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Bills in Progress.
COUNTY COURTS EQUITABLE JURISDICTION BILL.
The following are the principal sections of the Bill:1. Extent of Jurisdiction of County Courts.-It shall be lawful for any person seeking equitable relief to enter a claim against any person from whom such relief is sought either with the clerk of the court for the district within which such lastmentioned person resides, or in any other of such courts, by leave of the judge of such court, in any of the following cases; (that is to say,) in any case where the party so seeking relief is or claims to be,
1. A creditor upon the estate of any such deceased person, such creditor seeking payment of his debt out of the deceased's personal assets:
2. A legatee under the will of any deceased person, such legatee seeking payment or delivery of his legacy out of such deceased person's personal assets:
3. A residuary legatee, or one of the residuary legatees, of any such deccased person, seeking an account of the residue, and payment or appropriation of his share therein:
4. The person or any of the persons entitled to the personal estate of any such person who may have died intestate, and seeking an account of such personal estate, and payment
of his share thereof:
5. An executor or administrator of any such deceased person, seeking to have the personal estate of such deceased person administered, under the directions of the judge of the court
for the district within which he resides:
6. A person entitled to an account of the dealings and transactions of a partnership dissolved or expired, seeking such
7. A person entitled to an equitable estate or interest, and seeking to use the name of his trustee in prosecuting a suit for his own sole benefit:
8. A person entitled to have a new trustee appointed, in a case where there is no power in the instrument creating the trusts to appoint new trustees, or where the power cannot be exercised, and seeking to appoint a new trustee
3. Service of Claim.-Upon entering such claim with the clerk of the court, a summons, stating the substance of the claim, and bearing the number of the claim on the margin thercof, shall be issued under the seal of the court, requiring the person against whom such claim is made, on a day or time to be therein named, to appear before the judge of the court, to show cause, if he can, why such relief as is claimed by the plaintiff should not be had, or why such order as shall be just with reference to the claim shall not be made:
5. Defendant's Appearance.-The time for showing cause named in any writ of summons is to be ten days at least after the service of the writ, and the service of such writ is to be made in the same manner as is by the said act directed for the service of a summons issuing upon the entry of a plaint, and such service being so made shall be deemed good service of such writ:
6. Proceedings before the Court.-At the time for showing cause named in the writ the defendant shall appear, and show cause, if he can, (and, if necessary, by affidavit,) why such relief as is claimed by the plaintiff should not be had against him; and each party may, upon giving six days' notice in writing prior to such hearing of his intention so to do, examine the other party upon the matters relating to such claim, and the judge shall take down in writing such examination; and the judge, on hearing the claim, and what the plaintiff alleges in support thereof, and such other evidence, whether oral or written or by affidavit, as he may produce in that behalf, and what may be alleged on the part of the defendant, or on an affidavit of the writ of summons being duly served, may, if he shall think fit, make an order granting or refusing the relief claimed, or directing any accounts or inquiries to be taken or made (such accounts or inquiries to be taken or made before the judge, if he deem such course proper or expedient, or before the clerk of such court, at days or times to be appointed by him for that purpose), or may direct such other proceedings to be had, for the purpose of ascertaining the plaintiff's title to the relief claimed, or make such other order as according to the nature and circumstances of the case shall seem to be just and proper; and further, the judge may direct such persons or classes of persons as he shall think necessary or fit to be summoned or ordered to appear as parties to such claim, or on any proceedings with reference to any accounts or inquiries directed to be taken or made, or otherwise; and all oral evidence given by any person before such judge relating to such claim shall be upon the oath of the person giving the same, and which oath such judge shall have power to administer.
9. Production of Documents.-The judge, upon any hearing, or upon taking any accounts or making any inquiries may order the parties to produce books, papers, and writings, as he shall think fit, and may cause advertisements for creditors and next
of kin or other unascertained persons, and the representatives of such as may be dead, to be published in the usual forms, or otherwise, as the circumstances may require, and in such advertisements to appoint a time within which such persons are to come in and prove their claims, and within which time, unless they so come in, they are to be excluded from the benefit of the order.
