294 No. I. 6 Edward I. c. 1. c. 15. Costs. from henceforth shall be compelled to render damages, where 'act.' [No. II. ] 23 Henry VIII. c. 15.—An Act that the Plain- Justices. 23 Henry VIII. BE it enacted by the King our Sovereign Lord, and the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same, That if any person or persons, at any time after the Feast of the Purification of our Lady, in the twenty-third year of the reign of our Sovereign Lord King Henry the Eighth, commence or sue in any court of record, or elsewhere in any other court, any action, bill, or plaint, of trespass upon the statute of King Richard the Second, made in the fifth year of his reign, for entries into lands and tenements, where none entry is given by the law, or any action, bill, or plaint of debt or covenant, upon any especialty made to the plaintiff or plaintiffs, or upon any contract supposed (1) observes, that in those the party had no right As to costs in actions upon gaol grants; see 43 Geo. III. c. 46. ante, Class 3. There are no costs in actions purely real; but damages, and consequently costs, may be carried in actions of a mixed nature, at assize; 2 Inst. 286. As to scire facias, prohibition, waste, debt for not setting out tithes; see 8 & 9 W. III. c. 11. post. (1) It is well known that persons suing as costs; the reason generally assigned for which sound principle on which the exemption of Any general statutes giving costs to defendants are held not to apply to actions brought by executors, as was ruled with respect to a plea of bankruptcy, on 5 Geo. II. c. 30. § 7. in Martin v. Norfolk, 1 H. B. 528. The exemption is of very great hardship in its principle and operation: however free from censure an executor or other person may be who brings an action under a mistaken view of the circumstances of the case, there is no reason for subjecting the other party, who is equally free from censure, to the expense arising from such mistake; and there would be nothing inequitable in requiring those on whose behalf the experiment is to be made, to include the indemnity of a defendant from costs to which he is wrongfully subjected in the calculation of success or failure. In point of fact, great extortion is frequently committed, by bringing unfounded or experimental actions, in the expectation of submission to au unjust or questionable demand being preferred to a successful but expensive resistance. The cases respecting an executor's liability to or exemption from costs are very numerous, and are fully collected in Mr. Hullock's Treatise, chap. iii. s. 1. The general conclusion from all the cases is, that the exemption depends upon the question whether the plaintiff was obliged to sue as executor or not; and that if he could sue in proprio jure, he is not protected from payment of costs by naming himself executor. to be made between the plaintiff or plaintiffs, and any other person or persons, or any action, bill, or plaint of detinue of any goods or chattels, whereof the plaintiff or plaintiffs shall suppose that the property belongeth to them, or to any of them, or any action, bill, or plaint of account, in the which the plaintiff or plaintiffs suppose the defendant or defendants to be their bailiff or bailiffs, receiver or receivers of their In several cases it is laid down, that the rule depends upon the question whether the money recovered would be assets; but that doctrine is contrary to the entire current of modern authorities, as is evident from the cases where an executor is subjected to costs on account of trover in the testator's life-time, and conversion after his death; as to which see Bolland r. Spencer, 7 T. R. 358; Hobbes v. Smith, 10 E. 293. So if an executor sue as such for money received by the defendant since the testator's death, for his use, as executor; Goldthwaite v. Petrie, 5 T. R. 234. In the marginal abstract of the modern case of Thompson v. Slent, 1 Taunt. 322. it is stated, that if the money recovered would be assets, the executor, suing as such, is not liable to costs; but there is nothing in the decision itself to warrant that representation. The case arose on a special demurrer for a misjoinder of counts on promises to the testator in his life-time, and an insimul computassent with the plaintiff, and his wife, as executrix. The question of costs being incidentally mentioned, the court referred to Eaves v. Mocato, as cited in Jenkins v. Plume, 1 Salk. 207. in which it was held that, upon an insimul computassent with an executor, the defendant was not entitled to costs, because the promise begot no new cause of action, but only ascertained the old. They also referred to Ball v. Palmer, T. Jon. 47. upon a similar count, when it was determined, (as was formerly held) that as the money, if recovered, would be assets, no costs were payable. But this incidental refe-rence to a doctrine opposed by so many modern decisions, and which was in no respect necessary to the decision of the case, cannot be regarded as an authority of any consequence. There are different cases in which it is settled, that an executor is not liable to costs in an action for breach, in his own time, of a covenant with or promise to the testator; Tattersall v. Groote, 2 B. and P. 253; Cooke v. Lucas, 2 E. 395; which cases fall within the established principle, that the plaintiff must necessarily name himself executor. The cases on counts of insimul computassent are referable to the same principle; for it is clear, that upon a general count of that description, as founded upon an accouut between the plaintiff and defendant, the former could not recover upon an acknowledgment of money due to his testator. In