settle it on him. Maunsell v. Hedges, 4 H. of L. Cas. 1,039.


1. Inquiry by creditor.-Fraud.-Though a Case cited in the judgment: Hammersley v. De creditor may not, in every case, be bound to Biel, 12 C. & F. 45; 3 Beav. 478.

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Appointment of receiver.-Creditors.-Promissory note.-Dissolution.-A creditor of a partnership, consisting of two persons, had received from one of them joint and several promissory notes, accepted by himself and a third party, a married woman, having separate estate. The partnership was afterwards dissolved by deeds, by virtue of which the second partner, on giving up certain title-deeds, was altogether exonerated from liability to the creditor, who, however, expressly reserved his rights on all notes and other securities which he held in his hands at the time of the execution of those deeds. These transactions were wholly unknown to the third party, who was the surety on the notes. There were various circumstances which might have awakened the suspicion of the creditor, and he had not taken any steps to inform the surety as the notes became due, that she had become or continued liable upon them. In a bill for an account and a receiver, filed by the creditor, the surety put in an answer detailing these circumstances, and alleging fraud.

Held, affirming the decree of the Lord Chancellor Truro (who had reversed the order of the Master of the Rolls), that this was not a case in which the Court would interfere by appointing a receiver. Owen v. Homan, 4 H. of L. Cas. 997.


inquire into the circumstances under which a third person becomes surety to him, he is so when the dealing between the parties are such as to lead to a suspicion of fraud. Owen v. Homan, 4 H. of L. Čas. 997.

Form of Amendment.-On the hearing of a cause, in which the question intended to be brought up for decision depended on the form of the pleadings, and the House, after argument, was of opinion that the pleadings would not allow that question to be properly decided, time was given to allow an arrangement between the parties, by which the pleadings might be altered for that purpose. Marquis of Bristol v. Robinson, 4 H. of L. Cas. 1088.

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1. Construction of. — Equitable and legal debts.-Discretion of Master —The intention of the 11 & 12 Vict. c. 45 (the Winding-up Act of 1848), was to provide for debts recoverable only in equity as well as for those recoverable at law; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a company. Terrell v. Hutton, 4 H. of L. Cas. 1,091.

2. Expenses of formation of company.-Claim of solicitor for services.-Costs.-Certain per sons proposed to form a company; they em ployed A. as their solicitor; he was so named, on provisional registration, under the JointStock Company's Act; the directors were not to be personally liable to the officers of the company; the solicitor was continuously employed,until after the company had been com pletely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that "a sufficient part of the funds of the company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the forma tion of the company, including those of, or having reference to, the preparation and exe cution of that deed." When the company was taken before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law.

Held, reversing an order of Vice-Chancellor Kindersley, which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation.

As the solicitor had omitted to bring the 44th article to the notice of the Vice-Chancellor, his order, although reversed,, was reversed without costs. Terrell v. Hutton, 4 H. of L. Cas. 1091.

See Winding-up Act, 2.

The Legal Observer,




Still attorneyed at your service."-Shakespeare.

SATURDAY, MAY 12, 1855.


direction, and for appealing from the decision of the full Court, are calculated to insure the satisfactory administration of justice. On the other hand, considerable delay and expense necessarily result from bringing the machinery of those Courts into full activity.

THE COMMISSIONERS' FIRST REPORT. WE proceed to submit to our readers the substance of the recommendations contained in the first report of the Commissioners appointed to inquire into the state of the County Courts and the course of practice In the County Courts the absence of any therein, and particularly with respect to the pre-appointed means of separating quesfees levied in those Courts. The report, tions of law from those of fact, the nondated the 31st March, is signed by the employment generally of legal advocates, Master of the Rolls; Mr. Justice Erle; the non-attendance of a Bar, the rapidity of Mr. Justice Crompton; Mr. Henry Fitz. the proceedings, and the power of the roy; Mr. Keating, Q.C.; Mr. Koe, Q.C.; Judge finally to decide on all questions of Mr. Serjeant Dowling; Mr. J. Pitt Tay-ceeds 201. in amount, render the judgment law and fact, except where the claim exlor; and Mr. Mullings.

The report treats of the following mat- of the Court less secure against miscarriage. ters:-1. The establishment of the Courts. On the other hand, the County Court is 2. The Jurisdiction. 3. The Judges, near to the residence of the suitors, and the Officers, and Advocates. 4. The Proce- proceedings are simple, cheap, speedy, and dure. 5. The Fees. 6. The Costs. 7. The Accounts. 8. The Revenue of the Courts. 9. Application of the Revenue.


