neys were ruinous and in danger of falling, and were known by him to be so at the time when he demised them to Batt; and that he the defendant kept and maintained them in such ruinous and dangerous state. Upon these facts, the defendant contended that the action should lie against the lessee in occupation, and not against himself, being only the reversioner and he cited Cheetham v. Hampson, 4 T. R. 318, where the action was for non-repair of fences, and was held not to lie against the landlord, and Russell v. Shenton, 3 Q. B. 449 (E. C. L. R. vol. 43), 2 Gale & D. 573, where the action for not cleansing the drains and sewers was also held not to lie against the landlord. On the other hand, the plaintiff contended, that, in many cases, the party suffering damage from a nuisance had the option of suing either the lessee in occupation or the lessor. Thus, where the damage was from the non-repair of the trap-door over a cellar, and it appeared that it was the duty of the lessor to do this repair, as between him and the lessee, it was held that the action lay against the lessor: Payne *389] v. Rogers, 2 H. Bla. 348. And, where the damage arose from a wrongful act of the defendant, in erecting a wall which obstructed the plaintiff's light, and the defendant had before action brought leased the premises to a party who was then in possession, still the lessor was held liable for the continuance of the wall after the lease, because it existed at the time of the demise: Rosewell v. Prior, 2 Salk. 460, 1 Lord Raym. 713, 12 Mod. 635. So, where the lessor demised houses either with a privy or with a right of resorting thereto, it was held, that, if he demised the privy either when it had become a nuisance, or if he had the duty of cleansing it after it became a nuisance, he might be indicted for the nuisance; and, if he demised the houses with the use of the privy only, he would be the occupier, and so clearly liable: The King v. Pedly, 1 Ad. & E. 822 (E. C. L. R. vol. 28), 3 N. & M. 627 (E. C. L. R. vol. 28). These cases are authorities for saying, that, if the wrong causing the damage arises from the non-feasance or the mis-feasance of the lessor, the party suffering damage from the wrong may sue him. And we are of opinion that the principle so contended for on behalf of the plaintiff is the law, and that it reconciles the cases. In Cheetham v. Hampson, it was held that the action did not lie against the landlord for non-repair of the fences, because he had no duty to repair them, and therefore was guilty of no wrong in non-repair. So, in Russell v. Shenton, the court assumed that the lessor was not bound to cleanse the drains during the demise, and so was guilty of no wrong. So, in Rich v. Basterfield, 4 C. B. 783 (E. C. L. R. vol. 56), the lessor was held not liable for the damage occasioned by smoke from the fires which the lessee chose to make: but the reasoning of the judg *390] ment assumes it to be law that the lessor may be liable in cases of nuisance, if he had been guilty of a wrong causing the damage which made a cause of action. This is expressed in many parts of the judgment, but more particularly in page 805, commenting on The King v. Pedly, and saying,-"If the lessor had demised the buildings when the nuisance existed, or had re-let them after the user of the buildings had created the nuisance, or had undertaken the cleansing and had not performed it," we think he would have been made liable properly. In the present case, it is alleged that the defendant let the houses when the chimneys were known by him to be ruinous and in danger of falling, and that he kept and maintained them in that state; and thus he was guilty of the wrongful non-repair which led to the damage, and after the demise the fall appears to have arisen from no default of the lessee, but by the laws of nature. We therefore hold that the action lies against the lessor, and the judgment is for the plaintiff. Judgment for the plaintiff. The owner of premises who leases them when they are already a nuisance or must become so from user, and receives rent, is liable for damage to a stranger happening therefrom, whether in or out of possession; though it is otherwise where the nuisance arises solely from the act of the tenant: Owings v. Jones, 9 Maryl. 108; Staple v. Spring, 10 Mass. 79; Waggoner v. Jermaine, 3 Denio 306; Fish v. Dodge, 4 Denio 311; House v. Metcalf, 27 Conn. 632; Smith v. Elliott, 9 Barr 345. In Godley v. Haggerty, 8 Harris 387; affirmed in Carson v. Godley, 2 Casey 111; it was held that where the owner of real estate erected thereon a row of buildings with the intention of renting them to the government as bonded warehouses, and with the knowledge that they would be obliged as such to sustain very great weights, he was liable in damages for an injury to a person employed in one of the stores, occasioned by its fall, after having been so rented, though the immediate cause of the accident was the storage of heavy merchandise in an upper story, it appearing that the buildings had been constructed on a defective plan, and of insufficient strength. But this liability is not confined to the landlord, or the original creator of the nuisance. A tenant, and the same rule applies to a grantee of real estate, is equally liable for the continuance of an injurious erection which existed at the commencement of his tenancy, or at the time of his purchase: Brown v. Cayuga, &c., Railroad Co., 2 Kern. 486; Pittsburg v. Moore, 44 Maine 154; Morris Canal v. Ryerson, 3 Dutch. Hubbard v. Russell, 24 Barb. 404. It has been generally held, however, that before the tenant or grantee can be made liable under such circumstances there must be an express request or notice to remove the nuisance, on the ground that an innocent purchaser or lessee might otherwise be compelled to suffer for the act of another: Woodman v. Tafts, 9 N. H. 88; Johnson v. Lewis, 13 Conn. 307; Pierson v. Glean, 2 Green 36; Pittsburg v. Moore, 44 Maine 154; Cromelien v. Coxe, 30 Alab. 318; Hubbard v. Russell, 24 Barb. 404; Beavers v. Trimmers, 1 Dutch. 