10. Appeals.-Either party may appeal to the Lord Chancellor, or to the Master of the Rolls, or to either of the Vice-Chancellors, against any order made by any of the said judges, provided that such appeal be confined to any matter of law or equity in the said order, or to the admission or rejection of any evidence, and the judge before whom such appeal shall be heard shall make such order thereupon with respect to costs, or otherwise, or for referring back the same matter to the judge before whom the same had been first heard, as shall be just and proper.
11. Removal of Claims.- Any claim entered as aforesaid shall be removable into the Court of Chancery by the order of the Lord Chancellor, the Master of the Rolls, or one of the Vice Chancellors, to be obtained on a summary application by motion or petition, supported (if necessary) by adffidavit, of which six clear days' notice shall be given to the party on whose behalf such claim is entered, and the said order shall be made upon such terms, as to payment of costs, giving security in respect of the relief claimed, and costs, or upon such other terms as to the Lord Chancellor, Master of the Rolls, or Vice-Chancellor making such order shall seem reasonable, just, and proper.
12. Jurisdiction of London Commissioners of Bankruptcy.— Any person who may be entitled to enter a claim before any of the said County Court judges may enter such claim before any one of the Commissioners of Bankruptcy in London, and such claim shall be proceeded upon before such Commissioners in the same or the like manner as if such claim had been entered before one of such judges, and all the proceedings thereunder shall be prosecuted in the same manner, and according to the forms herein referred to, and be removable, and be subject to the like appeal, as if such claim had been entered before one of the said judges: Provided always that no such person shall enter a claim against any person residing out of the jurisdiction of such Commissioners, unless he shall previously have obtained leave of such Commissioners so to do.
13. Rules and Orders.-The Lord Chancellor, assisted by the Master of the Rolls or one of the Vice-Chancellors, may make such orders and rules for regulating the practice and proceedings under this act not herein provided for, and the amount of the costs and fees to be paid in respect of any such proceedings as shall be just and proper.
COUNTY COURTS CURIOSITIES. (Under this title, we throw together some of the more remarkable cases that come before the County Courts, which do not involve questions of law or practice, and, therefore, do not belong to The Reports.) MALDON COUNTY COURT, April 22.-(Before W. GURDON, Esq., Judge.)-Maldon election expenses. Much interest was excited by an action which it was understood would come on for trial, brought by Mr. Dick against Mr. Waddington, in connexion with the expenses of the last election. It will be recollected that verdicts have been recovered against Mr. Dick in several cases by persons in Maldon for refreshments, banners, and other matters supplied at the election; for these, it seems, Mr. Dick considered Mr. Waddington jointly liable, and accordingly brought an action against him for half the sums and half the costs of the suits, amounting to 167. 15s. 3d. When the court met, however, it was stated that the matter had been settled, and the case was struck out. IMPORTANT TO VALUERS AND RAILWAY COMPANIES.PARKINSON V. LORD GALWAY.-At the Redford County Court a cause was tried before R. Wildman, Esq., judge, in which Mr. John Parkinson, valuer, Ley-fields, was plaintiff, and Lord Viscount Galway, M.P., was defendant. It appeared that his lordship, being the owner of some land taken by the Great Northern Railway Com pany, had employed Mr. Parkinson as his valuer; Mr. G. D. Simpson, of Loversall, was valuer for the company; and Mr. Christopher Paver, of Peckfield, was called in as umpire. After the amount of purchase-money had been agreed upon, Mr. Parkin son sent his account to Lord Galway, charging a commission of 24 per cent. upon the compensation awarded. His lordship for warded the account to the railway company, who refused to pay it, on the ground that the charge was exorbitant; and Lord Galway being also of the same opinion refused to pay; upon which Mr. Parkinson brought an action against him, and the sum considered reasonable was paid into court. Mr. Burnaby, of the firm of Tallents, Burnaby, and Griffin, solicitors, Newark, appeared for the plaintiff, and Mr. W. E. Smith, of Doncaster, for the defendant. Most of the leading valuers in Yorkshire and Nottinghamshire attended the inquiry, and, after a long discussion on both sides, judgment was given in favour of the defendant-thus establishing the principle that a valuer is not entitled to charge a per centage.Doncaster Gazette,
DOE dem. TATHAM v. CATTAMORE.