Cockerill v. Kynaston, 4 T. R. 277. it is reported to have been decided, that if an executor declare on a trover and conversion in the testator's life-time, and also on a trover and conversion after his death, the evidence offered being only applicable to the first count, and he be nonsuited, he is not liable to pay costs. But in the subsequent case of Bolland v. Spencer, 7 T. R. 358. Lord Kenyon said that there No. II. 23Hen. VIII. c. 15. must be some mistake in the case. He said"The rule in favour of executors is already sufficiently extensive. We all of us remember a variety of actions improperly brought by them, and which would not, perhaps, have been brought, had it not been for the privilege which they have of being exempt from paying costs." Clearly nothing could be less satisfactory than the supposed decision in Cockerill v. Kynaston. If a party gives no evidence, he is nonsuited generally; and it would be the height of absurdity if he could exempt himself from the consequences of such nonsuit by giving evidence which amounted to nothing, in support of particular counts: and referring to Grimstead v. Shirley, 2 Taunt. 116, I find it said by Lawrence J." How can it depend on the facts which appear at the trial? Suppose the cause is called on, and no evidence is given, but the plaintiff, instead of appearing, submits to a nonsuit, we cannot see what the facts were. The plaintiff must take care to have his verdict on the right count; and then if the count gives costs where it ought not, it is error, but the court can only look at the record." The decision in Grimstead v. Shirley is upon the old case of two counts in trover, one stating a conversion before and the other after the death of the testator, and upon nonsuit costs given against the plaintiff. The marginal abstract, that where a plaintiff executor adds one count as executor, stating a cause of action for which he might declare in his own right, if he is nonsuited, he shall be liable to costs, though not stated in those general terms in the body of the case, is evidently the fair result of all the authorities upon the subject. An executor is entitled to exemption, although suing for the benefit of others, who would equally be entitled to maintain the action in their own name : for instance, the executor of a person who effected a policy of insurance, suing on behalf of the persons for whose benefit it was effected; Wilton v. Hamilton, 1 B. and P. 445. But where an executor lent his name to other persons, under circumstances which were held to be an abuse of the practice of the court, the court of C. B. made an order upon him for payment of costs: the costs were not made part of the judgment, which would have been error on the record; Comber v. Hardcastle, 3 B. and P. 115.-The following note was subjoined to the case of Eaves v. Mocato, in the sixth edition of Salkeld, Vol. 1. p. 314. respecting the cases where an executor is or is not liable to costs upon interlocutory proceedings. In Eaves v. Mocato it was said by the court, that if an executor will not go on to trial according to his notice, he shall pay the costs of suit. "An executor or administrator shall pay costs if he be guilty of any laches or delay in No. II. 23Hen. VIII. c. 15. He that sueth in forma pauperis shall be otherwise punished. 24 Henry VIII. c. 8. manor, mese, money, or goods, to yield account, or any action, bill, or plaint upon the case, or upon any statute, for any offence or wrong personal immediately supposed to be done to the plaintiff or plaintiffs, and the plaintiff or plaintiffs in any such kind of action, bill, or plaint, after appearance of the defendant or defendants, be nonsuited, or that any verdict happen to pass, by lawful trial, against the plaintiff or plaintiffs in any such action, bill, or plaint, that then the defendant or defendants in every such action, bill, or plaint, shall have judgment to recover his costs against every such plaintiff or plaintiffs; and that to be assessed and taxed by the discretion of the judge or judges of the court, where any such action, bill, or plaint shall be commenced, sued, or taken; and also that every defendant in such action, bill, or plaint, shall have such process and execution for the recovery and having of his costs against the plaintiff or plaintiffs, as the same plaintiff or plaintiffs should or might have had against the defendant or defendants, in case that judgment had been given for the part of the said plaintiff or plaintiffs in any such action, bill, or plaint. II. Provided alway, That all and every such poor person or persons being plaintiff or plaintiffs in any of the said actions, bills, or plaints, which at the commencement of their suits or actions be admitted by discretion of the judge or judges, where such suits or actions shall be pursued or taken, to have their process and council of charity, without any money or fee paying for the same, shall not be compelled to pay any costs by virtue and force of this statute, but shall suffer other punishment, as by the discretion of the justices or judge, afore whom such suits shall depend, shall be thought reasonable; any thing afore rehearsed to the contrary hereof notwithstanding. (1) [No. III. ] 24 Henry VIII. c. 8.