97. But in some recent decisions, it has been laid down that such notice is only necessary where the party is a mere passive agent in the continuance of the nuisance, as by suffering a mill-dam wrongfully erected to remain on the land; and that where the injury is to be attributed in part to his own acts or neglect, with the consequences of which he is acquainted, suit may be brought without any such preliminary warning: Morris Canal v. Ryerson, 3 Dutch. 457; Cromelien v. Coxe, 30 Alab. 318. If this distinction means no more than that express notice is not necessary for one who already knows he is doing a wrongful act, it may be readily agreed to: but if it is to be extended to that class of cases where a grantee or lessee uses the premises as he finds them, whether actively or not, supposing himself to have the right to do so, it might occasion some practical injustice. It would at any rate be contrary to the language at least of the previous authorities. There can be no doubt, however, that the objection of want of notice should be taken on the trial of the case, and cannot be raised on appeal: Brown v. Cayuga Railroad Co., 2 Kern. 486. 391 *391] *EVANS v. REES. Nov. 17. The 21 Jac. 1, c. 16, s. 6,-which provides, that, in actions for slanderous words, if the plaintiff recovers less than 40s. damages, he shall only recover the same amount of costs,-is not repealed by the 3 & 4 Vict. c. 24. THIS was an action for words spoken of the plaintiff in the Welsh language, imputing felony. The cause was tried before Bramwell, B., at the last Summer Assizes at Cardigan. There was no special damage alleged or proved; and the jury found for the plaintiff, with 18. damages. The learned baron having certified under the 3 & 4 Vict. c. 24, s. 2, the master on taxation allowed the plaintiff his full costs. G. Denman, on a former day in this term, obtained a rule nisi to review the taxation, on the ground that the learned judge had no power to certify. He referred to the 21 Jac. 1, c. 16, s. 6, and 3 & 4 Vict. c. 24, s. 2, Gray on Costs, pp. 204-208, and to the cases of Surman v. Shelleto, 3 Burr. 1688, Collier v. Gaillard, 2 W. Bla. 1062, Turner v. Horton, Willes 438, and Goodall v. Ensell, 2 C. M. & R. 249,† 5 Tyrwh. 793, 3 Dowl. P. C. 743. [WILLIAMS, J.-If the words were actionable of themselves, the statute of James being unrepealed, my Brother Bramwell had no power to certify.] Mellor, Q. C., now showed cause.-The certificate was properly made, the 21 Jac. 1, c. 16, s. 6, being impliedly repealed by the 3 & 4 Vict. c. 24, s. 2. [BYLES, J.-Do you admit that the words were actionable in themselves?] It cannot be denied that they were so. Prior to the passing of Lord Denman's act, the statutes applicable to this subject were the 43 Eliz. c. 6, the 21 Jac. 1, c. 16, s. 6, and the 22 & 23 Car. 2, c. 9, s. 136. The 43 Eliz. c. 6, " for avoiding the infinite number of small and trifling suits commenced or prosecuted against *sundry Her Majesty's *392] good and loving subjects in Her Highness' courts at Westminster (which by the due course of the laws of this realm ought to be determined in inferior courts in the country), to the intolerable vexation and charge of Her Highness' subjects," enacted, in s. 2, that, 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 and 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 40s. or above, that in every such case the judges and justices before whom any such action shall be pursued shall not award 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 discretions." The 21 Jac. c. 16, s. 6, enacted, that, "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 court whatsoever that hath power to hold plea of the same, 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 408., 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 any wise notwithstanding." And the 22 & 23 Car. 2, c. 9, s. 136, "for prevention of trivial and vexatious suits in law, whereby many good subjects of this realm have been and are daily undone, contrary to the intention of the 43 Eliz. c. 6, for *avoiding of infinite numbers of small [*393 and trifling suits commenced in the courts at Westminster," enacted, "for making the said law effectual," that, "in all actions of trespass, assault and battery, and other personal actions, wherein the judge at the trial of the cause shall not find and certify under his hand upon the back of the record that an assault and battery was sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaintiff's declaration was chiefly in question, the plaintiff in such action, in case the jury shall find the damages to be under the value of 408., shall not recover or obtain more costs of suit than the damages so found shall amount unto." Then came the 3 & 4 Vict. c. 24, the intention of which evidently was to produce uniformity in respect of costs in all frivolous suits. The 1st section recites the 43 Eliz. c. 6, and the 22 & 23 Car. 2, c. 9, and that "the same evil, notwithstanding, doth still prevail and increase, and it