1851. PALMER V. RICHARDS. conceded that the Court has a discretion as to granting costs under the 13 & 14 Vict. c. 61, s. 13; but that must be exercised with reference to the 9 & 10 Vict. c. 95, ss. 128 & 129. It was evidently the intention of the legislature in passing that statute, that, where the plaintiff resided more than twenty miles from the defendant, the County Courts and superior Courts should have a concurrent jurisdiction. Then the 13 & 14 Vict. c. 61, s. 13, transferred the burthen of proof from the defendant to the plaintiff; but the Court, in exercising its discretion under that statute, will act on the spirit of the previous Act, and give costs in cases of concurrent jurisdiction. [Alderson, B. If it be discretionary to grant a certificate, the Court cannot overrule the discretion of the Judge. The plaintiff, by applying to the Judge, has exercised his option. Pollock, C. B.-The plaintiff having elected to apply to me for my decision, cannot afterwards appeal against it.] In general an appeal may be made to the Court in every case of an order by a Judge at Chambers. Where a defendant was arrested on a capias issued under the 1 & 2 Vict. c. 110, it was held that the Court might discharge him, if they thought that the materials before the Judge were insufficient, or that he exercised an improper discretion: Graham v. Sandrinelli (a). [Martin, B.-That proceeded on the terms of the particular Act of Parliament. Alderson, B.-If the Lord Chief Baron had certified, the defendant would have had no appeal; for the certificate would have been conclusive, as under the statute of Elizabeth, even though granted on an erroneous ground: Cann v. Facey (b).] PER CURIAM (c).-There will be no rule. It is settled (a) 16 M. & W. 191. (c) Pollock, C. B., Alderson, B., and Martin, B. that the power to certify is discretionary; and if we were to interfere, it would be overruling that discretion which ought to be exercised according to the facts of each particular case. (a) In the following case of M'Dougal v. Paterson, the judgment of the Court of Common Pleas is at variance with these Rule refused (a). decisions.--The following is a JERVIS, C. J.-The first question in this case is, whether this Court has a concurrent jurisdiction with the County Court under the 128th section of the statute 9 & 10 Vict. c. 95; and we are of opinion that it has. The defendant contends, that, at the time of the action brought, the plaintiff dwelt in two places, in Scotland and in Goldensquare; and perhaps, even if this had been the case, this Court would have had concurrent jurisdiction, because it could not in that case have been suggested on the roll, that the plaintiff did not dwell more than twenty miles from the Defendant. But it is unnecessary to decide that question; because we are of opinion that, under the circumstances, the plaintiff did not dwell in Golden-square. Each case must depend upon its particular circumstances: but where a party has a permanent place of dwelling, we do not think that he dwells, in the sense of that word as used in the statute, at a place where he has lodgings for a temporary purpose only. The second question depends upon the true construction of the statute 13 & 14 Vict. c. 61, s. 13, and is of much importance, not only on account of its general bearing upon the practice of the Court, but because we are unfortunately unable, after much consideration, to concur with the Court of Exchequer in the view which they have taken of that section. We are not disposed to depart from the rule of construction of statutes so frequently referred to by my Brother Parke. We consider ourselves bound to adhere to the ordinary meaning of the words used, and to their grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to some manifest absurdity or repugnance. The real point turns upon the meaning of the word "may." Does it necessarily give the Courts and the Judges a discretion in the three cases mentioned in the 13th section; or was it used, and as we think aptly and properly used, to confer upon them an authority in the cases mentioned; or is it doubtful in which of these two senses it was used by the legislature? If the second 1851. PALMER v. RICHARDS. 1851. M'DOUGAL V. PATERSON. is the true meaning, we adhere to the ordinary meaning of the words used, and to their grammatical construction, by holding that the Courts and Judges have no discretion when either of the three cases exists upon which the authority arises. If it is doubtful in which sense the word was used, we must consider whether it would not lead to manifest absurdity and repugnance to hold that the word "may" conferred upon the Courts and the Judges a discretion in all the cases mentioned in that section. Before the passing of the County Court Act, this plaintiff would have had his costs by the statute of Gloucester; and since that Act (9 & 10 Vict. c. 95, s. 128) he would have had his costs, because the defendant could not have suggested that the plaintiff did not dwell more than twenty miles from the defendant at the time of the action brought. In this state of the law, the statute 13 & 14 Vict. c. 61, was passed, the 11th, 12th, and 13th sections of which refer to costs. The principal object of the 11th section seems to have been, to get rid of the very expensive and dilatory proceeding by suggestion necessary under the former Act. In substance, for the purposes of this case, it enacts, that, if in any action of debt commenced in the superior Courts, the plaintiff shall recover a sum not exceeding 20., he shall have judgment to recover such sum only and no costs, except in the cases thereinafter provided, and no suggestion shall be necessary to deprive the plaintiff of costs. The cases thereinafter provided are to be found in the 12th and 13th sections, and are of two kinds: those which may appear at the trial before the Judge or other presiding officer; and those which may be established by affidavit before the Court or a Judge at Chambers, whether there be a verdict in the action or not. Of the former, two cases are provided for by the 12th section; the one, where it appears