PROCEEDINGS AFTER TRIAL, &c. CHAP. II. prive the plaintiff of costs, if the judge has power to certify, alAS TO COSTS, &c. though the certificate may have been granted on an erroneous ground. (z) If there be a certificate upon this statute the plaintiff is not entitled to the costs of any plea pleaded with leave of the Court, although the issue thereupon joined be found for him, and the judge has not certified that the defendant had a probable cause for pleading the matter therein pleaded. (a) And where to a declaration for a libel the defendant pleaded the general issue and two special pleas; and at the trial the jury found all the issues for the plaintiff, with 1s. damages, and the judge certified under the 43 Eliz. c. 6; the Court held that the plaintiff was not entitled to the costs of the issues found for him, notwithstanding the rule of Hil. T. 4 W. 4, s. 7. (b) After a trial the judge certified, under the statute of Elizabeth, to deprive a plaintiff of costs; and in the ensuing term new facts, which did not appear at the trial, being laid before him on affidavits, an order was granted by the judge to annul the certificate. (c) 6. Certificate of judge under 8 & 9 W. 3, c. 11, s. 4, that the trespass was wilful and mali cious, so as to enable plaintiff to recover full costs. (d) 7. Other certi ficates, &c. in mediately after the trial. The 8 & 9 W. 3, c. 11, s. 4, for preventing of wilful and malicious trespasses, enacts, "that in all actions of trespass to be "commenced or prosecuted in any of his Majesty's Courts of "Record at Westminster, wherein at the trial of the cause it "shall appear, and be certified by the judge under his hand upon "the back of the record, that the trespass upon which any de"fendant shall be found guilty was wilful and malicious, the "plaintiff shall recover not only his damages, but his full costs "of suit, any former law to the contrary notwithstanding." It is discretionary and not obligatory on the judge to certify, (e) nor is it necessary under this statute that the certificate should be obtained immediately after the trial. (ƒ) There are also other statutes giving the judge who tries or hears a cause power to certify, and thereby affect the right to costs. Thus, the 28 G. 3, c. 37, s. 24, respecting actions or prosecutions on the Revenue laws, enacted, (g)" that in case any information or suit shall be commenced and brought to "trial on account of the seizure of any goods, wares, or mer (z) Cann v. Facey, 5 Nev. & Man. 405; 4 Ad. & Ellis, 68; 1 Har. & Wol. 482, S. C. (a) Tidd Prac. 9th ed. 659, 953, 954. (b) Simpson v. Hurdis, 2 Mee. & W. 84; 5 Dowl. R. 304, S. C. (c) Anderson v. Sherwin, 7 Car. & Pa. 527. (d) See 1 Chit. Col. Stat. 222; Tidd, 968. (e) Gorst v. Watkins, 3 East, 495; and 1 Chit. Col. Stat. 222. (ƒ) Woolley v. Whitby, 2 Bar, & Cres. 580; 4 Dowl. & Ry. 147, S. C. (g) Tidd, 968. PROCEEDINGS AS TO COSTS, &c. &c. "chandize, seized as forfeited by virtue of any act or acts of CHAP. II. “parliament relating to his Majesty's revenues of Customs or "Excise, or of any ship, vessel, or boat, or of any horse, cattle, AFTER TRIAL, "or carriage, used or employed in removing or carrying the same, wherein a verdict shall be found for the claimer thereof, "and it shall appear to the judge or Court before whom the same shall be tried or heard, that there was a probable cause 66 of seizure, the judge or Court shall certify that there was a pro"bable cause for making such seizure, and in such case the "claimant shall not be entitled to any costs of suit whatso"ever." (h) And in actions against justices of the peace on account of a conviction, or any thing done by them for carrying the same into effect, in case such conviction shall have been quashed, the plaintiff, besides the value and amount of the penalty, in case the same shall have been levied, shall not be entitled to recover any costs of suit unless it shall be expressly alleged in the declaration that such acts were done maliciously and without any reasonable or probable cause, nor in case it shall be proved at the trial that such plaintiff was guilty of the offence whereof he had been convicted, or on account of which he had been apprehended, or had otherwise suffered, and that he had undergone no greater punishment than was assigned by law to such offence. (i) 8. Application to judge on 7 & G. 4, c. 29, and c. 30, for his certificate and the verdict The statutes 7 & 8 G. 4, c. 29, s. 75, and c. 30, s. 41, enact, that" in all actions for any thing done in pursuance of the acts for consolidating and amending the laws relative to larceny, &c. or malicious injuries to property, if a verdict shall pass for the that he approv defendant, or the plaintiff shall become nonsuit, or discontinue ed of the action any such action after issue joined, or if upon demurrer or other- thereupon.