In a curia claudenda, damages may be recovered. (a) In a writ of deceit, to recover lands lost by default, in consequence of non summons, the plaintiff recovers the mesne issues, by way of damages. It seems, that these issues should be accounted from the time of execution sued in the former writ (b), up to the time of judgment given in the writ of deceit. (c) (a) Br. Ab. Dam. 118. (b) 1 Rol. Ab. 623, l. 21. But in Rast. Ent. 224, b. it is from the time of judgment given; so Booth, 252. (c) 1 Rol. Ab. 623, 1. 25; quære up to the time of verdict or writ of inquiry In a curia claudenda. In deceit. mandant. Of Costs: Costs for de- IT has been shewn, that at common law no damages were recoverable in real actions, with the exception of an assise of novel disseisin, in which damages were awarded against the disseisor, and of an action of waste against guardian in chivalry, tenant in dower, and, as it seems, against tenant by the curtesy. (a) At common law, therefore, no costs were recoverable in general, in real actions; for though, before the statute of Gloucester, it is said to have been usual to include and consider the costs in the damages (b): yet when no damages were recoverable, no costs could be given. The first statute by which costs were given, is the statute of Marlebridge, 52 Hen. 6, c. 6, which enacts, that the tenant in a writ of right of ward, shall, in the case therein mentioned, recover his damages and costs; but this enactment only applying to a feoffee of land held by knight's service, has become obsolete by the abolition of the military tenures. (c) The next statute which gave costs, is the statute of Gloucester, 6 Ed. 1, c. 1, the same statute which, as it has been seen, gave damages in many real actions. By that statute, it is enacted, that whereas, before time, damages were not taxed, but to the value of the issues of the land, it is provided, that the demandant may recover against the tenant the costs of his writ purchased, together with his damages aforesaid; and that this act shall hold place in all cases where the party is to recover damages. The costs of the writ extend to all the legal costs of the suit. (d) Where a writ abates by the act of God, and a new writ is purchased by journeys accounts, the plaintiff may recover the costs of the first writ, and the proceedings thereon; but it is otherwise if the first writ abates by the default of the plaintiff. (e) (a) See ante, pp. 313, 317. (b) Gilb. Hist. C. B. 266. 3 Bl. Com. 399. 1 Hull. on Costs, 2. (c) 1 Hull. on Costs, 2. (d) 2 Inst. 288. Witham v. Hill, 2 Wils. 91. (e) 2 Inst. 288. Br. Ab. Costs, 15. mandant. The rule laid down in Pilfold's case (a), that the statute of Costs for deGloucester only gives costs where the plaintiff could recover damages before, or by that act (b), although it has been questioned in some cases (c), seems to remain unshaken in its application to real actions. Costs, therefore, are never given in any real action, in which damages were not recoverable either before' or by virtue of the statute of Gloucester, c. 1, or in which costs are not expressly given by some subsequent statute. Thus it has been held, that no costs are recoverable in a writ of right, and, consequently, the tenant cannot have any costs on a judgment, as in case of a nonsuit in that action. (d) So in a quare impedit, no costs can be recovered, for damages are given in that action by a statute subsequent to the statute of Gloucester (e); nor in a formedon(ƒ); nor in a quod permittat (g); nor in a writ of partition. (4) It has been determined in a recent case, that costs, in interlocutory proceedings, as on applications to amend, which rest in the discretion of the court, may be allowed in real actions, in which no costs are recoverable on final judgment. (i) In those real actions in which damages are recoverable, if the tenant vouches, and the vouchee enters into the warranty and loses, as the damages are recoverable against the vouchee, or tenant by receit (k), it should seem, that he would also be liable to pay costs, where costs are recoverable against the tenant. Damages being given by the statute of Merton, in a writ of dower unde nihil habet, when the husband dies seised, costs are likewise recoverable, in that case, by virtue of the statute of Gloucester, but not in a writ of right of dower. (1) (a) 10 Rep. 116, a. (b) As to the actions in which damages are given by that act. See ante, title "Damages." (c) Witham v. Hill, 2 Wils. 91. Jackson v. Inhab. of Calesworth, 1 T. R. 72. But see Wilkinson v. Allot, Cowp. 367. Tidd. Pr. 958, 7th edit. 1 Hull. Costs, 13. (d) Newman v. Goodman, 2 W. BI. 1093, 1110. (e) Pilfold's case, 10 Rep. 116, a. Keilw. 26, a. James v. Tintney, W. Jones, 434. 2 Inst. 289. Boswel's case, 6 Rep. 51, a. Lomax v. Bp. of Loud. Barnes, 139. Bull. N. P. 328. 1 Hal lock's Costs, 5. (ƒ) Graves v. Short, Cro. Eliz. 616. Scot v. Perry, 2 W. Bl. 758. (g) Penruddock v. Clarke, Cro. Eliz. 659. (h) See Allnatt on Partition, and 2 Ves. Jun. 569, arg. (i) Denman v. Bull, 2 Bing. 387. See post, p. 324. (k) Br. Ab. Damages, 45. Resceit, 65. Ante, p. 308. (1) See ante, p. 309. Hale's note, Co. Litt. 32, b. (4). 