In Michaelmas Term, 1859, the defendants obtained a rule calling upon the plaintiff to show cause why the verdict found for him should not be set aside and a new trial had, on the grounds of misdirection, surprise, that the verdict was against the weight of evidence, and for excessive damages. This rule was in the course of the same term made absolute,the plaintiff's costs of and occasioned by the said trial already had, and of and occasioned by this application to the Court, to abide the erent of this cause."

The cause was tried again at the sittings after last Trinity Term, when a verdict was found for the defendants on the first issue, and for the plaintiff on the second for 47. 198., it having been discovered upon a closer investigation of the accounts that the defendants were indebted to him in that amount for wages.

In Michaelmas Term last, the plaintiff obtained a rule nisi for a new trial, on the ground of surprise. *This rule came on for argu[*802 ment on the 20th of November last, and time was taken to consider; but, the Court being equally divided, the rule dropped. The verdict consequently stood for the plaintiff for 47. 19s.

Griffits, for the plaintiff, now moved that the master might be directed to tax and allow to the plaintiff his costs of the first trial. The 11th section of the 13 & 14 Vict. c. 61 (a) has no application here: the plaintiff is entitled to these costs under the words of the rule,— the event of the cause on the second occasion being in his favour. This may be likened to the case of a reference, where the costs are made to abide the event of the award, as in Wigens v. Cook, 6 C. B. N. S. 784 (E. C. L. R. vol. 95), and Jones v. Jones, 7 C. B. N. S. 832 (E. C. L. R. vol. 97).

ERLE, C. J.-I am of opinion that the plaintiff is not entitled to any costs. The declaration consisted of a special count for the wrongful dismissal of the plaintiff and a general count for work and labour. On the first trial, no claim was made on the general count for [*803 work and labour, and on that there was a verdict for the defendants. But, upon the count for the alleged wrongful dismissal, there was a verdict for the plaintiff, with 1407. damages. In Michaelmas Term, 1859, the defendants obtained a rule nisi for a new trial on the grounds of misdirection, surprise, that the verdict was against the weight of the evidence, and that the damages were excessive. That rule was made absolute, and it was ordered that the plaintiff's costs of and occasioned by the trial already had, and of and occasioned by that application to the Court, should abide the event of the cause. Now, the obvious meaning of those words, is, the event in respect of which the contest took place at the trial and upon the argument of

(a) Which enacts, "that, if in any action commenced after the passing of this Act in any of Her Majesty's Courts of record, in covenant, debt, detinue, or assumpsit, not being an action for breach of promise of marriage, the plaintiff shall recover a sum not exceeding 207, or if in any action commenced after the passing of this Act in any of Her Majesty's superior Courts of record, in trespass, trover, or case, not being an action for malicious prosecution, or for libel, or for slander, or for criminal conversation, or for seduction, the plaintiff shall recover a sum not exceeding 57., the plaintiff shall have judgment to recover such sum only and no costs, except in the cases hereinafter provided (s. 12], and except in the case of a judgment by default [but see 19 & 20 Vict. c. 108, s. 19]; and it shall not be necessary to enter any suggestion on the record to deprive such plaintiff of costs, nor shall such plaintiff be entitled to costs by reason of any privilege as attorney or officer of such Court or otherwise."

the rule, and in respect of that which it was then supposed would be in contest upon the second trial. Upon that bargain the parties go down again, and the event so far as regards the matter which was before in contest is against the plaintiff. But upon the second trial the plaintiff had found out, that, upon a more accurate investigation of the accounts, a sum of 4. 19s. was due to him for salary, and for this he obtained a verdict, the verdict being for the defendants upon the substance of the case, viz., the count for the alleged wrongful dismissal. The event, therefore, of the second trial was different from that of the first. It is true, the plaintiff gets a verdict on the second occasion but that was not the event contemplated by the rule. I am, therefore, disposed to leave the rights of the parties where the law has placed them.

