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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" (u). By sect. 3 it is provided, "That nothing herein contained shall extend to deprive any plaintiffs 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 or actions." It is not necessary, under the 3rd section, that the notice should be proved at the trial; it is sufficient if it was in fact given, and this may be suggested on the record. Bowyer v. Cook, 4 C. B. 236; and see Bourne v. Alcock, 4 Q. B. 621.

Unless it appear from the declaration that the action could not really have been brought to try a right beyond the mere question of damages, the case is within the act, and the judge has the power of certifying; and the granting the certificate is entirely a matter for the discretion of the judge presiding at the trial (x). "What the judge is called upon to do is to consider the object and design of the plaintiff in instituting the action, and if he is satisfied that the plaintiff conceived he had a right which might come in issue, the judge has a discretion vested in him to grant a certificate" (y). The certificate ought to be the simple result of the impression of the presiding judge upon the facts proved, uninfluenced by any extraneous matter, e. g. any expression of understanding on the part of the jury that the verdict would carry costs. Pryme v. "Brown, 4 M. & G. 247. It is necessary though the plaintiff sue in formâ pauperis. Chinn v. Bullen, 7 Ď. & L. 297. The discretion exercised by the judge at Nisi Prius cannot be reviewed by the court above (~).

In an action for libel, the judge may certify under this act that the grievance for which the action was brought was wilful and malicious (a). An action on the case for the infringement of a patent is within the operation of this act; and, notwithstanding the provisions of the 5 & 6 Will. IV. c. 83, s. 3, the plaintiff, recovering only nominal damages, cannot have his full costs without a certificate (b). The operation of the statute is not limited to

(u) That is a malicious trespass which is committed without authority and after previous notice. Sherwin v. Swindall, 12 M. & W. 783.

(x) Shuttleworth v. Cocker, 9 Dowl. 76; 1 M. & G. 829; Barker v. Hollier, 8 M. & W. 513.

(y) Per Tindal, C. J., in Morison v. Salmon, 2 M. & G. 892. In this case

a certificate was granted in an action for imitating the wrappers of a medicine invented by the plaintiff.

(z) Bury v. Dunn, 1 D. & L. 141. (a) Foster v. Pointer, 8 M. & W. 395; and see Newton v. Rowe, 1 C. B. 187. (b) Gillett v. Green, 7 M. & W. 347; and see 15 & 16 Vict. c. 83, s. 43.

cases in which the judge has power to certify. Hence in an action on the case for negligently exposing ploughshares on a highway, whereby the plaintiff received severe injury, the jury having given a verdict for 1s. damages, and the judge having refused to certify, on the ground that it was not a case in which he had power to do so under the statute, it was held that, although the action was not one in which the judge could grant a certificate, it was still within the statute, and the plaintiff was not entitled to his costs (c).

Where no application had been made in court for a certificate, but within a quarter of an hour after the delivery of the verdict such certificate was obtained from the judge, it was held to be well given. Thompson v. Gibson, 8 M. & W. 281, recognized in Page v. Pearce, ibid. 677, in which case Lord Abinger, C. B., seems to have been of opinion, that the certificate need not necessarily be given on the same day as the trial, but that the object of the legislature was merely that the certificate should be the result of the judge's impression at the time. So where the certificate was given on the following morning. Holmes v. Hedges, 12 L. J., Q. B. 100; 2 Dowl. N. S. 350; nom. Nelmes v. Hedges. Where the defendant obtained a verdict upon a plea which was subsequently held ill, and the judge had at the trial endorsed a memorandum on the record as follows, "I certify, if necessary, that the right came in question," and had, subsequently to the decision of the court upon the plea, given a proper certificate after hearing the parties on summons, it was held sufficient. Jones v. Williams, 13 M. & W. 520; 14 L. J., Exch. 76. If the certificate is informally drawn up at the trial it may be amended afterwards, and even after a rule nisi has been granted for setting it aside (d).

By 8 & 9 Will. III. c. 11, s. 1, "Where several persons are made defendants to any action or plaint of trespass, assault or false imprisonment, &c., and any one or more of them (e) shall be upon the trial thereof acquitted by verdict, every person so acquitted shall have his costs in like manner as if a verdict had been given against the plaintiff and acquitted all the defendants, unless the judge before whom such cause shall be tried shall, immediately after the trial thereof in open court (f), certify upon the record, under his hand, that there was a reasonable cause (g) for making such person a defendant to such action."

In assault and battery against several defendants, one let judgment go by default, and the others pleaded not guilty. On the trial the jury gave damages against him who had suffered judgment by default, and found the other defendants not guilty. Wilmot, J.,

(c) Marriott v. Stanley, 1 M. & G. 853. (d) Shuttleworth v. Cocker, 1 M. & G. 829.

(e) See Hughes v. Chitty, 2 M. & Sel. 132; Alderson v. Waistell, 2 D. & L. 127.

(f) See per Bayley, J., in Woolley v. Whitby, 2 B. & C. 581.

