Where the statute gave no costs, and the plaintiff consented to stay proceedings, on payment of a sum in equal moieties to the Crown and himself, and the entire costs to himself, it was held the Crown was entitled to half the costs also. (1) 7. Judgment of Non Pros. When the plaintiff neglects, at any stage of the cause, to proceed according to the rules of the court, the defendant may obtain judgment of non prosequitur against him for his costs. For this purpose an incipitur of the declaration is made out and taken to the Master's office, when judgment will be signed and the costs taxed and marked on the judgment paper. This judgment does not prevent the plaintiff commencing a new action for the same cause. (2) For not declaring, replying, &c.]-The plaintiff is bound to declare within one year after the writ of summons is returnable, otherwise he is out of court;(3) though, if he does not declare in the term next after the appearance has been entered, the defendant may, by a four days' notice, compel him to do so (unless he obtain time or is stayed), and, in default, may sign judgment of non pros.(*) The plaintiff cannot, however, be nonprossed for not delivering particulars, pursuant to a judge's order. (5) When the plaintiff has been ordered to find security for costs, he is not bound to declare within the year, for it may be no default of his that he cannot find security; but if he were to give the security within the year, after service of the summons, then he must also declare within the year. () Where there are several defendants, one of them, if all have appeared and if the plaintiff is in default as to all, may sign judgment of non pros. against the plaintiff on behalf of all, but not otherwise. (7) Lee v. Cass, 2 Taunt. 213. Turton v. Hayes, 1 Str. 439. (3) C. L. P. Act, 1852, s. 58, ante, p. 122. (Foster v. Pryme, 8 M. & W. 664; Gray v. Pennell, 1 Dowl. 120; C. L. P. Act, 1852, s. 53. (5) Burgess v. Swayne, 7 B. & C. 485; Somers v. King, 7 D. & R. 125; Sutton v. Clarke, 8 Bing. 165; 1 M. & Sc. 271. () Ross v. Green, 10 Exch. 891. The case would be different where the plaintiff had been ordered to give particulars: ibid.; Johns v. Saunders, 5 D. & L. 49. (7) Hamlet v. Breedon, 4 M. & Gr. 909; 5 Sc. N. R. 893; Morton v. Grey, 9 B. & C. 544. So, judgment of non pros. may be signed against the plaintiff for not replying in due time, unless perhaps, the plea be a nullity.(1) So, if the plaintiff omit to take issue on any one of several pleas, and he be served with notice to reply, and make default, the defendant may sign non pros. as to that plea, though not as to the whole action. (2) If the plaintiff in error do not enter a suggestion of error in due time, the defendant in error may sign judgment of non pros.(3) If the plaintiff has obtained a rule to discontinue, on payment of costs, and does not pay them within the time fixed, the defendant may also sign judgment of non pros.(*) But where a second action, brought by the plaintiff, is stayed until the costs of the former action are paid, he cannot be nonprossed for non-payment of those costs.(5) Setting aside judgment of non pros.]-The court exercises a discretion as to setting aside a non pros. regularly signed, and, in general, will only do so on an affidavit of merits both at the time of action brought and of the application, and also on payment of costs,() i. e. the costs of the judgment and of opposing the rule to set aside.(7) Where the plaintiff sues as a common informer, the court will not set the non pros. aside.(8) Where, however, the non pros. was irregularly signed, the judgment, and any proceedings founded thereon, may be set aside, with costs, on prompt application,() as where the debt and costs were paid before it was signed.(10) Costs.]-The defendant is always entitled to his costs on (1) Garratt v. Cooper, 1 Dowl. 28. See Gould v. Whitehead, 8 Sc. 340. (2) See Topham v. Kidmore, 5 Dowl. 676; Emmot v. Standen, 3 M. & W. 497; 6 Dowl. 591; Dordsey v. Cook, 4 B. & C. 135. (3) See ante, p. 531. (4) Rule Pr. 23, H. T. 1853, ante, p. 851. (5) Doe d. Sutton v. Ridgway, 5 B. & Ald. 523. (6) Cartessos v. Hume, 2 Dowl. 134. (7) Christie v. Thompson, 1 Dowl. N. S. 592. (8) Bennet v. Smith, 1 Burr. 40; 2 Lord Ken. 82. (9) Barlow v. Kaye, 4 T. R. 638; Walker v. Medland, 1 D. & L. 159. See Belcher v. Goodered, 4 C. B. 472, where the attorney was ordered to pay the costs. (10) Kibblethwaite v. Jeffrys, 1 Chitt. R. 142. signing a judgment of non pros., the judgment being in effect a nonsuit within 4 Jac. 1, c. 3, 23 Hen. 8, c. 15.(1) Execution may issue on the judgment by ca. sa. or fi. fa.;(2) or an action may be brought on the judgment, and the plaintiff in such action would be entitled to costs.