in Saunders v. Kirwan, it is unnecessary that the certificate should negative wilfulness as well as malice, neither can it be necessary to negative the other matters. The object of the statute was to prevent frivolous actions. [KEATING, J.-How can an action be said to be frivolous when it is brought to try a right?]

*ERLE, C. J.-We are all of opinion that the plaintiff is enti

tled to costs in this case, and that my certificate is of no avail [*150 to deprive him of them. We must give effect to the plain language of the statute. The plaintiff is to have no costs if the Judge certifies, -that the action was not really brought to try a right besides the mere right to recover damages,--that the trespass or grievance in respect of which the action was brought was not wilful and malicious, -and that the action was not fit to be brought. The statute requires that these three things shall be certified. On the present occasion, I could not certify that the action was not brought to try a right, small though that right might be. When I gave the certificate in its present form, I was not reminded of the decision in Saunders v. Kirwan which I consider to be perfectly correct.

WILLIAMS, J.-I am entirely of the same opinion. The 34th section of the Common Law Procedure Act, 1860, only impowers the Judge to deprive the plaintiff of costs upon a verdict for less than 5l. in an action for an alleged wrong, when he can grant a certificate negativing three things, viz., that the action was really brought to try a right besides the mere right to recover damages,--that the trespass or grievance in respect of which the action was brought was wilful and malicious, and that the action was fit to be brought. Unless all these three things are negatived, the certificate avails nothing. And here my lord tells us that he could not negative the first, because the action was really brought to try a right. The principle upon which the case of Saunders v. Kirwan was decided was this, that, where the Judge by his certificate affirms the first and third propositions contained in the statute, it is enough if in dealing with the second he negatives *either wilfulness or malice, because, if either be [*151 negatived, it could not be said that the trespass or grievance was wilful and malicious. If the certificate negatives either quality, it negatives both.

BYLES, J.-I am of the same opinion. To make the certificate available to deprive the plaintiff of costs, three propositions must be stated therein,-that the action was not really brought to try a right besides the mere right to recover damages,-that the trespass or griev ance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought. In Lord Denman's Act, 3 & 4 Vict. c. 24, s. 2, the words were affirmative: the Judge was to certify (in order to give the plaintiff costs) that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action was brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious. If "and" were changed into "or," the certificate under that statute would be insufficient. But here, under this statute, the words being in the negative, it is not necessary to negative both wilfulness and malice in order to sustain the second

proposition. Each of the three must, however, appear in the certificate.

KEATING, J., concurred.

ERLE, C. J.-The Court having decided the question which I referred to them, the record will stand as if there were no certificate. We only decide that the certificate must embrace all three of the propositions stated; but we by no means intend to decide that the power

of the Judge to certify is taken away where the action is

*152] brought in respect of a mere nominal invasion of a right. WILLIAMS, J.-I for one certainly do not mean to say that the power of certifying is taken away by the mere setting up of a claim of right. Rule accordingly.

THE DANUBE AND BLACK SEA RAILWAY AND KUSTENDJIE HARBOUR COMPANY (Limited) v. XENOS. XENOS v. THE DANUBE AND BLACK SEA RAILWAY AND KUSTENDJIE HARBOUR COMPANY (Limited). Nov. 21.

Where two parties enter into a contract which is to be performed at a future day, and, before the day for performance arrives, one of them gives the other notice that he does not hold himself bound by it, the other is at liberty to treat such renunciation as a breach of the contract, without waiting the arrival of the day fixed for its performance.

On the 9th of July, A., by his agent, agreed to receive certain goods of B. on board his ship to be carried to a foreign port,-the shipment to commence on the 1st of August. On the 21st of July, A. wrote to B. stating that he did not hold himself responsible for the contract, the agent having no authority to make it; and on the 23d he wrote again offering a substituted contract, but still repudiating the original contract. B. by his attorneys gave A. notice that he should hold him bound by the original contract, and that if he persisted in refusing to perform it, he (B.) should forthwith proceed to make other arrangements for forwarding the goods to their destination, and look to him for any loss. On the 1st of August A. again wrote to B. stating that he was then prepared to receive the goods on board his ship, making no allusion to the original contract. B. had, however, in the meantime entered into a negotiation with one S. for the conveyance of the goods by another ship, which negotiation ended in a contract for that purpose with S. on the 2d of August. B. thereupon sued A. for refusing to receive the goods pursuant to his contract; and A. brought a cross-action against B. for refusing to ship. Upon a special case stating these facts:-Held, that it was competent to A. to treat B.'s renunciation as a breach of the contract; and that the fact of such renunciation afforded a good answer to the cross-action of A., and sustained B.'s plea that before breach A. discharged him from the performance of the agreement.

