1869 HARDY decision of the said assistant commissioner is erroneous, in so far as such decision allows or confirms the allowance of the claims of Fetherstonhaugh to rights of common of pasture over the said FETHERSTONmoors in respect of the mansion and lands containing 198 acres." At the trial the plaintiff denied, and called witnesses to disprove, that the defendant had rights of pasture in respect of any of the 198 acres, and the plaintiff claimed and produced evidence in support of the right in respect of the whole of the 198 acres. A verdict was ultimately entered for the plaintiff as to so much of the 198 acres as lies on the south side of Raven Beck, and is in the parish of Kirkswald, and for the defendant as to the residue of the 198 acres. The value of the rights found for the plaintiff and for the defendant was very nearly equal, and the acreage also nearly equal. On taxation, the Master allowed the plaintiff the general costs of the cause, 2667. 19s., and taxed the defendant the costs which related solely to that part of the issue found for him at 127. 1s. Gray, Q.C., shewed cause. By 8 & 9 Vict. c. 118, s. 56, the costs of the issue are to abide the event. Here the event was in favour of the plaintiff. [MELLOR, J. This is not like an ordinary action. Here both parties are actors, and costs must be awarded as in a feigned issue.] This is not like a feigned issue, in which the Court may direct which party shall be plaintiff and which defendant. The costs must be taxed as in an action; that is, the plaintiff is entitled to the general costs, and the defendant only to such costs as apply exclusively to the part on which he has succeeded. MacCarthy v. Nepean (1) will be cited by the other side; but in that case the statute left the costs in the discretion of the Court, whereas in the present case they are to abide the event. Lewis v. Holding (2) and Staley v. Bedwell (3) were decided very soon after the Interpleader Act was passed, and different views were taken by the courts, but these cases are no authority on the present statute, as the costs under the Interpleader Act are in the discretion of the Court. (2) 2 M. & G. 875. (1) 6 Q. B. 252. (3) 10 A. & E. 145. L V. HAUGH. 1869 HARDY FETHERSTON HAUGH. [BLACKBURN, J. The costs are to abide the event of the trial, without regard to which of the parties is formally made plaintiff or defendant. The plaintiff affirmed that the defendant was entitled in respect of none of the acres; the defendant affirmed that he was entitled in respect of all; and the jury found that neither was right. COCKBURN, C.J. "Event" applies to what the commissioner is to do as well as to the costs. Here the commissioner is to act on what the jury have found, and disallow part, and allow part. The issue is, in fact, divisible, and each party has succeeded in part.] In Fitzwilliam v. Maxwell (1) it was held that the costs under an Inclosure Act must abide the event in the same way as under the statute of Gloster. [MELLOR, J. There the statute was altogether silent as to costs. The question here is, what s. 56 means by "abiding the event."] T. Jones, Q.C., in support of the rule, referred to the words of s. 56, already observed upon by the Lord Chief Justice. [He was then stopped by the Court.] COCKBURN, C.J. The section is most inartificially drawn, and open to much doubt; but if we were to put the construction upon it for which the plaintiff's counsel contends, we should establish so anomalous a state of things as the result, that I have little hesitation in deciding against it. A man makes a claim to rights of common in respect of a certain number of acres of land, and the valuer and commissioner make an award and confirmation in his favour, that he is entitled to rights of common in respect of such and such a number of acres. The decision, therefore, in the first instance, is in the claimant's favour; but some one comes forward and objects, and avails himself of the means given by the statute; that is, he brings a feigned issue under s. 56; and the question to be tried is, whether the claimant is entitled to the allotment as made. Suppose he claims in respect of 100 acres; on further investigation, instead of 100 acres, it turns out that he is only entitled in respect of 99; the issue, it is said, is therefore found against him, because he claimed in respect of the 100 acres, and failed as to the 100th, and the plaintiff is entitled to the general costs of the cause, inasmuch as the statute says the costs (1) 7 Taunt. 31. shall abide the event of the trial. But this is not the fair construction of s. 56. The words are: "And after such verdict shall be given, and final judgment obtained thereon, the commissioners shall act in conformity therewith, and allow or disallow the claim thereby determined according to the event of such trial; and the costs attending any such action shall abide the event of the trial." Therefore it is clear that the commissioners must allow or disallow so much of the claim as is found for or against the claimant; and the issue is divisible; and this is what the commissioners have done or will have to do in the present case. But the words as to the costs are in the very same language; they are to abide the event of the trial. If, therefore, the event as to commissioners is that they have to allow part and to disallow part, as the costs are to abide the same event, the allowance in part and disallowance in part, each party is entitled to the costs of that part of the issue on which he has succeeded, and so justice will be done between the parties. BLACKBURN, J. I am of the same opinion. It is quite true that in an ordinary action containing many claims the plaintiff gets the general costs of the cause if he 'succeeds on any part of his claim, and the defendant only gets the costs which are applicable to those issues on which he