Deed-Erasure an immaterial part. An erasure or interlineation appearing upon the face of a deed is to be presumed, unless the contrary be shown, to have been made at the time of the execution of the deed. A judge may therefore leave it as a question for the jury, whether the erasure or interlineation took place before the execution, although there is no other evidence on that subject than the deed itself.
Ejectment upon the forfeiture of a lease on breach of a covenant to insure, tried before Parke, B., at the last Kingston Assizes. The lessor of the plaintiff produced, in support of his title, a lease and an assignment, in which there were erasures and interlineations in parts not material to the case, neither in the covenant to insure nor in the proviso for re-entry. It was objected that the deed was void, unless the erasures were explained; but the learned judge asked the jury whether they were made before or after execution, and the jury said before execution. The verdict was accordingly found for the lessor of the plaintiff.
Pearson moved for a new trial, on the ground of misdirection. The judge ought to have told the jury that it lay on the plaintiff to explain the erasures; and no evidence was given on the subject: (Pigott's case, 11 Rep. 27; Com. Dig. Fait, F. 1; Knight v. Clements, 8 Ad. & El. 215; Clifford v. Parker, 2 M. & G. 909.) Cur. adv. vult. Lord CAMPBELL, C. J. now delivered the judgment of the court.(a)-In this case the deed on which the lessor's title depended, when produced, happened to have an interlineation and an erasure in parts not material. An objection was made that the deed was void, unless the lessor of the plaintiff gave evidence to show when the alterations were made. The learned judge left it to the jury to say whether the alterations were made before the execution of the deed; and it was found that they were. In moving for a new trial it was contended that this question ought not to have been left to the jury without some evidence besides the deed itself. In Co. Litt. 225, b., it is said that anciently if a deed appeared erased or interlined in places material, the judges held it to be void; but in later times the judges have left it to the jury to say whether the erasure or interlineation was before it was executed. In a note upon this passage in Hargrave and Butler's edition of Co. Litt, it is laid down that the interlineation is to be presumed, if the contrary be not proved, to have been made at the time of making the deed. This doctrine seems to us to rest on good reason: for a deed cannot be altered after it is executed without fraud or wrong, and the presumption is against fraud or wrong. A testator may alter his will without fraud or wrong after it is executed, and there is no ground for any presumption that his alteration was before the execution. We therefore think that the defendant has no right to complain of the course pursued by the learned judge at the trial, and that a rule for a new trial ought to be refused.
(a) Lord Campbell, C. J., Patteson, Wightman, and Erle, J.J.
COURT OF COMMON BENCH,
April 23, 1851. BOOTH V. CLIVE.
County Court-Notice of action under 9 & 10 Vict. c. 95, s. 138.
A County Court judge, after a prohibition, proceeded and committed the plaintiff to prison upon a judgment order for nonpayment of instalments of a judgment debt, whereupon the plaintiff brought_ an action against him for the false imprisonment, and in leaving the case to the jury, the judge told them that if the defendant in trying the cause acted under a bonâ fide belief that his duty as judge made it incumbent on him to do so, notwithstanding the prohibition, the act done by him must be considered as done in pursuance of the County Court Act, and that he was entitled to notice of action; and left it to the jury to say whether the defendant reasonably believed that he was so bound to proceed, and told them that if "reasonably" meant anything else than in good faith it meant according to reason, and in contradistinction to acting capriciously:
Held, that his direction was correct.