THESE were cross-actions. The declaration in the first-mentioned action stated, that, by an agreement made between the plaintiffs and the defendant, it was agreed that the defendant's ship, called The Mavrocordatos, should load from the plaintiffs in the Victoria Docks, London, certain rolling stock, plant, and materials, and should convey the same from London to Kustendjie for freight; and that the shipment should commence on the 1st of August, 1860; and that

*153] *though the plaintiffs were willing to perform the contract, the defendant, before the 1st of August, refused to perform it or to receive the goods, and gave notice to the plaintiffs to that effect: whereby the plaintiffs were discharged from the performance of the agreement, and obliged to charter another vessel to convey the goods at an increased freight, and had incurred extra expenses.

The defendant by his pleas denied the agreement, the readiness and

willingness of the plaintiffs to perform it, and the alleged breaches; and further pleaded, that, before breach, the plaintiffs exonerated and discharged him from the performance of the contract. Issue thereon.

In the secondly-mentioned action, the declaration alleged that it was agreed between the plaintiff and the defendants that the plaintiff's steamship The Mavrocordatos should load from the defendants in the Victoria Docks, London, certain rolling stock, plant, and materials, and should convey the same from London to Kustendjie for certain freight and hire payable by the defendants, and that the shipment should commence on the 1st of August, 1860; and that, if from the default of the defendants, the shipment should not commence on that day, and continue regularly till completed, the defendants should pay the sum of 30l. as liquidated damages for each day lost through such default. It then alleged, that, though the plaintiff had done all things necessary to entitle him to have the said cargo loaded on board his said ship according to the said agreement, the defendants made default in shipping the said cargo, whereby the plaintiff lost the hire and freight he would have earned had the said cargo been shipped; and that the said shipment was not commenced on the 1st of August; and that five days were lost by default of the defendants, whereby *the defendants became liable to pay 150l. as liquidated damages, at the rate of 301. per day.

[*154

The defendants in this action pleaded,-first, that it was not agreed as alleged, secondly, that, before breach, the plaintiff exonerated and discharged the defendants from their said agreement, and the performance of the same,-thirdly, that they were ready and willing to ship the cargo according to their contract, but that the plaintiff was not ready and willing to receive the same according to his said contract,fourthly, that they did not make default, as alleged,-fifthly, that it was not by the default of the defendants arising from causes over which they had control that the shipment was not commenced on the 1st of August, 1860, and thence continued regularly until the same was completed, as alleged. Issues thereon.

The first-mentioned cause came on for trial at the Middlesex sittings after Hilary Term last, when it was agreed that the following case should be stated for the opinion of the Court:—

The plaintiffs in the first-mentioned action are a Company incorporated in July, 1857, for the purpose of constructing and making a railway and harbour at Kustendjie, in European Turkey; and the defendant Mr. Xenos carries on business in London under the name of The Greek and Oriental Steam Navigation Company.

In the month of June, 1860, the Railway Company were desirous of shipping from London to Kustendjie a quantity of railway carriages, axles, springs, &c.; and Mr. Parkes, the secretary of the Company, had several interviews with Mr. Fitze, a clerk of Mr. Xenos, as to the terms upon which they could be conveyed by one of Mr. Xenos's steamers: and about the end of the month these parties on behalf of the Company and Mr. Xenos respectively, verbally agreed to terms which on the 2d of July were embodied by Mr. Parkes in the following letter sent by him to Mr. Xenos:- [*155 "The Danube and Black Sea Railway and Kustendjie Harbour Company, Limited.

"Offices, 24, Abingdon Street, Westminster.

"2d July, 1860. "Sir, I beg to recapitulate the terms on which it has been arranged that you should convey the rolling stock, plant, and material for the Company to Kustendjie per S. S. Mavrocordatos. The particulars of the carriages are annexed, and the weights and dimensions therein given are to be considered as approximate only; but no larger or weightier packages than those which may compose these carriages are to be shipped. Not less than 900 tons to be shipped.

