Mic. 4 G. 3. Bartlet and Spooner, E. 1751. C. B. Davrel v. S. P. Darlow v. Collifon, Tr. 24 G. 2. Ex dem. Foote & al. he fhall think neceffary for his defence, provided that if any fuch matter fhall upon demurrer joined be judged insufficient, cofts fhall be given at the difcretion of the court; or if a verdict fhall be found upon any iffue in the faid cause for the plaintiff or defendant, cofts fhall also be given in like manner, unless the judge who tried the faid iffue fhail certify, that the faid defendant or plaintiff in replevin had a probable cause to plead fuch matter. In trefpafs the defendant pleaded three different juftifications to three different counts, and on iffue joined had a verdict for him on two, and against him on the third. On motion this was holden not to be a cafe within this act, and the plaintiff intitled at common law to cofts on the whole declaration. In trefpafs the defendant pleaded not guilty and feveral juftifications; upon the trial the plaintiff not proving his poffeffion in the locus in quo, the defendant had a verdict, and by direction of Denifon J. the verdict was entered upon the general iffue only; upon which there was a motion for a venire de novo. But the court refufed the motion, faying the verdict was compleat, and determined the cause, that the plaintiff was not intitled to damages, though they said the plaintiff might have infifted to have a verdict entered on the other iffues, for the fake of cofts which he would be entitled to, unless the judge certified, that the defendant had probable caufe to plead fuch plea. Eighthly, Where a special jury. By 24 G. 2. The party who moves for the fpecial jury fhall pay the whole expence occafioned thereby, and in the taxation of cofts be allowed no more than if it had been a com mon jury; unless the judge certify that it was a cause proper to be tried by a special jury: And the fpecial jury shall have only what the judge allows, not exceeding one guinea. As there are some cafes relating to cofts which could not be taken notice of under the foregoing heads, it will not be improper to infert them together in this place. One defendant gave a general release to the plaintiff after the cofts of nonfuit taxed, and upon motion he was ordered to pay the other defendants their shares. Each defendant is answerable for the whole cofts: therefore in an ejectment against feveral, where the defendants defended feverally; at the affizes one confeffed and had a ver dict against him; the others did notconfefs; the court upon application faid the officer muft tax the fame costs against all the defendants. If after the plaintiff has had fatisfaction against one, he should take it against another, fuch defendant may apply to the court. Cofts upon feigned iffues abide the event of the verdict in Herbert v. like manner as if it were an adversary suit. where In cross actions of affault each party being nonfuited, S. had his costs taxed at 9 l. to s. and P. his at 137. 10 S. upon he moved to be at liberty to deduct the 97. 10s. out of the 13. 10s. paid by him into the fheriff's hands; rule to fhew caufe, but the defendant not consenting, the court faid they could not do it. Williamson, Smith & Econ S. P. 1749. So in an action of trefpafs against four, three were acquitted, Mordia v. and motion on their behalf that their costs might be deducted Nutting & al'. out of what the fourth defendant was to pay upon an affidavit that the plaintiff was a travelling Jew, &c. denied. But E. 27. G. 2. where Roberts had brought an action against Biggs and others, and Biggs had brought a crofs action against Roberts, the court of C. B. ordered that upon Biggs acknowledging fatisfaction for on the record in the cause in which he was plaintiff, the plaintiff in the other cause in which he (Biggs) and others were defendants, should be reftrained from taking out execution. So where a plaintiff being nonfuited the defendant took out a fi. fa. and levied part of the cofts, and at the fame time took out a ca. fa. for the reft, and took the plaintiff in execution, which being irregular, the court fet it afide with cofts; the defendant moved that the proceedings against him on account of these cofts fhould be stayed, upon his entring up fatisfaction upon the judgment obtained by him for the fum at which the cofts for the irregularity were taxed, and upon fhewing cause the rule was made abfolute. Wills and G. 2. Leicester v. Motion for judgment as in cafe of a nonfuit, and that the The Earl of mafter should tax the costs for not going on to trial at the fame time, refused, for the cofts in the two cafes ought not 1748. K. B. to be blended, being founded upon different rights: but if on fhewing cause against the judgment of nonfuit, the court give the plaintiff further time, it is always on paying the cofts for not going on to trial, unless there were a countermand in time. Z 4 |