pleas, by statute; Chitty's Archb. Practice, 7 ed. 1143; Hughes v. Hughes, 1 C. M. & R. 663; Smith v. Edwards, 4 Dow. 624; Dunnage v. Kemble, 3 Bing. N. S. 538, before the rule.

Patrick v. Colerick, 4 M. & W. 527, since the rule, but does not mention it; Jones v. Thomas, 11 A. & E. 193; Imp. Stat. 3 & 4 Vic. ch. 24 sec. 1, which repeals the 43 El. ch. 6, sec. 9, as respects actions of trespass; and see Morgan v. Thorne, 7 M. & W. 400; Lake v. Briley, 5 U. C. Q. B. R. 307; 9 Price, 314.

That it appears on the record that the title did come in question under the plea of not possessed, which was overruled as being too large, but was separately good as to the 1st count; and, though held bad in law, it impeached. defendant's possession (which is title enough to maintain trespass) in fact.

2nd: That the certificate under the statute 43 El. is too late after judgment entered-2 Dow. 593; 7 Dow. 253; Watchorn v. Cook, 2 M. & S. 348; Calvert v. Everard, 5 M. & S. 510; Davis v. Cole, 6 M. & W. 624, 20 L. J. Ex. 1; Lyons v. Hyman, Ayr. Rep. Part 2 p. 407; S. C. 1 Price, 601.

That the case could not have been instituted in the county

court.

3rd: That defendant's attorney attended the taxation and did not object to the items as taxed, such as all the plaintiff's pleadings, although the issues as to the 3rd count were found for the defendant.

Eccles in reply urged, that in the contradictory state of the English decisions, the proper duty of the court was to give effect to the statute 22 & 23 Car. II. ch. 9, and not repeal it by construction either under old decisions or the new rules that the demurrer to the second plea renders it as no plea, and did not bring the title in question.-Jones v. Thomas, 8 Dow. 99; S. C. 11 A. & E. 193.

That the plea of not guilty is in denial, not in confession and avoidance like a plea of leave and license, and does not impliedly admit plaintiff's title like an affirmative plea; that mere denial admits nothing; that when the declara

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VOL. II.

tion is good and not demurred to because the close was not described, the plaintiff must still prove possession, as formerly required in all cases under the plea of not guilty. Goodall v. Glen, 6 U. C. Q. B. R.

That the certificate is not too late, only affecting costs, not the judgment; that this application does not seek to set aside the judgment; but merely to modify it in relation to the amount of costs, which is every-day practice.

Lastly, that as to specific items that are objected to, the attendance of the defendant's attorney (who may have been inexperienced, or inadvertently overlooked the errors committed) should not conclude the defendant.-Foxall v. Banks, 5 B. & A. 536.

MACAULAY, C. J.-The stat. 22 & 23 Car. II. ch. 9, enacts 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 record that an assault and battery was sufficiently proved &c., or that the free-hold or title of the land mentioned in the plaintiff's declaration was chiefly in question, the plaintiff in such action, in case the jnry shall find the damages to be under 40s., shall not recover or obtain more costs of suit than the damages so found amount to, &c. The doctrine established under this statute, (however contrary to the original intention and true construction,) seems to be, that when the damages are under 40s. the plaintiff is deprived of full costs only when a certificate of the title to the land coming in question can be given, to be determined ( as argued by Mr. Eccles) by a comparison of the pleadings, issues and verdict, and when necessary, by referring to the evidence also.-Mills v. Stephens, 3 M. & W. 460; S. C. 6 Dow., 593; Gillett v. Green, 7 M. & W. 347; 4 Dow. 621.

But no certificate is necessary if it appears on the record that the title was in question.-2 Lev. 234; Martin v. Vallance, 1 East. 350; Redridge v. Palmer, 2 H. B. 2; Corner v. Baker, 2 H. B. 341; Littlewood v. Wilkinson, 9 Price 314; Thomas v. Davies, 8 A. & E. 508; Purnell v. Young, 3 M. & W. 288; Mills v. Stephens, 3 M. & W. 460; Head v. Baldry, 11 A. & E. 906; James v. Salter, 3 Bing. N.