The Commissioners are of opinion, that in claims of considerable amount the inconveniences incident to the administration

The Commissioners commence their recommendations with respect to the juris- of justice in the Superior Courts are coundiction of the County Courts on legal terbalanced by the greater certainty in the claims, and observe, that in examining this application of the rules of law than can be subject they have been necessarily led to expected in a tribunal so constituted as the compare the procedure in the Superior claims of small amount they think that the County Court. On the other hand, in Courts with that established in the County evils caused by an occasional miscarriage Courts. They observe that, in the former, the means adopted for separating questions are more than counterbalanced by the adof law from those of fact, the exertions of vantages presented by a local tribunal, the skilled advocates accustomed to practise in proceedings of which are simple, cheap, the central tribunals of the country, the speedy, and final. attendance of a learned and enlightened Bar, in whose presence each Judge is required to fulfil the functions of his office, the facility for reviewing his opinion and

Mr. Pitt Taylor signs subject to some observations appended to the report. VOL. L. No. 1,418.

difficult satisfactorily to define the word They observe that it may, perhaps, be

"small," as it is a word of relation, but they think it may be conveniently treated for the purposes of jurisdiction, as embracing claims not exceeding 201. With regard to claims exceeding 201., but not exceeding


507. in amount, they think the jurisdiction fence may be, that the tree was growing on the defendant's own land. The question of title to the freehold then becomes a question incidentally arising in the cause, but which must be decided in order to dispose of the claim. Again, in an action for rent, if the tenancy under the plaintiff be denied, a question of title to the tenancy may arise. Both parties may be quite willing that the Judge of the County Court should decide between them, but as the law now stands, the Judge has no power to do so, and consent would not confer jurisdiction for this purpose.

should remain concurrent as at present, but that such claims should be subject to removal by the defendant on certain conditions, and that claims of a greater amount, or such as involve questions otherwise excluded from the jurisdiction should be decided by the County Courts only where consent has been given for that purpose by both parties, or a superior tribunal has directed the matter to be disposed of in the County Court.

The Commissioners then proceed to They recommend, therefore, that if both divide their recommendations on the sub-parties are willing to have the case decided ject of jurisdiction into two parts;-1st, by the County Court Judge, an entry to with reference to increasing the present that effect should be made on the minutes jurisdiction of the Courts; 2ndly, with reference to the introduction of additional securities for the due exercise of that jurisdiction.

of the Court, and then that the judgment should be binding on the parties so far as the immediate question in dispute is concerned, but should not be evidence of title between the parties or persons claiming by, through, or under them in any other proceeding.

The Commissioners do not recommend that jurisdiction should be conferred in such cases, where the immediate object of the action is to recover something which the proviso enacts shall not be within the jurisdiction of the Court; as, for instance, an action for tolls or an action for the recovery of a tenement not within the meaning of section 122.

First. As to the exclusive jurisdiction of the Courts in consequence of the penalty by deprivation of costs in the Superior Court, should the plaintiff not recover a sum to the amount of 201. or 51., according to the nature of the claim. The Commissioners state that the object which the Legislature had in view was, to secure to the public the benefit of a local tribunal in which claims of a moderate amount, and not complicated in their nature, might be enforced with cheapness and rapidity; and the report states, that during the seven years which have The present law as to costs in the Suelapsed since the establishment of the perior Court, so far as it affects jurisdiction, Courts, the experiment has been eminently the Commissioners think should remain successful; but, after all the consideration unaltered with the exception, that where an which the Commissioners have bestowed action is brought in the Superior Court on upon the subject, they are not induced to recommend any considerable extension of the jurisdiction of the Court. They think, however, that as actions for false imprisonment are now within the jurisdiction, actions for malicious prosecution might also be properly brought within it.

They recommend, however, that the proviso contained in section 58 of the 9 & 10 Vict. c. 95, by which certain questions of title are excluded from the jurisdiction of the Court, should continue in force, unless both parties should at the trial consent to the Judge deciding the question in dispute; and they think that such a jurisdiction might be beneficially conferred by the consent of both parties where the question arises incidentally to the claim which it is the immediate object of the action to enforce.

