II. Costs as affected by the County Court Acts, where sum not exceeding £20 recovered in Action of Contract, or £5 in Tort, III. Costs as affected by the London Small Debts Act, 1. Verdict for £50 or under in Contract, or less than 1409 1414 1415 1416 1417 2. Where less than £20 recovered in Contract, or £5 in IV. Certificate for Costs of Special Jury, .. I. Where less than 40s. recovered. By 43 Eliz. c. 6, s. 2,-" If upon any action personal to be brought in any of her Majesty's courts at Westminster, not being for any title or interest of lands, nor concerning the freehold or inheritance of any lands, nor for any battery, it shall appear to the judges of the same court, and so signified or set down by the justices before whom the same shall be tried, that the debt or damages to be recovered therein in the same court shall not amount to the sum of forty shillings or above, that in every such case the judges and justices before whom any such action shall be pursued, shall not award for costs to the party plaintiff any greater or more costs than the sum of the debt or damages so recovered shall amount unto, but less at their discretion" (a). By 21 Jac. I. c. 16, s. 6,-" In all actions upon the case for slanderous words, to be sued or prosecuted by any person or persons in any of the courts of record at Westminster, or in any courts whatsoever that hath power to hold plea of the same, after the end of this present session of parliament, if the jury upon the trial of the issue in such action, or the jury that shall inquire of the damages do find or assess the damages under forty shillings, then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so given or assessed amount unto, without any further increase of the same, any law, statute, custom, or usage to the contrary in anywise notwithstanding." By Lord Denman's Act, 3 & 4 Vict. c. 24, s. 2, "if the plaintiff in any action of trespass, or of trespass on the case, brought or to (a) Repealed so far as it relates to costs in actions of trespass or trespass on the case, 3 & 4 Vict. c. 24, s. 1. As to the construction of this statute, see post, p. 1408. be brought in any of her Majesty's courts of Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Common Pleas at Durham, shall recover by the verdict of a jury less damages than forty shillings, such plaintiff shall not be entitled to recover or obtain from the defendant in respect to such verdict any costs whatever, whether it shall be given upon any issue or issues tried, or judgment shall have passed by default unless the judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of enquiry, that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought or that the trespass or grievance in respect of which the action was brought was wilful and malicious" (a). By sect. 3,-Nothing herein contained shall extend to or be construed to extend to deprive any plaintiffs of costs in any action or actions brought for a trespass or trespasses over any lands, commons, wastes, closes, woods, plantations, or enclosures, or for entering into any dwellings, outbuildings or premises in respect of which any notice not to trespass thereon or therein shall have been previously served by or on behalf of the owner or occupier of the land trespassed over upon, or left at the last reputed or known place of abode of the defendant or defendants in such action or actions. Under these enactments, where there is a verdict for a sum less than 40s. it is conceived the following cases, as suggested by Mr. Gray (b), may occur: 1. In actions on the case for slanderous words, actionable per se, if the plaintiff has a verdict for less than 40s. he can have no more damages than costs (c), and the judge has no power to certify to give him costs (d). 2. In other actions on the case, and in actions of trespass, if the plaintiff has a verdict for less than 40s. he can have no costs whatever; unless, first, the judge certifies that the action was brought to try a right, besides the mere right to recover damages; or secondly, that the trespass was wilful and malicious (e); or thirdly, unless it be suggested on the roll that the action was for a trespass to land, &c. after notice (ƒ). 3. In all personal actions except trespass and case, if the plaintiff has a verdict for less than 40s. "he is, so far as regards the above statutes, and without reference to the County Courts Acts, to be presently noticed, entitled to his full costs, unless the judge who tries the cause certifies to deprive him of them; but (a) As to the construction of this section, see post, p. 1406. (b) Gray on Costs, p. 108. (c) 21 Jac. I. c. 16, s. 6. As to the construction of this statute, see ante, p. 1270. (d) Goodall v. Ensell, 2 C. M. & R. 249. this the judge may do if he thinks fit" (f), under 43 Eliz. c. 6, s. 2, provided the action is not for any interest of lands (g). Certificate to give Costs-Actions of Trespass, and Case other than for mere Slander.