the action: this is no ground for an application upon this - statute, however disproportionate the sum paid in and that sworn to may be; for the sum is not recovered within the meaning of the statute. Rouveroy v. Alefson, 13 East, 90. Butler v. Brown, 1 Brod. & B. 66. Porter v. Pittman, 2 D. & R. 266. Davey v. Renton, 2 B. & C. 711. Rowe v. Rhodes, 2 Cr. & M. 379. And the same, where the payment into court is pleaded, and the plaintiff takes the money out and proceeds to tax his costs; the new rule, requiring it to be pleaded, making no difference. Brookes v. Rigby, 4 Nev. & M. 3. So, for the same reason, if the cause be referred to an arbitrator, and he award a less sum to the plaintiff than that for which he has holden the defendant to bail, it is not a case within the statute, Holder v. Raith, 4 Nev. & M. 466, 1 Har. & W. 8. Payne v. Aston, 1 Brod. & B. 278. Keene v. Deeble, 3 B. & C. 491. Sherwood v. Taylor, 6 Bing. 280, unless the cause be referred at nisi prius, and a verdict taken subject to the award, Turner v. Prince, 5 Bing. 191, and see Silversides v. Bowley, 1 Moore, 92, or the cause and all matters in difference be so referred, and the award adjudicate on the matter of the action distinctly from the others; Jones v. Jehu, 5 Dowl. 130, 2 Har. & W. 119; and even in that case the court will not entertain the motion, if by the terms of the reference the costs were to abide the event. Thomson v. Atkinson, 6 B. & C. 193. Where a verdict was taken, and the cause referred at nisi prius, and by the order the same power was given to the arbitrator that the court possessed with respect to the defendant's costs; the defendant had been holden to bail for 1091., and the arbitrator awarded 501., but made no order as to the defendant's costs under this statute: upon an application to the court to tax the defendant's costs, on the ground of his having been holden to bail for 1091., without reasonable or probable cause, Williams, J., said, that as the arbitrator, who had heard all the evidence, had declined to make the order, he could not interfere. Greenwood v. Johnson, 3 Dowl. 606, 1 Har. & W. 184. 3. That the plaintiff had not any "reasonable or probable cause" for holding the defendant to bail for such an amount. It is not necessary to show malice. Donlan v. Brett, 10 B. & C. 117. Erle v. Wynne, 1 Cr. & M. 532. And on the other hand it is not sufficient to show that the plaintiff has recovered a less sum; Roper v. Shevely, 2 Dowl. 14; although if the difference be very great, (as for instance, where the arrest was for 331., and the plaintiff recovered only 37. 9s.), and be not explained by the affidavits on the part of the plaintiff, that circumstance alone may satisfy the court that there was no reasonable or probable cause for the arrest; Summers v. Grosvenor, 3 Cr. & M.341. Nicholas v. Hayter, 4 Nev. & M. 882, and see Hall v. Forget, 1 Dowl. 696; and in proportion as the

difference is smaller, the evidence of want of reasonable and probable cause must be more cogent and satisfactory. See Paley v. Barker, 1 Har. & W. 208. Pincher v. Brown, 3 Moore, 590. If the difference arise from the plaintiff holding the defendant to bail for the amount of items in his account, of which he knew he had no evidence, the court will grant the defendant his costs. Griffiths v. Pointon, 2 Nev. & M. 675. Nicholls v. Hayter, supra. Lewis v. Ashton, 1 Mees. & W. 493. Robinson v. Whitehead, 6 Dowl. 292.

