after the passing of that act, and was tried after it had come into operation, the question stood clear of the provisions of the previous statutes, and depended entirely upon the construction of s. 5 of the late act. The action was for slander, and was commenced in October, 1867, and tried at the sittings for Middlesex after last Trinity Term, before Hannen, J., when the plaintiff obtained a verdict for 107. The learned judge declined to certify, and, the plaintiff having applied for costs to a judge at chambers, who referred the question to the court, a rule for the allowance of the plaintiff's costs was obtained and argued in last term. The prominent point discussed in the case was that the plaintiff had no power of suing the defendants for this cause of action in the county court, s. 58 of 9 & 10 Vict. c. 95, which excludes the county court from original jurisdiction in slander, being still in force; and although, by s. 10 of the late act, a defendant is enabled to apply under certain circumstances to have such an action remitted for trial to the county court, no such application was made, and consequently the plaintiff was obliged to proceed to trial in the superior court or abandon the action altogether. Under the elaborate enactments of the previous county court acts, the liability of plaintiffs to the loss of costs for proceeding in the superior courts was carefully confined to cases in which the county courts had jurisdiction (see 9 & 10 Vict. c. 95, s. 129; 13 & 14 Vict. c. 61, ss. 11, 12, 13; and 15 & 16 Vict. c. 54, s. 4). Indeed, the very object and intention of such provisions hitherto has uniformly been to further the jurisdiction of the inferior court by practically compelling plaintiffs to sue there for causes of action within its jurisdiction; and it is obviously quite beside the general object of a county court act to subject plaintiffs to the loss of costs for suing in the superior courts for causes of action which could not be sued for elsewhere. What now gives rise to the question in this case is, that all the former enactments above-mentioned, which expressly preserved the plaintiffs' right to costs in cases in which the county court had no jurisdiction, were repealed by the late act, s. 33, sch. C.; and in lieu of the repealed enactments, the right to costs is now governed by the brief provision contained in s. 5 of the late act, VOL. IV. Q 1 1869 GRAY v. WEST. 1869 GRAY บ. WEST. which is as follows:-"If in any action commenced after the passing of this act in any of her Majesty's superior courts of record the plaintiff shall recover a sum not exceeding 201. if the action is founded on contract, or 107. if founded on tort, whether by verdict, judgment by default, or on demurrer or otherwise, he shall not be entitled to any costs of suit, unless the judge certify on the record that there was sufficient reason for bringing such action in such superior court, or unless the court or a judge at chambers shall by rule or order allow such costs." The general and comprehensive words of the earlier part of this section would certainly appear capable of embracing a case like the present; and it was contended on behalf of the defendants that they did so, and that, as the learned judge at the trial had declined to certify under s. 5, the Court would not now review his decision. But it is to be observed, that the jurisdiction given to the judge at the trial, and that given to the Court, or a judge at chambers, is separate and distinct. The judge at the trial is empowered to certify on a single point, namely, whether there was sufficient reason for bringing the action in the superior court. The power given to the Court, or a judge at chambers, is generally to allow the plaintiff his costs. The words relating to the certificate of the judge at the trial are taken from those of the enactment previously in force on this point, which was contained in s. 12 of 13 & 14 Vict. c. 61, and it is clear that they were there intended to apply to those cases only in which the county court had jurisdiction, but in which nevertheless it was reasonable that the plaintiff should sue in the superior court. This is in effect the natural import of such a form of certificate, which is appropriate to express an option and reasonable election of the plaintiff to sue in the superior court, as contrasted with the county court, but appears quite inappropriate to refer to a case in which the plaintiff had no option, but was compelled to sue in the superior court or not to sue at all. It appears to us that the certificate was intended to have the same meaning and application in the section now before us as a similar certificate had under 13 & 14 Vict. c. 61, s. 12, and if this be so it seems to give rise to much doubt whether s. 5 of the late act was really intended to have any application to cases in which the county court had no jurisdiction. If, however, it was intended to apply to such cases, the general authority given to the court or a judge to allow the plaintiff his costs, would at all events enable them to do so in cases of this nature where it appeared proper to make such allowance. In making such allowance we should not be reviewing or interfering with the discretion exercised by the judge at the trial, who merely declined to give in this case a certificate which was not properly applicable to it, but was only applicable to cases in which the county court had jurisdiction. And, as it is plain that the legislature intended that plaintiffs, who had the power of suing in the county court but elected on reasonable grounds to sue in the superior court, were to be allowed their costs, it seems impossible to suppose that it was intended that such allowance should not be made to plaintiffs who had no such election, and whose only remedy was in the superior court. We think, therefore, that as in the present case the plaintiff has recovered an amount much beyond what would have entitled her to costs under the general law applicable to actions for slander in the superior court, and as she could not have sued elsewhere, we think that she ought to be allowed her costs in this action; and therefore, that the rule should be made absolute. Attorney for plaintiff: Carpenter. Attorneys for defendants: Lloyd & Lane. Rule absolute. 