#### WILLIAM COSTIN vs. WILLIAM BAXTER.

Where the plaintiff declares in three counts and enters a *nolle prosequi- ore-two*of them, but obtains judgment upon the third, the defendant is not-entitled to recover any costs, though he had summoned witnesses, who were admitted te be relevant, to defend himself against the counts, on which the *nolle prosequi*was entered.

The recovery of costs depends upon statutory regulations, and by. our statute on the subject,.the party, who-obtains a judgment,.is entitled to his costs.

Appeal from the Superior Court of Law of Rutherford County, at the- Spring Term, 1846, his Honor Judge Pearson, presiding.

The plaintiff’s declaration contained three counts; the first two in assumpsit and the last ia trover. No evi.~ *112dence was offered by them on the first and second, and on motion, he was permitted to entera *nolle .'prosequi*upon them, and confined his testimony to the third. His right to enter the *nol. pros,*was denied by the defendant, and the motion opposed. The jury, returned a verdict for the plaintiff, and the Court rendered judgment in his favour for the damages and costs of suit. The defendant tendered the witnesses he had summoned, in his defence upon the first and second counts, and moved his Honor for a judgment against the plaintiff for the amount of their costs. It was admitted, that upon those counts, their testimony.was relevant, and not upon the third, The defendant's motion was over-ruled by the Court.

*Miller*and *Bynum,*for the plaintiff.

*Baxter*and *Woódfm,*for the defendant. ■

Nash, J.

We concur in the opinion of.his Honor. We are not apprised of any power in the Judge to pronounce the-judgment prayed for. All costs are given, in a Court of law, in virtue of some statute. The common law made no provision on the subject, and in our State they are regulated bj^-the statute of 1777, *Rev. Stat.*c. 31, s. 79. which declares, that, “In all actions whatsoever, the party, in whose favour, judgment shall be given, or in case of a non-suit, dismission, or discontinuance, the defendant, shall be entitled to full costs, &c.” The judgment, which was rendered in favour of the plaintiff, was right and proper. This the defendant does not contra-diet, but says that he is entitled to his costs .in defending himself upon the counts, abandoned by the plaintiff. This, abstractly, is certainly right and proper. The plaintiff in his declaration, has claimed from the defendant that which he subsequently admits he was not entitled to. The defendant was bound, at least, was justified in preparing for his defence by summoning his witnesses, and the plaintiff, for his false clamor in that matter, ought *113to pay tbe costs to which the defendant has been unnecessarily put. This, it appears to me, is what right and justice would demand. But is there any law, which would justify the Court in rendering a judgment in such a case ? The common law. as before observed, gives neither party any costs; is there any statute which gives to a defendant his expenses, under such circumstances *1*I know of none. In the English Courts, the practice is urged by the defendant’s counsel, but there it is by virtue, not of any statute, but of rules of Court adopted by tbe Judges. In *Hillary*term, in the 2nd of Wiujam the fourth, a number of rules were adopted, among them the 7th makes a provision for a case of this kind. It is as follows ; *• where there is more than one count, plea,&c., upon the record and the party pleading fails to establish a distinct subject matter of complaint or defence in respect of each count, plea, &c., a verdict and judgment shall pass against him, upon each count, plea, &e., which he shall have so failed to establish, and he shall be liable to the other party for all tbe costs occasioned by such count, plea, &c., including those of the evidence, as well as those of the pleading.” Previous to the adoption of these rules, when tbe plaintiff succeeded upon a part, of his demand only, the defendant was not entitled to costs upon the issues found for him. *Brown on actions, 167*5S0. 581, 5S2. By those rules, however, the Court is re. quired in such cases, to give him a judgment- The Act of 1777, with the exception of the restraining statutes, is the only one governing the Courts in the question of costs. And in that Act, the right of the defendant to them in the event of a non-suit, dismissiofi or discontinuance, is restrained *to*the case, where, by either of those means, the suit is terminated It is our opinion the Act of ’77 does not authorise the Court to grant the judgment asked for by the defendant. Judgment having been rendered for the plaintiff he is entitled to his full costs. Not to his costs upon the expunged counts, for they form no part of *114the declaration ; and we have seen that previous to the adoption of the rules at *Hillary Term,*if those counts had still constituted a part of the declaration, that the defendant would not have been entitled to costs upon them, though the verdict upon them had been for him. For this reason it is not deemed necessary to express any opinion, as to the power'of the Court below to admit or refuse to the plaintiff to enter a *nolle prosequi*to any of the counts of his declaration. The defendant has not, as to *the*question now before us, been placed in any worse situation than he would have been, had those connts remained in the declaration. As no injury therefore has resulted to the defendant by the allowing the *noil, pros, to*be *entered,*this *count*would *not disturb the*judgment, although the Judge below may have erred in permitting it. Numerous decisions have been made here upon that principle. *Norwood*v. *Morrow,*4 Dev. & Bat. 447. *Reynolds*v. *Magness, 2*Ire. 20. *Ratliff v. Huntley,*4 Ire. 545.

Ruffix, C. J.

A verdict and judgment were given for the plaintiff on one count in his declaration; and the defendant moved for judgment against the plaintiff, fox* costs incurred by the defendant in the attendance of witnesses to prove his defence to other counts, in which the' plaintiff had entered a *nolle prosequi.*The Court refused the motion, and the defendant appealed.

The question depends entirely upon the statute. ,The Revised Statute, c. 31, s. 79, taken from the Act of 1777, c. 115, s. 90, is, that “ in all actions whatsoever, the party, in whose favour judgment shall be given, or, in case of a non-suit, dismission or discontinuance, the defendant shall be entitled to full costs, unless when it may be otherwise directed by statute.” The words are as plain and positive as they can be, and are decisive against the defendant. There was no non-suit, dismission or discontinuance of the plaintiff’s action ; but there was judgment given in favour of the plaintiff. Therefore, under the *115Act, he is entitled to his full costs : and the case has not happened, in 'which the defendant can have a judgment for costs. The Act provides for no division of costs between the parties in any case. The party, who gets a judgment for costs at all, whether it be the plaintiff on confession, verdict, or demurrer, or the defendant on verdict, demurrer, retraxit, or non-suit, is “ entitled to *full*costs” by the express terms of the' statute.' A question, indeed, often arises, what costs the prevailing party shall have — what are. his full costs ; and the Court frequently refuses to allow sums claimed, for example, by a successful plaintiff, to be taxed against the defendant. As if he had summoned more witnesses to a single fact, than allowed by the subsequent Act'of 1783, or summoned witnesses to. irrelevant ’matter,.or did not swear or tender them. In'such cases, the Courts have often left them to pay such witnesses, and refused to include them in the costs, for which judgment was rendei’ed against the losing party. But in no instance found in the books, or recollected in the profession, has the losing'party recovered his costs or any part of them. There has been no such judgment; and, as far as is known, this is the first instance, in which it' has been asked for. The *nolle prose-qui*upon the two counts, can make-no difference'upon this point, whether .the Court ought or ought not to have allowed it; for .as to the question of the defendant’s costs, he has suffered no prejudice by the *nolle prosequi,*since, if it had not been entered, he could not have had judgment for them against the plaintiff, who obtained a verdict in the action.

Such being the plain provision of the law, a Court ought not, upon any notion of.its injustice, to thwart the legislative will. The Court does not undertake to form any opinion of its justice or injustice, as our duty is merely to execute the Act in its obvious sense.

I agree, therefore,, that the judgment shall be affirmed.

Per Curiam. Judgment affirmed.