£ 8. d. To the same, for attending to issue the warrant 0 6 8 To the clerk of the County Court, on the issuing ... ... 0 5 0 of a warrant To the party executing the warrant for the caption 1 To the same, for every mile from the place where the warrant shall be issued to the place where it shall be executed, a further sum of To the same, for every mile from the place where the debtor shall be arrested to the gaol where he shall be lodged, the further sum of 11 0 0 0 6 ... 0 1 0 WHERE the plaintiff has reason to think he will not succeed in his action, he may discontinue it. Formerly the steps in an action were connected by continuances, but now "no entry or continuances, by way of imparlance, curia advisari vult, vicecomes non misit breve, or otherwise, shall be made upon any record or roll whatever, or in the pleadings."(1) A plaintiff alone can discontinue; and it is his privilege to do so.(2) An avowant cannot discontinue.(3) The entire action, and not a part merely, must be discontinued; thus, after judgment on demurrer for the defendant as to one plea, the plaintiff cannot discontinue as to that plea only.(*) A rule must be obtained for the purpose, which is a side-bar rule granted as a matter of course, before argument of a demurrer, or verdict, or writ of inquiry.(5) In other cases application must be made to the court for a rule nisi. court has not allowed the rule during a stay of proceedings; () nor after a writ of inquiry has been executed Rule Pl. 31 T. T. 1853. (2) Pott v. Hirst, 1 D. & L. 910; 7 Sc. N. R. 800. Long v. Buckeridge, 1 Str. 112. Benton v. Polkinghorne, 16 M. & W. 8. Murray v. Silver, 1 C. B. 638; 3 D. & L. 26. The and returned, unless with defendant's consent; (1) nor after a general verdict, unless a new trial has been ordered; (2) yet it has been allowed after a special verdict, (3) unless the action was oppressive, (') or unless the plaintiff's object was to adduce fresh proof to contradict the verdict. (5) Where the defendant had demurred, and succeeded on the demurrer, and the plaintiff had taken out a rule to discontinue, the court refused to set it aside, as the defendant was, nevertheless, entitled to his costs under the judgment.(*) "To entitle a plaintiff to discontinue after plea pleaded, it shall not be necessary to obtain the defendant's consent; but the rule shall contain an undertaking on the part of the plaintiff to pay the costs, and a consent that if they are not paid within four days after taxation, defendant shall be at liberty to sign judgment of non pros."(1) As to discontinuance after bringing error, see ante, p. 550. Costs, and non-payment thereof.]—In general the plaintiff, on discontinuing, is bound by statute to pay costs,() and it is also made a condition on granting the rule, though by consent the rule may be otherwise drawn up. Where he discontinues without giving notice of trial, he is not liable to pay the costs of the draft and copies of briefs.(9) And where the jury being unable to agree are discharged by the judge from giving a verdict and the plaintiff discontinues, the defendant is not entitled to the costs of the trial.(10) The court, however, will not compel payment of costs, if the defendant has misconducted himself. (1) Where the plaintiff succeeds at the trial, and after a new trial is ordered, discontinues, it seems he will not be held bound to pay the costs of the first trial, if the defendant, on succeeding at the second trial, (1) Stevens v. Etherick, 1 Show. 63; Carth. 86. (2) Price v. Parker, 1 Salk. 178; Young v. Hitchens, 1 Dav. & M. 599; Goodenough v. Butter, 2 C. M. & R. 240; 3 Dowl. 751. (3) Price v. Parker, 1 Salk. 178. (4) Boucher v. Lawson, Hardr. 200. (5) Roe v. Gray, 2 W. Bl. 815. Sanson v. Rhodes, 8 Sc. 557; see Benton v. Pollinghorne, 16 M. & W. 8; Bentley v. Dawes, 10 Exch. 347. (7) Rule Pr. 23, H. T. 1853. (8) 8 Eliz. c. 2, s. 2; 4 Jac. 1, c. 3 13; Car. 2, stat. 2, c. 2, s. 3. (*) Postlethwaite v. Neale, 2 M. & W. 732; 6 Dowl. 166; Rivis v. Hatton, 8 Dowl. 164. (10) Wall v. London and South Western Railway Company, 25 L. J. 93 Exch.; Brown v. Clarke, 12 M. & W. 25. (11) Poensgen v. Chanter, 6 Sc. 300; Ames v. Ragg, 2 Dowl. 35. would not have got the costs of the first.(1) Yet where, after verdict for the defendant, a new trial was ordered, and the plaintiff, after giving fresh notice of trial, discontinued, the defendant was held entitled to the costs of searches of documents useful for the second trial.