been given. Looking merely at the statute of Victoria and at the record, we find that the plaintiff has brought an action of trespass, and has recovered less than 40s. damages, and therefore that he is not entitled to costs. The plaintiff, however, claims to be entitled to costs under sect. 3. He clearly ought to have an opportunity of asserting his right, and the defendant an opportunity of contesting it; but I see no way in which that can be done, but by entering a suggestion as proposed."

Mr. Justice Coltman said:-"The cases that have been cited are not at all in conflict with the decision to which we have come. In the case of Sherwin v. Swindall, the Judge clearly had power to certify, as he did, under the 3 & 4 Vict. c. 24, s. 2. Daw v. Hole is not very lucidly reported. The question there seems to have been, whether the Master was justified in allowing the plaintiff costs where he had recovered in trespass less than 40s., there being no certificate under sect. 2, and no suggestion of a previous notice under sect. 3. Here I think the plaintiff is clearly entitled to costs upon a suggestion being entered, and, for the reasons stated by the Lord Chief Justice, I am of opinion that that is the proper course."

Mr. Justice Cresswell followed :- "I agree with the rest of the Court in thinking this a very plain case. Primâ facie, the plaintiff having recovered damages is entitled to costs: if he is not it must be by some statutory enactment. Mr. Peacock has very properly admitted that the only statute that can have the effect of depriving the plaintiff of costs in this case is the 3 & 4 Vict. c. 24. The 2nd section of that statute enacts that if the plaintiff in any action of trespass, or of trespass on the case, shall recover less damages than 40s., he shall be entitled to no costs unless the Judge shall certify on the back of the record that the action was really brought to try a right, or that the trespass or grievance was wilful and malicious. Then comes the 3rd section, which provides that nothing in this Act shall extend to deprive any plaintiff of costs in any action for a trespass over any lands, &c., in respect of which a notice not to trespass thereon shall have been previously given to the defendant. If this 3rd section had enacted that the

plaintiff should not be deprived of costs if it should appear at the trial that a previous notice not to trespass had been given, there might have been ground for contending that the Judge must certify to entitle the plaintiff to costs. But the notice is not required to appear at the trial. The proper course clearly is to suggest that fact upon the record, leaving the defendant to traverse it, if so advised."

Mr. Justice V. Williams observed, that "in order to give any effect to the 3rd section of the 3 & 4 Vict. c. 24, it is necessary to adopt one of two constructions, viz., that in such a case as this a suggestion shall be entered on the record to show that the plaintiff has entitled himself to the benefit of that proviso, or that it shall be imperative on the Judge to certify that the trespass is wilful and malicious where it is committed after notice. The latter would evidently be a much more harsh construction than the former, which, I agree, is the one we ought to adopt."

With respect to the notice mentioned in the 3rd section, it must forbid the defendant to do that which at the time was in dispute, and for subsequently doing which the plaintiff has brought his action and recovered (a). In an action of trespass for breaking and entering the plaintiff's close called Stonyhill Dole, and trampling the grass with cattle, horses, and carriages, the defendant pleaded, 1st, not guilty; 2nd, a denial of the plaintiff's property in the close; and 3rd, a justification as tenant to M. H. of a close, and a right of way in respect of it, over the locus in quo. The replication joined issue on the 1st and 2nd pleas; as to the 3rd plea, traversed the right of way in M. H., and new assigned that the defendant committed the trespass on other and different occasions, and for other and different purposes than in the 3rd plea mentioned, and in other and different parts of the close out of the said way in that plea mentioned. The plaintiff took issue on the right of way, and suffered judgment by default on the new assignment. On the trial of the issues and inquiry of damages, the plaintiff had a verdict on the first issue, and 1s. damages were assessed on the new assignment. The defendant had a verdict on the justification. The Judge did not certify, but it having been proved

(a) Bourne v. Alcock, 4 Q. B. 621; 12 L. J. (N. S.), Q. B. 258, S. C.

that the plaintiff had served the defendant with a notice which recited that the defendant occupied and had mown grass upon the land of M. H., and forbade the defendant to carry away the grass, &c., with carts or otherwise, over Stonyhill Dole, or for that or any other purpose to make any temporary road or path over the same, or commit any other trespass therein, the Master considered the plaintiff entitled to the costs of executing the writ of inquiry of damages; but it was held that the notice was too general, and being a notice not to come upon the close at all (which the defendant had proved he had a right to do) was not such a notice as brought the plaintiff within the 3rd section. Mr. Justice Patteson said, "Before this action was brought, the defendant asserted a right of way over the plaintiff's close. The plaintiff gave him notice not to trespass there; that is, in effect, not to assert the right which he claimed. If the plaintiff had succeeded on the justification, his notice would have entitled him to costs; but the defendant has established his right to do what the notice forbade. The plaintiff says that the trespass extra viam was that which the defendant had notice not to do; but that is not so. If the plaintiff had said, 'It is true you have a right of way over a particular part of the close, but take care you do not go out of that way,' the case would have been different. Here he has only given a notice not to come upon the close at all.” A rule for reviewing the Master's taxation was accordingly made absolute (a).