Case. The third count of the declaration alleged that a person of the name of Still had recovered judgment in the Southwark County Court for a debt and damages against the plaintiff; that subsequently a prohibition was issued out of the Petty-bag Office of the Court of Chancery, directed to the defendant as judge of the said County Court, which was duly made known to him; that it, thereupon, became his duty as such judge to refrain from proceeding as such judge in the said cause, but that he, after the said writ of prohibition had so issued from the Petty-bag Office, maliciously, and without reasonable or probable cause, did make an order that the plaintiff should be committed for the term of one calendar month to Horsemonger-lane Gaol, or pay the sum alleged to be due and owing to the said Still in respect of two instalments of the said debt and costs so recovered as aforesaid, &c.
The defendant pleaded, secondly, that the grievances were committed by the defendant after the passing of a certain act, the 9 & 10 Vict. c. 95, intituled An Act for the more easy Recovery of Small Debts, and that they were, and each of them was done in pursuance of the said act, and that no notice in writing of the action had been given to the defendant within one calendar month before the action had been commenced, &c. The plaintiff replied that the grievances in the declaration mentioned were not done in pursuance of the said act of Parliament in the said plea mentioned.
The cause came on for trial before Jervis, C. J., at the Middlesex sitting after last term, when the facts above stated were proved; but it was not shown that any notice of action had been given in pursuance of the 9 & 10 Vict. c. 95, s. 138. The Lord Chief Justice in summing up told the jury that if the defendant, in trying the cause and making the order, acted under a bona fide belief that his duty as judge of the County Court made it incumbent on him to do so, notwithstanding the prohibition that had issued out of the Petty-bag Office, the act done by him must be considered as done in pursuance of the County Court Act, and he was entitled to notice of action, and that it was for them to say whether
the defendant reasonably believed that he was so bound to proceed; and that if "reasonably" meant anything else than good faith, it meant according to reason, and in contradistinction to acting "capriciously." The jury found a verdict for the defendant.
Humfrey now moved for a rule to show cause why a new trial should not be granted, on the ground of misdirection. The defendant was not entitled to the protection of the statute. The manner in which the learned judge left the question to the jury was incorrect. He should have asked them whether they thought a reasonable man, filling the situation of the defendant, would have pursued the course he did. The writ of prohibition was binding on him; and it was impossible to say that he believed that in disregarding it, he was acting in pursuance of the statute. Kine v. Evershed, 10 Q. B. 143, is directly in point. That was an action of trespass for giving the plaintiff in charge to a constable for a malicious injury to a house. The defendant was attorney to the owner, and alleged that he had acted under 7 & 8 Geo. 4, c. 30, ss. 24, 28, and was entitled to notice under 41st section; and it was held that before he could claim the benefit of the statute the jury must be satisfied not only that he acted bonâ fide, but that he had a reasonable belief that he was the owner's servant, or possessed his authority. In Hopkins v. Crowe (4 Ad. & El. 774), the Court of Queen's Bench decided that a defendant, who had given the plaintiff into custody, under the 6 Will. 4, c. 59, s. 19, for ill-using a horse, the property of his father, was not entitled to notice of action, even thongh he acted boná fide, inasmuch as the statute applied only to an officer or owner of an animal ill-treated acting upon view or information. He also referred to Wedge v. Berkeley, 6 Ad. & El. 663; Hughes v. Buckland, 15 M. & W. 346; Horn v. Thornborough, 3 Ex. 846.
Cur. adv. vult.