- The 3 & 4 Vict. c. 24, s. 2, applies only where there are issues to be tried or there is judgment by default; the plaintiff, consequently, who recovers a farthing damages on a writ of inquiry after judgment for him on demurrer, will be entitled to costs without a certificate (h). But where the issues in fact are tried and there is no assessment of damages on the issues in law, the plaintiff, in such case, will be entitled to the costs of the demurrers only (i). The statute applies where a verdict is taken subject to an award (k), but the arbitrator may certify if power is reserved (l). It also applies notwithstanding the payment into court of a sum exceeding 40s., and in such case if the plaintiff obtains a verdict for a sum less than 40s. beyond the sum paid into court he will be disentitled to costs in the absence of a certificate (m). The fact of there being several issues plainly does not preclude the operation of the act (n). An action for the infringement of a patent is within the act (o), so an action for a nuisance (p), and its operation is not limited in cases in which the judge would have power to certify (q). A doubt has been thrown out as to whether the statute applied to actions of ejectment before the Common Law Procedure Act, 1852 (r), but it seems to be perfectly clear that it is inapplicable to the ejectment since that act (s). The judge has power to certify whenever the action is such that a question of right besides the mere right to recover damages might arise (t); and if the case is of this nature, it is not competent to the court to inquire whether the presiding judge has exercised a sound discretion (u). It would seem that it is sufficient that the action is really brought to try a right whether it is fitted for that purpose or not (x). In an action of libel, the judge has power to certify and the words "wilful and malicious," in the statute im (f) Gray on Costs, p. 108. (g) It may be doubtful whether this can occur; but to the other exception, a battery, need not be considered since 3 & 4 Vict. c. 24, s. 1. (h) Taylor v. Rolf, 5 Q. B. 337. (i) Poole v. Grantham, 8 S. N. R. 722; 7 M. & G. 1030. (k) Reid v. Ashby, 13 C. B. 897; Cooper v. Pegg, 16 C. B. 364, 454; and see Griffith v. Thomas, 4 D. & L. 109. (1) Spain v. Caddell, 8 M. & W. 129; Bury v. Dunn, 1 D. & L. 141. (m) Reid v. Ashby, 13 C. B. 897. It is otherwise in respect to a certificate to deprive plaintiff of costs under 43 Eliz., post, p. 1408. As to the effect of payment into court under the County Court Acts, see post, p. 1412. (n) Newton v. Rowe, 1 C. B. 187. (0) Gillett v. Green, 7 M. & W. 347. (p) Shuttleworth v. Cocker, 2 S. N. R. 47; 7 M. & G. 829; Marriott v. Stanley, 2 S. N. R. 60; 1 M. & G. 853. (q) Marriott v. Stanley, supra. (r) Doe d. Hughes v. Derry, 9 C. & P. 496. (s) See 15 & 16 Vict. c. 76, s. 185. (t) Morison v. Salmon, 9 Dowl. 387. (u) Shuttleworth v. Cocker, 2 S. N. R. 47; 1 M. & G. 829; Barber v. Hollier, 8 M. & W. 513; Bury v. Dunn, 1 D. & L. 141. The rule is the same as to the certificate under 43 Eliz. c. 6, post, p. 1409. (x) Per Maule, J., in Morison v. Salmon, supra. port personal malice and ill-will to the plaintiff as contradistinguished from the malice in law which is essential to such action (u). As applied to actions of trespass, however, these words do not necessarily import personal malice, and they are satisfied by violent and outrageous conduct, such as breaking into a man's house under civil process after warning to desist (x). The 3rd section of 3 & 4 Vict. c. 24, includes trespasses by continuing, after notice, buildings, obstructions, &c. erected on the plaintiff's land, notwithstanding that damages have been previously recovered for the original trespass by placing them there (y). In cases within this provision, where less than 40s. is recovered, the proper mode of obtaining costs is by entering a suggestion on the record that the trespass was committed after notice (z). This suggestion is traversable (a), and leave to enter it may be obtained after the trial, notwithstanding that the judge then refused to certify (b). The defendant claimed a right of way over the plaintiff's close, and the plaintiff gave him a notice in general terms not to trespass on the close. At the trial it appeared that the defendant was entitled to the right, but had gone extra viam, and a shilling damages were found. It was held that the plaintiff was not entitled to costs, as he ought, in order to avail himself of this section, to have warned the defendant not to trespass extra viam (c). Shall immediately afterwards certify, &c.