1850. CALLANDER V. HOWARD. and I know that the greatest attention was paid to the case by Littledale, J., by whom the judgment was prepared. Richmond v. Johnson, and a similar case of Hovard v. Cheshire (a), were there treated by the court as wholly inapplicable to the question before them: those cases decided, that, where a plaintiff is entitled to judgment upon the whole record, but, by reason of some collateral matter, such judgment gives him no costs, he is not entitled to costs under the statute of Anne. I think the case of Richmond v. Johnson does not bear the construction which the court of Exchequer have put upon it. They say that the conclusion drawn in Bird v. Higginson is not warranted by the cases, and is opposed to the established construction of the statute of Anne; and that, according to that construction, a plaintiff is not (under the statute of Anne) entitled to the costs of issues in fact found for him, unless some issue in fact has been found for the defendant also. It seems to me that that argument received the correct answer, in what fell from my brother Williams in the course of this discussion. If the statute of Anne is applicable only to cases where the plaintiff independently of that statute would get no costs, it follows that the plaintiff in the case of Richmond v. Johnson could not have been entitled to costs under it; because, he had his judgment upon all the issues, and consequently would have had his costs, but for the certificate which deprived him of the benefit of the statute of Gloucester. That clearly shews that Richmond v. Johnson has no bearing whatever upon the cases of Partridge v. Gardner and Howell v. Rodbard. And there is nothing in the statute that is inconsistent with this view. The 4th section enacts that it shall be lawful for any defendant (a) Say. Rep. 260. or tenant in any action or suit, or for any plaintiff in replevin, in any court of record, with the leave of the same court, to plead as many several matters thereto as he shall think necessary for his defence. And, to prevent a multiplicity of frivolous pleas, the 5th section provides, "that, if any such matter shall, upon a demurrer joined, be judged insufficient, costs shall be given at the discretion of the court; or, if a verdict. shall be found, upon any issue in the said cause, for the plaintiff or demandant, costs shall be also given in like manner, unless the judge who tried the said issue, shall certify that the said defendant or tenant, or plaintiff in replevin, had a probable cause to plead such matter which upon the said issue shall be found against him." In other words, a defendant who chooses to plead frivolous pleas, must pay the costs occasioned by his so doing, even though he has judgment on other jesues, which go to the whole cause of action. For these reasons, it seems to me that the true construction of the statute of Anne well warrants the decision in Bird v. Higginson and Clarke v. Allatt; and that the cases upon which the court of Exchequer rely in Partridge v. Gardner and Howell v. Rodbard, do not justify the conclusion they there came to. Upon principle, therefore, as well as upon authority, I think we do no violence to the statute in making the rule to review the taxation in this case absolute. WILLIAMS, J. I am of the same opinion. The case of Bird v. Higginson was very fully considered: and it seems to me that the decision which the court of Queen's Bench there came to, was one which was alike called for by good sense and propriety, and justified by the words of the statute of Anne; and it was deliberately recognised and acted upon by this court in 1850. CALLANDER V. HOWARD. 1850. CALLANDER v. HOWARD. Clarke v. Allatt. Since then, the court of Exchequer, in two cases, without, it seems, having had their attention called to Clarke v. Allatt, have overruled the decision of the Queen's Bench in Bird v. Higginson. The question now is, whether we ought to be induced to abandon the view adopted by us in Clarke v. Allatt. I, for one, should not for a moment have hesitated to do so, if I felt that the court of Exchequer, in the cases referred to, viz. Partridge v. Gardner, and Howell v. Rodbard, had pointed out any fallacy in the reasoning which led the court of Queen's Bench to the conclusion they came to in Bird v. Higginson, or any passage in the statute of Anne which they had inadvertently overlooked. But, to my mind, the judgments in Partridge v. Gardner and Howell v. Rodbard present no reason at all why we should not adhere to the consistent authorities of the court of Queen's Bench and this court. TALFOURD, J. I am of the same opinion. The suggestion thrown out by my brother Williams in the course of the argument, satisfies me that every word of the statute of Anne will be given effect to, by holding it to apply to all cases where there has been double pleading, whether the plaintiff does or does not fail upon any issue of fact. It seems to me to be quite obvious that the conclusion to which the court of Exchequer came in the two cases to which we are called upon to subscribe, is one which never could have been contemplated by the legislature, and that there are no words in the statute that necessarily require such a construction. With the greatest respect, which we must at all times feel for a considered judgment of the court of Exchequer, I think the reasons they have assigned for overturning the case of Bird v. Higginson are not satis factory, and therefore that we are bound to adhere to the uniform decisions of this court, which accord with the view taken by the court of Queen's Bench in that case. Rule absolute. (a) 1850. CALLANDER v. HOWARD. (a) The ground upon which the court of Exchequer proceeded in Partridge v. Gardner and Howell v. Rodbard, was, that they considered that the plaintiff ought not to have any costs under the statute of Anne, where the result shews that he never had any cause of action. Partridge v. Gardner afterwards came by writ of error before the Exchequer Chamber. All the cases, including Clarke v. Allatt and the principal case (Callander v. Howard), were referred to in argument: and the judgment of the court of Exchequer was affirmed; Lord Campbell, C. J., saying,-"Mr. Phipson has not cited any case own. in which the plaintiff has had his costs allowed him where the declaration has been held bad. When judgment is arrested, the plaintiff does not get his costs; but each party bears his The statute of Anne seems to proceed upon the supposition that there is a good cause of action disclosed in the declaration, and that, where there is none, the plaintiff shall not get his costs. We are, therefore, of opinion, that the plaintiff is not entitled to the costs of those issues which have been found for him, and that the judgment of the court below is right, and must affirmed." be 1850. Nov. 15. Held, that one which he is a member, is individually liable thereon. A bill was addressed to "The AlltyCrib Mining Company," and accepted by the defendant, as follows, "Per proc. OWEN V. VAN USTER. ASSUMPSIT on a bill of exchange. The declaration stated that the plaintiff, on the 26th of April, 1850, made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the order of him, the plaintiff, in London, 100l., three months after the date thereof, and that the defendant accepted the said bill of exchange, but did not pay the same when it became due, &c. The defendant pleaded that he did not accept the said bill; whereupon issue was joined. At the trial, before Cresswell, J., at the first sitting in London in the present term, it appeared that the bill was directed to "The Allty- Crib Mining Company, near Talybout, Aberystwith," and was accepted, "Per proc. The Allty-Crib Mining Company, payable at Messrs. Williams, Deacon, & Co.'s, W. T. Van Uster, London Manager." It was proved that The Allty-Crib Mining Company consisted of four persons, of whom the defendant was one, who had, in the year 1849, agreed to form themselves into an association, under that name, for the purpose of working a mine, and that they had proceeded to work the mine accordingly; and one of the other shareholders, who was called as a witness, stated that he had never authorised the defendant to accept the bill in question, or any other, for the purposes of the company. worked it accordingly; and that the bill in question had been accepted by the defendant without the authority of his fendant was liable upon the bill, as acceptor. co-partners :- Held, that the de(Vide post, 321 (a).) |