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wards, 4 Dowl. 621, per Coleridge, J.; the declaration may show that it does not, but it does not conclusively show that it does. If therefore it appears to be admitted upon the face of the record, by the pleading of either party, that any right to land, &c., is put in issue, Rawlins v. Till et al., 3 Mees. & W. 28. Purnell v. Young, Id. 288. Thomas v. Davies, 8 Ad. & El. 598. Scruton v. Taylor, 8 Dowl. 110, or if it appear in evidence upon the trial, Wright v. Piggin, 2 Young & J. 544, the judge cannot grant the certificate. On the contrary, if it appear from the nature of the pleadings that such right cannot come in question, the certificate may be granted. Wilson et ux. v. Lainson et al., 3 Bing. N. C. 307. Jones v. Thomas, 9 Law J., 16, qb. Mills v. Stephens, 3 Mees. & W. 460.

This certificate cannot be granted by the judge of an inferior court, even although acting under a writ of trial; the statute applies only to judges of the superior courts. Jones v. Barnes, 2 Mees. & W. 313, S. C. nom. Jones v. Bond, 5 Dowl. 455. Wardroper v. Richardson, 1 Ad. & E. 75, 3 Nev. & M. 839. Batchelor v. Dudley, 10 Law J., 72, cp. Nor can it be granted upon the execution of a writ of inquiry; Claridge v. Smith, 4 Dowl. 583, 1 Har. & W. 667; but it may, where one of two defendants allows judgment to go by default, and the other proceeds to trial. Harris v. Duncan, 4 Nev. & M. 63. The certificate may be granted at, or at any time after, the trial, and before costs are allowed; Per Parke, B., in Morgan v. Thorne, 7 Mees. & W. 401; even where it was granted after the costs were taxed, the defendant's attorney having attended the taxation, it was holden good. Foxall v. Bankes, 5 B. & A. 536. Where the judge said at the trial that he would grant the certificate, and afterwards, before he did it, the plaintiff obtained the record, entered the postea on it, taxed costs and signed judgment; and the defendants to prevent an execution, paid the costs under protest: the judge then made an order that the record should be produced before him for the purpose of indorsing the certificate upon it, that the master should review his taxation, the judgment be altered, and that the plaintiff should refund the costs; and the court upon application refused to set aside this order. Davis v. Cole, 9 Law J., 258, ex., 6 Mees. & W. 624. If granted where the judge has no authority, the court upon application will direct the master to tax the plaintiff his costs, notwithstanding the certificate; Rawlins v. Till, Purnell v. Young, Thomas v. Davies, Scruton v. Taylor, supra; but if the judge have authority, the court will not interfere, or enter into any inquiry whether he have exercised his discretion rightly in granting it, or not. Cann v. Facey, 5 Nev. & M. 405, 1 Har. & W. 482. Twigg v. Potts, 4 Dowl. 266. Whether having once granted it, the judge can afterwards rescind it, has been questioned; but if he can, it must be within a reasonable time, and seemingly before judgment.

Whalley v. Williamson, 5 Bing. N. C. 200. Patteson, J., however, in Anderson v. Sherwin, 7 Car. & P. 527, after having granted the certificate at the assizes, in the following term made an order to set it aside, without costs, upon a statement by affidavit, of new facts which did not appear at the trial, and upon hearing the attornies on both sides in the ordinary way.

In what not, if the judge do not certify.] By stat. 3 & 4 Vict. c. 24, (after repealing the stat. 43 Eliz. c. 6, above mentioned, as far as it relates to trespass, or trespass on the case, and the stat. 22 & 23 Car. 2, c. 9, upon the same subject, as far as the same related to personal actions,) it is enacted by sect. 2, that" if the plaintiff in any action of trespass, or trespass on the case, brought or to be brought in any of Her Majesty's courts at 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 of such verdict, any costs whatever, whether it shall be given on 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 inquiry, 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.

It is provided, however, by sect. 3, that the statute shall not extend to deprive any plaintiff of costs, in any action brought for a trespass over any lands, commons, wastes, closes, woods, plantations or inclosures, 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.

