389. A plea of “not guilty by statute was amended by inserting the proper statutes in the margin. Edwards v. Hodges, 15 C. B. 477; 24 L. J., M. C. 81.

It seems that the time to apply for an amendment by either party is at the close of his case. See Rainy v. Bravo, L. 4 P. C. 287, 298. It is not unusual for amendments to be made at the trial without imposing any condition of payment of costs, or of giving further time.

In Tennyson v. O'Brien, 5 E. & B. 497, on a contract for delivery of goods by the plaintiff the plea denied the readiness of plaintiff to deliver at the time specified. At the trial it appeared that the delivery had been postponed at the defendant's request, and the judge allowed an excuse for nondelivery to be inserted on the declaration, and refused to postpone the trial; whereupon the defendant refused to amend his former plea, or to appear further. Held, that the amendment was justifiable, and that defendant was not necessarily entitled to postponement, it not appearing that he was prejudiced on the merits by the refusal to postpone. The plea being proved as it stood, a verdict was taken on it for the defendant, and the plaintiff obtained judgment non obstante veredicto on motion. Where, however, it will be evidently proper to give more time to the opposite party, the applicant will probably be made to pay the costs of the day. See Edwards v. Hodges, supra.

When a defence has been held to be evasive or insufficient, and thereby to admit the allegations in the statement of claim, under Rules, 1883, 0. xix. rr. 13, 19, leave to amend has often been refused in the Chancery Division. Thorp v. Holdsworth, 3 Ch. D. 637; Byrd v. Nunn, 5 Ch. D. 781 ; 7 Ch. D. 284, C. A. ; Collette v. Goode, Id. 842. See also Crowe v. Barnicot, 6 Ch. D. 753, and Tildesley v. Harper, 7 Ch. D. 403, cor. Fry, J.; this last case was however reversed with costs, 10 Ch. D. 393, C. A., cited ante, p. 270.

The Courts are very unwilling to disturb decisions of judges made in the exercise of discretion vested in them. Morgan v. Pike, ante, p. 271; Brennan v. Howard, ante, p. 270; Schuster v. Wheelwright, 8 C. B., N. S. 383; 29 L. J., C. P. 222 ; Byrd v. Nunn, 7 Ch. D. 284, C. A. And a new trial will not be directed

upon the ground of surprise occasioned by an amendment at Nisi Prius, unless substantial injustice has been done. White v. S. E. Ry. Co., 10 W. R. 564, Ex. E. T. 1862. Sometimes the amendment is made at Nisí Prius, subject to the approval of the court. In Martyn v. Williams, 1 H. & N. 817; 26 L. J., Ex. 117, the court disallowed on amendment so made at the trial, on the ground that the amendment made the pleading reasonably open to a demurrer.

A judge at Nisi Prius may amend an erroneous entry of the verdict. See Baker v. Lawrence, 18 W. R. 835, T. T. 1870, C. P. And even after a verdict, and upon argument on motion for judgment or new trial, the court has, of its own authority and without consent, so amended a plea 'as to make the issue correspond with that which was really tried at N. P. Parsons v. Alexander, 5 E. & B. 263. And in Clough v. L. & N. W. Ry. Co., L. R., 7 Ex. 26, a plea was added by the Ex. Ch. setting up matters that had arisen after action, and the plaintiff was considered to have taken issue on it.

It seems that this rule does not extend to proceedings in inferior courts ; Wickes v. Grove, 2 Jur., N. S. 212, Ex. H. T. 1856 ; nor to proceedings made specially amendable under other rules, e.g., those relating to the joinder of parties. Wickens v. Steel, 2 C. B., N. S. 488 ; 26 L. J., C. P. 241 ; Holden v. Ballantyne, 29 L. J., Q. B. 148; Garrard v. Giubilei, 11 C. B., N. S. 616 ; 31 L. J., C. P. 131 ; and in 13 C. B., N. S. 832 ; 31 L. J., C. P. 270, Ex, Ch.

Amendment of parties at Nisi Prius.] Vide ante, pp. 86, et seq.

Withdrawing a Juror, &c.

