354 CERTIFICATE OF COSTS. 



And ^jpr Cressurll J. : " Prima facie, the i^laintiff having recovered 

 damages is entitled to costs ; if he is not, it must be by virtue of soine 

 statutory enactment. It has been very properly admitted that the only 

 statute that can have the effect of depriving the plaintiff of costs in 

 this case, is the 3 & 4 Vict. c. 24. The 2nd section of that statute 

 enacts, that if the plaintiff, in any action of trespass, or of trespass on 

 the case, shall recover less damages than 40s., he shall be entitled to 

 no costs, unless the judge shall certify on the back of the record that 

 the action was really brought to try a right, or that the trespass or 

 grievance was wilful and malicious. Then comes the 3rd section, 

 which provides that nothing in that act shall extend to deprive any 

 plaintiff of costs in any action for a trespass over any lands, &c., in 

 respect of which a notice not to trespass thereon shall have been pre- 

 viously given to the defendant. If this 3rd section had enacted that the 

 plaintiff should not be deprived of costs, if it should appear at the trial 

 that a previous notice not to trespass had been given, there might 

 have been ground for contending that the judge must certify to entitle 

 the plaintiff to costs. But the notice is not required to appear at the 

 trial. The proper course clearly is to suggest the fact upon the record, 

 leaving the defendant to traverse it, if so advised." 



The certificate to deprive the plaintiff of costs under 23 & 24 Vict. 

 c. 126, s. 34, where in an action for a wrong he recovers less than £5, 

 must negative not only the trespass being wilful and malicious, but 

 also the fact that the action was brought to try a right, and that it was 

 not fit to be brought. Andjoer WiUiams J. : "The case of Saunders 

 V, Kirwan'' (30 L. J. (N. S.) C.P. 351) applies to the negative that the 

 trespass was wilful and malicious, and the decision there is quite 

 correct, inasmuch as if the certificate negatives the trespass being 

 either wilful or malicious, it necessarily negatives its being both wilful 

 and malicious {Gooduuj v. Brifnull). 



It is now perfectly settled that a man may he guilty of a nuisance in 

 erecting, or continuijig a huilding on the land of another. And it was 

 so held by the Court of Queen's Bench in Holmes v. Wilson, by the 

 Court of Exchequer in Thompson v. Gibson, and by the Court of 

 Common Pleas in Boivyer v. CooJc, and BattishiU v. Reed. And per 

 V. Williams J. : "Where an action has been brought for erecting and 

 leaving a building on the plaintiffs land, a fresh action will lie 

 for continuing it there ; and action after action may be brought 

 till it is removed. Whether this case falls within the principle of 

 Jlobnes v. Wilson, T will not undertake to say ; but assuming that it 

 docs, Holmes v. Wilson has been followed by Thompson v. Gihson ; 

 and Thompson v. Gibson and Bowycr v. Cook have established that 