(3) Form of Non Pros. for not Declaring. "Exch. of Pleas."] In the Q. B. ["C. P." or (day of signing judgment) England A. B., in his own person, [or by P. A., his attorney.] A.D. sued out a writ of by P. A., to wit. on the day of summons against C. D. And the said C. D., on his attorney, caused an appearance to be entered for him to the said writ. And afterwards, on the said C. D. gave notice in writing to the said A. B., requiring him to declare in this action within four days from the time of giving such notice, otherwise judgment; and although the said four days have elapsed, the said A. B. hath not declared herein. Therefore it is considered that the said A. B. take nothing by his said writ, and that the defendant go thereof without day, &c., and that the said C. D. do recover against the said A. B. for his costs of defence. £ [In the margin of the roll write as usual, "judgment signed the day of 18"] (1) Davies v. James, 1 T. R. 373; Hawes v. Saunders, 3 Burr. 1585; 3 & 4 Will. 4, c. 42, s. 31. (2) Murray v. Wilson, 1 Wils. 316. (3) Bennett v. Neale, 14 East, 343. CHAPTER XX. SECURITY FOR COSTS. In what cases.]-The court exercises a general jurisdiction in compelling a plaintiff who resides abroad, or who, in the event of his failure in the action, would not be compellable by process of the court to pay costs, to find security for costs. This is necessary where the plaintiff permanently resides in Ireland, (1) or Scotland, (2) or elsewhere out of the jurisdiction. (3) It is immaterial that he sues only in a representative capacity,(*) or is a mere nominal plaintiff, (5) or a plaintiff in error,() and that there is no defence on the merits.(*) But the court will not order security if the plaintiff is an Englishman, and abroad in the military, or naval, or public service of his country, (8) as, for example, a commissioner of the Ionian Islands; (9) or harbour master in Barbadoes ;(1) or as an English officer serving in South America;()or in the East India Company's military service, (2) but not if in the Company's civil service.(13) Nor will security be required, if the residence out of the (1) Fitzgerald v. Whitmore, 1 T. R. 362. (2) Baxter v. Morgan. 6 Taunt. 379. (3) Pray v. Eadie, 1 T. R. 267; Lloyd v. Davies, 1 Price, N. R. 11; 1 Tyr. 533. (4) Chevalier v. Finnis, 1 B. & B. 277; 3 Moore, 602. (5) Youde v. Youde, 3 A. & E. 311. (6) Lewis v. Ovens, 5 B. & Ald. 265. (1) Edinburgh and Leith Railway Company v. Dawson, 7 Dowl. 573. (8) Willis v. Garbutt, 1 Y. & J. 511; Dowling_v. Harman, 6 M. & W. 131; 8 Dowl. 165; Durell v. Matheson, 8 Taunt. 711. (9) Lord Nugent v. Harcourt, 2 Dowl. 578. (10) Evering v. Chiffenden, 7 Dowl. 536. (11) O'Lawler v. Macdonald, 8 Taunt. 736; 3 Moore, 77. (12) Garwood v. Bradburn, 9 Dowl. 1031. (13) Plowden v. Campbell, 23 L. J. 384, Q. B. jurisdiction is merely temporary, as in the case of a seaman serving in a ship trading with this country, (1) unless the absence is likely to be great, as for eighteen months, in which case either he will be made to give security, or there will be a stay of proceedings till his return. (2) If the plaintiff leaves the country after commencing the action he may not be called upon to find security, though it seems he will, if he is absent at the time of action brought, but intending to return shortly.(3) And if he leave shortly after action commenced, intending to reside permanently abroad, he must give security.(4) Where he is generally resident abroad, but comes to this country for a temporary purpose, and is here at the commencement of the action, he will not be made to give security, (5) though he may intend to go abroad immediately.(") Nor will security be required, if any one of several coplaintiffs reside in this country,(7) though such one be a bankrupt.() If the plaintiffs are a railway company, whose works are abroad, security will be required, though some of the shareholders reside here. (") If the plaintiffs are husband and wife, and the former reside abroad, though the wife reside here, he will require to give security.(10) Nor will security be required if the plaintiff is a peer privileged from arrest,(") or a foreign ambassador, or a servant of an ambassador.(12) Yet a foreign sovereign has been made to give security. (15) The plaintiff will not be exempted from giving security. though he has personal property in this country, nor even (1) Durell v. Matheson, 8 Taunt. 711; Henshen v. Garves, 2 H. Bl. 383; Nelson v. Ogle, 2 Taunt. 253; Taylor v. Fraser, 2 Dowl. 622; Frodsham v. Myers, 4 Dowl. 280. (2) Foss v. Wagner, 2 Dowl. 499. (3) Wells v. Barton, 2 Dowl. 160. (4) Kemble v. Mills, 8 Dowl, 836; 1 Scott, N. R. 402. Dowling v. Harman, 6 M. & W. 131; Tambisco v. Pacifico, 7 Exch. 816. (6) Viragno v. Hassan, 6 Taunt. 20. (1) Anon. 2 C. & J. 88; 1 Dowl. 300; Thornel v. Roelandts, 2 C. B. 290; Orr v. Bowles, 1 Hodg. 23, 315. (8) McConnell v. Johnstone, 1 East, 431. (9) Kilkenny Railway Company v. Fielden, 2 L. M. & P. 124; 6 Exch. 81; Limerick and Waterford Railway Company v. Fraser, 4 Bing. 394. (10) Hanmer v. Mangles, 12 M. & W. 313; 1 D. & L. 395. (11) Earl Ferrars v. Robins, 2 Dowl. 636; ib. 578. (12) Duke de Montellano v. Christin, 5 M. & Sel. 509. (13) King of Greece v. Wright, 6 Dowl. 12; Emperor of Brazil |