273 Withdrawing a juror.] Sometimes a juror is withdrawn, or the jury discharged, by consent, either for the convenience of the parties or at the suggestion of the judge. In such case each party pays his own costs ; but, in the last-mentioned case,

the action is not thereby determined. Everett v. Youells, 3 B. & Ad. 349. The jury may by consent, but not otherwise, be discharged from giving a verdict on certain issues. If the jury cannot agree at the close of the assizes, the judge may, in his discretion, and without consent, discharge them. Newton's case, 13 Q. B. 716. Counsel had at common law a general authority to withdraw a juror. Strauss v. Francis, L. R., 1 Q. B. 379. Now see J. Act, 1873, s. 25 (11), post, p. 282, and cases cited ante, p. 262. Where a juror has been withdrawn on terms, which the defendant afterwards refuses to carry out, such refusal does not terminate the action, and the court will grant a new trial. Norburn v. Hilliam, L. R., 5 C. P. 129.

Adjournment of trial.] By Rules 1883, 0. xxxvi., r. 34,“ the judge may if he think it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such place and upon such terms, if any, as he shall think fit.” The words in italics are new. At the trial of a cause copies of material documents, which had been found one day before the trial, too late for due service of notice to produce on plaintiff, were offered in evidence by defendant, and plaintiff objected to copies. Cockburn, C. J., adjourned the trial on the terms of paying the costs of the day by defendant, and resummoning the same jury. At the subsequent sitting the judge read to the jury the notes of the preceding sitting, and the trial proceeded with defendant's case. Cahill v. Dawson, 1 F. & F. 291. Where a material witness of plaintiff did not appear on subpæna, and the judge thought he should be examined, he adjourned the cause on condition that defendant's costs of the day should be his costs in the cause. Bikker v. Beeston, per Martin, B.; Id. 685. As to costs, see Lydall v. Martinson, 5 Ch. D. 780.

Damages.] By Rules 1883, 0. xxxvi., r. 58," where damages are to be assessed in respect of any continuing cause of action they shall be assessed down to the time of assessment."

Points of law.] By Rules 1883, 0. xxv., r. 1,“no demurrer shall be allowed," and by rule 2, “ any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause, at or after the trial.” As to arguments of counsel on points of law, vide ante, pp. 266, 267.

Order to enter judgment.] By Rules 1883, 0. xxxvi., r. 39, “the judge may at or after the trial, direct that judgment be entered for any or either party or adjourn the case for further consideration, or leave any party to move for judgment. No judgment shall be entered after a trial without the oriler of a court or judge.

By 0. xxi., r. 17, “where in any action a set-off or counter-claim is established as a defence against the plaintiff's claim, the court or a judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.” The “balance" is that which results on the hearing of the action. Rolfe v. Maclaren, 3 Ch. D. 106. See also Staples v. Young, post, p. 277.

Application to stay execution.) By Rules, 1883, 0. xlii., r. 17, in the case of money or costs being payable under a judgment or order, execution by fi. fa. or elegit may be issued so soon as such money or costs shall be payable, but (a) not until the period within which the judgment required

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the money to be paid has expired ; and (b)“ the court or judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit.” The successful party is therefore, in the case of a judgment for money or costs, entitled to immediate execution ; and if the other party desire delay, he must apply that the judgment should be for payment after a limited time.

By O. xlvii., r. 2, where the judgment is to recover possession of lands, the plaintiff may

sue out a writ of possession on filing an affidavit showing due service of such judgment or order, and that the same has not been obeyed.” Subject therefore to the requirements of this rule, the execution is immediate, and there seems no express power given to delay the execution; the same end may, however, be attained by the judge postponing the entry of judgment till after the lapse of a certain time.

Order for delivery of specific chattels.] Rules, 1883, 0. xlviii., r. 1, allow a judgment for the delivery of specific chattels to be enforced by a writ of delivery, which the court or a judge may order to issue. It seems that it is no longer a necessary condition that the value of the goods should have been first assessed by the jury, or by the judge if tried without a jury, as it was under the C. L. P. Act, 1854, s. 78. See Chilton v. Carrington, 15 C. B. 730 ; 24 L. J., C. P. 78.

Order as to costs.] By Rules, 1883, 0. lxv., r. 1, “Subject to the provisions of the acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee, who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery division ; provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, matter, or issue is tried, or the court, shall for good cause otherwise order.” The provisions of the Acts herein referred to are contained in the J. Act, 1873, s. 67, post, p. 277. This rule replaces Rules, 1875, 0. lv. r. 1, under which the cases collected below were decided.

By rule 2, "when issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event.”