(k) wise judgment shall be given against the plaintiff, the defendant shall recover his full costs as between attorney and client, and have the like remedy for the same as any defendant hath by law in other cases. And though a verdict shall be given for the plaintiff in any such action, such plaintiff 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." (h) And see the statutes 19 G. 2, c. 34, s. 16; 23 G. 2, c. 70, s. 29, which statutes however were repealed by the 6 G. 4, c. 105; but there is a similar clause in the statute 6 G. 4, c. 108, s. 92. See also Reynolds v. Cowper, E. 22 G. 3, K. (i) Tidd, 892, 893. CHAP. II. PROCEEDINGS AS TO COSTS, &c. AFTER TRIAL, &c. 9. Of certifi cates for immediate execution in ejectment, on 11 G. 4 and 1 W. 4, c. 70, s. 38. 10. Of the Judge's certify ing for speedy judgment and execution under 1 W. 4, c. 7, s. 2, in other actions. 66 66 The 11 G. 4 and 1 W. 4, c. 70, s. 38, enacts, "That in all "cases of trials of ejectments at Nisi Prius, when a verdict "shall be given for the plaintiff, or the plaintiff shall be non"suited for want of the defendant's appearance to confess lease, entry, or ouster, it shall be lawful for the judge before "whom the cause shall be tried to certify his opinion on the "back of the record, that a writ of possession ought to issue "immediately, and upon such certificate a writ of possession may be issued forthwith, and the costs may be taxed, and "judgment signed and executed afterwards, at the usual time, "as if no such writ had been issued; Provided always, that "such writ, instead of reciting a recovery by judgment in the "form now in use, shall recite shortly that the cause came on "for trial at Nisi Prius at such a time and place, and before "such a judge, (naming the time, place, and judge,) and that thereupon the said judge certified his opinion that a writ of possession ought to issue immediately." 66 66 The 1 W. 4, c. 7, s. 2, enacts, "That in all actions brought in either of the Superior Courts of Law at Westminster, by "whatever form of process the same may be commenced, it "shall be lawful for the judge before whom any issue joined in "such action shall be to be tried, in case the plaintiff or de"mandant therein shall become nonsuit, or a verdict shall be given for the plaintiff or demandant, defendant or tenant, to certify under his hand, at the back of the record, at any time "before the end of the sittings or assizes, that in his opinion "execution ought to issue in such action forthwith, or at some "day to be named in such certificate, and subject or not to any "condition or qualification; and in case of a verdict for the plaintiff, then either for the whole, or for any part of the sum found by such verdict; in all which cases a rule for 'judgment may be given, costs taxed, and judgment signed "forthwith, and execution may be issued forthwith, or after"wards, according to the terms of such certificate, on any day "in vacation or term; and the postea, with such certificate "as a part thereof, shall and may be entered of record as of "the day on which the judgment shall be signed, although the "writ of distringas juratores, or habeas corpora juratorum, may "not be returnable until after such day; Provided always, that "it shall be lawful for the party entitled to such judgment to postpone the signing thereof." (1) The practice on this en 66 66 (1) See this statute, and decisions thereon, Tidd's New Prac. 535; ante, Part VI. 924; and post. actment will presently be stated in the chapter relative to executions. CHAP. II. PROCEEDINGS AS TO COSTS, &c. AFTER TRIAL, &c. 11. Of motions verdict. Cases sometime occur where there may be grounds upon which to reduce the debt or damages claimed by a plaintiff, to reduce the and in which it is incumbent on the defendant's counsel (and damages and not on the judge, unless requested in due time,) to put the point to the jury himself, or to request the learned judge to do so in summing up, or afterwards and before verdict given. (m) Thus, in an action for the breach of a warranty to recover back the price of a horse, and for 91. 