(25S C O S 
grunt the certificate, the court have not a difcretionary 
pcwer, whether they will allow the defendant any cofts 
at all; but are bound by the ftatute to allow him fome 
cofts, though the quantum is left to their difcrction. 2 
Term Rip. 394, 3. The intention of the legiflature was, 
that if there be feveral matters pleaded, fome of which 
are found for tire plaintiff, he fhall be en'itled to the 
cofts of thofe, notwithstanding other matters are found 
for the defendant, which entitle him to judgment upon 
the whole record; unlefs the judge, before whom the 
caufe was tried, fhall certify, that the defendant had a 
probable caufe to plead the matters which are found 
againft him. 
It has already been obferved, that originally no cofts 
were recoverable by a defendant at common law : and 
the reafon feems to be, that if the plaintiff failed in his 
fuit, he Was amerced to the king, profalfo clamore, which 
■was thought to be a fufficient punishment, without Sub¬ 
jecting him to the payment of cofts. The firft inftance 
of cofts being given to a defendant, was in a writ of right 
of ward, by the ftatute of Marlberge, 52 Hen. III. c. 6. 
Afterwards, cofts were given to the defendant in error, 
by 3 Hen. VII. c. 10. and in replevin, by 7 Hen. VIII. 
c. 4. and 21 Hen. VIII. c. 19. &c. But in one of thefe 
cafes, the defendant is to be considered as an adtor; and 
in the other of them, the provifion is virtually for the 
benefit of tire plaintiff in the original action. In error, 
brought by the defendant before execution, or by the 
plaintiff upon a judgment for the defendant, if the judg¬ 
ment be affirmed, the writ of error difeontinued, or the 
plaintiff in error nonfuited, the defendant in error is 
entitled to cofts, by 3 Hen. VII. c. 10. and S & 9 Will. 
III . c. 11. upon the former of which Statutes it has been 
hTJen, that cofts are recoverable in error, for the delay 
of execution, although none were recoverable in the 
original action. By 13 Car. II. ftatute 2. c. 2. if the 
judgment be affirmed after verdidt, the plaintiff Shall 
pay to the defendant in error, his double cofts. And by 
4 Anne, c. 16. for preventing vexation, from fuing out 
defective writs of error, it is enadted, that upon the 
quafhing of any writ of error, for variance from the ori¬ 
ginal record, or other defect, the defendant Shall recover 
againft the plaintiff in error his cofts, as he Should have 
had, if the judgment had been affirmed, and to be reco¬ 
vered in the fame manner. 2 Str. 834. But none of 
the Statutes before mentioned give cofts, upon the rever- 
fal of a judgment. 
In replevin, or fecond deliverance, the defendant, 
making avowry, cognizance, or justification for rents, 
cuftoms, or Services, or for damage feafant, is entitled 
to cofts, by 7 Hen. VIII. c. 4. and 21 Hen. VIII. c. 
ip . if the avowry cognizance or justification be found 
for him, or the plaintiff be nonfuit, or otherwife barred ; 
which Statutes extend to avowries, dec. made by an exe¬ 
cutor; and, as it Should Seem, for an amercement by a 
court leet; but not to pleas of prij'el en aider lieu, upon 
which the wri is abated ; or to pleas of property in the 
thing‘distrained. Hard. 153. By 17 Car. II. c. 7. the 
defendant obtaining judgment thereon, for the arrearages 
of rent, or value of 1 he goods distrained, is alfo entitled 
to his full cofts of fuit. And by 11 Geo. II. c. 19. if 
the defendant avow, or make cognizance, according to 
that ftatute, upon a diftrefs for rent, relief, heriot, or 
other Service, and the plaintiff be nonfuit, discontinue 
his adtion, or have judgment againft him, the defendant 
Shall recover double cofts of fuit. But this latter ftatute 
does not extend to a Seizure for a heriot-cuStom. At 
length coSts were allowed vo defendants by 23 Hen. VIII. 
c. 15. “in trefpafs, upon 5 Rich. II. debt, covenant, 
detinue, account, trefpafs, on the cafe, or upon any 
ftatute for an offence or wrong perfonal, immediately 
fuppofed to be done to the plaintiff,” in cafes of non- 
ib.it, or verdict for the defendant. 
The king, and any perfon Suing to his ufe, 24 Hen. 