Although the notice may in terms require the defendant to do a particular act, as to remove the subject-matter of the trespass; if, nevertheless, the effect of it is to forbid a trespass on the plaintiff's land, it is within the 3rd section. Thus, where in an action of trespass for placing stumps and stakes on the plaintiff's land, the defendant paid into Court 40s., which the plaintiff took out in satisfaction of that trespass, and the plaintiff afterwards gave the defendant notice that unless he removed the stumps and stakes a further action would be brought against him; it was held that the leaving the stumps and stakes on the land was a new trespass after notice, which entitled the plaintiff to costs, although the damages were under

(a) Bourne v. Alcock, supra.

40s. (a). It was admitted that the cases of Holmes v. Wilson (b) and Hudson v. Nicholson (c) decided that the leaving the stakes on the land was a distinct trespass; but it was contended that the notice was not simply a notice not to trespass, but a notice that unless the defendant did certain acts the not doing of which would amount to a new trespass, a further action would be brought against him; but it was held that the notice was in fact a notice not to trespass on the plaintiff's land.

The only other points connected with this subject have already been discussed in a previous chapter, and therefore they will merely be stated here, and that previous chapter referred to.

Where the defendant pleads several pleas under the statute of 4 Anne, c. 16, on which issues are joined, and all the issues are found for the plaintiff, but he recovers damages to a less amount than 40s., and by means of either of the three statutes above-mentioned is deprived of his full costs, he is not entitled to the costs of any of the issues, although all are found for him; but if any one of the issues be found for the defendant, so that the plaintiff recovers no damages, and the rest of the issues are found for the plaintiff, the plaintiff is in that case entitled to the costs of the issues found for him (d).

The statute 3 & 4 Vict. c. 24, s. 2, does not apply to writs of inquiry after judgment on demurrer, but is confined, as regards writs of inquiry, to cases where there has been judgment by default. Therefore, where the defendants pleaded several pleas, one of which was demurred to, and judgment given for the plaintiff, and a writ of inquiry executed before a Judge of Assize (the issues of fact having been disposed of before), and the jury assessed the damages at one farthing; it was held that the plaintiff was entitled to his costs under the stat. 3 & 4 Will. IV. c. 42, notwithstanding sect. 2 of the 3 & 4 Vict. c. 24 (e); but if the plaintiff having obtained judgment on demurrer proceeds to the trial of the issues of fact

(a) Bowyer v. Cook, 4 C. B. 236; 4 D. & L. 816; 16 L. J. (N. S.), C. P. 177, S. C.

(b) 10 Ad. & E. 503.

(c) 5 M. & W. 437.

(d) See ante, p. 20, et seq.

(e) Taylor v. Rolf, 5 Q. B. 337; 13 L. J. (N. S.), Q. B. 39, S. C.

without assessing the damages on the issue of law, and recovers less than 40s., he is not entitled to costs without a certificate. Thus, where the plaintiff having obtained judgment upon demurrer to a replication, the cause went down for trial upon issues of fact without a venire “tam quam,” the jury being summoned to try the issues only, and not "as well to try the issues as to assess the damages," and the plaintiff recovered only 20s. damages, and the Judge refused to certify under the Statute of Victoria, it was held that the plaintiff was only entitled to the costs of the demurrer (a); and now, under the County Court Acts, the plaintiff would not be entitled to the costs, even of the demurrer, without a certificate (b).

CHAPTER IX.

OF THE LIMITATION OF COSTS (continued).

COSTS UNDER THE SMALL DEBTS ACTS.

INDEPENDENTLY of the provisions in the statutes already considered, depriving parties of costs, there are other legislative enactments by which a particular tribunal, or mode of recovering a claim, or secking compensation, is provided, and the parties not adopting it, but suing in the superior Courts, deprived of all costs. Of these the most important and general in its operation is the Act 9 & 10 Vict. c. 95, "An Act for the more easy recovery of Small Debts and Demands in England," commonly known as the County Courts Act, and recently extended and amended by the 13 & 14 Vict. c. 61, and the 15 & 16 Vict. c. 54.

Previously to the first-mentioned statute various Acts of Parliament had been passed from time to time, creating local

(a) Poole v. Grantham, 8 Scott, N. R. 722; 14 L. J. (N. S.), C. P. 24; 2 D. & L. 622, S. C.

(b) See Abley v. Dale, 21 Law J., C. P. 104, and the following chapter.