"1. That the ship shall load in the Victoria Dock, London, the cargo to be brought alongside at our risk and expense, and thence taken on board by you at ship's risk and expense:

"2. That the shipment shall commence on the 1st of August; and, should it happen, that, by any default of the railway Company, arising from causes over which they have control, the shipment is not commenced on that day, and thence continued regularly till the same is completed, they are to pay the sum of 301. as liquidated damages for each complete period of a day lost through such default in commencing and continuing the shipment:

66 6

3. That the ship shall sail immediately on the completion of the shipment of our cargo, or so soon after as the ship can be cleared at the Custom House; or, in default, a like daily penalty as provided in the last clause is to be paid by your Company to the railway Company:

4. That the railway Company shall receive their cargo at Kustendjie from the ship's tackles into boats *or lighters provided *156] at their expense over the steamer's side:

"5. That your Company undertake to deliver the said cargo over the ship's side into the boats or lighters with all possible despatch, and to provide all proper tackle, &c., for that purpose:

6. That, for the purpose of aiding the crew, the captain is to receive on board at ship's expense such additional labour as the railway Company may from time to time, with the concurrence of the captain, choose to apply, and at the cost settled by them; it, of course, being understood that the railway Company do not make any profit out of the cost of the labour:

"7. The steamer is to anchor and discharge the cargo as near to the quay at Kustendjie as her draught of water will permit: if compelled to leave that position by weather or otherwise, the discharge is to be suspended; but the steamer is to return to the anchorage indicated when and as the weather will permit, and so continue until the entire cargo belonging to the railway Company shall have been discharged:

8. The railway Company undertake to keep continuously two lighters or large boats alongside the steamer, that is to say, one on each side, during such hours of the day and night as the captain may require; provided, but not otherwise, the wind and weather will permit such lighters or boats to proceed to the steamer and to lie alongside her and to receive such cargo with complete safety:

"9. That, if the railway Company make default in performance of article 8, they shall pay your Company, as liquidated damages, the sum of 307. for each and every complete period of a day for which

they shall make default, your Company having on their part performed their engagement:

"10. Should any dispute arise as to whether the *Company [*157 have or have not made default under article 8, the same is to be settled forthwith on the spot by two referees chosen in writing, one by the railway Company, and the other by the captain, or by the arbitrator to be nominated by the referees before beginning the reference: "11. No demurrage penalty for detention or damage is to be recoverable from the Company under this agreement, other than the liquidated damage stipulated in articles 2 and 9.

12. The ship's hatchways are guarantied of sufficient capacity to receive the cargo indicated approximatively in list rendered: "Four of the bodies to be carried on deck, if necessary:

Freight at the rate of 37s. 6d. per ton of 40 cubic feet or 20 cwt. at ship's option (except wheels and axles, which are to be taken at the dead weight at 45s. per ton of 20 cwt.), together with 10 per cent. primage, to be payable one half on ship's sailing, and the remainder on production at the railway Company's offices in London of a receipt for the correct delivery at Kustendjie of the goods as per bill of lading. Bills of lading to be in customary form. The ship to have liberty to call at Malta, Athens, and Constantinople, to land passengers and goods, which is to be accomplished with the utmost possible despatch.' "I shall be glad to have your approbation of above.

(Signed) "FRANCIS J. PARKES, Secretary." "To S. Xenos, Esq., Manager The Greek and Oriental Steam Navigation Company, Limited."

On the 9th of July, Fitze wrote, on behalf of Mr. Xenos, and sent, the following letter to Mr. Parkes :

"We accept the terms contained in your letter of the 2d inst., for rolling stock, &c., to Kustendjie per Mavrocordatos. You can order the dead weight alongside the Mavrocordatos at your earliest convenience."

*On the 16th of July, Mr. Parkes wrote to Mr. Fitze a letter, of which the following are extracts:

[*158

"I anticipate that a considerable portion of our cargo for the Mavrocordatos will be despatched from the country on Saturday, so that it is reasonable to expect that it will be alongside Monday or Tuesday.

"I have told the various senders to direct the material to be delivered to the Mavrocordatos in the Victoria London Docks. I presume they should apply to you for a shipping order."

On the 17th of July, Fitze replied, on behalf of Mr. Xenos, as follows:

"We have your esteemed favour of yesterday, and contents are noted. Please direct the senders of material to apply to us for shipping orders and you will be so good as give us particulars for Customs clearance. We require the dead weight first. Please give us the numbers of the packages you wish to go below, in preference to the others."

On the 19th of July, Mr. Parkes wrote to Mr. Fitze a letter of which the following is an extract:—