Thus an action may be brought for the value of a tree which, it is alleged, that the defendant has wrongfully cut down. The de

a contract, to recover a less sum than 207., and the defendant suffers judgment by default, the plaintiff should recover no costs, unless upon application a Judge of a Superior Court should otherwise direct. This deprivation of costs, however, should be subject to the exceptions contained in section 128 of the 9 & 10 Vict. c. 95, where the parties reside more than 20 miles apart, or the other circumstances contemplated by the section, exist.

2nd. As to concurrent jurisdiction, where the amount of the claim exceeds 57. in tort and 207. in contract, but does not exceed 501.-In those cases the choice of tribunal between the Superior Court and the County Court, is vested in the plaintiff. This jurisdiction as to claims above 207., was first conferred on the County Court in the month of August, 1850, and has been exercised to a very considerable extent, as no less than 39,580 plaints, both in tort and contract, ranging in amount between 207. and 50%.

County Courts.-The Commissioners' First Report.


inclusive, have been entered in the County | power was conferred on the Court by the Courts between the time of passing the Act 17th section of the 13 & 14 Vict. c. 61. and the 31st December, 1853, and of these The principle of the section is to permit 22,968 have been tried.'

parties, if so inclined, to refer matters in The Commissioners are of opinion, that dispute to the County Court Judge as to an in such cases the defendant should have an arbitrator, and the Commissioners are of opportunity of expressing his dissent from opinion that the principle should be apthe plaintiff's choice of tribunal, the plain- plicable to all questions, whether of law or tiff being permitted, as at present, to exer- fact, in which the Courts of Common Law cise his option in the first instance; but the have jurisdiction, except in crim. con. acdefendant, if not disposed to try the cause tions. before the County Court, ought to be per- On proceedings in ejectment, with refermitted to try in the Superior Court without ence to the power with which the County assigning any reason, on giving satisfactory Court is invested in certain cases to restore proof that his objection is not for the pur- possession of tenements where the annual pose of delay. And they add, that for this rent or value does not exceed 50%. and no purpose he should be required to give in fine has been paid, the Commissioners think the County Court security for the amount that the County Court ought to have jurisclaimed and costs in the Superior Court, or diction only in those cases where the amount to make a deposit to the like amount, not of the annual rent and annual value do not exceeding in the whole 1507., the costs in exceed 50l. They observe that, unless such the Court below being treated as costs in an alteration in the law be made, the juristhe cause. The plaint might then, it is diction would continue to embrace a class suggested, be transmitted to such one of of cases which the Legislature could not the Superior Courts as the plaintiff should have intended to be decided in the County direct. If, however, the defendant do not Court. Thus, in the case of land let on a declare his dissent and comply with the condition within such time as shall be fixed by the practice of the Court, he must be taken to assent to the cause being tried by the County Court, and that tribunal may then dispose of the cause in the usual way. This right of removal is intended to be in addition to the power to remove already existing by law in such cases.

It is also recommended, that if the sum claimed be a balance alleged to be due, not exceeding 501., after making an allowance for a set-off, if the claim and counter-claim do not respectively exceed 2007., the case should be within the concurrent jurisdiction.

building lease, the reserved rent might not exceed 50l., but the value of the houses erected upon it being of many thousand pounds' value, the annual value might far exceed 50%. They, therefore, recommend that where the annual value of the premises sought to be recovered exceeds the amount of 50l., although the rent reserved does not exceed that amount, the case should not be within the jurisdiction of the County Court. With this alteration of the law, the Commissioners recommend that this jurisdiction be extended to cases where one-half years' rent is in arrear, and the landlord or lessor has a right by law to re-enter for nonpayment, but no sufficient distress has been left The Commissioners also think that the on the premises to countervail such rent; concurrent jurisdiction may be rendered and also to the case of mortgages where the beneficially available by extending it to money lent does not exceed 1001. and the actions of malicious prosecution. They mortgagee is entitled to obtain possession. also recommend that in an action brought in the Superior Court, where it appears that a sum not exceeding 507. is claimed in an action of contract, or that the claim is reduced by set-off, payment, or otherwise, to a sum not exceeding 50l., the Judge be authorised to direct, on the application of either party and on such terms as he shall think fit, that the cause be heard in a County Court.

Third. Jurisdiction by consent.-This

It does not appear whether all these cases have been actually litigated before the Court or jury.