This statute extends to all actions of trespass, and trespass on the case; to case for negligence, Marriott v. Stanley, 1 Man. & Gr. 853, and case for the infringement of a patent, Gillett v. Green, 7 Mees. & W. 347, as well as others. As to what is a right, within the meaning of the statute, it has been holden that an action for a nuisance by carrying on an offensive trade so near the plaintiff's house and gardens, as to render the air unwholesome, &c., to which a plea merely of not guilty was pleaded, was an action brought to try a right within the meaning of the statute, namely, the right of the plaintiff to enjoy his house free from the nuisance caused by the defendant. Shuttleworth v. Cocker, 1 Man. & Gr. 829. So an action by

the vendor of certain medicines against another for selling a spurious medicine in his name, and wrapped up in similar wrappers, has been holden an action to try a right within the meaning of the statute. Morrison et al. v. Salmon, 9 Dowl. 387, 10 Law J., 91, cp. It has been holden also, that in an action for a libel, the judge may certify that it was wilful and malicious. Foster v. Pointer, 8 Mees. & W. 395.

The statute requires the certificate to be given " immediately" after the trial. This however is construed to mean within a reasonable time. And where the cause happened to be the last at the assizes, and upon the verdict being given, the judge immediately adjourned the court to his lodgings, where the plaintiff's counsel followed him in about a quarter of an hour, and there applied for and obtained the certificate: the court held it to be sufficient. Thompson v. Gibson et al., 8 Mees. & W.281. So where an application was made to an undersheriff, immediately after the execution of a writ of inquiry, for his certificate that the trespass had been wilful and malicious, and he not having made up his mind as to its being malicious, deferred giving the certificate until he should consider the matter, and the court was adjourned to the same evening for other business; but upon the court meeting again in the evening, he granted the certificate: this was holden to be sufficient. Page v. Pearce, 8 Mees. & W. 677. So, where the cause occupied the whole of the day, and the jury in the evening retired to consider of their verdict, but did not deliver it until eleven o'clock at night, when the associate (by the consent of parties) received and recorded it; the next morning, after another cause was called on, and one of the jurors sworn, an application was made for a certificate, and granted: this was holden to be in sufficient time. Nelmes v. Hodges et al., 2 Dowl. N. C. 350. The court will not interfere with the discretion of the judge in granting this certificate, provided the action be one in which such a certificate may be granted, within the meaning of the statute. Barker v. Hollier, 8 Mees. & W. 513. Even where it was granted by an undersheriff, upon the execution of a writ of inquiry, the court of Common Pleas evinced the greatest disinclination to review the propriety of his granting it, saying that at least the party applying to them should first have ob tained the acquiescence of the undersheriff in the statement of what had occurred at the trial; and which not having been done, they refused the application. Pryme v. Brown, 1 Dowl. N. C. 680.

It may be necessary to mention that, by consent, a power may be given to an arbitrator to grant a certificate under this act; and his certificate, though not indorsed on the record, will be good. Spain v. Caddell, 10 Law J., 313, ex., 9 Dowl. N. C. 745.

By stat. 4 & 5 W. & M. c. 23, s. 10, if inferior tradesmen, apprentices, (unless in company with their master, duly qualified), or other dissolute persons, presume to hunt, hawk, fish or fowl, they may be sued for their wilful trespass in coming upon any man's land; and if found guilty, the plaintiff shall not only recover his damages, but full costs. See Buxton v. Mingay, 2 Wils. 70. If the plaintiff fail in proving the defendant to be an inferior tradesman, &c., within the act, and the damages be under 40s., he will be entitled to no more costs than damages, unless the judge certify. Pellant v. Roll, 2 W. Bl. 900.

