Bird v Higginson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1098
IN THE COURT OF KING'S BENCH.
S. C. 6 N. & M. 791; 2 H. & W. 278; 6 L. J. K. B. 262. For other proceedings see 2 Ad. & E. 160, 696; 6 Ad. & E. 696. Approved, Callander v. Howard, 1850, 10 C. B. 313.
1098 BIRD V. HIGGINSON 6 AD & E. 83. [83] bird against higginson. 1836, To a declaration in two counts, defendant pleaded two pleas to the first count, arid one to the second. Issues were joined on one plea to the first count, and on the plea to the second count; the other plea to the first count was demurred to. The plaintiff took the issues of fact to trial, and a verdict was found for the plaintiff on the issue on the first count, and damages assessed ; and for the defendant on the issue on the second count. Afterwards, on the demurrer to the other plea to the first count, the defendant had judgment. Held, that the plaintiff was entitled to all the coats of the trial on the issue on which he hud succeeded, including (in addition to the pleadings) briefs, witnesses, &c. And that no objection arose from his having tried the issues in fact before that in law, especially as a Judge at chambers had refused an application by the defendant to order the trial of the issues in fact to be postponed till judgment was given on the demurrer. [S. C. 6 N. & M. 791 ; 2 H. & W. 278 ; 6 L. J. K. B. 262. For other proceedings see 2 Ad. & E. 160, 696; 6 Ad. & E. 696. Approved, Oallander v. Ifmuard, 1850, 10 C. B. 313.] Assumpsit. The declaration contained two counts : the first, for non-performance of an agreement; the second, on an account stated. Pleas. First, as to the last count, non assumpsit. Second, as to the first count, that the agreement was obtained by fraud, covin, and misrepresentation. Third, as to the first count, that the agreement was not under seal, with some further allegations not material here. The plaintiff joined issue on the first plea, traversed the second, and demurred to the third. Afterwards the plaintiff made up and delivered the issue, with notice of trial of the issues in fact for the assizes at Dolgolly, in July 1834. The defendant obtained a summons to postpone the trial till after the argument of the demurrer; but, on cause being shewn before Patteson J., the learned Judge refused to make any order. The trial took place at Dolgelly, in July 1834, before Vaughan J. The plaintiff offered no evidence on the first issue, and on that a verdict was entered for the defendant; but the plaintiff obtained a verdict on the issue joined on the plea of fraud, for 2001. damages, costs 40s. Afterwards, in Hilary term 1835, the demurrer was argued ; and, in the same term, judgment was given for the defendant (a)1. [84] On the taxation of costs, the defendant contended that the plaintiff ought not to have gone to trial before the issue in law was determined ; that the whole declaration had been virtually answered by the plea demurred to; and that the finding for the plaintiff on the fraud therefore became a nullity. Damages having been found for the plaintiff as above stated, and inserted in the postea, the Master, in order to raise the question as to the plaintiff's right to try the issue joined on the plea of fraud before the argument on the demurrer, allowed him, by way of increase, the general costs of the cause in the usual manner, deducting the defendant's costs of the other pleadings, the argument, &c. He, however, suggested in his report that so much of the postea as gave damages and costs to the plaintiff should, at all events, be struck out; in which case the plaintiff's costs, he suggested, would be limited to those of and occasioned by the second plea, but would include the costs of the trial (unless the Court should be of opinion that the plaintiff had no right to take the record down to trial before the argument on the demurrer); and, consequently, that the defendant should have the general costs of the cause in respect of the residue of the case, including, of course, the costs of the demurrer and argument. In Hilary term last, Sir John Campbell, Attorney-General, obtained a rule to shew cause why the Master should not review his taxation by striking out all the costs allowed to the plaintiff, and taxing the defendant his full costs of the third plea, including the costs of arguing the demurrer thereto ; and why he should riot strike out of his allocatur on the postea the damages of 2001. marked by him for the plaintiff. [85] John Jervis shewed cause in Hilary term last (a)2. Damages having been found for the plaintiff, and inserted in the postea, the Master was obliged to allow (a)1 See the argument and judgment, tiird v. Higginson, 2 A, & E. 6'JG. (a)2 January 30th. Before Lord Deiiman C. J., Littledale, Williams, and Coleridge Js. JAD.*E. BIRD V. HIGQIN8ON 1099 bim, in addition to the costs of the trial on the issue upon the plea of fraud, the general costs of the cause, amounting to about 51.; and he cannot be deprived of those costs until the damages have been struck out as suggested. He is, at all evetits, entitled to the costs of the trial on the second issue. In Cooke v. Sayer (3 Burr. 753. S. C. 2 Wils. 85), the defendant pleaded two pleas, each to the whole of the action; issue was joined on one, and the other was demurred to: first, the issue in fact was tried and found for the plaintiff; afterwards the demurrer was argued, and judgment given for the defendant; and the Court allowed the defendant the costs of the demurrer, but allowed no costs on either side as to the trial. But now, according to the rules H. 2 W. 4, I. 74, and H. 4 W. 4, General Rules and Regulations, 7, each party is to have the costs of the issue on which he succeeds. This was ruled in Hart v. Cutbush {'2 Dowl. P. C. 456); where it was also held that the costs to which the plaintiff was entitled included, not only those of the pleadings on the issues on which he had succeeded, but of the witnesses on these issues, and all the costs of the trial relating to them. Sir John Campbell, Attorney-General, contra. It was not intended by the new rules to alter the practice in this respect. It now appears that the plaintiff went unnecessarily to trial on the second issue; and he can-[86]-not call upon the defendant to pay the expenses of his doing so. If the business of the Court had been less, the demurrer would have been first heard, and would have disposed of the whole question. By stat. 4 Ann, c. 16, s. 5, the costs are in the discretion of the Court. Cross v. Johnson (9 B. & C. 613), is an authority for the defendant. The rules of H. 2 W. 4, and H. 4 W. 4, which have been cited, apply only to cases where all the issues are of fact, and where there must of necessity be a trial. The rule H. 2 W. 4, I. 74, only takes away costs from the plaintiff on the issues on which he fails, and gives costs to the defendant of all issues found for him: the defendant certainly has not had the second issue found for him, and does not claim costs on that; but there is nothing in that rule, or in the rule H. 4 W. 4, General Rules and Regulations, 7, requiring him to pay them to the plaintiff. The practice, where there are issues in law and fact, is left on its old footing; the present case ia entirely omitted. In Goodbiirne v. Bowman (2 Dowl. P. C. 206), it was held that, where a defendant succeeds on issues in fact, but judgment is afterwards given 11011 obatunte veredicto, neither party has the costs of the issues. Cur. adv. vult. In the term (June 13th) Lord Denman C.J. delivered the judgment of the Court. After stating the facts, from the Master's report, his Lordship proceeded as follows:- The case of Oooke v. Sayer, reported in Burrow (2 Burr. 753), and more shortly in Wilson (2 Wils. 85), which has been referred [87] to in the Master's report, and also upon the argument, is almost exactly the same as the present case. It was an action for criminal conversation. The defendant pleaded, 1st, not guilty; 2dly, not guilty within six years. On the first plea, the plaintiff joined issue, and obtained a verdict for 501. To the second plea there was a demurrer, and judgment for the defendant on the demurrer; so that, upon the whole record, it appeared that the plaintiff had no...
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