Dodd against Joddrell
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1788 |
| Date | 01 February 1788 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 128
IN THE COURT OF KING'S BENCH
2 B. & P. 51, 368.
dodd against joddrell. Friday, Feb. 1st, 1788. Where some issues in replevin are found for the plaintiff, which entitle him to judgment, and some for the defendant; the defendant must be allowed the costs of the issues found for him out of the general costs of the verdict, unless the Judge certify that the plaintiff had probable cause for pleading the matter on which those issues are joined. [2 B. & P. 51, 368.] This was an action of replevin. The defendant pleaded non cepit, and then made cognizance as bailiff of J. Horne./r The plaintiff after taking issue on non cepit, and traversing the defendant's being bailiff of J. Home, pleaded two pleas in bar; the first, a licence to him from J. Home to put his cattle in the place in question ; the second, that the place [236] in question was parcel of Postcome Field, and set up a right of common thereupon. The replication first traversed the licence from J. Home to the plaintiff; and, secondly, protesting against the right of common, traversed the place in question, being parcel of Postcome Field. The first and last issues were found for the plaintiff, the second and third for the defendant. And the Judge before whom the cause was tried, did not certify that the plaintiff had a probable cause for pleading his pleas in bar; the Master in taxing the plaintiff his costs having only deducted for the defendant the costs of the third issue ; Lane moved that the Master should be directed to allow the defendant the costs of the verdict; or at least to deduct for him the costs of the second, as well as of the third issue. The defendant is entitled to the costs of the verdict, because no material (a) Vide 2 Str. 932, 975. 2T. R. 237. SCOTT V. BREST 129 issue was found for the plaintiff. The fourth issue, which was found for him, was not on the right of common, but on a collateral point, namely, whether the place in question was parcel of Postcome Field, and the defendant could nob traverse both the right of common, and that the place was parcel, &c. [The Court desired him to confine himself to the second point, as they were of opinion that the plaintiff was clearly entitled to the costs of the verdict.] But at all events the Master ought to deduct the costs of the second issue for the defendant. The statute 21 Hen. 8, c. 19, s. 3, gives to avowants, in case the avowry or justification is found for them, costs...
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