-i. e. "within such reasonable time as will exclude the danger of intervening facts operating upon the mind of the judge, so as to disturb the impression made upon it by the evidence in the cause" (d). Hence where the court was adjourned to the judge's lodgings on delivery of the verdict, and an application was there made to him within a quarter of an hour, it was held that a certificate was then well given (e). So where the under-sheriff, on the execution of a writ of inquiry, adjourned the court for the purpose of taking time to consider an application to certify, and granted his certificate when the court. met in the afternoon of the same day for other business (ƒ). So also an informal certificate given in due time may subsequently be amended (g); but a certificate not having been applied for at the trial cannot be granted after taxation of costs (h). Where, however, a certificate was duly applied for, and the judge made an entry on his notes that he would give one if necessary, it was held, (u) Foster v. Pointer, 8 M. & W. 395; 9 C. & P. 718, S. C. (x) Sherwin v. Swindall, 12 M. & W. 783. (y) Bowyer v. Cook, 4 C. B. 236. (z) Bowyer v. Cook, supra. (a) Per Parke, B., in Sherwin v. Swindall, 12 M. & W. 786; Watson v. Quilter, 11 M. & W. 760. (b) Bowyer v. Cook, supra. (c) Bourne v. Alcock, 4 Q. B. 621. son v. Gibson, 8 M. & W. 287. (e) Thompson v. Gibson, supra; Nelmes v. Hodges, 2 D. N. S. 350; and see Lamb v. Leech, 11 Exch. 437. (f) Page v. Pearce, 8 M. & W. 677. The under-sheriff on a writ of inquiry should sign the certificate in the name of the sheriff, and not in his own, Stroud v. Watts, 2 C. B. 929. (g) Shuttleworth v. Cocker, 2 S. N. R. 47; 1 M. & G. 829. (h) Gillett v. Green, 7 M. & W. 347. that the judge had power to indorse it on the record several terms afterwards (i). Certificate to deprive the plaintiff of costs-Personal actions other than trespass and case, and not being for any interest of lands (k).-The 43 Eliz. c. 6, s. 2, enabling the judge to certify to deprive the plaintiff recovering less than 40s. of costs, does not apply to the execution of a writ of inquiry, whether before the under-sheriff or a judge (1), or of a writ of trial (m). Neither can the court in banc deprive the plaintiff of costs after such trial (n). But where in an action of tort against three defendants, one pleaded and two suffered judgment by default, and the jury who tried the cause assessed the damages against the two latter at a farthing, it was held, that a certificate was well granted (o). Where the action is under a statute expressly giving the plaintiff costs (p), or “full costs" (q), the judge may, nevertheless, certify to deprive the plaintiff of costs. So also the judge may certify in an action against an attorney (r). The 7th Rule of Court, Hil., 4 Will. IV., as to the costs of several counts, &c., founded on the same subject-matter, did not deprive the judge of the power to certify (s). So also in the ordinary case of several issues the judge may certify (t). So where a verdict for the defendant is taken by consent, with leave to the plaintiff to move to enter a verdict for him with nominal damages (u). Payment into court of a sum exceeding 40s. will take the case out of this statute, and deprive the judge of the power certifying to deprive the plaintiff of costs in the event of his recovering a sum less than 40s. beyond the sum paid into court (r). of The certificate under this statute need not be granted immediately after the trial (y); and where a verdict is entered for the plaintiff pursuant to leave reserved, the judge who tried the case may then certify to deprive the plaintiff of costs (z). Where the certificate has not been applied for at the proper time, it cannot be granted after judgment and execution; but in such case the court (i) Jones v. Williams, 13 M. & W. 420; and see Serrell v. Derbyshire, &c. Railway, 10 C. B. 910. (k) The act applies, amongst others, to actions for breach of promise, Townsend v. Syms, 2 C. & K. 381. (1) Claridge v. Smith, 4 Dowl. 583; Harris v. Duncan, 2 A. & E. 158; Batchelor v. Dudley, 2 M. & G. 333; 9 Dowl. 384, S. P. (m) Jones v. Barnes, 2 M. & W. 313; 5 Dowl. 455, S. C.; Wardroper v. Richardson, 1 A. & E. 75. (n) Story v. Hodson, 5 Dowl. 558; Tubb v. Watson, 1 W. W. & H. 85. (0) Harris v. Duncan, 2 A. & E. 158. 5 Dowl. 304. See the R. G., Hil. T. 1853, rule 3, enabling the judge or presiding officer, where there are several counts or pleas, &c. on the same cause of action or defence, to certify to render the party pleading them liable for costs to his adversary. (t) Richmond v. Johnson, 7 East, 583. (u) Richardson v. Barnes, 4 Exch. 128. (x) Richards v. Bluck, 6 C. B. 443; 6 D. & L. 334, S. C. The rule is the same under the County Court Acts, post, p. 1412. The plaintiff will not be entitled to costs, however, in such case, if the action is within 3 & 4 Vict. c. 24. See Reid v. Ashby, ante, p. 1406. (y) Holland v. Gore, 3 T. R. 38, n.; and see Woolley v. Whitby, 2 B. & C. 580; Johnson v. Stanton, ib. 621. (z) Richardson v. Barnes, 4 Exch. 128. |