Rule 1, which impliedly repeals 21 Jac. 21, c. 16, s. 6, and 3 & 4 Vict. c. 24, ss. 2, 3, governs the right to costs in every case in which the plaintiff is not deprived of them by the County Courts Act, 1867, s. 5 (now amended, vide post, p. 276), as brought into operation by the J. Act, 1873, s. 67. Garnett v. Bradley, 3 Ap. Ca. 944, D. P. It would seem, however, that provisions relating to costs in statutes passed for the protection of special classes of persons, e.g. special constables (1 & 2 Will. 4, c. 41, 8. 19, post, p. 276), are still in force. Id. 970, per Ld. Blackburn.

Where the action is tried by a judge alone, the costs are absolutely in his discretion, and neither party can get them from the other without an order. But where an action has been brought to enforce a legal right, and there has been no misconduct on his part, as to which vide infra, a successful plaintiff is entitled to an order for his costs under this rule. Cooper v. Whittingham, 15 Ch. D. 501. The defendant cannot be ordered to pay the costs of an unsuccessful plaintiff. Dicks v. Yates, 18 Ch. D. 76, C. A., followed in Re Foster, 8 Q. B. D. 515, C. A.

Where an action is tried by a jury, "good cause ” for making an order Order as to Costs, under Rules, 1883, 0. lxv.

275

under the proviso, may appear from the conduct of the parties prior to and conducing to the litigation. Harnett v. Vise, 5 Ex. D. 307, C. A. And, the judge may even order a plaintiff who has recovered only a nominal sum to pay the defendant's costs. Harris v. Petherick, 4 Q. B. D. 611, C. A. The judge may ex mero motů make an order to deprive the plaintiff of costs though no application has been made to him on the part of the defendant. Turner v. Heyland, 4 C. P. D. 432 ; Collins v. Welch, 5 C. P. D. 27, C. A. The judge may make an order as to costs after the trial, though it would seem he must make it within a reasonable time. See Bowey v. Bell, infra.

Where no application has been made to the judge an application may be made to a divisional court to deprive a successful party of his costs ; Myers v. Defries, Siddons v. Lawrence, 4 Ex. D. 176, C. A.; provided such application be made within a reasonable time ; Brooks v. Israel, 4 Q. B. D. 95 ; but, not otherwise. Bowey v. Bell, Id. As the decision of the court under this order is made final by the J. Act, 1873, s. 49, the jurisdiction of the divisional court cannot be exercised by a single judge under the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. č. 59), s. 17. See Rules, 1883, O. lix., r. 1 (e.).

In any case in which there is but one issue between the parties no difficulty can arise as to the meaning of the term “event," in 0. lxv., r. 1. Where there are several distinct causes of action on which the plaintiff and defendant respectively succeed, the term is to be taken distributively, and the defendant is entitled to the costs of the issues found for him. Myers v. Defries, 5 Ex. D. 15, 180, C. A. So, where the plaintiff fails on certain issues and succeeds as to others. Abbott v. Andrews, 8 Q. B. D. 648. This principle is now expressly laid down by rule 2, ante, p. 274.

Where the defendant succeeds on a simple set-off, or, on a counter-claim founded on matters that would have been a defence prior to the J. Acts, and to an amount not less than the plaintiff's claim, he has a complete defence to the action, and is therefore entitled to his costs. See Stooke v. Taylor, 5 Q. B. D. 569, 576, et seq., per Cockburn, C. J.; Baines v. Bromley, 6 Q. B. D. 691, 694, per Brett, L. J.; Lowe v. Holme, 10 Q. B. D. 286 ; Chatfield v. Sedgwick, 4 C. P. D. 459, C. A.

Where, however, the counter-claim is in the nature of a cross action and the plaintiff is successful on his claim, and the defendant also on his counter-claim, the plaintiff is entitled, even although the defendant recover the larger amount, to the general costs of the action; the defendant is entitled to the costs of the counter-claim, but there is no apportionment of such costs as, if the claim and counter-claim had been separate actions, would have been incurred in each of them. Ward v. Morse, 23 Ch. D. 377, C. A. See also Cole v. Firth, 4 Ex. D). 301, n. ; Stooke v. Taylor, 5 Q. B. D. 569 ; and Ellis v. De Silva, 6 Q. B. D. 521. Where the claim and counter-claim are both dismissed with costs, the plaintiff pays the general costs of the action and the defendant the amount only

by which the costs have been increased by the counter-claim. Saner v. Bilton, 11 Ch. D. 416 ; Mason v. Brentini, 15 Ch. D. 287, C. A.