WILLIAMS, J.-I am entirely of the same opinion. The spirit and meaning of the rule was, that, if it should turn out that the rule ought not to have been granted, the plaintiff should have the costs of the first *trial and of the argument; but that, if the event of the

*801] second trial justified the rule, he should not. The result of the

second trial shows that the rule was justified, and consequently the plaintiff cannot have the costs of the first trial. The rest of the Court concurring,

Rule refused.

END OF HILARY TERM.

CASES

ARGUED AND DETERMINED

IN

THE COURT OF COMMON PLEAS,

IN

Bilary Vacation,

XXV. VICTORIA. 1862.

The Judges who usually sat in banco at these sittings were

OAKELEY v. MOHAMMED MUSEEH OODDEEN. Feb. 6.

A plaintiff is entitled to the same time for proceeding to trial after a rule made absolute for a new trial, as he had for proceeding to trial originally.

Consequently, where a rule had been made absolute for a new trial, and the plaintiff bad gone down to try at the sittings after Michaelmas Term, but the jury, being unable to agree, were discharged from giving a verdict,-Held, that it was not competent to the defendant to take down the record for trial by proviso at the sittings after Hilary Term; the plaintiff not being in default.

INDERWICK, on the last day of last Hilary Term, moved for a rule calling upon the plaintiff to show cause why the defendant should not be at liberty to give notice for the trial of this cause at the sittings

after term.

The affidavits upon which the motion was founded stated that the action was tried before the Lord Chief Justice at the sittings at Guildhall after Michaelmas Term, 1859, when a verdict on the material issues was found for the defendant, leave being reserved to [*806 the plaintiff to move to alter the verdict or for a new trial: that a rule was accordingly moved for and made absolute for a new trial: that the plaintiff did not proceed to trial, and on the 6th of June, 1860, the defendant obtained a rule calling upon the plaintiff to show cause why he should not proceed to the new trial at the sittings after Trinity Term, 1860, which rule was opposed by the plaintiff, and discharged, the Court being of opinion that they could not compel a plaintiff to proceed to a new trial any faster than a plaintiff was capa

ble of being made to proceed to the first trial of an original action: that, on the 30th of July, 1860, the plaintiff (for delay, as was surmised) obtained an order for a commission to examine witnesses at Calcutta, and for a stay of the proceedings until the first day of Easter Term, 1861; but the order was not drawn up until the 2d of November, 1860, and the commission was not sent out to Calcutta until the 3d of December, 1860: that, after the first day of Easter Term, 1861, the commission not having been returned, the plaintiff applied by summons to have the time for its return enlarged, but his application was refused, and thereupon the defendant's attorney on the 30th of April, 1861, gave the plaintiff's attorney a twenty days' notice to proceed to trial, whereupon the plaintiff's attorneys on the same day served a cross-notice of trial: that the cause was in the paper for trial on the 4th of July, 1861, but, a sufficient number of special jurymen not being in attendance, and the plaintiff's counsel declining to pay a tales, and the defendant's counsel abstaining from doing so in the belief that an offer of compromise which had been made would be accepted, the trial went off for want of a jury: that, the offer of compromise not having been accepted, the cause came on for trial before Byles, J., *at the sittings after Michaelmas Term last, when

*807] the jury were discharged without being able to agree upon a

verdict that the defendant was recalled to India by his master, the King of Oude, in September or October, 1859, and has now been kept in this country for upwards of two years since his said recall, for the purpose of finishing this litigation, and his position and prospects in India have been seriously damaged by the delay in his return to that country, and his means have been exhausted by the heavy legal expenses he has had to bear in defending himself in this action, so that any further delay will amount to an absolute denial of justice to the defendant: that the defendant is a Mahometan, and a moulvie, which latter title or distinction is indicative of a man learned in the law and precepts of Mahomet, and requires from its possessor a stricter observance of the ceremonial of the Mahometan religion than is expected from an ordinary individual professing that religion; and that he could not return to India and be received into the society of his co-religionists and equals there, without first performing a pilgrimage to Mecca, his long residence in a Christian country rendering such a proceeding absolutely necessary, and without which he would be generally avoided by all the devout believers in Mahomet: and that the pilgrimage to Mecca can only be performed at one period of the year, viz., about the end of the month of June, and therefore, in order that the defendant might perform such pilgrimage, it would be necessary for him to leave England not later than the month of May next. He referred to a case of Humpage v. Rowley, 4 T. R. 767, where, upon a suggestion that the plaintiff wished to delay the trial, Gibbs moved that the defendant might be at liberty to carry the record

