1861.

ADAMS v. READY.

Jan. 29.

an action on a

under 201.

with the object

a judgment above 207. and issuing thereon execution

of obtaining

THE plaintiff in this case had brought an action against The bringing the defendant and obtained judgment for 187. 4s. 6d. debt, judgment and 31. 14s. 8d. costs. The plaintiff, not being able to obtain satisfaction by fi. fa., brought an action on the judgment, to which the defendant pleaded nul tiel record; and on production of the record judgment was entered for the plaintiff. An application was then made to Martin, B., at Chambers to allow the plaintiff his costs of the action on the judgment, under 43 Geo. 3, c. 46, s. 4. The defendant opposed the application, and the learned Judge referred

the matter to the Court.

against the

person, is an

evasion of the

7

& 8 Vict.

c. 96, s. 57,

and the Court, of their dis

in the exercise

cretion, under the 43 Geo. 3,

C. Pollock, in last Michaelmas Term, obtained a rule nisi c. 46, s. 4, will accordingly; against which

The defendant, in person, shewed cause in the same Term (Nov. 24), and contended that the action on the judgment was an evasion of the 7 & 8 Vict. c. 96, which prohibits execution against the person on a judgment for a sum not exceeding 201.

C. Pollock, in support of the rule.-Under the 43 Geo. 3, c. 46, s. 4, it is in the discretion of the Court or a Judge to allow the costs of an action on a judgment. Slater v, Mackay (a) is an authority in point. There the plaintiff had obtained judgment by default against the defendant for 151. 3s. 6d. debt and 5l. 12s. 6d. costs. The defendant having no available property, the plaintiff brought an action on the judgment, to which the defendant pleaded nul tiel (a) 8 C. B. 553.

not allow the plaintiff his

costs.

1861.

ADAMS

v.

READY.

record, and judgment was given for the plaintiff for the amount of the debt and costs. The plaintiff having applied to the Court to allow him his costs, under the 43 Geo. 3, c. 46, s. 4, it was held that he was entitled to them, notwithstanding the original cause of action was one for which he might have entered a plaint in the County Court. [Martin, B.-The proper criterion is whether the plaintiff is entitled to costs at the time he commences his action: his right to costs cannot depend upon whether the defendant pleads nul tiel record.] The defendant ought not to have pleaded a false plea. [Pollock, C. B.-The statute having given us a discretionary power over the costs, why should we not give the costs of the false plea, and refuse the rest?] Hall v. Pierce (a) is an authority that the costs cannot be severed. There, judgment having been obtained against the defendant, he rendered in discharge of his bail and was superseded. The plaintiff brought an action on the judgment, to which the defendant pleaded nul tiel record. The plaintiff having applied for costs under the 43 Geo. 3, c. 46, s. 4, on the ground that the defendant had pleaded a false plea, Parke, B., said, "The plaintiff is seeking to rectify his blunder in not having charged the defendant in execution. The question then is, whether the defendant ought to pay, or the plaintiff to suffer the consequences of his own negligence. If the costs could be separated, the defendant ought to bear the expense of his false plea; but the Act gives no power for us to award part of the costs." Where a defendant against whom judgment had been obtained sued out a writ of error, and, the plaintiff having brought an action on the judgment, the defendant pleaded nul tiel record, the Court allowed the plaintiff his costs, observing that the defendant, instead of pleading nul tiel record, ought to have applied to stay the proceedings.

(a) 5 Dowl. P. C. 603.

[Martin, B.-Bell v. Waldron (a) is an authority against the application.] In that case the defendant did not plead nul tiel record, but nunquam indebitatus, so that, in effect, the action was undefended.-He also referred to Gray on Costs, 168, and 1 Chit. Arch. 470, 10th ed.

Cur. adv. vult.

MARTIN, B., now said:-This case involves a question which has been much agitated in the Courts. The plaintiff recovered judgment for a sum less than 207., and being unable to obtain satisfaction by fi. fa. he brought an action on the judgment and recovered a sum above 201. An application was made to me at Chambers to allow the costs of this judgment. I referred the parties to the Court, and the question was argued last Term. We have given it great consideration, having been much perplexed by the course taken in cases of this kind. We had intended to consult the Judges of the other Courts, but as there is a difficulty, owing to the pressure of business, in seeing any considerable number of them, we have considered it our duty to deliver our judgment on the matter.

