## Facts

- The report is styled *Anon* (no party names) and was decided in the Court of King’s Bench in Trinity Term 1703.
- The case reached King’s Bench on a writ of error from a judgment in the Court of Common Pleas.
- In the underlying action, the plaintiff had proceeded to have damages assessed by a writ of inquiry.
- After the writ of inquiry, the plaintiff became nonsuit rather than taking final judgment on the damages.
- The Common Pleas nonetheless awarded costs to the defendant.
- The plaintiff challenged that award of costs in King’s Bench through the writ of error.

## Issues

1. Is a defendant entitled to recover costs when the plaintiff becomes nonsuit after damages have been assessed on a writ of inquiry, or do the cost statutes require an actual recovery by the defendant?

## Decision

- The Court of King’s Bench reversed the Common Pleas judgment awarding costs to the defendant.
- The court held that a nonsuit is the plaintiff’s own act and does not support a judgment for costs against the plaintiff in this posture.
- The court read the relevant statutes (including 3 Hen. VII c.10 and 8 Hen. VI c.8) as allowing defendants costs only where they “recover” in the action—i.e., where judgment is for the defendant—rather than where the plaintiff voluntarily suffers a nonsuit after a writ of inquiry.
- Holt, C.J. distinguished a nonsuit from a defense verdict: costs may follow when the defendant prevails by judgment, but not when the plaintiff simply withdraws before final judgment.
- The court also noted that allowing costs in this situation would deter plaintiffs from attempting to have damages assessed, contrary to settled practice that a nonsuit leaves each side to bear its own expenses.

## Legal Principles

- A nonsuit is treated as the act of the plaintiff; absent a statute clearly providing otherwise, it does not authorize a judgment that the plaintiff pay the defendant’s costs.
- Early English cost-shifting statutes granting costs to defendants are limited to situations where the defendant “recovers” (obtains judgment), not where proceedings end by plaintiff’s nonsuit.
- After a writ of inquiry to assess damages, a plaintiff who becomes nonsuit does not thereby convert the proceeding into a defendant’s recovery for purposes of costs.
- The distinction between (a) a defendant’s success on the merits (supporting costs where authorized) and (b) a plaintiff’s voluntary nonsuit (generally no costs) controls cost entitlement in this setting.

## Conclusion

*Anon, 87 Eng. Rep. 791 (K.B. 1703)* holds that a defendant is not entitled to costs when the plaintiff becomes nonsuit after damages have been assessed under a writ of inquiry; because a nonsuit is the plaintiff’s voluntary act and the cost statutes apply only where the defendant recovers by judgment, King’s Bench reversed the Common Pleas award of costs to the defendant.


Anon, 87 Eng. Rep. 791 (1703)