Harold v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 1860 |
| Date | 25 February 1860 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 1229
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 29 L. J. Ex. 141, 6 Jur. (N S.) 254; 8 W. R. 447, 1 L T. 556 Referred to, London Scottish Benefit Building Society v. Chorley, 1884, 12 Q. B D 455, Gundry v. Sainsbury, (1910) 1 K. B. 647.
[380.] habold i . smith Feb 25, 1860-Costs are given by the law only as an indemnity to the party who receives them-In an action to recover 1301 for work and erxlras, under a building contract, the defendant pleaded to the whole "never indebted " The plaintiff prepared his brief, and delivered notice of trial. The defendant afterwards obtained a Judge's order for leave to amend, and paid into Court 791. and pleaded never indebted to the residue The plaintiff took the 7i l. out of Court, and proceeded for the residue of his demand, but was nonsuited on the trial Held that, on taxation of costs, the plaintiff was not entitled, either under the Reg Gen., Hil T. 1853, r. 12, or under the order to amend, to such costs of the brief and other nuitters as would have been incurred if the 791. had been paid into Court at the time of pleading the original pleas. [S C 29 L. J. Ex. 141, 6 Jur. (N S.) 254; 8 W. R. 447 , I L T. 556 Referred to, London Scottish Benefit Building Society v. Charley 1884, 12 Q. B D 455, Qmtdry v. Samsbviy, [1910] 1 K. B. 647.] Hayes, Strjt., for the defendant, had obtained a rule to shew cause why the Master should not review his taxation of the several bills of costs in this cause. 1230 HAROLD V. SMITH 5 H & F. 882. The action, which was brought to recover 1301. on a builder's bill, was commenced on the 18th of February, 1859 On the 3rd of March, the defendant pleaded "never indebted"and "payment." On the 10th of March the plaintiff delivered the issue with notice of trial foi the assizes at Warwick The commissioti day whs on the 21st of March. On the 16th of March the defendant's attorney took out a summons, calling on the plaintiff to shew cause why the defendant should not be at libeity to amend his pleas, and pay into Court 791 On the following clay the parties attended before Williams, J., who made an order-"That the defendant be at liberty to amend his pleadings, and pay into Court the sum of 791 that the costs be plaintiff's costs in the cause , at all events, that the money be paid into Court by three o'clock to-morrow, otherwise I make no order, the plaintiff to have till Monday next at three o'clock to elect whether he will reply or enter a nolle prosequi: if he enter a nolle prosequi, plaintiff to be entitled to all general costs of the cause except as to the nolle prosequi." On the 18th the defendant, except as to 791, pleaded " never indebted '' and " payment" ; and as to 791. payment into Court. The plaintiff replied, taking the 791. out of Court, and taking [382] issue on the other pleas. On the 24th the cause was tried, when the plaintiff was nonsuited. The Master allowed 311. 10s. 2d. as costs of the order to amend the pleas; and 121. 18s. 8d. as plaintiff's costs of the cause up to the time of the plea of payment into Court Amongst the items were the following, which were reduced on taxation, or disallowed, as appears in the left hand column - 040 Notice of trial and service . . .040 Copy specification to accompany case on evidence 1 fi 8 110 Instructions for brief . . . 3 .5 0 100 Drawing same, fos 100 . . .500 1 10 0 Two fair copies with pleadings, fos. 150 . 500 Manisty shewed cause (a) A plea of never indebted, pleaded to the whole demand, stood upon the record up to the time of the amendment, when the money was paid into Court; and the question is, whether the plaintiff is entitled to the general costs of the causa up to that time, or whether the defendant is entitled to the general costs of the cause, and the plaintiff to special costs only. In accordance with the Practice Rule, Hil. T. 1853, r. 12, the plaintiff is entitled to the general costs of the...
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Malkinson v Trim
...the reference in the judgment of Mr Justice Denman, (1884) 12 QBD 452, at page 455, to the general rule, laid down by Baron Bramwell in Harold v Smith (1860) 5 Hurlestone & Norman 381, that costs are allowed only by way of indemnity, in the sense that a party cannot be allowed to recover by......
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Garbutt v Edwards
...in origin a common law principle. The principle was described by Baron Bramwell thus when giving the judgment of the court in the case of Harold v Smith (1860) 5 H&N 381, 385: "Before stating the principle on which the Master acted on this taxation, it may be as well that I should state wha......
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Bell Lawyers Pty Ltd v Pentelow
...and Dowdell v Australian Royal Mail Steam Navigation Co (1854) 3 El & Bl 902 at 906 [ 118 ER 1379 at 1381]. See also Harold v Smith (1860) 5 H & N 381 at 385 [ 157 ER 1229 at 1231]. 72 London Scottish Benefit Society v Chorley (1884) 13 QBD 872, affirming London Scottish Benefit Society v C......
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General of Berne Insurance Company v Jardine Reinsurance Management Ltd
...but they are only given in the character of an indemnity. I cannot do better than read the opinion expressed of Bramwell B. in Harold v. Smith 5 H. & N. 381 at 385: "Costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as......