SUPREME COURT.

Nelson Evening Mail, Volume IX, Issue 190, 12 August 1874, Page 2

SUPREME COURT.

Eyes v. Dodson. The following judgment on rule nisi, to set aside judgment and execution, was delivered by his Honor Mr Justice Richmond on Friday last : — This was an action for libel. The defendant pleaded the general issue, and also a number of special pleas, which last were demurred to. The decision of the court on the demurrers was in favor of the plaintiff. Afterwards the plaintiff entered a discontinuance under R.G. 403. The defendant thus became entitled to the general costs of the came, in which he substantially succeeded. But the plaintiff, having succeeded on the demurrers, proceeded to enter up judgment, and issue execution for the full costs thereof, which exceeded the general costs, without allowing the defendant any set-off in respect of the general costs. The present rule mst was obtained to set aside this judgment as irregularly signed in contravention of R.G. 224. On the part of the plaintiff it is contended, that R G. 224 only applies to a case in which issues of fact are actually tried, and found for the defendant; that the rule does not provide for the case of a discontinuance entered after the plaintiff has succeeded on a demurrer ; and that R.G. 223 in such cisc entitles the plaintiff to a separate judgment for his costs of the demurrers. I am, however, of opinion that the present rule must be made absolute. The case is witbin the spirit, if not within the letter, of R.G. 224. The defendant has succeeded on the issues of fact. If R.G. 224 be read liter .Hy, the plaintiff is thereby prohibited from entering judgment as he has done; for the rule says, that "if there be issues both in "law and in fact, and the plaintiff obtain "judgment on the former, he shall not enter "up judgment for the costs of the judgment "on the demurrer until the trial of the issues "in fact." In the present case there were issues both in law and in fact, and there has be nno trial of the issues in fact. The plaintiff is therefore bound to read the rule as if the words had been, " until the trial of the issues in fact, or until discontinuance entered." Then, if the first clause of the rule, in favor of the plaintiff, is to be taken as sufficiently providing for the case of discontinuance by allowing him to have judgment for the costs of the demurrers, the last clause must be deemed to give the defendant his setoff in the same case. But the plaintiff' has contended that R.G. 221 is altogtthtr inapplicable ti the .present case, and that EG. 223 ent ties lim to judgieit lor lha costs of the demurrers. Granting even, as I am not disposed to do, that R G. 22* is inapplicable, I still cannot alloy that tbe plaintiff's proceeding is warranted by R.G. 223. There c*n be, prep .Tiy, but one final judgment in respect of a tingle cause of action That judgment may give the plaintiff the costs of one part of the proceedings, and the defendant; the co* ts of another part, but is none the less a single judgment. In Chitty's Forms may be found several examp'es of such judgments; and the coats awarded to the party who gets ihe least amount of costs are uniformly made payab'e by deduction from the amount awarded to hia adversary. [See the forms of judgment Nos. 7, 9, and 12, pages 243 to 245, Bth edition.] These forms sre equ illy applicable to cases where there are issues both in law and in f iet, as to rases where there arv! only isueainfact. They are also applicable to cases where there is only a single count. [Ibid, page 461, Nos £7 and 28.] The law, which is said to abhor circuity, will not needlessly create cross-demands out of one suit when the matter can be settled by striking a ba'an?e. _s t > the lien of the solicitors on either side, that attaches o ily to the balance ultimately payable to the client. RG. 204 applies oniy to cross-judgment* ii different suits, Lee v Kendall, 6 Law Journal (N.S.) KB. 19, S.C. nomine Lets v. Keffitr, 3 Ad. and E. 707. In regard to coats in the came suit the equity of set-off between the parties is paramount to the lien of the solicitors. The terms of R.G. 223 are fully ea'isfled, if, in the ultimate judgment ot the Court upon the whole record, the costs of an issue of law are awarded to the party who has succeeded thereon, and are paid, wholly or partially, as the caßemiy require, by deduction irom the costs awarded to the other side Scott v. De Richebourg, 20 Lata Journal. CP. 263; Gregory v. Duke c-f Brunswick, 16 Law Journal, CP. 35. Where a declaration comprises two or more counts for distinct causes of action, and the issues on one count, whether in law or in fact, or both in law and in tact, are found for the plaintiff, and those on another count for the defendant, there