The distinction above pointed out between set-off and counter-claim, as to which vide post, Defences to Actions on Simple Contract-Set-off and Counterclaim, was overlooked in many of the earlier cases on the subject. See judgments in Stooke v. Taylor, supra. It should be observed that the rights of the parties as to costs may be seriously affected by an incorrect entry of the judgment. See Baines v. Bromley, 6 Q. B. D. 691, C. A.

By Rules, 1883, 0. xvi., r. 1, a defendant, though unsuccessful, shall be entitled to his costs occasioned by joining under that rule (ante, p. 86), any co-plaintiff who shall not be entitled to relief unless the court in disposing of the costs of the action shall otherwise direct. See D’Hormusgee v. Grey, 10 Q. B. D. 13.

The stat. 1 & 2 Will. 4, c. 41, s. 19, provides that in any action brought against a special constable, &c., for anything done in pursuance of the act, the plaintiff, though successful, shall not have costs against the defendant unless the judge before whom the trial shall be, shall certify his approbation of the action and of the verdict obtained thereupon.” 'It seems that this section is still in force, vide ante, p. 274.

Order as to costs of or occasioned by third party! Where a third party, C., has been brought in under Rules, 1883, 0. xvi., Ir. 48–53, rule 54 provides that “the court or a judge may decide all questions of costs as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other or others, or give such direction as to costs as the justice of the case may require ;” and by rule 55, a co-defendant against whom a defendant seeks contribution or indemnity is in the same position as a third party. Thus, costs have been ordered to be paid to C. by the plaintiff ; Witham v. Vane, 28 W. R. 812, T. S. 1880, Fry, J.; or, by the defendant; Beynon v. Godden, 4 Ex. D. 246, 247, cor. Huddleston, B. ; Dawson v. Shepherd, 49 L. J., Ex. 529, C. A.; or, C. has been allowed to bear his own costs. Williams v. S. E. Ry. Co., 26 W. R. 352 ; H. S., 1878, Q. B. D. So again, C. has been ordered to pay to an unsuccessful defendant the costs payable by him to the plaintiff ; Hornby v. Cardwell, 8 Q. B. D. 329, C. A.; or, to pay the plaintiff the costs occasioned by his defence. Piller v. Roberts, 21 Ch. D. 198. These orders were made under Rules, 1875, 0. lv., r. 1, which was similar in terms to Rules, 1883, 0. lxv., rule 1, ante, p. 274 ; and 0. xvi., r. 54, supra, is explicit on the matter.

Order for costs on higher scale.] Under Rules, 1883, 0. lxv., r. 8, costs are in general to be allowed on the “lower scale,” given in Appendix N.; but by rule 9, the court or a judge may at the trial or hearing or further consideration of the cause or matter or at the hearing of any application therein, on special grounds arising out of the nature and importance or the difficulty or urgency of the case, order, either generally in any cause or matter, or as to the costs of any particular application made or business done therein, that the costs shall be allowed on the higher scale.” See Norfolk, Duke of, v. Arbuthnot, 6 Q. B. D. 279 ; In re Terrell, 22 Ch. D. 473, C. A.

By rule 12, “ in actions founded on contract, in which the plaintiff recovers, by judgment or otherwise, a sum (exclusive of costs) not exceeding 501., he shall be entitled to no more costs than he would have been entitled to had he brought his action in a county court unless the court or a judge otherwise orders.” As to the construction to be placed on the word “recover,” vide post, p. 277.

It would seem that the plaintiff is, in ordinary cases, entitled to an order under this rule, where the defendant is abroad, and could not therefore be served with county court process. Mendelssohn v. Hoppe, W. N. 1884, p. 31, Mathew, J. The rule applies to an action commenced before the rule came into operation where judgment is recovered afterwards. Langley v. Sugden, W. N. 1883, p. 198, Field, J.

Certificate for costs under the County Courts Act, 1867.] By the County Courts Act, 1867 (30 & 31 Vict. c. 142), s. 5, as amended by 45 & 46 Vict. c. 57, s. 4, “ if in any action, commenced after the passing of this act, in any of her Majesty's Superior Courts of Record, the plaintiff shall recover a suni

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