average by custom in respect of the loss of the timber by jettison. The damages were laid at 20. The defendant in his first plea traversed the misconduct and unskilfulness charged in the first count, and in his second traversed the custom alleged in the second count; and he also pleaded a set-off of 227. 19s. 9d., for general average payable by the plaintiffs in respect of other goods on board the vessel. The defendant demurred to the second plea (see 5 Scott, 445), and joined issue on the others. In February, 1838, the plaintiffs obtained an order to amend their declaration (on payment of costs, and the defendant to be at liberty to plead de novo), by increasing the damages to 50%. The defendant thereupon withdrew his pleas, and pleaded payment into court of the sum of 221. 19s. 9d. The plaintiffs having obtained a verdict, the Master, on the taxation of costs, allowed the defendant the costs of all the pleas as they stood at the time the judge's order was obtained in February. Wilde, Serjeant, on a former day, obtained a rule calling upon the defendant to shew cause why the taxation should not be reviewed.-He submitted that the defendant was only entitled to the costs necessarily occasioned by the amendment. R. V. Richards now shewed cause. The defendant's amendment was a necessary consequence of the amendment of the plaintiffs' declaration. Had the declaration stood unaltered, the set-off would have been a sufficient answer: the damages being increased, it ceased to be an answer. The payment into court then became necessary, and, that being an admission of the cause of action pro tanto, the other pleas were rendered useless. The defendant was therefore entitled to the costs of those pleas. Wilde, Serjeant, was stopped by the court. 1838. GOULD V. OLIVER. 1838. GOULD v. OLIVER. TINDAL, C. J.-The withdrawal of the pleas was not a necessary consequence of the amendment of the declaration; they were merely withdrawn because the defendant did not think it prudent to retain them. The Master must reconsider the matter. COLTMAN, J.-The pleas having been withdrawn, we must take it that they never should have been pleaded at all. The rest of the court concurring Rule absolute. Monday, Nov. 26th. To entitle a defendant to costs under the 43 Geo. 3, c. 46, s. 3, on the ground of an excessive arrest, he must make out to the satis faction of the court the ab sence of reason able or probable DAY v. CLArke. ASSUMPSIT for work and labour as an architect and surveyor, for materials, and for money paid. The defendant was arrested for 3477.; the plaintiff claiming 3001. for his commission on the value of the work done, 314. for the services of a clerk, and 167. for cash paid for the defendant's use. The cause was referred. The two lastmentioned sums were not disputed; and 2007. had been paid into court; the arbitrator having directed a verdict cause: however to be entered for 2117. only great the disparity between the sum sworn to and that recovered, the statute does not cast the labour ing oar upon the plaintiff. B. Andrews, on a former day in this term, obtained a rule calling on the plaintiff to shew cause why the defendant should not have his costs under the 43 Geo. 3, c. 46, s. 3, he having been arrested without reasonable or probable cause for 3471. The affidavits upon which the motion was founded, stated, that, before the work was commenced, the plaintiff had assured the defendant the cost would not exceed 2,000l.; and it was sworn by surveyors and others that the value of the work done was from 2,500l. to 3,100. The defendant, however, did not state the actual cost of the building.. arrest Wilde, Serjeant, now shewed cause, upon affidavits, that, to the best of the knowledge and belief of the deponents, the cost of the building was 5,000l.; and that the defendant, though requested, had refused to produce his accounts. To entitle him to the benefit of the statute, it is incumbent on the defendant to shew by affidavit an entire absence of reasonable and probable cause for the Fountain v. Young, 1 Taunt. 60; Graham v. Beaumont, 3 Scott, 287, 5 Dowl. 49; Clare v. Cooke, 4 New Cases 269, 5 Scott, 698. In this court it has uniformly been held that the verdict is not conclusive as to the amount for which the plaintiff had reasonable cause (within the meaning of the statute) for holding the defendant to bail. In the Queen's Bench the decisions have fluctuated. Here, the affidavits on both sides disclose a case upon which the plaintiff might fairly anticipate the recovery of the full amount he claimed. [Tindal, C. J.— The defendant should have shewn what the actual cost of the building was. If a man has reasonable ground for fairly and honestly believing that he is not holding his debtor to bail for too large a sum, the case is not within the statute.] B. Andrews and Byles in support of the rule.-The verdict of the jury is the criterion as to amount in cases of this sort-Ballantyne v. Taylor, 5 Ad. & E. 792, 1 N. & P. 219: the notes of the judge who tried the cause may be referred to Van Nieuwvel v. Hunter, 5 N. & M. 376, 3 Ad. & E. 243; and it is for the plaintiff to shew reasonable and probable cause-Summers v. Grosvenor, 2 C. & M. 341; Robinson v. Whitehead, 6 Dowl. 292; Griffiths v. Pointon, 2 N. & M.675. [Tindal, C. J.-Until you shew the contrary, I think we must assume that the plaintiff has acted fairly and honestly.] In Twiss v. Osborne, 4 Dowl. 107, Coleridge, J., says: "The court is not at liberty to go into the question whether the jury had or had not come 1838. DAY V. CLARKE. 1838. DAY v. CLARKE. to a right conclusion in point of fact. It must now take TINDAL, C. J.-It does not appear to me that the present case is brought within the intention of the statute. The statute requires that it shall be made appear to the satisfaction of the court in which the action is brought, that the plaintiff had not any reasonable or probable cause for causing the defendant to be arrested and held to special bail in the amount sworn to. The evidence as to the value of the work was conflicting; and the defendant has furnished us with no means of ascertaining whether or not the amount sworn to on the part of the plaintiff was correct. Under the circumstances, I am not prepared to say that the plaintiff might not have really and honestly believed that 5,000l. at least was the value of the work. The defendant has not made out his case to my satisfaction. VAUGHAN, J.-I am of the same opinion. The simple question is, whether or not it is made to appear to our satisfaction that the arrest was without reasonable or probable cause. It may be conceded, that, where the disparity between the amount recovered and that for which the defendant has been arrested, is great, a fair presumption arises that the arrest is without reasonable or probable cause. But the legislature seem to have been careful and anxious that the judgment of the court should not be fettered by anything that passes at the trial: and therefore it is that the oath of the party is a material ingredient in the consideration of the case. The plaintiff here swears that he reasonably believed that he was entitled to recover the sum for which he held the defendant to bail; and he is corroborated by the opinions of other competent persons. The absence of information on the other side as to the actual cost of the building, affords a strong inference in the plaintiff's favour. The verdict certainly ought to have some influence; but the court is not to be bound by it. BOSANQUET, J.-I am of the same opinion. In most of the cases where the verdict has been held to be evidence of the want of reasonable or probable cause, the plaintiff at the time of the arrest had no evidence to sustain his demand. In White v. Prickett, 4 New Cases, 5 Scott, 610, where the plaintiff failed in making out his right to recover a part of the sum for which he had held the defendant to bail, that part being barred by the statute of limitations; this court held that the defendant was not entitled to costs under the statute, it being sworn that he had several times within a short period verbally promised the plaintiff to pay the debt. COLTMAN, J.-The verdict is certainly a material feature in the case; but still it does not relieve the defendant from the burthen of proving that he has been held to bail with 1838. DAY v. CLARKE. |