burrow cook versus peter sayer cost where defendant plead double and there be  a verdict for the plaintiff on one and for the defendant on the other SC  Sayers law of c will will buller see also durn durn Bosanq on the master  report make two day ago the question be what cost shall be allow and to who  upon the follow fact state in consequence of a motion for a direction to the  master how to tax they in a action of trespass and assault for a criminal  conversation with the plaintiff wife a the defendant by leave pursuant to the  statute for amendment of the law Ann c plead two plead first not guilty dly  not guilty within six year on the former plea of not guilty issue be join to  the latter plea there be a demurrer put in by the plaintiff it so happen that  the issue on the plea of not guilty be try first and find for the plaintiff  with damage then the demurrer be afterward argue and overrule and determine  for the defendant and each party have judgement videlicet the plaintiff on his  verdict and the defendant on the demurrer the plaintiff tax his cost upon the  postea then the defendant come to tax his cost of his judgement upon the  demurrer N B by W c for the better prevent frivolous and vexatious suit  defendant shall have cost against plaintiff on judgement give for they upon  any demurrer put in by either side and by Ann c for the amendment of the law  which enable defendant to plead several matter it be provide that if any such  matter plead by a defendant shall upon a demurrer join be judge insufficient  cost shall be give at the discretion of the court but there be no particular  direction in this Act in case of its be judge sufficient which be the present  case so that this stand suppose upon the former Act of W c master clarke say  he never have know a instance of this kind burrow Lord MansfieldPerhaps the  particular circumstance of this case may be V post p Tr g b r the prisoner  case v king v inhabitant of clas in Com Glamorgan Trin b r see burr durn a  will bull burrow er p consider so as to determine it upon they without enter  into the general question but however lest the general question shall be  involve more or less in this particular one will take a little time to  consider of it cur advis Lord Mansfield now deliver the resolution of the  court the two plead plead by the defendant have receive different  determination one be find against the defendant the other have be adjudge for  he so that the plaintiff upon the whole have no cause of action I say at the  time when this matter be before we that the particular circumstance of this  case may appear to be such when consider as may be a sufficient foundation for  our determine the matter now in dispute upon those particular circumstance  without enter into the general question but the general question be a point  that may require a good deal of consideration upon look into the circumstance  here we be all of opinion that the particular circumstance of this present  case be such as may very well suffice for our determine it upon these  circumstance alone without go into the general question now upon the present  circumstance it be clear that the defendant must certain have the cost of the  demurrer which have be adjudge for he but as to the cost of the trial we think  that the plaintiff ought not to have they though he have obtain a verdict upon  this issue for upon the whole he have no cause of action the demurrer be  decisive as to that and he have act unadvised in carry this issue down to  trial before the determination of the demurrer we can say that the defendant  do wrong in plead not guilty as well as not guilty within six year we can  determine that he have no pretence for so do burrow it have be object that  this be unnecessary and that it be imply in the plea of not guilty within six  year but it may be necessary and it be not imply in the other plea of not  guilty within six year as that plea may have be manage in the course of plead  for the plaintiff may have reply that he sue out a original writ within the  six year and put the defendant to answer to that allegation and so carry it  off from the merit to a collateral point in which case it can never have come  to be try upon this second issue whether he be or be not guilty of the fact  consequent it be not true that upon this second issue the former be necessary  include and imply therefore we can say that the defendant be so in the wrong  in plead not guilty general that he ought to pay cost for so do and yet on the  other hand that plea be find false he ought not to receive cost for the  plaintiff upon the trial of that issue which have be find against he but  nevertheless though it be find against the defendant yet the plaintiff can  have damage upon it because upon the whole judgement must be against he and  therefore neither can he have cost upon it so that the judgement must be for  the defendant clear and he also must have cost of the demurrer but upon the  trial there be to be no cost on either side but each party be to sit down by  his own cost N B there be no rule draw up in form this declaration of the  court be only by way of direction to the master in what manner to tax these  cost