succeeds, so that the plaintiff gets a much larger proportion. But that has no application to the present case, which turns on the language used in the particular statute. [The learned judge read the chief parts of s. 56.] In such a case it is clear that the issue is divisible. Was the defendant entitled to rights of common in respect of all or any of the 198 acres? The finding of the jury is that he was right as to part, and wrong as to the other. That is the event, and accordingly the commissioners must allow the claimant so much as is found for him, and this is quite independent of which was plaintiff and which defendant. In Fitzwilliam v. Maxwell (1) there was no provision in the statute about costs, and the plaintiff was held to be entitled to the costs as in an ordinary action, and therefore the plaintiff, before the new rules, would have all the costs; but that is quite contrary to the present statute, where the costs are to abide (1) 7 Taunt. 31. 1869 HARDY v. FETHERSTON HAUGH. 1869 HARDY v. FETHERSTON HAUGH. the event of the trial; that is, each party is to have the costs of the part in which he has succeeded. Nothing is clearer than that the costs, like the judgment of the commissioners, shall abide the event which, in the present case, is partly in favour of the plaintiff, and partly of the defendant. The master ought, therefore, to tax the costs as if there had been two separate records with a single issue in each, in which the plaintiff and defendant respectively had succeeded. The argument for the plaintiff simply amounts to this, that the right to the general costs shall depend merely upon the circumstance of which is appellant and which respondent, and not on which is right on the merits. But justice and the words of the section require just the reverse construction, otherwise the claimant would be made to suffer from having the decision of the commissioner originally in his favour. MELLOR and HANNEN, JJ., concurred. Attorneys for plaintiff: Sharpe & Ullithorne. Rule absolute. Attorneys for defendant: Hancock, Sharp, Hales, & Morris. July 3. WREN AND ANOTHER v. WEILD. Action-Slander of Title to Personalty-Reasonable and Probable Cause — The plaintiffs brought an action, alleging in the declaration that the defendant falsely and maliciously wrote to and told persons who had bought certain machines of the plaintiffs, that the machines were infringements of the defendant's patents, and that the defendant claimed royalties for the use of the machines, and that if they used the machines without paying royalties he should take legal proceedings. The defendant pleaded not guilty. The plaintiffs, at the trial, offered to prove various specifications and machines, existing before the date of the defendant's patent, to shew that the defendant's specification claimed matters that were not new, and also that the defendant had used them. The Judge ruled that, as the defendant's patent was still subsisting, and not set aside, on scire facias or otherwise, the evidence was immaterial, and directed a nonsuit: Held, that the ruling of the Judge was right; that where a person claims a right in himself which he intends to enforce against a purchaser he is entitled, and in common fairness bound, to give the intended purchaser warning of his intention; and that no action lies for giving such preliminary warning, unless it can be shewn, either that the threat was made malâ fide, only with the intent to injure the vendor, and without any purpose to follow it up by an action against the purchaser, or that the circumstances were such as to make the bringing an action altogether wrongful. THE declaration alleged that the plaintiffs were machine makers at Manchester, and lawfully made and sold spooling machines, and charged in substance, in eight counts, that the defendant falsely and maliciously wrote or said to various persons who had purchased, or were intending to purchase, the machines of the plaintiffs, that the machines sold by the plaintiffs were infringements of the defendant's patents, and that the defendant claimed royalties for the use of the machines; and that if they used the machines without paying him royalties he should take legal proceedings, concluding with special damage by loss of custom and trade profits. Plea: Not guilty. Issue thereon. At the trial, before Lush, J., at the spring assizes at Manchester, the learned judge directed a nonsuit to be entered. The course of the trial, and the facts proved, sufficiently appear from the judgment of the Court. A rule was afterwards obtained for a new trial, on the grounds of rejection of evidence and misdirection by the learned judge. Of rejection of evidence: First, as to the want of novelty of parts of the inventions, and invalidity of the patent of the defendant: Second, as to the knowledge of the defendant of parts of the invention being old, and the invalidity of the patent in the then state of the specification; and that no action could be maintained thereon; rejection of Young's specification, and other evidence of want of novelty. Of misdirection, in that the learned judge ruled that it was only competent to the plaintiffs to shew that their machines did not infringe the patent of the defendant. Second, that the learned judge misconstrued the specification of the patent of the defendant. Third, that it was not open to the plaintiffs to shew that a part or parts of the defendant's machine was or were old to his knowledge, or that the specification was invalid as claiming parts that were old, and not distinguishing the parts that were old from the parts that were new; that the claim in the specification was not limited to the self-acting machine taken as a whole. Fourth, that it was competent to the plaintiffs to shew that the parts complained of in the plaintiffs' machine were, to the VOL. IV. 30 1 1869 WREN ย. WEILD. |