down to trial at the next assizes, observing that, by the *com*808] mon law, the defendant could not carry it down by proviso; and the Court, thinking the application reasonable, granted a rule absolute in the first instance, saying that the plaintiff would not be damnified by it, for that, if he chose to take the record down himself, the costs of this application must be paid by the defendant. [WILLES,

J., referred to the notes to the case of Dennis v. Dennis, 2 Wms. Saund. 335.]

ERLE, C. J.-Upon the authority of the case of Humpage v. Rowley, 4 T. R. 767, I think the rule may be granted, and may be absolute in the first instance, notice being given to the plaintiff that he may apply on the first day of the sittings in banco after Term to rescind it, if he shall be so advised.

The rest of the Court concurring,

Rule absolute.(a)

Macnamara now moved to rescind the above rule.-The case of Humpage v. Rowley is no authority here. That was an issue out of Chancery, where the order directs the time and place of trial: Seton on Decrees, *2d edit. 509. Besides, in an issue out of Chancery, [*809 both parties are actors. This, however, is the case of an action brought in the ordinary way, the conduct of which, under certain wellknown restrictions, is allowed by law to the plaintiff. In Banks's Case, 2 Salk. 652, 6 Mod. 245, 2 Ld. Raym. 1082, it is laid down, that, in civil actions, the defendant shall never carry down a cause by proviso, till there be a laches in the plaintiff, except in causes where the defendant is an actor. The case of Humpage v. Rowley,-the report of which is short and unsatisfactory,-came under the consideration of this Court in The Staffordshire and Worcestershire Canal Company v. The Trent and Mersey Canal Company, 5 Taunt. 577 (E. C. L. R. vol. 1), 1 Marsh. 218 (E. C. L. R. vol. 4), where it was held, that, after a new trial granted, the defendant cannot carry the cause down to trial by proviso until after the plaintiff has made default at an assize subsequent to the motion. Gibbs, C. J., there says: "The rule is established, that the defendant cannot carry a cause to trial by proviso till there has been a default of the plaintiff. The only case that comes near this is Humpage v. Rowley: but that was a peculiar case, on an issue out of Chancery. That was not, strictly speaking, a carrying down of the record by proviso: it was a special order, and only proves, that, where the plaintiff hangs back from carrying down a cause out of Chancery, which ought to be carried on, the Court will permit the defendant himself to carry down the record. If this were an authority for the use of trial by proviso, it would extend much too far: it would go to all cases. Certainly, there can be no judgment as in a case of a nonsuit in this cause: but the defendant is not without remedy; he may take down the cause by proviso, but he cannot do that until after the plaintiff has made default." The plaintiff has been guilty of no default here. He may be if he neglects to go to *trial at the next sittings: but he has the same time for pro- [*810

ceeding to trial after a rule made absolute for a new trial as he had in the first instance. And this equally applies to the case of a trial before the sheriff: Harrison v. Sutton, 12 M. & W. 307.+ There (a) The rule was drawn up as follows:-" Upon reading, &c., it is ordered that the defendant be at liberty to carry in the Nisi Prius record, and to enter the same for trial, and give notice of trial in this cause to the plaintiff for the sittings after this Term-the plaintiff to be at liberty, nevertheless, to apply to this Court at the sittings in banc to be holden on Thursday next, the 6th day of February, to rescind this rule, if he shall think fit: And it is further ordered, that, in the event of the plaintiff's giving notice of trial and proceeding to the trial of this cause at the said sittings, the defendant's costs of and occasioned by this application to the Court shall not be costs in the cause against the said plaintiff."