The judgment of the court was now delivered (24th April) by CRESSWELL, J. After stating the facts, his lordship proceeded:-A great many cases were mentioned by Mr. Humfrey, in which the right to notice of action was discussed. At first it seems difficult to reconcile all the expressions used by judges in dealing with those cases; but on examination the difficulty is rather seeming than real, and arises from the circumstance that the language used by the judges, with reference to particular circumstances, has been afterwards quoted, and used by them generally. First, we find some judges saying, the parties are claiming notice of action because of acts imputed to be done in a particular character, or in the exercise of a particular authority, such parties either having or not having reasonable ground for believing they filled that character or had that authority, whereas it is manifest the meaning of the word used by them is, that the parties must, according to the evidence, be assumed to have acted in the bona fide belief that they filled that character, or had the authority then in question; and in other cases the judges have said the real question is whether the party bond fide believed it, and acted under that belief. Now, then, apply that to this case. There is a difference in the terms used, though there is no difference in the principle laid down in the cases, and we apprehend the true principle in determining its application is, did the defendant in trying the cause honestly believe his duty as judge, under the County Court Act, called on him to do so? The last case, that of Horne v. Thornborough (3 Ex. Rep. 846), illustrates the view we have taken of the whole series of authorities. There a reversioner caused a party to be apprehended under the Malicious Trespass Act, the 7 & 8 Geo. 4, c. 3, an action of trespass was brought against him, and he pleaded "not guilty, under the statute," and "no notice of action given." The Court of Exchequer held he was entitled to notice of action, provided he bona fide
believed he was acting in pursuance of the statute,which was strictly in accordance with the ruling in the present case. It is remarkable that Mr. Baron Parke mentioned the case of Hughes v. Buckland as a decision that the protection afforded by the statute then under consideration is extended to all persons who had a bonâ fide belief that they filled the character mentioned in the statute, and acted bona fide under that belief. Hughes v. Buckland was mentioned by Mr. Humfrey as an authority for holding that a bona fide belief would not suffice, unless founded on reasonable grounds. Lord Cranworth, in his judgment, held that the use of the word "reasonably" was intended to explain what was meant-the word there being an ingredient-to enable the court to arrive at a conclusion as to the boná fides; and it does not appear to be used in any sense at variance with that in the case of Kine v. Evershed: (10 Q. B. Rep. 143.) The defendant there was an attorney to the mortgagee of a house, and gave the plaintiff into custody on a charge of wilfully damaging the house, and the learned judge who tried the cause asked the jury whether the defendant acted bona fide in apprehending the plaintiff, or whether the charge was colourable or not? They found that he acted bonâ fide, whereupon the judge directed a nonsuit, and the court, upon being moved for a new trial, in giving judgment, observed, that the jury were asked whether the defendant acted bona fide, or whether the proceeding was colourable or not, no question being put as to his being a servant, or his having authority from the mortgagee, or reasonably believing himself to be in either of those positions. Ultimately, the court held, they should have been asked not only as to the boná fides of the defendant, but as to his reasonable belief that he was the servant of, or had the authority of, the mortgagee. Now the bonâ fides there meant, is the bona fides on which the jury were asked their opinion, namely, whether it was an honest charge as opposed to a colourable charge, and the reasonable belief afterwards mentioned is equivalent to a bonâ fide belief that he was the servant of, or had the authority of, the mortgagee. And this makes the case consistent with the opinion of the Court of Exchequer, in Hornv. Thornborough, and many earlier cases, such as Wedge v. Berkeley (6 A. & E. 663), and various others, which it is unnecessary to mention. The case of Hopkins v. Crowe is not at variance with this view of the subject. The statute 5 & 6 Will. 4, c. 59, gave authority to the owners of horses to give in charge persons guilty of cruelty towards those animals. The defendant, it appeared, was the son of the owner of a horse that had been ill used, and he gave the party in charge. It was held, that he must be taken to know the law, namely, that the owner only was the party authorized, and that he had not, and could not have, any reasonable ground for believing himself to be the owner; therefore, he was not protected by the statute. There, the absence of all reasonable ground for such belief was a sufficient ground for holding that he did not act under that bonâ fide belief which was necessary to give him a statutable protection. We, therefore, think that the direction of the Lord Chief Justice is right, and ought not to be discharged. There will, therefore, be no rule.
April 26, 1851.
County Court-Prohibition-" Tolls "—Jurisdiction9 & 10 Vict. c. 95, s. 58.
A railway company were required by their act to convey along their line goods and minerals in the carriages of other persons, and to provide at all times sufficient locomotive power to convey back the empty carriages, for which services they were empowered to charge for every
carriage a maximum sum of fourpence-halfpenny per mile. The plaintiff requested the company to convey several of his trucks laden with coal along a portion of their line, but the company first demanded a certain sum per mile for the returned empty carriages, which the plaintiff refused to pay, alleging they ought to be conveyed back free. Several trucks having been delayed in consequence of this dispute, the plaintiff brought a plaint in the County Court for damages accrued by reason of this conduct of the company; and, notwithstanding an objection to his jurisdiction, the judge tried the cause, giving judgment in the plaintiff's favour.
