the cause of action arose; but on re-consideration he allowed these costs, stating that a distinction prevailed between country causes, where such costs were not allowed, and town ones, in which they were. The defendant obtained a Judge's order to pay the disputed costs into Court, to await the result of this motion. In Trinity term last, Platt shewed cause. (a) The costs were rightly allowed. At the town sittings a cause is usually made a remanet several times; and by the granting of a new trial the expenses thus occasioned will all be incurred anew. It would be hard if these costs were thrown upon the plaintiff, especially where the application for a second trial is grounded upon new matter, suggested by the unsuccessful party on affidavit. [Littledale J. That argument would apply in country causes.] There is no good reason that the rule should not be the same in those; but there it seldom happens that the cause is made a remanet more than once. Kelly contrà. It is desirable that the practice on this point should be settled, in order that parties may know to what they subject themselves when they consent to take a new trial on condition of paying costs. The Court of Exchequer does not allow the costs here claimed. No distinction can be shewn in principle between town and country causes, as to the payment of these costs; nor does there appear to be any established practice. The expense incurred arises merely from the inevitable delay of public business. The plaintiff, if he ultimately obtains (a) Before Denman C. J., Littledale, Parke, and Patteson Js. 1833. ROBINSON against DAY. 1833. ROBINSON against DAY. a verdict, will recover these costs as costs in the cause. The terms used in the rule for a new trial mean that the defendant shall pay the costs of the trial merely, in which there has been a miscarriage of the jury. Cur. adv. vult. DENMAN C. J. in this term (November 25th) delivered the judgment of the Court. We are of opinion, that where a rule for a new trial is made absolute in a town cause on payment of costs, the costs occasioned by the cause being made a remanet are included. The rule, therefore, that the Master should review his taxation, must be discharged. Rule discharged. RULE OF COURT. IT IS ORDERED, That where a defendant is arrested upon an alias or pluries capias issued into another county pursuant to the rule, Michaelmas term 3 W. 4. sect. 7., the defendant must put in bail in the county where he was arrested. 1833. In the Matter of Arbitration between WEST- casks of oil, on BY In February 1831, Westzinthus shipped, at Leghorn, twenty-three casks of oil, by the ship Sarah, to John and Frederick Lapage, who then carried on business as merchants in Liverpool under the firm of Lapage and account and blut W. 591 L. at Liver bill of lading. Before the arrival of the oil, L. indorsed the bill of with H., who advanced having pre- money on it, This vanced money was on other goods (the property of with him. On the arrival of the oil, L. viously become bankrupt, and W. not having been paid for it, W.'s agents claimed it of the master of the ship; but the latter delivered it to H., who afterwards sold the goods of L. as well as the oil of W. The net proceeds of the goods belonging to L. were sufficient to satisfy the debt due from L. to H. H. paid himself his debt, and deposited the net proceeds of W.'s oil with a third person, to abide the event of the award of an arbitrator to whom all disputes between W. and the assignees of L. were referred. The arbitrator having stated the above facts on his award for the opinion of this Court: Held, that W., the unpaid vendor of the oil, had, at the time when his agents claimed it, no right to take possession on the insolvency of L., because the property in and the right to the possession was then vested in H., the indorsee of the bill of lading for value; and further, that W. had not, by reason of such claim, any legal right to the possession of the goods after H.'s lien was satisfied: but that in a court of equity, such transfer to H. would be treated as a pledge or mortgage only, and therefore W., by his attempted stoppage in transitu, acquired a right to the goods in equity, subject to H.'s lien against the assignees of L. Held, secondly, that W., by means of his goods, had become surety to H. for L.'s debt, and had a clear equity to oblige H. to pay his debt out of L.'s own goods deposited with him in ease of such surety; and all the goods both of W. and L. having been sold, W. might insist on the proceeds of L.'s goods being appropriated to the payment of the debt: and, therefore, that W. was entitled to have all the proceeds of the oil paid over to him. upon 1 1833. In the Matter of WESTZINTHUS and Others. upon their accepting the bill of exchange so drawn on them; and accordingly Lapage and Co. accepted the bill of exchange, and the bill of lading was delivered to them. Messrs. Hardman and Co., brokers in Liverpool, were in the habit of making advances in cash, and by acceptances, to Lapage and Co. upon goods placed by them in the hands of Hardman and Co. for sale. Under this course of dealing, the transactions hereinafter mentioned took place. On the 14th of March 1831, Hardman and Co. were under cash advances and had accepted for Lapage and Co. to the amount of about 6700l. upon various goods, all of which were in the possession of Hardman and Co. On the 14th of March 1831, Hardman and Co., at the request of Lapage and Co., accepted their draft for 15007., falling due the 15th of July (which was duly paid at maturity), as a further advance upon the goods already in the hands of Hardman and Co., and also on the said twenty-three casks of oil by the Sarah, which had not then arrived: the bill of lading of the oil by the Sarah was, on the same 14th of March, duly indorsed and delivered by Lapage and Co. to H. and Co. According to the agreement, and the course of business between Lapage and Co. and H. and Co., the latter were entitled to hold all the goods and bills of lading as a security for their advances. On the 16th of March 1831, a similar advance was made by H. and Co. of 1000l., on which occasion a bill of lading of certain oil, then expected by the ship Frederick, was handed and indorsed to H. and Co. by Lapage and Co. The facts and questions as to this oil were the same as those relating to that by the Sarah, and it was to abide the event of the award as to the oil by the Sarah. On 1833. In the Matter of and Others. On the 19th of March 1831, Lapage and Co. committed acts of bankruptcy; and their acceptance of Westzinthus's bill was dishonoured at maturity. On the 26th of March, WESTZINTHUS a commission of bankrupt was issued against them. On the 24th of March, the Sarah arrived at Liverpool; and on the same day, the agents for Westzinthus, who held an indorsed part of the bill of lading, gave notice to the captain, in consequence of the failure of Lapage and Co., not to deliver the oil to them; and they also demanded the delivery of the oil to be made to them as agents of M. Westzinthus under the bill of lading held by them, and tendered the captain the amount of the freight; but no tender or offer was made to Hardman and Co. to repay any part of the money advanced as hereinbefore mentioned. On the 7th of April 1831, the solicitors of Westzinthus wrote the following letter to Hardman and Co.:-"Gentlemen, As solicitors of M. Westzinthus of Leghorn, we address you upon the subject of twentythree casks of oil, marked T., consigned by him per the Sarah to Messrs. Lapage and Co. of your town; and of which you have illegally obtained possession, after the same had been stopped in transitu on behalf of the consignor, in consequence of the failure of Lapage and Co. We are informed that Lapage and Co. transferred to you the bill of lading of this oil, together with indigo and other property belonging to them, as a security for 1500l. advanced by you to them. We are also informed that you hold other property belonging to Lapage and Co., which you are also entitled to retain as a security for the 1500l. Without entering, at present, into any question as to the validity of the transfer of this bill of lading, we think it right to give you notice that, in any event, you will be required to apply the indigo and |