17s., said to have been expended by the plaintiff in the keep of the horse, if the defendant wish to reduce the plaintiff's claim of 91. 17s. for the keep, on the ground that the time the horse was kept at livery was unreasonable, he must make that point at the trial, and before the verdict. And if he on the trial appear to defend solely on the ground that there was no breach of warranty, and the jury gave damages in respect both of the price and the keep, he cannot afterwards move to reduce either on the ground that the judge (unasked) did not leave it to the jury whether or not the horse was kept an unreasonable time.(n) In short, all points proposed to be discussed or considered must be suggested by the counsel in time to enable the judge to remark upon them before the verdict; and it is sufficient for the judge to take the defendant's case up just as his counsel presented it. (o) So, if the plaintiff's counsel at the trial claim too much, and do not make any distinction as to a part of a sum of money to which he was entitled, it is afterwards too late to move for a new trial. (p) So if a defendant, liable in trover for taking goods, pay rent due from the plaintiff on the premises whence they are taken, the execution may be limited to the excess of the verdict in trover beyond the rent paid. (q) And per Tindal, C. J. "The present case clearly comes within the principle constantly acted on in practice, that in an action of tort, if the defendant has satisfied a part of the claim, the verdict may be reduced to that extent, if the payment is made previous to suing out execution. As the rent was due from the person under whom both parties claimed, under any state of circumstances it must have been PROCEEDINGS AFTER TRIAL, &c. CHAP. II. paid to the landlord; if the plaintiffs had had possession of the ASTO COSTS, &c. goods at the time when the landlord distrained, they must have paid the rent. The effect, therefore, of granting this application is only to put the plaintiffs in the same position as if they had paid the rent themselves. The application is similar to an audita querela. The use of that writ has, however, now become unfrequent, and recourse is had in such cases to the equitable jurisdiction of the Court." The whole Court concurred in making the rule absolute "for restraining the plaintiff's execution to 8297. 13s. 6d., on payment by the defendant of the costs of the application." (r) 13. Question whether a jury may not award a larger sum for costs, though they award da mages under 40s. In cases of this nature, if the rent has been paid, or the equitable set-off has arisen before the verdict against the defendant has been given, he should prove it, and request the judge to direct the jury to allow it in reduction of the plaintiff's claim; but if defendant omit to apply after verdict pronounced, then there must be a motion to the Court for a rule to reduce the verdict and judgment, if signed, and to restrain the plaintiff from issuing execution for more than the balance justly due; but it seems that the defendant will have to pay the costs of the application. (s) It is reported to have been decided upon the 22 & 23 Car. 2, c. 9, s. 136, that a jury may give what costs they please; for though the Court are bound by these acts, the jury are not; and therefore, in an action for slander, though the Court are bound by 21 Jac. 1, c. 16, and cannot increase the costs where the damages are under 40s.; the jury may give 107. costs when they give but tenpence damages. (t) If that decision be law, then the plaintiff's counsel should endeavour to prevail on a jury to give their verdict for a sum, as for costs, fully sufficient to cover the actual costs, and another sum distinctly for damages. (r) Plevin v. Henshall, 2 Dowl. 743 ; (t) Per Cur. in Brown v. Gibbons, 1 Salk. 206, 207; Tidd, 8th ed. 1003; |