Where the plaintiff held the defendant to bail for a sum for board and lodging, calculated after the rate of 21. a week, and at the trial it was proved that the defendant had expressly agreed to charge at the rate of 11. a week only, and a verdict was given accordingly: the court granted the defendant his costs under this statute, although the plaintiff in his affidavit swore that he never made any such agreement as that proved at the trial. Glenville v. Hutchins, 1 B. & C. 91. See Anon. 2 Smith, 261. So where the plaintiff sold goods to the defendant, to be paid for, half in ready money, and the other half by a bill at three months; and the defendant having refused to pay the half in ready money, the plaintiff arrested him for the whole: the court held that he had no reasonable or probable cause for doing so, and that the defendant therefore was entitled to his costs. Day v. Pickton, 10 B. & C. 120. Where the plaintiff agreed with the defendant to do the iron work of four houses at certain prices, and the amount was paid to him; he afterwards agreed to do the iron work of two more houses at the same prices, and subsequently made the iron work for two others without any express agreement upon the subject, but for the last four houses it was doubtful whether he was to be paid by the defendant or one J. P.; he sent in his account to J. P., amounting to 447., according to the agreed prices, and because J. P., did not pay him, he arrested the defendant, not merely for the amount according to the agreed prices, but for 651., the amount according to measure and value, and at the trial he obtained a verdict for the 441. only: the court held that he had no reasonable or probable cause for holding the defendant to bail for the 651., and that the defendant therefore was entitled to his costs. Braly v. Milnes, 1 Bing. N. C. 738, 1 Hodg. 118. So, where goods were sold and delivered by the plaintiff to the defendant, but the defendant objected to them on the ground of their being badly manufactured, and the plaintiff agreed to take them back, and they were sent back accordingly; the plaintiff however again sent them to the defendant, and then arrested him for the amount: the plaintiff having recovered less than the sum for which he held the defendant to bail, the court held the defendant to be entitled to his costs. Linley v. Bates, 2 Tyr. 753. See also Russell v. Atkinson, 2 Nev. & M. 667.

Where the plaintiff bought a horse from the defendant for 901., warranted sound, for which he gave his own horse, valued at 60., and 301. in money; the horse purchased turned out to be unsound, and the plaintiff offered to return him, but the defendant refused to take him back, and the horse was accordingly sent to a livery stable to be kept for the defendant; the plaintiff then brought an action on the warranty against the defendant, and held him to bail for the 901., but at the trial recovered 481. only: the court held that the plaintiff had no right to treat the contract as rescinded, and arrest the defendant for the whole of the 901., and that the defendant therefore was entitled to his costs under this statute. Gompertz v. Denton, 1 Dowl. 623. Where the plaintiff caused the defendant to be arrested for a debt, with respect to the greater part of which he knew he had been discharged under the insolvent act, and at the trial the plaintiff recovered for the residue only: the court held the defendant to be entitled to his costs under this statute. Ld. Huntingtower v. Heeley, 7 D. & R. 369. If the plaintiff and defendant have cross demands upon each other, and the plaintiff, instead of holding the defendant to bail for the balance merely, hold him to bail for the whole amount of the debtor side of his account, and recover for the balance only: the court will grant the defendant his costs under the statute. Dronefield v. Archer, 5 B. & A. 513. Sims v. Jaquest, 2 Dowl. 800, and see Austin v. Debnam, 3 B. & C. 139. And where a plaintiff thus held a defendant to bail for 105., the whole amount of the debtor side of his account when he knew that he was indebted to the defendant in one sum of 391., and others of which he did not know the amount, and he recovered but 177.: it was holden to be no answer to an application for costs under this statute, to say, that the defendant refused to make out and deliver his account when required to do so. Ashton v. Naull, 2 Dowl. 727. So where the plaintiff caused the defendant to be arrested for 1,1231., when he had the means of knowing that only 7157. was due to him, the court held the defendant to be entitled to his costs. Foster v. Weston, 6 Bing. 527. Where the arrest was for 681., as the balance of a long account between the parties, and only 231. recovered, and it appeared upon an investigation of the plaintiff's accounts before an arbitrator that they were kept most inaccurately, forty or fifty items in them being found to be wrong, and sums charged for disbursements which had never been made: the court awarded the defendant his costs under this statute, although it appeared that the defendant, before action brought, but at a time when he was not apprised of the inaccuracies in the account, offered to accept a bill for the alleged balance of 681. Hall v. Forget, 1 Dowl. 696. So where the arrest was for 861., and the sum recovered