to the Judge or presiding officer at the trial, that the cause of action was one for which no plaint could have been entered in a County Court; other, where it appears to the Judge or presiding officer at the trial, that there was a sufficient reason for bringing the action in the superior Court; and in either of these cases, if the Judge or presiding officer certifies to that effect upon the back of the record, the plaintiff is to have his costs. Of the latter, three cases, and three only, are provided for in the 13th section: where there is concurrent jurisdiction; where no plaint could have been entered in the County Court; and where the cause has been removed from the County Court by certiorari; and if either of these cases appear to the satisfaction of the Court or a Judge at Chambers, such Court or Judge may thereupon direct that the plaintiff shall recover his costs. Is there to be added to these three cases, expressly mentioned in the section, a fourth inquiry, independent of, and possibly unconnected with the specific question before the Court or Judge, viz. an inquiry into the the general conduct of the parties, for the purpose of ascertaining whether the plaintiff is in justice entitled to his costs? No power to institute such an inquiry is expressly given by the 13th section; whereas the 12th section gives the Judge or presiding officer a discretion, and enables him to certify that there was a sufficient reason for bringing the action in the superior Courts. The omission from the 13th section of an authority, expressly given by the 12th, would seem to shew that it was not intended to confer upon the Courts or a Judge at Chambers a discretion to inquire whether there was sufficient reason for bringing the action in a superior Court. Again, it could not be intended that a Judge at Chambers should have a discretion whether the plaintiff should have his costs in a case where no plaint could have been entered in the County Court, and that a Judge at Nisi Prius should have no such discretion in the same case; and yet in the 12th section, in addition to the discretion vested thereby in the Judge or presiding officer, express reference is made to the case where no plaint could have been entered in the County Court, which would have been unnecessary if in that case also he had a discretion; for then the last member of the section, giving a general discretion, would have included all cases. To take the instance common to the 12th and 13th sections, the 11th section may be read thus: If in any action of debt the plaintiff shall recover in a superior Court a sum not exceeding 207., he shall have judgment to recover such sum only, and no costs, except in the case where no plaint could have been entered for the cause of action in the County Court; in which case, if it appear to a Judge at Nisi Prius, he shall certify the same upon the back of the record; or, if it appear to the satisfaction of a Judge at Chambers, he may, that is, he has authority, to direct that the plaintiff shall have his costs. Critically speaking, the word "may" is correctly used to describe the sort of authority which a Judge has in such cases. He is not bound to act against the plaintiff's wish; but the fact being established which gives the authority, he may, at the plaintiff's request, make the order, and thus the costs are awarded to the plaintiff, and with his assent. The general authorities on the subject appear fully to warrant the construction which we have thought ourselves called upon to put on the statute. An early case was cited by Mr. Badeley-Alderman Backwell's case, from 1 Vern. 152; it is also reported in 1 Eq. Cas. Abr. 52, and 2 Chanc. Cas. 190: one of the questions there raised before Lord Keeper North was, whether a commission of bankruptcy could be denied by the Lord Chancellor, or whether it was de jure. And the Lord Keeper said, (2 Chanc. Cas. 191), "I hold that the commission is de jure; and the statute which saith that the Chancellor may grant, &c., 1851. M'DOUGAL v. PATERSON. 1851. M DOUGAL 2. PATERSON. is as if it had been shall grant,' or 'ought to grant,' but he cannot But if it be doubtful in which sense the word "may" is used, we shall be justified by the rule of construction to which we have referred, in considering whether absurdity or repugnance would not follow from holding that a discretion was given, and might, accordingly, modify the word, so as to avoid that consequence. In our opinion, absurdity and repugnance would follow from such a construction. If the 11th section was intended to avoid the expense of a suggestion, that object would be effectually defeated: by giving the Judges a discretion under the 13th section, not only must every cause be retried upon affidavits, but the whole conduct of the parties, and perhaps of the witnesses, must be examined, for the purpose of enabling the Judge to say if the plaintiff should have his costs. A Judge at Nisi Prius, in the exercise of the discretion expressly given to him by the 12th section, must be governed by evidence applicable to the issues joined between the parties; but a Judge at Chambers will be subject to no such limitation, and may be led into any inquiry which the parties may think fit to institute, without the means of enforcing the production of evidence. This further consequence would follow from holding that the word "may" conferred a discretion. Wherever the plaintiff has a cause of action, for which he cannot sue in the County Court, and in respect of which he has not sustained the damage necessary to give costs, his right to costs may depend not upon his success in the action, but upon the discretion of a Judge, to be exercised at Chambers, and, as it is said, without control, and without the means of compelling adverse witnesses to depose to facts which may be only within their own knowledge. If it were doubtful, whether the word "may" was used to give a discretion, or to confer an authority, we should not hesitate to adopt the latter meaning, to avoid the consequences which we have pointed out. We are aware that this decision conflicts with two cases which |