In the latter case they think that the Judge should have power to postpone granting a warrant of possession for such period as he may think fit, and be invested with the same powers as might be exercised by the Court in pursuance of the first Common Law Procedure Act, s. 219, in actions of ejectment between mortgagee and mortgagor. They also deem it desirable that where a sub-tenant is served with a summons at the instance of the superior landlord he should be bound to give notice to his immediate landlord, who should be entitled to come in and defend. The Commissioners also re

commend that a claim for mesne profits not Thirdly, that a similar substitution of payexceeding 501. in amount, should be allowed ment of money instead of giving security to be included in a plaint for the recovery under the Statute, should be permitted, of possession of the demised premises. when the plaint is removed. Fourthly, They are, however, of opinion that the that the replevisor, if desirous of trying the finality of the Judge's decision in cases of cause in the Superior Court should, on this description should be modified, and making a declaration similar to the statuthat an appeal ought to be allowed where the annual rent and value of the premises or the mortgage debt exceeds 201; and that this mode of appeal should be allowed in addition to that provided by sections 126 and 127 of the 9 & 10 Vict. c. 95.

In replevin, the Commissioners recommend the following alterations to remedy the inconvenience now existing :

At present, when the chattel has been seized,

tory one, be permitted to give security or pay money into the hands of the clerk, and that on such security being given or payment made, the chattel should be delivered to the replevisor and the action of replevin be at once commenced in the Superior Court. Fifthly, that if the replevisor be desirous of proceeding in the County Court, the practice as to removal now prevailing under the the right to deposit money instead of giving Statute should continue, but modified by security. Sixthly, that where the cause is not removed by either party, the decision of the Judge on questions of law should be subject to appeal in the same manner as on ordinary claims in cases where the rent or damages exceed 201.

if the owner be desirous of contesting the lawfulness of the seizure, he must give the replevin bond to the sheriff or his replevin clerk. By law, the sheriff is only bound to appoint four replevin clerks in each county, and the persons whose chattels are most likely to be distrained are not generally aware of the name or residence of those clerks. Consequently, in the majority of instances the alleged ag- has at present jurisdiction in cases arising In interpleader cases, the County Court grieved party submits to the distress or travels with his sureties to the county town in order out of claims made on chattels taken in to give the usual bond. In the former case, execution, but has no jurisdiction in other the chattels may be sold at a considerable loss, cases where interpleader is allowed in the or an oppressive arrangement be made for the Superior Courts. The Commissioners are surrender of them; in the latter, the replevisor of opinion that such a jurisdiction should may be compelled to take a long and expensive be conferred on the County Court, and that journey with his sureties. Again, although wherever interpleader would be permitted in the replevisor be desirous of trying his cause in the Supreme Court, he is obliged to the Superior Courts of Law the suitors of give the bond to prosecute his suit in the the County Court should be allowed a simiCounty Court, and afterwards to remove it by lar privilege; but that in the cases where certiorari from the latter Court after complying claims are made on goods taken in execuwith the conditions imposed by the Statute. tion, the decision of the County Court Again, if the replevisor be desirous of obtain- Judge should be subject to appeal in the ing possession of his chattel, and prefer desame manner and on the same grounds as positing money to giving security, he is not in ordinary claims exceeding 201. permitted so to do. The same observation as also recommended that where in cases of to not being allowed to deposit money, applies to cases of removal in conformity with the interpleader the second action is brought or provisions of the Statute. Again, the decision threatened in the superior tribunal, the of the County Court Judge on questions of right to interplead ought still to be reserved law in those cases where neither party re- to the defendant in the County Court. In moves, although the rent or damage exceeds the sum of 20%., is not subject to appeal.

To remove these objections, the Commissioners recommend, first, that the clerk of the County Court should be the sole replevin clerk in each district and perform all the duties of that officer. Secondly, that the replevisor should be permitted instead of giving security to pay into the hands of the clerk, a sum proportionate to the amount of the rent claimed or the damage alleged to have been done, such sum in case of dispute to be settled by the clerk, together with a certain sum for costs.

It is

the event of an issue being directed by the Judge of the County Court, he might select that tribunal to dispose of it which appeared to him most convenient for the purpose. Should a proper case be shown for altering the tribunal before which the case was so directed to be tried, a Judge of the Superior Court might be enabled to interfere.

The Commissioners next proceed to consider the additional securities suggested for the due exercise of the jurisdiction.

First, as to the writ of certiorari. By the provisions of section 90 of the 9 & 10

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