the 3 & 4 Vict. c. 24; the costs of the action to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator.

The arbitrator by his award directed a verdict to be entered for the plaintiff on the first issue, damages, 20s, and for the defendant on the second issue. A verdict was thereupon entered on the postea for the plaintiff, damages 20s., costs 40s. An order was afterwards obtained by the defendants from Maule, J., at chambers, to amend the postea, by striking out the award of costs. The master, on taxation, having refused to allow the plaintiff any costs of the trial, on the ground that he had recovered "by verdict of a jury, less damages than 40s.,"

Honyman, in Easter Term last, obtained a rule calling upon the defendants to shew cause why the taxation should not be reviewed, and why (if necessary) the order of Maule, J., should not be rescinded, and the award set aside, or referred back to the arbitrator, on the ground that he had omitted to award anything to the plaintiff for his costs on the first issue.

Hugh Hill and Thrupp, on a subsequent day in the same term, shewed cause. The real question is, whether or not this case is within the 3 & 4 Vict. c. 24, s. 2. The 1st section of that act repealed the 43 Eliz. c. 6, so far as it related to costs in actions of trespass or trespass on the case, and also so much of the 22 & 23 Car. 2, c. 9, as related to costs in personal actions: and the second section enacts, "that, if the plaintiff in any action of trespass, or of 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 40s., 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 right to recover damages for the trespass or grievance in respect 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 object of that statute, like that of the 43 G. 3, c. 6, was, to put an end to frivolous and vexatious suits and the verdict is made the test. Here, the finding of the arbitrator has been substituted for the verdict of a jury and the verdict is entered on the postea, damages 20s. The costs of the cause were to abide the event; and the arbitrator had no power to certify under the 3 & 4 Vict. c. 24, s. 2. The cases under the 22 & 23 Car. 2, c. 9, are extremely analogous. That statute,— "for the 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,”-enacted, "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." In Swinglehurst v. Altham, 3 T. R. 138, it was held, that, where a cause had been referred by a rule of nisi prius, and the costs directed to abide the event, that must be taken to mean the legal event: therefore, where an action of

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trespass was brought for pulling down the plaintiff's gates, and assaulting him, and the defendants justified to all the counts except one, under different rights of way, and pleaded not guilty to the whole; and under the rule of reference the arbitrator awarded a right of way to the defendants different from any of those pleaded by them, and awarded 5s. damages to the plaintiff for the assault, as having been committed when the defendants were attempting to exercise a right of way negatived by the arbitrator,-it was held, that the plaintiff could recover no more costs than damages, for, that the arbitrator's award was not tantamount to a judge's certificate under the 22 & 23 Car. 2, c. 9. So, in Ward v. Mallinder, 5 East, 489, it was held, that, where a verdict is taken for 10., in trespass, subject to an award of damages, and the costs to abide the event, if the arbitrator give less than 40s. damages, the plaintiff cannot have his costs, though it be also found that the trespass was wilful, and that the defendant should pay the plaintiff his costs; for, the costs being directed to abide the event, means the legal event; and the authority of a judge to certify for costs under the 22 & 23 Car. 2, c. 9, where the trespass is wilful, is not transferred to the arbitrator under such a rule of reference. "It is to be regretted," said Lord Ellenborough, "that no provision was made in the rule of reference for the event which has happened, of the arbitrator's finding the damages to be under 40s., but that the trespass was wilful, in which case a judge's certificate, if the cause had been tried and the same conclusion come to before the court, would have carried costs. We have, however, the authority of a decided case (Swinglehurst v. Altham) that an arbitrator is not in this respect substituted in the place of a judge, to whom alone the statute has given the power of certifying for costs. Then, the case stands as a verdict for 10s. damages, without a

certificate; and the costs being by the rule of reference to abide the event, must be taken to mean the legal event; and therefore the plaintiff cannot have costs." If no money had been paid into court here, this case would have been governed by those two authorities. Does, then, the payment of money into court make any difference? Sharp v. Eveleigh, 20 Law J., N. S., Exch. 282, shews that it does not. That was an action of covenant by the plaintiff, a tenant, against the defendant, his landlord, for the non-repair of premises demised. The first breach alleged the pulling down of a stable, &c., and the second an omission on the part of the defendant to repair other parts of the premises. The defendant traversed the first breach, and paid 201. into court on the second breach. The plaintiff replied damages ultrà. At the trial, before Parke, B., the cause was referred, with power to the arbitrator to certify as a judge at nisi prius might have done. The arbitrator, as to the first breach, found for the plaintiff, damages 1s., and on the second breach found for the defendant; and he gave no certificate as to costs, both parties having desired him not to do so. The plaintiff, being disatisfied with the taxation, applied to Parke, B., to certify for costs under the 12th section of the 13 & 14 Vict. c. 61: the learned Baron refused to certify under that section, but gave a certificate under s. 13, to the effect that the action was brought for a cause in which concurrent jurisdiction was given by the 9 & 10 Vict. c. 95, s. 128. An attempt was afterwards made to review that decision, but without success. [Jervis, C. J. How does that bear upon this case?] The certificate would have been unnecessary, if a recovery by payment into court be a recovery by verdict. In Prew v. Squire, antè, Vol. X, p. 912, this court held, that a judgment on demurrer is not a judgment by default within the meaning of the 11th section of the 13 & 14 Vict. c. 61; and therefore, where a

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plaintiff recovered less than 207. upon an assessment of damages on a writ of inquiry, after a judgment on demurrer, he was not entitled to costs. So, in Crosse v. Seaman, ante, Vol. X, p. 884, it was held to be no ground for a suggestion under the London small debts act, 10 & 11 Vict. c. lxxi, s. 113, that the debt has been reduced below 207. by a payment into court under a plea of tender. [Jervis, C. J. In Crosse v. Seaman, antè, Vol. XI, p. 524, my Brother Maule says that "the spirit of the thing is, that the plaintiff shall not lose his costs, where he has obtained by the action more than 201."] It has been held, that the 3 & 4 Vict. c. 24, applies only to the case of issues tried or assessments of damages on a judgment by default and not to a judgment on demurrer. This was decided in Taylor v. Rolf, 5 Q. B. 337, 1 Dav. & M. 229, followed by Poole v. Grantham, 7 M. & G. 1033, 8 Scott, N. R. 722. The case is as much within the mischief which the statute proposed to remedy, whether the suit is frivolous in its commencement, or is frivolously continued after a sufficient sum has been paid into court by the defendant. The plaintiff here has not recovered by the verdict of a jury more than 20s. The court must adopt the plain grammatical construction of the words. of the statute, unless some manifest incongruity or injustice results from so reading them.

Bramwell and Honyman, in support of the rule. Upon the plain and unambiguous language of the statute, the plaintiff in this case is entitled to his costs. The argument on the other side amounts to this,-suppose trespass done to a house and land, the actual damage being 401., and the defendant brings into court 381. Os. Old., and upon an issue of damages ultrà the plaintiff gets a verdict for 38s. 11 d., he is to lose his costs. Such is the absurdity to which the argument