(g) See Furneaux v. Fotherby, 4 Campb. 187.

being asked to certify that there was a reasonable cause to make the others defendants, said, he thought the 8 & 9 Will. III. c. 11, s. 1, did not extend to this case, but only to cases where some of the defendants are convicted by verdict and others acquitted. In this case it is as if they had severed in pleading, and as if the action was against the others only (h), and on these grounds he refused to certify (i).

By 3 & 4 Will. IV. c. 42, s. 32, "Where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless, in the case of a trial, the judge before whom the cause shall be tried shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action."-This section being merely intended to remedy the defects in 8 & 9 Will. III. c. 11, s. 1, does not operate as a repeal of acts which give to a particular class of persons, when defendants, an absolute and unqualified right to costs in the event of a verdict in their favour, as in the case of policemen under 10 Geo. IV. c. 44, s. 41, and therefore a judge has no power to certify under the above section to deprive them of their costs (k).

By the 129th section of the County Courts Act, 9 & 10 Vict. c. 95, it is enacted, that if any action shall be commenced in a superior court, for a cause of action for which a plaint might have been entered in a county court * * *(); if a verdict shall not be found for the plaintiff, the defendant shall be entitled to his costs as between attorney and client," unless the judge who shall try the cause shall certify on the back of the record that the action was fit to be brought in the superior court.

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By the 11th and 12th sections of the County Courts Extension Act, 13 & 14 Vict. c. 61, plaintiffs in actions of (inter alia) trespass recovering (m) less than (or not more than (n)) 5l., are disentitled to costs, (even of an issue in law decided previously in their favour (o),) except in case of a judgment by default (p), or in case the judge or other presiding officer shall certify on the back of the record that the cause of action was one which could

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L. J., C. P. 175.

(n) Garland v. Harris, 7 Exch. 591; 21 L. J., Exch. 160.

(0) Abley v. Dale, 11 C. B. 889; 21 L. J., C. P. 104, but see 15 & 16 Vict. c. 76, s. 81.

(p) Glynne v. Roberts, 9 Exch. 253; Reed v. Shrubsole, 7 C. B. 630. This is altered as to actions on contracts by 19 & 20 Vict. c. 108, s. 30.

not have been brought in a county court, or that there was a sufficient reason for bringing it in the Superior court, or, by the 15 & 16 Vict. c. 54, s. 4, the plaintiff make it appear, to the satisfaction of the court or a judge (q), that the Superior courts had concurrent jurisdiction under 9 & 10 Vict. c. 95, s. 128, or that the action had been removed from a county court by certiorari. These provisions do not dispense with the necessity of a certificate under 3 & 4 Vict. c. 24, ante, if the damages recovered be less than forty shillings, as the above acts only entitle a plaintiff, in case the judge certifies under them, to "the same judgment to recover his costs, as he would have had if the 13 & 14 Vict. c. 61, had not been passed,"-see Gray on Costs, 163. The latter certificate, however, may be obtained on application to the judge who tried the cause under sect. 12 of the 13 & 14 Vict. c. 61; Bennett v. Thompson, 25 L. J., Q. B. 378; 6 E. & B. 683; or to the court or a judge upon summons under sect. 4 of the 15 & 16 Vict. c. 54; Reed v. Gordon, 22 L. J., Exch. 253; Power v. Jones, 6 Exch. 121; Morris v. Bosworth, 2 E. & B. 213, subsequently to the trial, which the former cannot; ante, p. 39.

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By the 1st and 2nd Pleading Rules of Hilary Term, 1853, it is provided, that such several counts on the same cause of action," and such several pleas, &c. "on the same ground of answer or defence," as appear to the court or a judge proper for determining the real question in controversy between the parties, may be allowed, subject to such terms as to costs as the court or judge may think fit; and by rule 3,-" When no such rule or order has been made as to costs by the court or a judge, and on the trial there is more than one count, plea, replication or subsequent pleading, &c. founded on the same cause of action or ground of answer or defence, and the judge or presiding officer shall at the trial certify to that effect on the record, the party so pleading shall be liable to the opposite party for all costs occasioned by such count, plea, or other pleading, &c., including those of the evidence as well as those of the pleading."

(q) Sharp v. Eveleigh, 20 L. J., Exch. 282.

CHAPTER IV.

OF THE ACTION OF ASSUMPSIT.

I. Of the Action of Assumpsit, and of the Agreement for the Non-performance of which this Action may be maintained,

Of the Consideration

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Of Agreements contrary to public Policy

Of Agreements in Contravention of Statutes
Of Fraudulent Agreements

Of Immoral Agreements

II. Of the Indebitatus Counts,
Credit unexpired

Where contract is entire .
For Money paid

Money had and received

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I. Of the Action of Assumpsit, and of the Agreement for the Non

performance of which this Action may be maintained.

THE action of assumpsit is an action of trespass on the case, whereby a compensation, in damages, may be recovered for an

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