is, according to English practice, a right to enter distinct judgments ; as on two separate a<tions ; though even iv such case the Courts will always grant a rule for a set off of costs; and it seems that the set-off may be, and ought to be, made by the taxing-master, without a rule. [See Scott v. De Richebourg ] But upon a siogte count I am of opinion that a separate judgment for costs is inadmissible. There .are certain English decisions on the effect of the 3 and 4 W 4 c 42, sec. 34, which are supposed to le f tvorable to the plaintiffs rights under R G 223, to judgment and execution for the full costs of the demurrers. In Mayor, &c, ot Macclesfield v. Gee, 14 Law Journal, Ex. 44, a question was raised as to the right of a plaintiff, who had obtained the usual rule to discontinue, to the costs of a demurrer on which ha had previously succeeded. These costs exceeding the costs of cause to which the defendant was entitled, the master deducted therefrom the amount to which the defendant was entitled, and gave the plaintiff his . allocation for the balance This was held to be right. It was eaid that the defendant (from whom the balance of costs was due) was entitled, if he i required it, to separate t >xation of the two | sets of costs with a view to his bringing a writ of error on the judgment on the demurrer; but it was not held that the plaintiff could have infisted on the same thing. The case therefore was one in which the right of set off was allowed ; and what was said by Mr Baron Parke amounts to co more than that the party entitled to the right of set-off might - , if he bo pleased, waive it, with a view to proceeding ia error, and so getting rid of the whole ol the plaintiffs claim lor costs. Neither (foes the case of Bentley v. Dawes, 23 Law Journal, Ex. 279 appear to be an authority for the plaintiff. No doubt Mr Baron Parke in delivering the judgment of the court, speaks of the right of the plaintiff to the costs of the demurrer under 3 and 4 W. 4th c 42, sec. 34, as not affected by the ultimate termination of the suit. But this does not necessarily mean more than that the plaintiff was entitled to an award of these costs, notwithstanding that he failed in his action. The only question before the Court was, whether the plaintiff, by consenting to the withdrawal of a juror on the trial of the issues of fict, had lost his right under the statute to the costs of the demurrer on which he had succeeded. However anomalous the plaintiffs right to the allowance of similar costs in tie present ease may seem— and having regard to the decision of the Court of Appeal in Jones ... Orbell, it is somewhat strange that such a right should exist—yet that right is not cow contested by tbe defendant. The two English cases just cited are doubtless in favor of the plaintiff's right to these costs, but do not seem to me by any means adverse to the defendant's right to set off against them the coats receivable by himself. However, in the 10th edition of Chitty's Q. B Practice, p 891, I find the law stated thus :— '. Also if there be issues in law and in fact, and the plaintiff

obtains judgment on the former, he is eati tieto the co_ta of the judgment on the demurrer, notwithstanding he afterwards wholly fails .at the trial on the issues in fact. In such a case it seems the plaintiff is entitled to enter up judgment and issue execution for the costs before the trial of the issues in fact [citing Bentley and Dawes, and other cases] ; but it is not quite clear that this is so." On the other hand, in Dunston v Paterson, 28 Law Journal, C.P. 185, Withes J. expresses his dissent from the latter statement, saying. -I think that wrong, becsue it would deprive the defendant of his set off and other equities." The learned Judge evidently consioered that the case of Bentley v. Dawes warranted the stitement in Chitty; but he questions that decision. On referring to the luth edition of the work, p. 935, 1 find, that the learned eiitor has reversed the former statement of the law on this point ; now inclining to the opinion of Mr. Justice Willes, which appears to be supported by the case of Burdon v. Flower before Mr. Justice Coleridge in the Bail Court ; reported 7 Dowl, P.