1855. HEALD unjust to call upon the debtor to pay the amount of the debt to the creditor. But there is nothing of that sort in KENWORTHY. this case, and consequently the defendant is not discharged. Judgment for the plaintiffs (a). (a) Martin, B., had left the Court during the argument. Jan. 17. The 17 Car. 2, c. 7, applies to a rent charge as well as to a rent service. nary costs as JAMIESON V. TREVELYAN and ELIZABETH his Wife. COLE had obtained a rule, calling on the defendants to shew cause why the Master should not review his taxation. It was an action of replevin, in which the defendants had avowed for a rent charge under a will (a). The record was made up, and the cause taken down for trial by each of the parties to the action, and the defendants obtained the verbetween party dict; when the defendants' damages were assessed under the 21 Hen. 8, c. 19, s. 3. The Master on the taxation had and party, and not costs as between attor ney and client. Where in an action of replevin, both parties take down the record for trial, and the defend and his dama ges are assessed under the 21 Hen. 8, c. 19, s. 3, he is allowed the defendants full costs as between attorney and The rule had been obtained on the four following grounds: ant succeeds, first, that the 17 Car. 2, c. 7, has no application to a rent charge; secondly, that the term "full costs" means the ordinary costs as between party and party, and not as beentitled to the tween attorney and client; thirdly, that the defendants were costs of his re- not entitled to the costs of their record; and lastly, that they were not entitled to the costs of the distress before plaint, on the ground that they are not costs in the cord. Under the 17 Car. 2, c. 7, a successful defendant in replevin is not entitled to the costs of making the distress. cause. (a) See the case, ante, p. 269. 1855. JAMIESON ย Watson and Willes shewed cause.-First, the 17 Car. 2, c. 7, is not confined to proceedings on a distress for rent service, but also applies to such proceedings for arrears of TREVELYAN. a rent charge. That statute, which is intituled "An Act for a more speedy and effectual proceeding upon distresses and avowries for rents," recites, that "forasmuch as the ordinary remedy for arrearages of rents is by distress upon the lands chargeable therewith; and yet, nevertheless, by reason of the intricate and dilatory proceedings upon replevins, that remedy has become ineffectual;" and after directing the mode in which such proceedings shall be had, enacts, that, "in case such plaintiff shall be nonsuit after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff, then the jurors, that are empannelled or returned to inquire of such value, shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the goods or cattle distrained; and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution for the same by fieri facias or elegit, or otherwise, as the law shall require." The 3rd section, which provides for the case of judgment on demurrer, speaks of " the avowant, or him that maketh cognizance for any rent," which, when taken in connection with the term rent as used in other parts of the Act, clearly shews that the word "rent" includes a rent charge. The 11 Geo. 2, c. 19, applies only to the case of landlord and tenant; but the 17 Car. 2, c. 7, has no such qualification. An early allusion to this statute is to be found in Mounson v. Redshaw (a), which was decided in 19 Car. 2. In Com. Dig. "Pleader," 3 K. 30, pl. 9, it is laid down, that, "if the avowry is for rent charge as well as for rent service, the jury shall inquire what rent was in arrear, and the value of the cattle distrained." This Act (a) 1 Wms. Saund. 187. 1855. JAMIESON v. TREVELYAN. is remedial, and there is nothing to confine it to cases between landlord and tenant.-See Short v. Hubbard (a). Secondly, the term "full costs" in the 17 Car. 2, c. 7, s. 2, entitles the defendants to the costs as between attorney and client. The statute was intended to provide a complete indemnity for the successful party in replevin. It was passed to remedy the hardship which existed at the time it came into operation, and which had not been removed by the 23 Hen. 8, c. 15, or the 4 Jac. 1, c. 3. The lastmentioned statute gave defendants their costs; but a practice was introduced of cutting down the costs, and thereby depriving parties of expenses which they had reasonably incurred, and as to which they were improperly precluded from being reimbursed. The expressions "costs," 'full costs," and "double costs," are now to be found in various statutes. The 126th sect. of the 8 & 9 Vict. c. 18, contains the words "full costs and expenses," which in Doe d. Hyde v. The Mayor &c. of Manchester (b), the Master on taxation held to mean liberal costs as between party and party, and not costs as between attorney and client. [Martin, B.