On motion for a prohibition under 9 & 10 Vict. c. 95, s. 58, on the ground that a question of title to " tolls" was involved, and that, therefore, the County Court had no jurisdiction.
Held, that title to "tolls," as meant in the County Court Act, was not here in question; and, therefore, as the judge had jurisdiction, prohibition would not lie. Byles, Serjt. (Wordsworth with him), moved for a rule calling on the plaintiff to show cause why a writ of prohibition should not issue for restraining, in this case, all further proceedings in the Couty Court at Barnet. This was an action for loss sustained, and expenses incurred, by reason of delay in the carriage of certain goods along the Great Northern Railway from Peterborough to a place called Potter's Bar, and for refusing to carry coals. By their act (13 & 14 Vict. c. 51, s. 13) the company, "with respect to the conveyance of goods and minerals, may lawfully demand and receive, as their maximum rate of charge for the conveyance thereof along their railway, including the tolls for the use of the railway and trucks and locomotive power, except (amongst other things) a reasonable sum for warehousing and wharfage, for every carriage fourpence-halfpenny per mile; and the company shall not be compelled to provide waggons and carriages for the conveyance of coal," &c. By sect. 16, the company "is required at all times to provide sufficient locomotive power and to convey all merchandise, articles, empty waggons, matters and things upon and along their railway." A similar motion had been made before Coleridge, J., in the Bail Court, who refused the rule (17 L. T. 54, B. C.), but the application to this Court is made upon altered affidavits. The facts of the case are as follows:-The plaintiff having several trucks of coal for conveyance by the Great Northern line from Peterborough to Potter's Bar, desired the company to perform that service. But the company not only required payment for the forward carriage, but charged 27. 10s. for back carriage, which they said they were entitled to by the 13th section of their act. The plaintiff having refused to pay in advance the amount so claimed for returned empty carriages, the company refused to carry the trucks at all. The plaintiff gave them notice he should claim and sue for loss of time and of profit occasioned by delay, with such expenses as he had been compelled to incur by this conduct of the company, and eventually he brought his plaint in the County Court for the damage thus sustained through the refusal of the company to carry the goods. When the case was tried it was objected that the court had no jurisdiction, because a question of title to "tolls" was involved in the case. The judge, however, tried the case, and gave judgment for the plaintiff for 391. 13s. 6d. and on the 5th of April an order was served on the company for the payment of 531. 10s. 10d. the amount of damages and costs. One question is, whether the word "carriage' in the company's act means a carriage running on its own wheels or a carriage which may be placed on a truck. It is contended for the company that the plaintiff was compelled to pay fourpence-halfpenny for every empty "truck" returning on the line. The carriages run on their own wheels, drawn by the company's engines; in fact, it is the company's horse and the plaintiff's carriage.
It is submitted the court should grant this rule for a prohibition on the ground that the title to take this toll was disputed by the plaintiff. The question entirely turns on the word "toll." The 58th section of 9 & 10 Vict. c. 95, contains a proviso that the County Court "shall not have cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair, market, or franchise shall be in question. [WILLIAMS, J.-Why did you not come to the court for certiorari?] Because prohibition is the proper remedy. The cause has been tried, and, generally speaking, certiorari does not lie after trial. The question is whether this is "toll." If it is, then it raises a question of title. It is submitted that the toll for empty waggons is here in dispute. The word "toll" is applicable to goods carried upon the company's own waggon, to carriages conveyed on the company's trucks, and to the carriages of others conveyed by the company's locomotives.
JERVIS, C. J.-You must show that title came in question, and that the judge did not decide the matter of fact, for that was his province.
By the COURT.-The question as to title to "toll" does not appear to the court to arise here. There will, therefore, be no rule in this case. Rule refused.
