Miller's Executors v. Lint

The opinion of the court was delivered by Lowrie, C. J. The court ought to have directed a verdict for the defendant. • There is no implied assumpsit in such a case, and there is no need of a constructive one, for the law provides a remedy of another kind. A party is not bound to his adversary by an implied assumpsit for costs; they are fixed by the judgment. When the law decides a case, it decides all the duty of the real parties as to costs, and it can recognise only its own judgment in the case, for declaring and enforcing the duty. It cannot afford to allow one suit for the principal right claimed, and another for the incidental right of costs, else a lawsuit determined would very often be the very cause of a new action. The practice on the subject may be found in 1 Troubat & H. Pr. 652 (Whart. Ed.), and in the Act of 28d April 1829, § 2, 10 Sm. Laws 456. The instances given relate only to equitable plaintiffs, or persons for whose benefit a suit is prosecuted. But in principle, and by analogy, the law applies as well to landlords who defend in the name of their tenants in ejectment. The plaintiff ought to have followed the principle of the Act of 1829, by suggesting the name of the real acting defendant, proving that he was so, having him entered as defendant, and taking execution against him; provided the plaintiff had not prevented the landlord from taking defence, which is alleged as a fact in this case. Judgment reversed, and a new trial awarded.