-The rule there was made absolute without opposition, and consequently the point cannot be considered as decided by that case. Parke, B.—“ Full costs" seem to mean the ordinary costs, as contradistinguished from costs of certain limited amounts, as 408. costs (c). Alderson, B.-The 4 & 5 Will. 4, c. 39, enacts, that, in actions of quare impedit, the successful party shall have judgment "with full costs, to be assessed as costs in personal actions are now assessed." That clearly gives the ordinary costs only. Martin, B.-The same expression is also to be found in the 4 & 5 Vict. c. 20, and has the meaning attributed to it by my Brother Alderson, in the statute to (a) 2 Bing. 349. (b) 12 C. B. 474. (c) See Peddell v. Kiddle, 7 T. R. 659, where the term "full costs" is used in this sense by the Court. which he has referred.] The words "full costs," as used by the Legislature at the time of Car. 2, have a more extensive meaning than could be attributed to the simple expression "costs." [Martin, B.-I think it is a strong argument for there being no distinction between "full costs" and "costs," that nothing is to be found in support of such a distinction in Mr. Gray's work on Costs. Parke, B.-In Irwine v. Reddish (a)-where the question arose on the 11 Geo. 2, c. 19, s. 19, the Court said, "In this case the statute gives full costs; but that cannot make any difference, for no distinction is known in the law between costs and full costs, and in point of practice there is no difference in the mode of taxation."] Thirdly, the defendants were entitled to the costs of making up the record, and of entering it for trial. A plaintiff in replevin may neglect to proceed, and in many cases it is his interest not take any step. He may withdraw the record, and defeat the defendant. In Com. Dig. "Pleader," 3 K. 30, pl. 19, it is laid down, that, "since the defendant in replevin (quære if before avowry) is an actor as well as the plaintiff, he, like the plaintiff, may take down the record to trial without a proviso; the plaintiff, therefore, can never be guilty of laches in not going to trial, so that there can be no judgment as in case of a nonsuit." Fourthly, the defendants were entitled to the costs of the distress. The costs so incurred may fairly be treated as incidental to the suit. [Martin, B.-Those costs are altogether anterior to the suit.] Cole, in support of the rule, was directed by the Court to confine his argument to the last two points.—As to the third point, it is a hardship on the plaintiff to have to pay the costs of a proceeding to which he is no party, and which was not caused by his default. [Parke, B. (a) 5 B. & Ald. 796. 1855. JAMIESON v. TREVELYAN. 1855. JAMIESON บ. TREVELYAN. Where a record is taken down by proviso, although the plaintiff also takes down the record, the defendant is entitled to the costs of his record. It is, therefore, but reasonable that the same rule should be applicable to this case. Alderson, B.-There is no other way open to the defendant by which he can be certain that his cause will be tried.] As to the last point, the defendant gets the costs of the distress by way of damage. These expenses are not costs in the suit. POLLOCK, C. B.-The rule must be absolute for the Master to review the taxation upon the second and last points only. We think the term "full costs," means ordinary costs as between party and party; this is in accordance with the practice. The costs of the distress ought not to have been allowed. Upon the other point the taxation was correct. The rule will be absolute accordingly. PARKE, B.-I agree that the term "full costs" merely means the ordinary costs as between party and party. The expression seems to have been introduced into the 17 Car. 2, c. 7, merely for the purpose of excluding the idea that the defendant was only to be entitled to recover a limited sum for costs, according to the provisions of certain statutes which were in operation at that time. As to the costs of the record, I think it is but reasonable, although the plaintiff has taken down a record, that the defendants should be allowed the expense of their record. Then, as to costs incurred by making the distress. Under the 11 Geo. 2, c. 19, s. 22, (The Landlord and Tenant Act), successful defendants in replevin were entitled to double costs of suit. So much of that statute as gave a defendant double or treble costs is repealed by the 5 & 6 Vict. c. 97, which gives in lieu thereof a "full and reasonable indemnity as to all costs, charges, and expenses incurred in and about the action, suit, or other legal proceeding, to be taxed by the proper officer." |