Drury v Fitch
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1682 |
| Date | 01 January 1682 |
| Court | Court of Common Pleas |
English Reports Citation: 123 E.R. 1068
THE COMMON PLEAS
pahch. 16 jag. druky versus fitch. Hob. 219. Poph. Eep. f. 211. Costs upon non-suit where the plaintiff hath no cause of action. Drury an attorney of this Court, brought an action upon the case against Fitch, one of the Serjeants of London, for saying, I arrest thee for felony, and after not guilty pleaded the plaintiff was non-suited : and now it was moved that no costs should be given to the defendant, because that tho words will not bear action, and therefore judgment shall be given quod nil capiat per billam : and they vouched one president in Grewstons case in Ban. Keg. viz. that now by the last statute, costs shall be given to the defendant in all cases where the plaintiff should have costs if he recover; but in such case where the plaintiff if he recover shall not have costs, the defendant upon the non-suit of the plaintiff shall not have costs. But it seemed to Lord Hobart, that in this case the costs are for vexation, and this is more vexation if he had no cause of action, vide 29 H. 8, fol. 32. It is there resolved, that an action lies for the costs, notwithstanding a writ of error brought: and the last day of this term the Court was of opinion that the action lies for the words, for it is more then these, I charge thee with felony, and if the action lies not, yet the defendant shall have costs, for it was such an action in which the plaintiff ought to have costs if he recover. Upon motion in Court by the direction of Justice Warburton who had caused a juror to be drawn, by reason of the slendernesse of the matter, and for avoiding the charge of a speciall verdict; the case was, A copyholder was a lunatick, and the lord committed the custody of his land to one which brought an action of trespasse ; and whether it ought to be brought by him or by the lunatick was the question. And the...
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