< '., 786— a book which I have not been able to refer to. Such, then, is the state of the English authorities so far as I have been able to ascertain it. If there is really any conflict, I prefer the opinion of Mr. Justice Willes and Mr. Justice Coleridge — R.G., 223, is taken from the English statute, 3 and 4 Wm 4th, c. 42, sec. 34. It can give the plaintiff no greater right than he would have in England under that enactnent in a similar case to the present. According to the expressed opinions of the learned Judges just named, an award of costs under the statute, is subject tothe opposite party's right to set off costs payable to himself upon other issues No doubt it may be said that, the ii/_ht to enter a separate judgment is not incoDS'stent with the right of set-off, which may be enforced by rule. Not the less would the entry of judgment, ani issue of executio", in the pretent case, be improper ; thefe procee lings having been taken and pursued, in spite of a tender irom -the defendant. of. the . balance* of ct sts, for the manifest purpose of defeating the defendant's right of set-off. But the question of the right 'to cross-judgments on the same count, being, in this country at j hast, res integra, I nm, as I have already said, of opinion, th it the rational course ot disposing finally of each cause of action by a single judgment, is also the only regular course. The present rule will be nnde absolute, without costs. Were the facts of the case simply what appears in the foregoing statement, I slnu'd characterise the proceeding on the part of th^ plaintiff as unconscionable; and, notwithstanding the novelty of the question raised should most certainly give costs against him. But there are peculiar feaurea in the case. After the argument of the demurrers my opinion beinj? against the defendant, he had leave to amend his special pitas npon the terms of paying the costs of the demurrers. He accordingly delivered amended pleas, but without pajing the coats. Some correspondence between the solicitors ensued; the plaintiff . solicitor objecting, in the first pi ice, that the condition precedent of paying the costs had not been performed. This was promptly settled by what might well be understood as an undertaking on the part of the defendant s solicitor, that the costs should be paid. But the plaintiff's solicitor further objected that the new plea of justification was too vague. Ultimately, the defendant's sodcitor was desirous of retracting the amended pleas, but it does not appear that this was ever agreed to on the p_rt of the plaintiff. These circumstances afford au excuse to the solicitor of the plaintiff for the step taken by him to secure the payment, without deduction, of the costs of the demurrers; to which he might well conceive himself entitled. The present rule, it is to be observed, proceeds on the assumption that the. former pleas remain on the record unamended; and both parties are concluded from denying this -the defendant because he never complied with the condition on which the amendment was allowed, nor his he made the altered state of the record (if it be altered) a ground of the present rule ; the plaintiff because he has enterel judgment on the demurrers. But the facts appear in affidavits, which have been read by consent; and these special, circumstances of the case have determined my ruling as to costs. I must still add a few words on the subject of the delay that has taken place in moving for this rule. There can be do doubt that if this were an English case the application would be deemed far too late. The grounds which I have allowed it are as follows. In the first place, it appears that the defendant did, in the first instancy apply promptly, before execution issued, ami did obtain from the Registrar, in the judge's absence, a Simmons to show cau<e why the judgment should not be set aside, which was served on the plaintiff's solicitor. He was therefore apprised in time that the regu'arity of his very quostionab'e proceeding would be impeached. Partly by circumstances over which the defendant and his advisers had no control, partly by arrangement with the other side, the hearing of this summons was delayed until my return from Wellington and Pieton. A delay until Friday 1 9th June, is thus accounted for, and I think excused. Then it was determined to drop the proceeding by summons; the original summons having named a fixed day on which no judge aat in chambers, without the usual clause added to meet the case of there being no chambers sitting on the day named. Still tbe delay until the 3rd July would be too great ia a ca«e where the solicitors of the parties were resident at Nelson. Here, however, the proper situs of the case is the Province of Marlborough, where the defendant resides; and the plaintiffs solicitor resides in Wellington. Under these extraordinary circumstances, some latitude must be given, and as the adverse party is not here taken by surprise, but had timely warning not to proceed further, I have with some hesitation, come to tbe conclusion, that the objection grounded on the delay ought not to prevail, so far as regards the relief sought against the plaintiff. Aa regards the plaintiff's solicitor, I have already discharged the rule. Rule made absolute to set aside judgment and execution.