May 2, 1851.
City of London Small Debts Court.
The plaintiff claimed in the action more than 201., and the defendant pleaded a tender as to part, the residue being under 201., and the plaintiff took the sum out of court on the plea of tender, which, with the sum recovered by verdict, exceeded 201.:
Held, that the defendant was not entitled to enter a suggestion to deprive the plaintiff of costs under the City of London Small Debts Act.
Brewer moved to enter a suggestion to deprive the plaintiff of costs under the 10 & 11 Vict. c. lxxi., s. 113, (the City of London Small Debts Act.) The action was brought to recover 261. 1s. 5d.; and the defendant pleaded except as to 77. 15s. never indebted, as to 71. 158. tender before action, and except as to 71. 15s. payment. At the trial the plaintiff recovered 187. 6s. 5d., in addition to the sum paid into court upon the plea of tender. The 113th section deprives the plaintiff of costs where he shall recover not more than 20%. This case is within the rule laid down in Turner v. Parry (1 L. M. & P. 747.). The plaintiff admits the tender before action, and takes the amount out of court. [CRESSWELL, J.-Could he have sued for 261. in the City Small Debts Court?] No. [CRESSWELL, J.-Was he not entitled to have 261.? and if so, how was he to get it? The action was well brought for 261.] The plaintiff would have had to pay the costs of the plea of tender, and if the tender had been of the whole amount claimed, the plaintiff would have failed in the action. [JERVIS, C. J.-How was the plaintiff to know that the defendant would plead the tender? CRESSWELL, J.-The plaintiff was entitled to have the whole 267., and he must have given up some part of that sum before he could have sued in the Small Debts Court, and even that would not have got rid of the plea of tender, for the defendant might still have pleaded it to the residue.] Rule refused.
By the COURT.
Quære, whether he would be entitled to costs, if the judge before whom the writ of inquiry was executed, had certified that the action was a fit action to be tried in a Superior Court?
This was an action of covenant. The defendant demurred to the declaration, and judgment was given for the plaintiff. A writ of inquiry was subsequently issued, and the jury gave a farthing damages. The plaintiff having taxed his costs, and entered up and perfected final judgment for damages and costs, a rule was obtained by Prentice, on a former day of this term, calling upon him to show cause why so much of the judgment as related to the costs of the action should not be set aside, and why he should not pay the costs of the application.
Byles, Serjt. (Wordsworth with him), showed cause. The question is, whether a plaintiff who gets judgment upon a demurrer is deprived of costs by the County Court Act if he recovers less than 201. damages. That question depends upon 13 & 14 Vict. c. 61, ss. 11, 12, and 13. If the court decides that those sections deprive him of costs in such cases, it will decide that questions of law of the greatest importance and difficulty, which may also sometimes involve large sums, can no longer be brought before the Superior Courts. Thus, in an action against the Bank of England for a half-yearly dividend of 187. an important question of law may be involved, and the sum really in issue may be 1,2001. Three per Cent. Consols; yet if the construction contended for on the other side is to prevail, such an action cannot be brought in the Superior Courts without a loss of his costs by the plaintiff. To prevent such hardship, the court will, if necessary, strain the language of the acts. It is admitted that the plaintiff could not have obtained a certificate from a judge at chambers, under the 13th section; for the action is not one in which the courts have "concurrent jurisdiction," or one for which no plaint could have been entered in any county court," nor was it "removed by certiorari." Nor could any certificate have been procured under the 12th section, because the word "verdict" has been held to mean "verdict on issue joined :" (Recd v. Shrubsole, 6 D. & L. 707.).
JERVIS, C. J.-It may be that "verdict" means any recovery before a jury. If so, the hardship suggested will be cured by the certificate of the presiding officer.
WILLIAMS, J.-The principle on which I proceeded in Reed v. Shrubsole was, that the word "verdict" being susceptible of a narrow or a wide meaning, and justice and convenience requiring that it should be construed in the narrow sense in that case, I adopted that construction.
