statute of Gloucester, to give the plaintiff costs in the gross, and unblended with the damages, which prevailed till the introduction of Justices at nisi prius and assize, that there might be the same uniform law; then it became necessary that costs should be taxed by the Court above, and not at the assizes." And in Bacon's Abridgment, after citing the statute of Gloucester, it is said (a), "This was the original of costs de incremento; for when the damages were found by the Jury, the judges held themselves obliged to tax the moderate fees of counsel and attornies that attended the cause." In Greene v. Cole (b) it is said, that "if a jury give costs where none are recoverable, the Court er officio ought to give judgment, nullo habito respectu to such costs, when it appears judicially that the plaintiff is not entitled to them." And in Hullock on Costs (c) it is laid down as a rule, that "the jury ought, er officio, to give costs in an action in which costs are recoverable by law; but that if they omit or refuse to do so, the Court will, on motion, order costs to be taxed, and indorsed on the postea." The case of Ward v. Snell is a direct authority in support of that position. Here, therefore, the defendant having allowed judgment to go by default, has admitted the whole of the plaintiff's cause of action; and as the jury have found the value of the single tithes by having ascertained the amount of the treble, the plaintiff is entitled to his costs under the first count of the declaration, and the Court will order them to be allowed and taxed as a matter of course.

Lord Chief Justice DALLAS.-Whether a writ of inquiry was necessary or not in this case; it was clearly at the option of the plaintiff to cause it to be issued or not. There can be no doubt but that the jury have suf

(a) Bac. Abr. tit. Costs, A.- -(6) 2 Saund. 257. -(c) Vol. 2, 651.

1823.

BALE

V.

HODGETTS.

1823.

BALE

v.

HODGETTS.

ficiently found the single value of the tithes, by the ex-
press terms of their verdict, by having ascertained the
amount of the treble costs; and there can be as little
doubt, supposing the plaintiff to be entitled to costs,
that if the jury omit or refuse to find them, when it is
their duty to do so, the Court may order them to be
taxed and indorsed on the postea: and the case of Ward
v. Snell is an express authority as to this point.—The
only remaining question for consideration, then is, as to
the construction to be put on the terms and language of
the third section of the statute 8 and 9 Will. 3, c. 11;
what the legislature have there said, and the operation
they intended it to have with respect to costs. We are
not to look at the sense of the proviso or enactment;
for if it be couched in plain terms, and furnishes a direct
and clear rule under which the Court can act, it is im-
material to consider as to the reason of the thing, except
with a view to legislative correction. The words of the
statute are, that "in all actions of debt upon the sta-
tute for not setting forth tithes, 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."-A
plaintiff not being previously entitled to costs at the
common law, that statute was passed for the express
purpose of enabling him to recover them in a case of
this description; and the only question is, whether that
provision applies to any other cause than a judgment or
execution after plea pleaded, or demurrer joined. It is
quite clear, that this is neither the one nor the other, as
the defendant suffered judgment to go by default.
has been said, however, and perhaps justly, that if the
legislature intended that the plaintiff should recover
costs from the defendant, if he resisted the demand, on
the supposition that he had a good defence either in fact

It

or in law, in which cases he might have pleaded or demurred; a fortiori, he ought to pay such costs where he admits himself to be clearly in the wrong, by suffering judgment by default. And this argument might have great weight, if the statute had not laid down a clear rule, or there was any ambiguity in the words of it; but if it be clear and express in terms, such reasoning ought not to prevail. Still, however, on the other hand, it may be said, that a defendant who resists in such a case, without a sufficient reason, occasions considerable expense to the plaintiff; but by his allowing judgment to go by default, he relieves the latter from the greater part of his difficulty, as well as the expense or delay attendant on a trial or demurrer. This line of reasoning might have been adopted by the Legislature when the statute was passed, and which might have induced them to make the distinction in this respect. The present question, however, resolves itself into another point, independently of the statute, viz. whether the Court can, 'under the circumstances, order nominal damages to be inserted in the return of the inquisition, so as to allow the plaintiff costs of increase. And it is quite clear, that where a party is lawfully entitled to costs, and which have been omitted to be found by the jury, we are authorised in so doing. It is, therefore, unnecessary to decide whether the plaintiff was entitled to them under the statute or not, as it will answer his purpose to allow the amendment as prayed for, without reference to the first count, as by allowing the amendment as prayed for, costs de incremento may be taxed, as being applicable to the two last counts of the declaration.