The 7 & 8 Vict. c. 96, s. 57, after reciting that "it is expedient to limit the present power of arrest upon final process," enacts "that from and after the passing of this Act no person shall be taken or charged in execution upon any judgment obtained in any of her Majesty's Superior Courts, or in any County Court, court of requests or other inferior court, in any action for the recovery of any debt wherein the sum recovered shall not exceed the sum of 207., exclusive of the costs recovered by such judgment." It is impossible that there could be a more direct enactment by the legislature that a right to execution against the person should not exist unless the sum recovered exceeds 201. exclusive of costs; and we think this enactment is binding on all Courts of (a) 9 Jur. 510.

1861.

ADAM3

v.

READY.

1861.

ADAMS

v.

READY.

law in this country, and that they ought to give effect to it.
The legislature must be understood as having taken into
consideration the circumstance that judgments are often
recovered against persons whose property is not sufficient
to satisfy them, and to have enacted that even in these
cases there shall be no execution against the person. How-
ever, any person who has recovered judgment for a debt
under 207., but which with the costs exceeds 20%, may
bring an action on that judgment, though for the avowed
purpose of obtaining a judgment for a debt above 201.:
there is no law to prohibit him, and he may do so as a
matter of right. But then the 43 Geo. 3, c. 46, s. 4, pro-
vides that the plaintiff in an action upon a judgment shall
not recover or be entitled to any costs, unless the Court or
a Judge shall otherwise order; and the question we have
to consider is whether, when a person brings an action on
a judgment with the express object of evading the 7 & 8
Vict. c. 96, s. 57, we are to interfere and allow him his
costs. We have been pressed with the decision in Slater
v. Mackay (a). That was an application for the costs of
an action on a judgment, and as the defendant had pleaded
nul tiel record, the Court of Common Pleas considered that
this circumstance enabled them, in the exercise of their
discretion under the 43 Geo. 3, c. 46, s. 4, to allow the
plaintiff his costs. The judgment of the Court of Common
Pleas is entitled to the greatest respect, and we have given
it the fullest consideration; but we are at a loss to under-
stand how the pleading a false plea can render the original
bringing of the action right, so as to entitle the plaintiff to
the costs of it. The question is, whether the bringing the
action is an evasion of the 7 & 8 Vict. c. 96, s. 57; and how
can it be affected by the circumstance of the defendant
pleading a false plea? If we could give the plaintiff the
costs of the false plea we would do so, but I doubt our
(a) 8 C. B. 553.

HILARY TERM, 24 VICT.

power. In Bell v. Waldron (a), Wightman, J., considered
that if a plaintiff has been guilty of an evasion of the 7 & 8
Vict. c. 96, s. 57, he ought not to be allowed his costs. If
a plaintiff thinks proper to bring an action on a judgment
for a debt under 201., for the purpose of recovering a sum
above 207. and issuing an execution against the person, we
are of opinion that we carry out the intention of the legis-
lature by holding, in the exercise of our discretion, that he
must bear the expense of it, and ought not to be allowed
his costs.
Rule discharged.

1861.

ADAMS

v.

READY.

(a) 9 Jur. 510.

THIS

MORGAN v. RAVEY and Another.

Jan. 11.

relation exists

between two parties, which

involves the

of certain

duties by one

of them and

the payment him by the other, the law

of reward to

HIS was an action against the defendants as executors Wherever a of the will of Joseph Dethier, deceased. The declaration stated that the said Joseph Dethier in his lifetime, before and at the time of the making of the promise and thence performance until the loss hereinafter mentioned, was an innkeeper and kept a certain common inn for the reception, lodging and entertainment of travellers, and whilst the said Joseph Dethier was such innkeeper and so kept the said inn as aforesaid, theretofore in consideration that the plaintiff, at the request of the said Joseph Dethier, then put up and was received by the said Joseph Dethier in the said inn, to what is to be abide in the said inn as such traveller as aforesaid, the said Joseph Dethier promised the plaintiff to keep the goods and chattels brought, or which whilst the plaintiff should so abide in the said inn as such traveller, should be

brought by the plaintiff into the said inn, safely and without diminution or loss while they should be within the said

will imply, or
infer, a pro-
a jury may

mise by each

party to do

done by him. Therefore an action may be

maintained executors of an innkeeper on his implied promise to

against the

keep safely and without

diminution the goods of his guest. The executors are also liable in "tort," the loss of the goods being a wrong committed within the meaning of the 3 & 4 Wm. 4, c. 42, s. 2.

An innkeeper, though guilty of no negligence but even diligent, is liable for the loss or injury of the goods of his guest not arising from the negligence of the guest, the act of God, or the Queen's enemies.