Byles, Serjt. That decision is undoubtedly weakened by the circumstance that Cresswell, J. dissented from the rest of the court; nevertheless, it must be taken as deciding that the word "verdict" in the 129th section of the earlier act, means verdict upon the trial of an issue, and the same meaning must be given to the same word in the 12th section of the recent act. The question is, whether the 11th section protects the plaintiff, and that depends upon whether the judgment which he has obtained may be considered a judgment by default. It is admitted that the general meaning of those words isa judgment where a day being given to the defendant in banco, he does not come; or coming, says nothing; or bis attorney says, non sum informatus; but it may also mean a judgment in a case where the defendant does not dispute the facts. At all events, if the judgment be wrong, the error appears on the record, and the defen. dant should bring his writ of error.
Wordsworth.-It has been held that the words in Lord Denman's Act (3 & 4 Vict. c. 24), s. 2, "if the plaintiff in any action of trespass, or of trespass on the case, shall recover by the yerdict of a jury less damages than 40s.
such plaintiff shall not be entitled to recover or obtair from the defendant, in respect of such verdict, any costs whatever," do not comprehend an inquiry after judgment on demurrer (Taylor v. Rolfe, 5 Q. B. 557.) There is also a technical objection to this rule, which is, that the rule ought to have been to amend the inquisitica.
JERVIS, C. J.-I am of opinion that this rule should be made absolute. I think we ought not, as has been suggested, put the defendant to his writ of error; for by so doing we should only compel him to resort to an expensive process, and give the plaintiff an opportunity of persecuting him into terms of compromise. Where, indeed, a reasonable doubt exists, we ought not to prevent a party from carrying his case to a Court of Error; but where the case is plain, I think we ought not to listen to the suggestion which has been made on the part of the plaintiff. Neither do I think we should listen to the technical objection; for though the inquisition be ever so bad, it does not affect the defendant. We then come to the substantial question, and I think that does not depend upon the meaning of the word "verdict" in the 12th section. If there was a manifest injustice in our construction of the act, and the words were so doubtful that, in order to avoid injustice, we should feel ourselves at liberty, as it were, to legislate for ourselves, we might be induced to strain the language of the act in the manner suggested. But it is not necessary to resort to such a mode of construction, for the words in the act are per fectly plain. The 11th section says that "if in any action commenced after the passing of this act, in any of Her Majesty's Superior Courts of Record in covenant," which this is," the plaintiff shall recover a sum not exceeding 201." which is the case here, "The plaintiff shall have judgment to recover such sum only and no costs, except in the cases hereinafter provided, and except in the case of a judgment by default," which this clearly is not. The question then is, what is the meaning of the word recover," not " recover by verdict," and that is what the plaintiff gets in the action. Here he has got a farthing, which is less than 207. This, therefore, is an action of covenant in a Superior Court, in which the plaintiff has recovered less than 207., and which is not within the exceptions in the act. I think, therefore, he is not entitled to costs. As to the meaning of the word "verdict," it will be time enough for us to put a construction upon that when the question arises by the presiding judge certifying upon a writ of inquiry.
CRESSWELL, J.-I am entirely of the same opinion. The plaintiff has recovered a sum not exceeding 201. in an action of covenant in this court, and he is not within either exception in the 11th section. It is unnecessary to consider now what is the meaning of the word verdict," in the 12th section. On a former occa sion the court differed as to the meaning of that word in the 129th section of 9 & 10 Vict. c. 94. I only advert to the subject, to say that if the question should arise again, I shall be ready to reconsider the reasons of my judgment, which vary very much in the several reports, and which in some of them appear to me to be unintel ligible.
WILLIAMS and TALFOURD, JJ., concurred.
COURT OF EXCHEQUER.
November 29 and December 2. HALLIWELL v. EASTWOOD. Pontefract Honour Court-Replevin—9 & 10 Vict. c. 95,
Certain cotton spinning machines were fixed by means screws, some in wooden fastenings, and some fixed in stones with molten lead, and thereby fastened to the