157. only, and it appeared that the only cause of action was for unliquidated damages, for which the plaintiff should not have holden the defendant to bail at all: the court granted the defendant his costs. Beare v. Pinkus, 4 Nev. & M. 846. So where the plaintiff sent in his bill to the defendant, a lady, amounting to 181., and not being paid, sent in another with an additional item of 21. for a pair of stays furnished by him, but which at the trial were proved to have been previously returned, as not fitting the defendant; he then had the defendant arrested for the 201., and accompanied the officer who made the arrest; but at the trial, he had a verdict for the 181. only upon an application by the defendant for costs, the court granted them, saying that there was no reasonable or probable cause for the arrest as far as respected the 21., and without that the defendant could not have been arrested. Sutton v. Burgess, 4 Dowl. 376. So where the defendant, an infant, being arrested for 201. 2s. Id., pleaded his infancy, to which the defendant replied that the goods were necessaries; at the trial the plaintiff succeeded upon his replication, but was able to prove the delivery of goods to the amount of 10. only, and he had a verdict for that amount: upon an application by the defendant for costs, the court granted them, although the plaintiff swore to the delivery of the whole of the goods; but the court would look only to the verdict upon that subject; and they added, "it is well that parties should know, when a debt amounts just to 201., the risk they run in making an arrest.” Ballantine v. Taylor, 1 Nev. & P. 219. Where the defendant was arrested for 281. for beer, and at the trial it appeared that he lodged at the house of the plaintiff, who kept a beershop, that he was almost constantly drunk, that whilst drunk he was still furnished with beer by the plaintiff, both for himself, and for any other persons whom he chose to treat with it, upon one occasion to the extent of thirty-six quarts in the day: and upon the judge telling the jury that it was improper to supply the defendant with beer whilst in a state of intoxication, the jury gave the plaintiff a verdict for 51. only: this was holden to be a case within the statute, and the court granted the defendant his costs. Erle V. Wynne, 2 Dowl. 23. Where an attorney held his client to bail for 500l., the amount of his bill delivered, but which, on being referred for taxation, was taxed at 2991. upon an application by the defendant for his costs under this statute, the court referred it to the master to say whether the plaintiff had any reasonable and probable cause for holding the defendant to bail for 500l., and upon the master reporting in the negative, the court granted the defendant his costs. Robinson v. Elsam, 5 B. & A. 661. Also, if executors hold to bail without reasonable or probable cause, they are liable to pay costs under this statute, in the same manner as other VOL. II.

d

persons; for they would be liable to an action, and this is an analogous remedy; Treley v. Reid, 5 B. & A. 515; but the court will require a strong case to be made out, to induce them to grant a rule under this statute against an executor. See Foulkes v. Neighbour, 1 Marsh, 21.

But where the difference between the sum for which the defendant was holden to bail and the sum recovered, consisted of an item, for which it might reasonably be doubted whether in law the plaintiff was not entitled to recover: the court held it not to be a case in which the defendant ought to have his costs under this statute. Stovin v. Taylor, 1 Nev. & M. 250, 1 Dowl. 697, n. See James v. Francis, 5 Price, 1. And where a woman, being arrested for 500l., pleaded her coverture, and the plaintiff recovered only 381., being the amount of money which he had lent to her after the death of her husband; she then applied for costs, but showed no facts from which it could be implied that the defendant knew her to be married whilst she was incurring the residue of the debt, and on the other hand the plaintiff swore most positively that he was not aware of the defendant's being a married woman: the court held the defendant not to be entitled to her costs. Spooner v. Danks, 7 Bing. 772. 1 Dowl. 232. So where the difference arose from the different testimony given by the witnesses for the plaintiff and for the defendant, as to the price of the goods for the value of which the action was brought, the jury taking a mean of their estimates, and finding their verdict accordingly: the court refused to grant the defendant his costs. Shotwell v. Barlow, 1 Gale, 107, 3 Dowl. 709. And see Mantell v. Southall, 2 Bing. N. C. 74. So, where the arrest was in an action for the amount of some chests of tea, and the difference arose from the plaintiff making an allowance for one of the chests, which was found to be damaged, and the jury finding their verdict for the other chests only, upon an understanding that the damaged chest should be returned to the plaintiff: the court held the defendant not to be entitled to his costs. Clare v. Cooke, 4 Bing. N. C. 269. So, where the plaintiff, an architect and surveyor, brought his action for a per centage on the alleged cost of a building, but received a less sum than that for which he had holden the defendant to bail, owing to a difference between the testimony of the witnesses on both sides, the one set swearing that the building must have cost 5,000l., the other that it was worth only between 2,000l. and 3,000l., and the defendant, upon the motion, not swearing to what it actually cost the court refused him the costs, as it was for him to make out the want of probable cause. Day v. Clarke, 5 Bing. N. C. 117. So where the affidavit was for 271., the writ by mistake for 371., but the claim of debt indorsed on the back of it was for 27. only, and the officer was apprised of