Lastly, by stat. 8 & 9 Will. 3, c. 11, s. 4, “in all actions of trespass, wherein at the trial of the cause it shall appear, and be certified by the judge under his hand upon the back of the record, that the trespass of which the defendant shall be found guilty was wilful and malicious, the plaintiff shall recover not only his damages, but his full costs." See stat. 3 & 4 Vict. c. 24, ante, p. 42. Formerly it was holden that if the trespass were committed after notice, the judge was bound to certify under this act; Reynolds v. Edwards, 6 T. R. 11; but it is now holden to be in all cases in his discretion whether he will certify or not, Good v. Watkins, 3 East, 495, although it is usual to do so, where the trespass is proved to have been committed after notice. The certificate in this case may be granted out of court, at any time before final judgment. Woolley v. Whitby. 2 B. & C. 580.

If defendant have been arrested without probable cause.] By stat. 43 G. 3, c. 46, s. 3, in all actions wherein the defendant shall be arrested and held to special bail, and wherein the plaintiff shall not recover the amount of the sum for which the defendant shall have been so arrested and held to special bail, such defendant shall be entitled to costs of suit provided that it shall be made to appear to the satisfaction of the court in which such action is brought, upon motion to be made for that purpose, and upon hearing the parties by affidavit, that the plaintiff had not any reasonable or probable cause for causing the defendant to be arrested and held to special bail in such amount as aforesaid, and provided such court by a rule or order shall direct that such costs shall be allowed to the defendant: upon such rule being made, the plaintiff shall be disabled from taking out execution for the sum recovered by him in the action, unless the same exceed, and then only in such sum as it shall exceed, the amount of the taxed costs of the defendant; if it be less, the defendant shall have execution for the excess of his costs above the sum recovered by the plaintiff.

To entitle a defendant to costs under this statute, where the

plaintiff recovers a less sum than that for which he held the defendant to bail, it must appear from the affidavits :

1. That the defendant was in fact "arrested and held to special bail," and for what amount. He must be both arrested and holden to special bail: putting in bail without being actually arrested, Bates v. Pilling, 2 Cr. & M. 374. Robinson v. Powell, 5 Mees. & W. 479. James v. Askew, 8 Ad. & El. 351, see Reynolds v. Matthews, 7 Dowl. 580, or being dis charged after arrest, in any other way than by putting in bail, Bennett v. Burton, 9 Dowl, 492, and see Edwards v. Jones, 2 Mees. & W. 414, Amor v. Blofield, 1 Dowl. 277, is not sufficient.

2. That the plaintiff recovered a certain sum only. If this by mistake be omitted in the affidavit, the court may refer to the judge's notes taken at the trial, to supply the omission. Van Neuvel v. Hunter, 1 Har. & W. 273. The verdict is almost conclusive that the sum found by it (if any) is the real amount of the debt due from the defendant to the plaintiff: the court will not retry the facts of the case upon affidavit, but will take them as the jury have found them. Twiss v. Osborn, 4 Dowl. 107, 1 Har. & W. 274, n. The court have therefore refused to attend to affidavits tending to show that the verdict was erroneous. Id. So, where the plaintiff by his affidavit denied an agreement which had been proved at the trial, and swore that the whole sum claimed was justly due to him, the court disregarded the affidavit, and acted upon the evidence given at the trial. Glenville v. Hutchins, 1 B. & C. 91. So, it was holden to be no answer to an application of this kind, (although probably a ground for a new trial) that the plaintiff's demand had been reduced at the trial by the false testimony of a witness, who was in fact a partner of the defendant, although she swore she was only his servant. Tipton v. Gardiner, 5 Nev. & M. 424. But where a witness at the trial proved a payment of 241. by the plaintiff for the defendant, and which formed part of the sum for which the defendant had been holden to bail; but the jury disbelieving him, gave a verdict for the residue of the demand only: upon an application on this statute, to tax the defendant his costs, the court held, that under the circumstances it did not appear that there was such an absence of reasonable and probable cause as would warrant them in granting the rule. Smith v. Smith, 3 Dowl. 733. The affidavit must show also that the sum was recovered, in the legal sense of that term; if upon a compromise between the parties, the plaintiff take a smaller sum than that for which he held the defendant to bail, it would not come within the meaning of the act. Linthwaite v. Bellings, 2 Smith, 667. So if the defendant pay money into court, and the plaintiff take it out, and proceed no further in

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