in such case shall have the same judgment to recover his costs that he would have had if this Act had not been passed."

Sect. 122 (instead of following the recent amended clause respecting the power of the Court or a Judge to certify (15 & 16 Vict. c. 54, s. 4)) adopts the language of the repealed section (13) of the 13 & 14 Vict. c. 61.

There can be little doubt that the object of the Legislature was to place such causes of action as are within the jurisdiction of the Sheriffs' Court of the city of London, on the same footing as those within the jurisdiction of the County Courts. In those Courts, as we have seen, the parties are not entitled to costs where the damages are under 201. in actions of contract, and 57. in actions of tort, unless the Judge, &c., certifies, and there is no necessity for entering a suggestion. As the London Act now stands the same practice will apply there; but in addition to this, where the damages are above 201. and under 50%., and there is no certificate, the plaintiff will still lose his costs, but in order to deprive him of them the defendant must enter a suggestion (a).

With regard to the 122nd section, it may be observed that although the words of the 13th section of the 13 & 14 Vict. c. 61 are used, which raised various questions as to the discretion of the Court or Judge at Chambers, yet as that section was ultimately construed to give no discretion, and the 4th section of the 15 & 16 Vict. c. 54 was framed in accordance with that construction, the legal construction of the local Act and the express language of the general Act are therefore so far identical. There is, however, a material distinction in another point between the corresponding sections, for the 15 & 16 Vict. c. 54, s. 4, gives, as we have seen (b), in addition to the compulsory power, a discretionary power to the Court or Judge at Chambers to give costs if he thinks there was sufficient reason for bringing the action in the superior Court. In the City Act this discretionary power is confined to the Judge at the trial. This discrepancy, like the introduction of the 119th section, is probably the result of carelessness or oversight.

(a) See Castrique v. Page, 22 L. J. (C. P.) 145, decided since the above

was written.

(b) See ante, p. 144.

There are one or two minor distinctions in the London Act which were evidently advisedly adopted, and therefore require a passing notice. By sect. 39 the summons may issue not only if the defendant or one of the defendants dwells or carries on his business, but also if he has employment within the city or liberties. This removes the distinction which exists under the general Act between a person having a fixed place of business and a clerk who attends daily at an office (a). The latter if employed in the city of London may be sued there. This section also gives power to sue without obtaining the leave of the Court, as in the County Courts, if the defendant or one of the defendants shall have dwelt or carried on business, or shall have had employment in the city or liberties at some time within six months next before the time of the action brought, or if the cause of action either wholly or in part arose therein.

In concluding this chapter, it may be observed that in some cases a plaintiff, in order to be entitled to costs, must obtain from the Judge certificates of two descriptions; one under Lord Denman's Act (b), and the other under the County Court Amendment Act (c), or the London Act, as the case may be. Thus, for example, if a plaintiff obtains a verdict for less than 408. in an action of trespass or on the case, and the Judge grants a certificate under the County Court Act, either that the action could not have been brought in the County Court, or that there was a sufficient reason for bringing it in the superior Court, still the plaintiff will not be entitled to costs, unless he has a certificate under the 3 & 4 Vict. c. 24. It must also be borne in mind, that the latter certificate can only be granted by the Judge who tries the cause, while that under the County Court may be given, as has been shown, by the Court or a Judge at Chambers. The application at Chambers for a certificate may be made without an affidavit, unless the facts are controverted (d).

Unless some further provision is made by rules under the

(a) See ante, pp. 156, 157.

(b) 3 & 4 Vict. c. 24, ante, Chapter VIII.

(c) 15 & 16 Vict. c. 54.

(d) Power v. Jones, 6 Exch. 121.

Common Law Procedure Act (a), or otherwise, some difficulty may occur under the last-mentioned Act in determining in some cases whether the plaintiff is entitled to or requires a certificate to entitle him to costs, in consequence of the provision allowing the joinder of different causes of action in one writ. It is evident that without some provision to meet the contingency, questions may arise as to whether a plaintiff has recovered his damages under such circumstances as to entitle him to costs without a certificate.

CHAPTER X.

OF THE LIMITATION OF COSTS (continued).

STAYING PROCEEDINGS WITHOUT COSTS IN ACTIONS FOR DEBTS UNDER FORTY SHILLINGS.

INDEPENDENTLY of the statutes already noticed, depriving parties of costs where the damages recovered are under 408., the superior Courts at Westminster have always interfered, on the application of the defendant, in actions for debts under 40s., and stayed the proceedings without payment of costs. The rule is thus laid down in Tidd's Practice (b): "When the debt sued for appears on the face of the declaration (c), or is admitted by the plaintiff or his attorney (d), or proved by the affidavit of the defendant (e) to be under 40s., and the plaintiff may recover it in an inferior jurisdiction, the Court, on motion, will stay the proceedings, it being below their dignity to proceed in such action." It will be observed that, according to this rule, the practice is to stay the proceedings, not merely without costs, but without payment of the debt; but in the more recent cases on this subject, where the debt was admitted, the application was to stay the proceedings on payment of the

(a) 15 & 16 Vict. c. 76.