-An Act where Defendants shall not recover any Costs. BECAUSE as well many recognizances, obligations, indentures, and other specialties, as also many contracts heretofore have been 'taken and made between divers persons being of the King's most 'honourable council, and others his subjects, and by and between other persons, to the use and behoof of our said Sovereign Lord the King, for great sums of money, then being to his grace due, and for his pro'visions and other causes; for which debts, actions by the laws of this 'realm be to be commenced, sued and prosecuted to the King's use, by ' and in the name and names of the person or persons to whom the said recognizances, obligations, and other specialties were made, or by the progress of a cause; Hullock, 189. R. that they are liable to costs on judgment of nonpros.; Hawes v. Saunders, 3 Bur. 1584; Lamley v. Nichols, Cas. Pr. C. B. 14; [Higgs v. Parry, 6 T. R. 654.] In Nunez v. Modigliani, H. Bl. 217, Costs were paid by an administrator for withdrawing his record before trial; but that point was not the question in dispute; vide Hullock's observations on the case, p. 192. As leave to discontinue is in the discretion of the court, it is given with or without costs, according to the circumstances of the case, and will depend upon whether there is laches or delay, or it is a fair transaction. Where an executor in an action upon a bond against an heir, discovered just before the trial was to come on that the estate which he relied upon as assets was conveyed by the ancestor, he was allowed to discontinue without costs, undertaking not to bring a fresh action without leave of the court; Bennett v. Coker, 4 Bur. 1927; vide also Baynham v. Mathews, 2 Str. 871. But where one executor brought the action alone, there being others, he had only leave to discontinue upon payment of costs; Harris v. Jones, 3 Bur. 1451; 1 Bl. 451. [So where the executors first brought an action against one of three obligors, and were nonsuited on a plea of usury, and afterwards against a second, which went off pro defectu juratorum, and then brought an action against all, in order to exclude the evidence of one upon the usury, and moved to discontinue the second; Melhursh v. Maunder, 2 N. R. 72.] In Ogle v. Moffat, Barnes, 133, an executor was excused from costs for not going on to trial, his witnesses being prevented by accident from attending, and he being guilty of no wilful default. On a nonsuit executors do not pay costs; Bigland v. Robinson, 3 Salk. 105; nor on judgment, as in case of a nonsuit; per cur. in Bennet v. Coker. [Ruled accordingly; Booth v. Holt, 2 H. B. 277."] (1) See Hullock, ch. iii. sec. 3. No. III. 24Hen. VIII. c. 8. In what case 'those to whom the said contracts were made:' Be it therefore ordained and enacted by authority of this present Parliament, That albeit that the plaintiff or plaintiffs be or shall be nonsuited in any whatsoever action, suit, bill or plaint, commenced, or to be commenced, sued, or to be sued, to the use of our said Sovereign Lord the King, his heirs or successors, kings of England, or that it shall happen any verdict to pass the defendant against any such plaintiff or plaintiffs, in any action, suit, bill or plaint, shall not recosued or to be sued, to the king's use; the defendant or defendants shall not recover any costs against any such plaintiff or plaintiffs; any Act or statute made in this present Parliament, or any other thing to the contrary being in any wise notwithstanding. ver costs. 8. Elizabeth, c. 2. shall recover costs and da [No. IV. 18 Elizabeth, c. 2.-An Act for the avoiding of wrongful Vexation touching the Writ of Latitat. WHERE divers W of their malicious minds, and without any persons just cause, do many times cause and procure others of the Queen's Majesty's loving subjects, to be very much molested and The defendant troubled by attachments and arrests made of their bodies, as well by process of latitat, alias, and pluries capias, sued out of the court commonly called the King's Bench, as also by plaint, bill or other suit in the court commonly called the Marshalsea, and within the city of • London, and other cities, towns corporate, and places where any liberty or privilege is to hold pleas of debt, trespass, and other personal actions and suits: And when the parties that be arrested or attached are brought forth to answer to such actions and suits as should be objected against them, then many times there is no declaration or the plaintiff doth delay or discontinue his suit, or is nonsuit, &c. mage, where nience of pursuing of suits upon malice, * matter laid against the parties so arrested or attached, whereunto they may make any answer; and so the party arrested is very maliciously The inconveput to great charges and expenses, without any just or reasonable cause: And yet nevertheless hitherto, by order of the law, the party so grieved and vexed could never have any costs or damages to him to be judged or awarded for the said unjust vexation and trouble:' 6 II. For remedy whereof, be it enacted and ordained by the authority of this present Parliament, That when and as often as any person and persons, after the first day of January next coming, shall sue forth, or by any means cause or procure to be sued forth, of the said court commonly called the King's Bench, any of the writs or process before mentioned, against any person or persons which upon the same writ or writs shall happen to be arrested, or which shall appear upon the return of any of the said writs or process, and shall put in his or their bail or bails to answer such suit as shall be objected against him, according to the common order of the court; that then in every such case, if the party or parties at whose suit, means or procurement, the same writ, writs or process was obtained or sued forth, do not within three days next after such bail had and taken, put into the same court his or their declaration against the same party or parties against whom such writ or process hath been or shall be sued; or if after declaration had and put into