S. 544; Poole v. Grantham, 7 M. & G. 1030; S. C. 2 D. & L. 622; Taylor v. Rolf et al., 5 Q. B. 337; Harrison v. Dixon, 12 M. & W. 142 ; Jones v. Chapman, 2 Ex. R. 803. These and other cases shew, that since the new rules the defendant is entitled to costs when the general issue (not per statute) is alone pleaded, as no case could arise under it for the judge to certify, and that the plea of not possessed did bring the title in question on the face of the record; and its being held bad on demurrer is equivalent to a verdict for the plaintiff at least, I perceive no substantial difference; the plea certainly brings the plaintiff's title in question, so far as the plea goes, at least, as respects a possession sufficient to enable him to maintain trespass, which since the new rules has been held sufficient to entitle the plaintiff to costs. It does not seem to have been observed that the plea of not guilty formerly had the same effect, and upon the same principle necessarily put the plaintiff's possessory title in issue, which possession was impliedly alleged in the declaration, calling it his close; wherefore a recovery under the general issue should have formerly entitled the plaintiff to costs without a certificate.

However, I do not see that the plea being found bad in law instead of false in fact, can make any difference as respects the plaintiff's right to costs, except that in the former case (giving effect on demurrer) the judge could not have certified under the statute, for the plea equally impugns the plaintiff's title on the face of it; whether met by a replication or a demurrer, not guilty, per statute was still to be regarded as rendering a certificate necessary; although it is difficult to say on what principle, if it is equivalent to the joint pleas of not guilty, and not posssessed, which latter supersedes the necessity for a certificate. I do not find that the title must be in question by reason of the defendant's setting up a conflicting right, or that it is not sufficient if the plaintiff's title against even a wrong doer is chiefly the question.

On the grounds, therefore, that under the pleadings the judge who tried the cause could not have had any opportunity of certifying that the title was in question, as it

could not be questioned under the plea of not guilty: the only issue to be tried, and of course not under the plea of not possessed, after it was overruled upon demurrer, I think the plaintiff is entitled to costs. No doubt this construction goes far to prevent the operation of the statute; but it is now admitted that the act was misconstrued at an early day, but recent decisions have held it too late to retract, and that effect should be given to such decisions. The Imperial Parliament has not explained the act in opposition to the construction of the courts, but as respects trespass quare clausum fregit has repealed it and made other provision by the stat. 3 & 4 Vic. ch. 24 (see Morgan v. Thorne, 7 M. & W. 400), which even regulates costs in such cases; until our Legislature interpose, we must give effect to the English authorities, touching the act of 22 & 23 Car. II., ch. 9; the English courts have held the old decisions binding on them since the new rules and so ought we.

As to the certificate under the stat. 43 El. ch. 6, the case cited shews that it is too late after the costs are taxed and final judgment actually entered, as in this case.-See Gillett v. Green, 7 M. & W. 347. The taxation may, however, be revised on the minor points if persisted in on payment of costs, the defendant's attorney not having made the objections at the taxation, though present,

MCLEAN, J., and SULLIVAN, J., concurred.

MICHAELMAS TERM, 15 VICTORIA.

WILLIAMS V. Lee.

WILLIAMS V. VANSITTART.

Where an attorney had obtained extensions from time to time to plead, agreeing to take short notice of trial, or any notice, or to go down to trial without notice, and short notice of assessment having been served-Held, that the Court would not set aside the verdict, on the ground that the attorney had agreed to accept short notice of trial, &c., but not notice of assessment.

Held also, That under the practice here, short notice of trial means four days' notice, the first and last days inclusive.

In the early part of last term, Hagarty, Q. C., obtained a rule in both these cases in similar terms, calling on the demandant to shew cause why the verdicts should not be set aside for irregularity, with costs, on the ground that no sufficient notice of trial or assessment had been served, and on grounds disclosed in affidavits and papers filed; or why the verdicts should not be set aside and a new trial had between the parties without costs, on the law and evidence and for misdirection. The applications were supported by affidavits of Daniel G. Miller, Esq., attorney for the tenants, similar in terms in each case, and stating that the declaration in the first case was served on or about the 21st of August; and in the last, on or about the 1st of September last; that in the month of September he applied, on two or three occasions, for time to plead to the demandant's attorney; that on the second application, about the middle of September, he said that he would extend the time but that it must be in terms; that deponent proposed reducing the terms to writing, but that the demandant's attorney said it was not necessary, and that he did not want the deponent to demur to his declaration, that deponent said he would not demur, and did not desire any sharp practice; and that he would accept short notice of trial, and would give the demandant any time to reply, if necessary: that on the 30th of September, on which day the extended time for pleading expired, deponent solicited until noon the following day, the pleas being prepared and only requiring