is expedient to make further provisions for the prevention thereof," and enacts that the 43 Eliz. c. 6, so far as it relates to costs in actions of trespass or trespass on the case, and so much of the 22 & 23 Car. 2, c. 9, as relates to costs in personal actions, be repealed. The 2d section. then enacts, 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, &c., shall recover by the verdict of a jury less damages than 408., 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 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 inquiry, that the action was really brought to try a right besides the mere [*394 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." The repealing clause (s. 1) in terms is confined to the 43 Eliz. c. 6, and 22 & 23 Car. 2, c. 9: the 21 Jac. c. 16, seems to have been altogether overlooked. Goodall v. Ensell, 2 C. M. & R. 249,f-which decided, upon the authority of Turner v. Horton, Willes 438, and Grenfell v. Pierson, 1 Dowl. P. C. 409, that, where in an action for slander spoken of a person in the way of his trade, the plaintiff recovered less than 408. damages, he was entitled to no more costs than damages, and that the judge had no power to certify to entitle the plaintiff to full costs,—was decided before the passing of the 3 & 4 Vict. c. 24, the language of which is as large as can be, and which of necessity repeals the statute of James by implication. In Gillett v. Green, 7 M. & W. 347,† it was held that an action on the case for the infringement of a patent is within the operation of the 3 & 4 Vict. c. 24, s. 2, which, as Parke, B., observed, "applies to any action of trespass on the case. In Marriott v. Stanley, 2 Scott 60 (E. C. L. R. vol. 30), 1 M. & G. 853 (E. C. L. R. vol. 39), it was held that the operation of the 3 & 4 Vict. c. 24, s. 2, is not limited to cases in which the judge has power to certify. To the same effect is the case of Taylor v. Rolf, 5 Q. B. 337 (E. C. L. R. vol. 48), D. & M. 229. In Newton v. Rowe, 1 C. B. 187 (E. C. L. R. vol. 50), in an action for a libel, the defendants pleaded not guilty and several pleas of justification: the plaintiff recovered a verdict upon all the issues, damages d.; and it was held that he was deprived of costs by the 3 & 4 Vict. c. 24, s. 2. The 19 G. 2, c. 22, s. 1, enacted, that, "if at any time from and after, &c., any master or owner, or any person acting as master, of any ship, pink, crayer, lighter, keil-boat, or other vessel *whatsoever, shall cast, throw out, or unlade, &c., any ballast, *395] rubbish, gravel, earth, stone, wreck, or filth, but only upon the : land where the tide or water never flows or runs, &c., it shall be lawful for any one or more justice or justices, &c., to summon, &c., the master or masters, owner or owners of any ship," &c. : and the 11th section of the 54 G. 3, c. 159, enacted, that, "if the owner, master, or other person having the charge or command of any private ship of war, transport, or other private or merchant ship or vessel, lighter, barge, boat, or other craft whatsoever, &c., or any other person or persons whatsoever, shall cast, &c., either from or out of any such ship, &c., any ballast, stone, slate, gravel, earth, rubbish, wreck, or filth, into any of such ports, roads, roadsteads, harbours, havens, or navigable rivers of this kingdom as aforesaid, so as to tend to the injury or obstruction of the navigation thereof, &c., all and every such person or persons so offending shall for every such offence forfeit and pay a sum not exceeding the sum of 107.” &c. and it was held that this latter provision operated by way of substitution for that part of the former provision which made it an offence to throw out of any vessel in a navigable river, ballast, rubbish, &c., so as to obstruct the channel or prejudice the navigation therein; and therefore that a conviction under the earlier statute for such an offence was bad: Michell, app., Brown, resp., 28 Law J., M. C. 53. Lord Campbell there says: "If a later statute again describes an offence created by a former statute, and affixes a different punishment to it, varying the procedure, and giving an appeal where there was no appeal before, we think that the prosecutor must proceed for the offence under the later statute. If the later statute expressly altered the quality of the offence, as, by making it a misdemeanour instead of a felony, or a felony instead of a misdemeanour, the offence could not be proceeded for under *396] the earlier statute: and the same consequence seems to follow from altering the procedure and the punishment. The later enactment operates by way of substitution, and not cumulatively, giving an option to the prosecutor or the magistrate." Two cases of The King v. Davis, 1 Leach C. C. 271, and The King v. Cator, 4 Burr. 2026, were cited, where statutes were held to be repealed by later enactments merely altering the degree of punishment for the offence. There can be no doubt that the object of the 3 & 4 Vict. c. 24, was, to introduce uniformity with regard to costs in all actions of a frivolous description. And, when we find a provision in general terms applying to every personal action, it seems absurd that the statute of James, as to oral slander, should be held to be still alive. Denman, in support of his rule.-The 21 Jac. 1, c. 16, is not repealed by the 3 & 4 Vict. c. 24. No rule of construction is more clear than this, that a prior statute is not to be held to be by implication repealed by a later statute, if the two may exist together. By the 21 Jac. 1, c. |