(2) Where the plaintiff discontinued on finding the defendant was insolvent, he has not been made to pay costs. (3) And he is expressly exempted when the defendant is made a bankrupt, and the plaintiff elects to prove his debt.() He is not, however, exempted merely because the judge at the trial misdirected the jury.(5) Where an uncertificated attorney conducted the defence, the plaintiff was made to pay only the sums actually advanced by the defendant to the attorney for costs.() Where the plaintiff discontinues after succeeding on a demurrer to a plea, the costs of both may be taxed together, and the allocatur made out for the balance, unless the defendant bring error or dissent. (7) Where an administratrix was made defendant in an action commenced against the intestate, by a suggestion under the Common Law Procedure Act, 1852, s. 138, and had pleaded to the suggestion, the court would not allow the plaintiff to discontinue without payment of all the costs of the cause.(*) When the rule is granted on payment of costs, the condition is not fulfilled unless the taxed costs are actually paid; (9) thus, mere service of the rule is not enough; (10) nor a tender to the defendant of more than the costs amount to.(") The plaintiff, however, seems not to be liable to an attachment for the non-payment of these costs, though the rule was granted on condition of payment ;(12) and until he pays them he may himself proceed, (13) or be forced by the de (1) Jolliffe v. Munday, 4 M. & W. 502; Earl of Macclesfield v. Bradley, 7 M. & W. 570. (2) Daniel v. Wilkin, 8 Exch. 156. (3) Ford v. Stock, 1 Dowl. N. S. 763. (4)12 & 13 Vict. c. 106, s. 182; Sainter v. Ferguson, 8 C. B. 619. (5) Hernaman v. Barber, 15 C. B. 774. (6) Paterson v. Powell, 2 Dowl. 738; 3 M. & Sc. 195; Paterson v. Johnson, 2 Dowl. 739; 3 M. & Sc. 200. (7) Mayor of Macclesfield v. Gee, 13 M. & W. 470; 2 D. &. L. 418, the plaintiff being entitled to the costs of the demurrer, if he succeeds (Bentley v. Dawes, 10 Exch. 347); see also Ellwood v. Bullock, 6 Q. B. 383. (8) Benge v. Swayne, 15 C. B. 785. (9) Edgington v. Proudman, 1 Dowl. 152. fendant to proceed in the cause, for the rule to discontinue is not of itself a stay of proceedings. (1) But the defendant may in such a case sign judgment of non pros. (2) Proceedings after discontinuance.]-The defendant may apply to the court or a judge to set aside the side-bar rule for a discontinuance.(3) He, however, cannot compel the plaintiff to enter the judgment of discontinuance on the roll until the costs are paid, if the discontinuance was allowed on payment of costs,() for until the costs are paid the discontinuance is not complete. (3) When the discontinuance is complete, the plaintiff may bring a fresh action; (6) and where he brings a new action without discontinuing the old, the court will stay proceedings. (7) Form of Entry of Discontinuance on Roll. Afterwards, to wit, on come the parties aforesaid, by their respective attorneys aforesaid; and the plaintiff doth not further prosecute his said suit with effect, but voluntarily permits his said suit to be discontinued. Therefore, it is considered that the said A. B. take nothing by his said writ, and that the said C. D. recover against him £ for his costs of defence. 2. Cassetur Breve. When the defendant pleads in abatement, and the plaintiff can neither deny the plea nor demur, nor find it useful to amend, he may enter on the roll a judgment of cassetur breve, i. e., that the writ be quashed. For this purpose no leave of the court is necessary; and the practice is merely to deliver a copy of the entry of the judgment on paper to the defendant's attorney, in place of a pleading. The judgment must be entered on the roll after the declaration and plea, and then taken with a docket paper to one of the Masters, who will mark it, and it is then filed in the office. Neither party pays costs.(*) (1) Beeton v. Jupp, 15 M. & W. 149. (2) Rule Pr. 23, H. T. 1853, ante, p. 851. (3) Sansom v. Rhodes, 8 Sc. 557; Belchier v. Gansell, 4 Burr. 2502; Potts v. Hirst, 6 M. & Gr. 934. (4) Mayor of Macclesfield v. Gee, 13 M. & W. 470. (5) Molling v. Buckholtz, 3 M. & Sel. 153; Whitmore v. Williams, 6 T. R. 765. (®) Ibid. (7) Haigh v. Paris, 16 M. & W. 144. (*) Pr. Reg. 6; Greenhill v. Shepherd, 12 Mod. 145; see Poole v. |