the same court, the plaintiff in such case shall not prosecute the same with effect, but shall willingly and apparently to the same court suffer his or their said suit to be delayed; or shall after declaration so had, suffer the same suit to be discontinued, or otherwise shall be nonsuit in the same; that then in every such case, the judges of the said court for the time being shall by their discretions from time to time, as they shall see or perceive any such default to be in the party or parties at whose suit, means or procurement such writ or process was sued forth, award and judge to every such person and persons so arrested, vexed, molested or troubled by such writs or suit, his and their costs, damages and charges by any means sustained by occasion of any such writs, process, arrests or suits, taken, sued or had against him, to be paid by such person or persons that so doth or shall cause or procure any such writs or process to be sued forth, as is aforesaid. without just cause. Costs, damages and charges shall be awarded, where the plaintiff doth doth discondelay his suit, tinue,or is nonsuit, in the King's Bench. No. IV. 8 Elizabeth, c. 2. A remedy if the plaintiff do delay, discontinue, or is nonsuit in the Marshalsea, or any city or town corporate. The penalty for arresting of any person at the suit of another not knowing thereof. III. And be it further enacted by the authority aforesaid, That if any person or persons shall after the said first day of January cause or procure any other person or persons to be attached or arrested to answer to any bill, plaint, action or suit, in the said court of the Marshalsea, or in any court within the said city of London, or in any city, borough, town corporate or other place or places, where any liberty or privilege is used to hold plea in any action or actions personal, and do not, in all courts having their continuance de die in diem, within three days next after such time as the party defendant or defendants shall be bailed, or otherwise appear in court, by force of any arrest or attachment had and returned, and in all other courts, at the next sessions or court to be holden after such arrests or attachments, and appearance of the party defendant or defendants, whereas the said party defendant or defendants shall be compelled or ought to appear, (unless a further day shall be specially given by the discretion of the court from whence any precept, process or attachment shall be awarded) put and exhibit his bill or declaration against such person or persons, as so by his suit and means shall be attached or arrested, into such court where the party by such attachment or arrest is compelled or ought to appear: Or if any such person or persons, at whose suit or means any such attachment or arrest of any person or persons shall be so had and made, after his declaration, bill or plaint exhibited, do not from thenceforth prosecute the same his suit with effect or shall suffer the same to be discontinued, or shall after be nonsuit in the same, or willingly and apparently to the same court, shall for vexation of the defendant in such suit delay the same suit: That then in every such case the judge or judges of every such court before whom any person or persons shall be so sued, molested or troubled by occasion or mean of such attachment or arrest, or by such suit or suits, shall forthwith by his or their discretion from time to time, as he or they shall see or perceive any such default or delay in the party that caused or procured any such attachment or arrest to be had, award and judge to every such person or persons, which after the said first day of January shall be so attached, arrested, molested, vexed or troubled, his costs, damages and charges, by any means sustained by occasion of any such attachment, arrest or suit, so had and taken against him, to be paid by such person or persons that so doth or shall cause or procure any such attachment or arrest to be so had or made. IV. And if any person or persons at any time after the first day of January shall, by any way or mean, maliciously, or for vexation and trouble, cause or procure any other person or persons to be arrested, or attached to answer in any the courts or places aforesaid, at the suit or in the name of any person or persons, where indeed there is no such person or persons known, or without the assent, consent or agreement of such person or persons, at whose suit or in whose name such arrest or attachment is or shall be so had or procured, that then every such person or persons, that shall so cause or procure any such arrest or attachment of any other person or persons to be had or made for vexation or trouble, as is aforesaid, and shall thereof be convicted or lawfully accused by indictment, presentment, or by the testimony of two sufficient witnesses or more, or other due proof, shall for every such offence by him or them committed, done or procured, have and suffer imprisonment of his or their body or bodies by the space of six months, without bail or mainprize. And before he or they shall be delivered out of prison, shall pay unto the party or parties so arrested or attached by his or their means or procurement, treble the costs, charges, damages and expenses that he or they shall be put unto by reason or occasion of such arrest or attachment so had; and shall also forfeit and pay unto such person or persons, in whose name or at whose suit he or they shall so procure such arrest or attachment to be had or made, if then there shall be any such person known, the sum of ten pounds for every such offence. V. And be it further enacted by the authority aforesaid, That every |