1 Br. Ch. C. 134. 2 Ves. J. 128; and quare as to the costs when the tenant pleads tout temps prist, and saves himself from damages. In dower. Y Costs for In waste. In an action of waste against guardian, tenant in dower, demandant. and, as it seems, against tenant by the curtesy, damages were recoverable at common law (a), and treble damages are given by the statute of Gloucester, c. 5, in such actions; costs therefore are recoverable by the statute of Gloucester, c. 1; but in an action of waste, founded upon the statute of Gloucester, c. 5, by which an action of waste is given against tenant for life and years, with treble damages, it seems that no costs are recoverable, the action and damages being newly given by the statute of Gloucester, c. 5. (b) It might, however, be contended, upon the principle which appears to have governed the courts in several late cases (c), that as damages were recoverable by the statute of Marlbridge, c. 24, in a prohibition against tenant for life or years, for waste, costs ought to be given by virtue of the subsequent statute of Gloucester, c. 1, in such cases, although the nature of the remedy is now changed, a writ of waste under the statute of Gloucester, c. 5, having superseded the remedy by prohibition; nor are there wanting authorities to shew, that costs may be awarded against a tenant for life or years, who commits waste. (d) By statute 8 and 9 W. 3, c. 11, s. 3, it is enacted, that in all actions of waste, wherein the single value or damage, found by the jury, shall not exceed the sum of twenty nobles, the plaintiff obtaining judgment, or any award of execution, after plea pleaded or demurrer joined therein, shall likewise recover his costs of suit; and if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs, and have execution for the same by capias ad satisfaciendum, fieri facias, or elegit. Whenever a statute, subsequent to that of Gloucester, increases the damages to the double, or treble value, in a case where damages were recoverable at common law, the demandant in an action on such statute, shall not only recover the double or treble damages, but also double or treble costs; and this notwithstanding the statute increasing the damages, makes no mention of costs. (e) Thus in an action of waste against tenant (a) See ante, p. 317. (b) 2 Inst. 289. Pilfold's case, 10 1 Hull. on (c) Jackson v. Inhabitants of Calesworth, 1 T. R. 72; and see ante, p. 321. (d) 5 H. 5, 13, a. Br. Ab. Waste, 72. (e) 2 Hull. on Costs, 479. 2 Inst. 289. mandant. in dower, and, as it seems, against tenant by the curtesy, treble Costs for decosts may be recovered, because single damages were given at common law, and treble damages added by the statute of Gloucester, c. 5. (a) It is laid down as a rule in Pilfold's case, that in all cases where a man shall recover damages, he shall recover costs, which is meant of all cases, where he shall recover damages, either before the said act of 6 Ed. 1, or by the said act. (b) It has been already shewn in what actions damages are recoverable by that statute. (c) Costs therefore may be recovered in assise of novel disseisin, or of mortd'ancestor, in a writ of entry sur disseisin, and in other writs of entry against an intruder (d), disseisor, abator, or other wrong doer himself. So according to Sir Edward Coke, costs are recoverable in a nuper obiit. So in a writ of aiel, besaiel, or cosinage. So in those writs in which damages were recoverable at common law, as in attaint, in warrantia chartæ after a loss (e), in a writ of mesne (ƒ), in a writ of ward, and in a curia claudenda, costs are also recoverable. (g) In a real action, if the jury give damages and costs where no costs are recoverable, and judgment is entered nullo habito respectu of the costs, and the court awards that the demandant shall recover his damages, this special entry without any release of the costs will help the error. (h) In other ac tions. In those real actions, in which costs are recoverable against Costs for tenant. the tenant, the latter, if he has a verdict given for him, or the demandant is nonsuited, is entitled to costs by statute 4 Jac. 1, c. 3. (i) The 8 and 9 W. 3, c. 11, s. 2, which gives costs to a tenant, who recovers judgment on demurrer, does not extend to those actions in which costs are not recoverable in case of verdict, nor to give the tenant costs in cases in which the demandant could not have recovered them. (k) Thus when judgment was given for (a) 1 Hull. on Costs, 301. (b) 10 Rep. 116, a. (c) Ante, title "Damages." (d) 2 Inst. 289. (e) See Thomas v. Bligh, 3 Lev. 321. (f) Litt. s. 142. (5) Ante, p. 319. (h) Grange v. Denny, 3 Bulst. 174. Bac. Ab. Error, (K). (i) 1 Hull. Costs, 300; but see 1 Brownl. 28, 29, where it is said, that on a nonsuit in assise, the court refused costs; but quære. (k) 1 Hullock's Costs, 145, 146. |