1869 GRAY v. WEST. VOL. IV. R 1 1869 Jan. 20. BAILY v. DE CRESPIGNY. Covenant-Meaning of "Assigns" in a covenant-Covenant not to build-Assignment by compulsion of Law. Declaration that the defendant, in 1840, demised by deed certain premises to the plaintiff for a long term of years, and the defendant covenanted that "neither he nor his assigns would, during the term, permit any messuage, &c., to be built on a paddock fronting the demised premises;" alleging as breaches, 1, that the defendant during the term permitted a railway station to be built on the paddock; 2, that the defendant assigned the paddock to a railway company, who erected the railway station on the paddock. Plea: that after the making of the lease the railway company required to take the paddock under powers given them by an Act of Parliament of 1862, for purposes for which they were by the Act empowered to take the same; that the paddock was land which the company were empowered to take compulsorily for the purposes of the undertaking authorized by the Act; and that the company under the powers so conferred did compulsorily purchase and take the paddock, and that the assignment by the defendant to the company was the assignment in completion of such compulsory purchase; that the company afterwards built on the paddock the erections complained of, which were erections reasonably required for the purposes of the undertaking authorized by the Act. Replication that though the erections were reasonable, it was not necessary or compulsory for the company to build them. On demurrers to the plea and replication : Held, that the defendant was entitled to judgment: for the defendant was discharged from his covenant by the subsequent Act of Parliament, which compelled him to assign to the railway company, and so put it out of his power to perform the covenant, on the principle of the maxim, "lex non cogit ad impossibilia ;" and that it could make no difference whether the company were only empowered or were compelled to build the station on the paddock. DECLARATION: That defendant by deed demised, among other hereditaments, to the plaintiff a certain piece or parcel of ground situate in the parish of St. Giles, Camberwell, in the county of Surrey, and all that messuage or tenement, together with other erections and buildings then recently erected and built thereon by plaintiff, for 89 years from the 25th of March, 1840, at a rent thereby reserved; and defendant thereby, among other things, covenanted with the plaintiff that neither he, the defendant, nor his heirs, nor his assigns, should or would, during the term, permit to be built, on the paddock fronting the premises demised by the deed towards the north, any messuage or dwelling-house, coach-house, or stable, or other erection, save and 1869 BAILY v. except summer or pleasure houses in private garden ground, and also a church or chapel at the eastern extremity of the paddock. Averment of the performance of all conditions precedent, DE CRESPIGNY. &c. Breach that during the term the defendant permitted to be built on the paddock certain erections other than those by the deed excepted, to wit, a railway station with the appurtenances thereof, including waterclosets and urinals. That by reason of the premises, the plaintiff has been greatly annoyed and damnified in the enjoyment of the land, messuage, and hereditaments demised by the deed as aforesaid, and the value of the land and messuage and of the term has been much depreciated, and the amenity and comfort of the land and messuage as a residence have been deteriorated by the interference with the prospect therefrom, by reason of the erections, and by reason of the smoke proceeding from the chimneys of the railway station and premises, and by reason of the plaintiff's messuage being overlooked by the windows of the railway station and premises; and otherwise, by reason of the premises, the plaintiff has been prevented from having as beneficial a use and occupation of the lands as he otherwise would have had, and has been otherwise damnified. Second breach: That, after the making of the deed and demise, and during the term thereby granted, the defendant assigned the paddock to the London, Brighton, and South Coast Railway Company, and that the company, after the assignment and during the term, and while they were possessed of the paddock, by virtue of the assignment from the defendant, erected and built the railway station, with the appurtenances on the paddock, contrary to the covenant, to the damage of the plaintiff as above mentioned. Plea: That, before the committing of the alleged breaches, and after the making of the deed, the London, Brighton, and South Coast Railway Company required to take and purchase the paddock under the powers given them by "The London, Brighton, and South Coast Railway (New Lines) Act, 1862,” and for the purposes for which they were by the act empowered to purchase and take the paddock. And that the paddock was land which the company were empowered by the act to purchase and take compulsorily for the purposes of their undertaking, authorized by the act. And that, after the making of the deed, and before the |