Mr. Justice PARK.-I am of the same opinion. I had at first entertained a doubt whether the Court could supply the omission of the jury to find costs on the inquisition; but the case of Ward v. Snell is decisive to shew

that we may do
so; for if the jury even refuse to find
costs, we may, where the plaintiff is entitled to them,
order such an entry to be made on the postea, as is usual
to authorise the allowance of costs. The main question,
however, is, whether the plaintiff is entitled to costs on
the first count of the declaration, under the statute 8 and
9 William 3, c. 11, s. 3; and I am strongly inclined
to think, that under the circumstances of this case, he is
not. At the common law, it is quite clear that the
plaintiff was not entitled to costs in an action for the
treble value of tithes ; nor did it fall within the statute
of Gloucester. To remedy this hardship, the statute of
William was passed, by which the Legislature conferred
the right, when the plaintiff obtained judgment after plea
pleaded, or demurrer joined, in all cases where the single
value or damage found by the jury should not exceed
twenty nobles. But the statute is altogether silent as to
the case of a judgment by default. Is it to be supposed
that the Legislature did not know the distinction be-
tween a judgment by default, and a judgment after ver-
dict or demurrer; and more particularly so, when the
costs were the immediate object of their inquiry? The
costs attending a writ of inquiry are by no means so ex-
pensive as those where a cause is taken down to trial, or
the pleadings are drawn out at length, before the case is
ripe for argument. The statute, therefore, appears to
me to be confined to cases where the party has pleaded
or demurred; and that it is not to be rendered inopera-
tive by the omission of other words.

Mr. Justice BURROUGH.I am inclined to think that the Legislature might have taken it for granted, that the plaintiff was entitled to costs where the defendant suffered judgment by default, and that they would follow as a matter of course. I should, therefore, wish to see whether there have been any decisions on this statute,

before I give an opinion on this point. But that is immaterial; as, even if the jury had found costs, it would have been mere matter of form; and the Court are empowered to order an entry to be made on the postea to authorise their allowance in all cases where the plaintiff is entitled to them by law, or where the jury ought, ex officio to find them. The rule, therefore, for the insertion of nominal damages on the return of the inquisition as to the last counts of the declaration, on which costs de incremento may be added, must be made

Absolute (a).

(a) Sce Brill v. Neele, 1 Chit. Rep. 627. Dunn v. Crump, ante, p. 137.

COLE V. BEALE.

MR. Serjeant Peake, on a former day in this Term, obtained a rule, calling on the plaintiff to shew cause why all further proceedings in this action should not be stayed until the plaintiff gave security for costs, to be approved of by one of the Prothonotaries. He founded his motion on an affidavit of the defendant, which stated, that he had lately been informed, and which information he verily believed to be true, that the plaintiff had procured himself a situation in the island of Jamaica; and that he had quitted this country for the purpose of residing at that island, and that he did not intend to return.

Mr. Serjeant Pell now shewed cause, on an affidavit of the plaintiff's brother; which stated, that before and since the commencement of this action, he and the plaintiff resided together in the same house; that to the best of the deponent's knowledge and belief, no permanent or other situation had been obtained by the plaintiff at Jamaica, or

Wednesday,
Feb. 12th.

Where a plain

tiff, (a native of

this country,) quits it for a

mere tempo

rary residence abroad, the Court will not require him to

give security for costs; and an application

for this purpose ported on a mere affidavit of belief that it was the intention of the plaintiff to reside perma

cannot be sup

nently abroad.