72 Pa. 239 | Pa. | 1872
The opinion of the court was delivered, by
— At common law no final costs were recoverable by either plaintiff or defendant. The right to them depends, therefore, entirely upon statute. In Dibben v. Cooke, 2 Strange 1005, and Queen v. Danvers, 1 Salk. 194, it was considered as settled by older decisions, that under the English statutes prior to 8 and 9 Wm. III., c. 2, if one of several defendants is acquitted, he is not entitled to his costs, the courts having construed, under the principle of construction to be presently adverted to, those statutes where they used the word “ defendants ” to intend only the case of a total acquittal all the defendants. It was to remedy this to some extent that the Statute of 8 and 9 Wm. was passed. This court has decided, in Maus v. Maus, 10 Watts 87, that the first section of that statute, Roberts’ Digest 140, which provides that where several persons are made defendants, and any one or more of them shall be upon the trial acquitted by verdict, every person so acquitted shall recover his costs, only applies to the actions enumerated in it, namely: trespass, assault, false imprisonment or ejectione firmce, and not to a proceeding by a scire facias to revive a judgment. This section in words only includes the case of an acquittal by verdict, and the previous Statutes of 23 Henry VIII., c. 15, Roberts’ Digest 121, and 4 Jac, 1, c. 3, Roberts’ Digest 129, which gave costs to defendants in all forms of action,
That the courts in this state do not proceed upon the notion that the statutes giving costs are penal statutes to be strictly con
Applying then this principle of a fair and liberal, in contradistinction to rigid and literal, interpretation to the provisions of the 2d section of the statute in question, we think that the spirit and equity of it require us to hold that a judgment upon the issue raised by a plea of nul tiel record is within its purview. Both a judgment upon a demurrer and a judgment upon that issue are pronounced by the court without the intervention of a jury. The reason is, that as a record proves itself, all that is necessary when it is put in issue is for the court to decide by inspection whether the record produced is that set forth in the proceeding, or variant therefrom, or is a record at all of binding effect as declared on or pleaded. There could be no reasonable ground for making any persons parties defendants, who did not appear by the record to be bound by it, and d fortiori not where on the trial no record, or none of binding force, is produced. No reason, therefore, even on the principle applied by the English courts in the construction of this section, exists, why the plaintiff should not be mulcted for his unlawful and injurious vexation of any of the defendants, though he may by default obtain judgment against others. The judgment that there is no such record as that declared on or pleaded shows that there was no just cause of action against any of the defendants.
From the examination I have been under the necessity of giving to this case I have been led to the conclusion that an Act of Assembly to consolidate and simplify the whole law upon the subject .of costs in different actions and legal proceedings is much needed, and if some gentleman of the bar, of sufficient practical experience, would prepare such an act for consideration and adoption by the legislature, it would confer a great service on the profession, the courts and the public.
Order affirmed.