(b) Page 565, 8th edit.

(c) Oulton v. Perry, 3 Burr. 1592. (d) Stean v. Holmes, 2 W. Bla. Rep.

754; Melton v. Garment, 2 New Rep. 84.

(e) Kennard v. Jones, 4 T. R. 495; Wellington v. Arters, 5 Id. 64.

debt, without costs (a). It seems to be only carrying out the principle on which the Courts act in these cases, to stay the proceedings where the debt is not admitted without calling on the defendant to pay it, leaving his liabilities to be determined thereafter, when the plaintiff has proceeded in the proper Court for that purpose. To call on the defendant to pay the debt, where he does not offer or consent to do so, would be to defeat the object of the rule, for if the payment of the debt were made a condition in all cases of staying the proceedings, and the defendant declined to pay it, the action would then proceed, and the Courts would be compelled to try a frivolous action, which the rule is intended to prevent their doing. The proposition that it is beneath the dignity of the superior Courts to entertain such actions, does not mean that the Judges of those Courts suppose that they would lose dignity by entertaining such questions, but it is expressing what every one must feel the force of, viz., that if such an action were allowed to go on, a large sum of money would be spent about a matter not worth it; and the rule has, therefore, prevailed to stay the proceedings in such cases, unless it appears that there is no other Court where the plaintiff can recover (b). When, therefore, previously to the establishment of the new County Courts, the action, either from the situation of the parties or otherwise, could not be brought in the old County Court, the superior Courts refused to interfere; and although the demand was for less than 40s., if the cause of action arose in one county and the defendant resided in another, the action might have been brought in the superior Courts, for an action could not be brought in the old County Court unless the cause of action arose and the defendant resided in the county (c). An attempt, indeed, was made in one case to put the rule

(a) See Stutton v. Bament, 3 Exch. 831; 18 L. J. (N. S.), Exch. 318; 6 D. & L. 632, S. C.; Nurden v. Fairbanks, 5 Exch.738; 1L. M. & P. 617; 20 L. J. (N.S.), Exch. 20, S. C.; and see per Curiam, Thompson v. Gill,6 Dowl. 156. (b) Observations of Lord Cranworth (then Mr. Baron Rolfe), in Stutton v.

Bament, 18 L. J. (N. S.), Exch. 320; 6 D. & L. 632, S. C.; and see Lord Eldon's remarks, 10 Ves. 551.

(c) Tidd, supra, Tubb v. Woodward, 6 T. R. 175; Welsh v. Twyte, 2 H. Bla. 29; Harwood v. Lester, 3 Bos. & Pul. 617; Eames v. Williams, 1 D. & R. 359.

now under discussion, on the ground that the statute of Gloucester (a) enacts "that none from henceforth shall have writs of trespass before justices, unless he swear by his faith that the goods taken away were worth 40s. at the least," and that Lord Coke says, in his commentary on this statute, that "writs of trespass are here put but for an example for debt, detinue, covenant and the like" (b), and that, consequently, the superior Courts had no power to try actions under 40s. (c); but it seems that the rule has no further connexion with the statute of Gloucester than that in both the sum of 40s. is selected because the sheriff had jurisdiction in his County Court to try actions under that sum.

The County Courts Act (d) has not affected the practice of the Court under this rule, except to extend its application; for while formerly, as has been stated, the courts would not interfere when the defendant did not reside in the county where the cause of action arose, it seems they will exercise this power where the plaintiff might have sued in the next County Court, although the superior Court has jurisdiction under the provisions of the statutes noticed in the last chapter (e); and it seems that even if the amount claimed is more than 40s. the Court will stay the proceedings on payment of the debt, without costs, if it clearly appears that the plaintiff might have recovered it in the County Court (f). In such a case it was observed that it was mercy to the plaintiff to grant the application, because he must proceed, if at all, with the certainty of losing his costs.

It is to be observed, that the Courts will not act on this rule where the action is brought to recover a larger sum than 408., and the defendant pleads a tender of all but a sum less than 40s., and for which difference, or part of it, the plaintiff recovers a verdict (g). Nor does it extend to actions of trover

(a) 6 Ed. I. c. 8.

(b) 2 Inst. 311.

(c) Sandall v. Bennett, 2 A. & E. 204; 3 Dowl. 294, S. C.

(d) 9 & 10 Vict. c. 95.

(e) Stutton v. Bament, 3 Exch. 831; 18 L. J. (N. S.), Exch. 318; 6 D. & L.

632, S. C.

(f) See Cornforth v. Lowcock, 1 M. & Ry. 321.

(g) Nurden v. Fairbanks, 5 Exch. 738, 1 L. M. & P. 617; 20 L. J. (N. S.), Exch. 20, S.C.