VIII. c. 8. Shall neither pay norreceive cofts; for betides 
that lie is not included under the general words of the 
j 
1 T S. 
Statutes, as it is his prerogative not to pay them to a Sub¬ 
ject, fo it is beneath his dignity to receive them. And 
it feems reafonable to fuppoSe that the queen confort has 
the fame privilege ; for in actions brought by her, She was 
not at the common law obliged to find pledges of profecu- 
tion, nor could be amerced in cal'e there was judgment 
againft her. F. N. B. 101. 1 Injl. 133. And on this prin¬ 
ciple of the king not paying or receiving cofts, no cofts are 
due on a certiorari removing Summary proceedings ; unlefs 
a recognizance be entered into at the time of removing 
the proceedings. 1 Term Rep. 82. 
Paupers, or fuch as will Swear themfelves not worth 
five pounds, are l y 11 Hen. VII. c. 12. to have original 
writs and fubpGenas gratis, and counfel and attorney afii 
Signed them without fee; and are excufed from paying 
cofts when plaintiffs, by 23 Hen. VIII. c. 15. but Shall 
Suffer ether punishments at the discretion of the judges. 
And it was formerly ufual on fuch paupers being non¬ 
fuited, to give them their election either to be whipped, 
or pay the cofts; though that pradtice is now diluted. 
And in cafes of mifeondudt, or in certain other circum¬ 
stances, they may be difpaupered ; that is, deprived of 
their privilege of fuing as paupers. It is certain, how¬ 
ever, that a pauper may recover cofts, though he pays 
none: for the counfel and clerks are bound to give their 
labour to him, but not to his antagonists, i Eq. Ab. 125. 
Executors and administrators are not particularly ex¬ 
cepted out of 23 Hen. VIII. c. 16. yet, as that Statute 
only relates to contracts made with, or wrongs done to, 
the plaintiff, it has been uniformly holden, that they are 
not liable to cofts, upon a nonfuit or verdict, where they 
neceffarily Sue in their reprefentative character, and can¬ 
not bring the adtion in their own right; as upon a con- 
tradt entered into with the teftator or inteftate, 2 Li. 
Raym. 1414. 1 Str. 682. S. C. Caf. Pr. C. B. 157. Pr. Re<r. 
jiS.S.C. Barnes. 141. or for a wrong done in his life-time. 
But where the caufe of adtion arifes after the death of 
the teftator or inteftate, and the plaintiff may fue thereon 
in his own right, he Shall not be excufed from the pay¬ 
ment of cofts, though he bring the adtion as executor or 
adminiftrator ; as upon a contradt exprefs or implied ; or 
in trover, for a converfion, after the death of the tefta¬ 
tor or inteftate. An executor or adminiftrator is liable to 
cofts, upon a judgment of non pros : and where he has 
knowingly brought a wrong adtion, or otherwise been 
guilty of a wilful default, he Shall pay cofts upon a dif- 
continuance, or for not proceeding to trial according to 
notice ; but otherwife he is not liable to cofts, in either 
of thefe cafes, 2 Str. 871. Barnes 133. 4 Burr. 1927. nor, 
where he merely fues en aider droit, is he liable to cofts 
upon a judgment, as in cafe of a nonfuit. 
The 23 Hen. VIII. c. 13. only relates to cafes where 
the plaintiff is nonfuited, or has a verdidt againft 
him. But by 8 Eliz. c. 2. upon j rocefs iffuing out of 
the court of king’s-bench, if the plaintiff' do not declare 
in three days after bail put in, or if after declaration he 
do not proSecute his fuit with effedt, but willingly fuft'er 
the fame to be delayed or difeontinued, or he be non- 
lui.ed therein, the judges, by their diferetions, Shall 
award to the defendant his cofts, damages, and charges, 
in that behalf fuftained. The plaintiff, it has been ob¬ 
ferved, is not entitled to cofts in a popular adtion, for 
the whole or part of a penalty given by ftatute to a com¬ 
mon informer, unlefs they are exprefsly given him by 
the Statute. Nor was the defendant entitled to cofts in 
fuch an adtion, until they were given by 18 Eliz. c. 3. 
made perpetual by 27 Eliz. c. 10. There being Still ma¬ 
ny cafes in which the defendant was not aided by the 
provifions of the before-mentioned Statutes, 4jac. I. 
c. 3. gives the defendant cofts on a nonfuit or verdidt, in 
all cafes where the plaintiff would have been entitled to 
them if he had obtained judgment. The Statutes 13 Car. 
II. St. 2. c. 2. 8 & 9 Will. Ill. c. u. give cofts to a de¬ 
fendant alfo in cal'es of non pros, and demurrer : and the 
latter Statute gives cofts to one of feveral defendants in 
trefpafs, alfauit, falfe imprjfonmem, or ejedtment ac¬ 
quitted • 
