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building. The machines were distrained for rent, and me, on looking at the authorities, and the different subsequently replevied :
Held, that they were not a part of the freehold, but were properly distrainable.
By 17 Geo. 3, c. 15, jurisdiction is given to the Court of P. for the recovery of debts up to 5l., and in replevin. That jurisdiction is, by 2 & 3 Vict. c. 85, extended to 151. That court was, by 9 & 10 Vict. c. 95, s. 5, abolished:
Held, that the power of granting as well as hearing replevin was thereby taken away.
Hoggins, Q. C., showed cause against a rule obtained by Watson in this case, to increase the verdict from 4607. to 2,500l. It was an action of trespass, tried at York before Alderson, B. The question depends upon the construction of 17 Geo. 3, c. 15, recited in 2 & 3 Vict. c. 85, and 9 & 10 Vict. c. 95. The question is, whether the power of granting replevin has been taken from the Court of the Honour of Pontefract by either of those acts. By 2 & 3 Vict. c. 85, s. 4, that power is taken away. The Court Baron has become a new court, namely, the Court of the Honour of Pontefract. It is, however, contended, that by the operation of County Courts Act, the Court Baron has been revived. That, however, could not have been the intention of the Legislature.
Pashley, on the same side. The court is abolished, and the power to grant replevin cannot survive it: (Hallat v. Burt, Car. 380.) A prescription for a steward to grant replevin out of court is void : (Co. Entries, 294.) The word "steward "ought to be read "sheriff." The lord may bring his action in a Court Baron, because the suitors are the judges, but it cannot grant replevin except by charter or prescription. He cited Co. Entries, 294; Hallat v. Burt, Car. 380; Bac. Abr. "Court Baron" and "Replevin," C.; Viner's Abr. "Replevin," Z.; Com. Dig. "Pleader," 3 K. 3 & 9; 4 Trust. 266269; Kitchen on Courts, 95 b, and 74 a; Comyn's Digest, "Copyhold," R. 14.
Watson, Q. C. contrà.-The Lords of the Honour of Pontefract have power to grant replevin to the exclusion of the sheriff: (Mounsey v. Dawson, 6 A. & E. 750.) There is a distinction between the power of granting replevin and that of hearing them. The sheriff in liberties has no power to grant replevin, except where the bailiff has refused. It is not the suitor in a Court Baron that grants replevin. It is granted by the lords, and though, since the passing of 9 & 10 Vict. c. 95, the jurisdiction to hear appeals has been transferred to the new County Courts, still the right to grant replevins still continues in the sheriff: (Edmunds v. Challis, 2 C. C. Ch. 142.)
Ellis and Hall (in continuation) referred to Anon. (1 New Reports, 292; and 2 & 3 Vict. c. 85, s. 4.) [PLATT, B. It is an old court with a new name. The question is, whether that court is abolished.] The 9 & 10 Vict. c. 95, s. 5, says that former courts for the recovery of small debts and demands shall be repealed; but not so as to revive any act thereby repealed. [PARKE B.The 1st section of the 2 & 3 Vict. c. 85, puts an end to the present jurisdiction and practice of the Honour Court of Pontefract; and, unless you can set it up again in some way or other, it is gone. Have you a single instance of a replevin granted by any officer or other person not of the Court?] No; there appears to be none: (Fitz. N. B. 72 f, 73 b; Wilson v. Hobday, 4 Mau. & Sel. 120; 2 Inst. 139; 30 Edw. 3, p. 23; Thompson v. Farden, 1 Man. & Gr. 535; and Maule, J., observations at p. 544 were referred to.)
PARKE, B.-It would be be better to dispose of this one point first; and in this case I have satisfied my mind that the power of granting replevin was taken away by the operation of the statute. The simple question is, is the power of holden replevin taken away? It seems to
statutes, there is no doubt about it, and that the power, in the present instance, is taken away. The 17 Geo. 3 gives jurisdiction to the amount of 51.; that recognises the right; then the 2 & 3 Vict. extends the jurisdiction to 151.; then comes the 9 & 10 Vict. c. 95, s. 5, which abolishes the court; the 2 & 3 Vict. is mentioned in the schedule, and that court is abolished from and after the time there referred to. The effect of this is to put an end to the Court of Honour of Pontefract to hold replevin. The granting replevins out of court, though practised by the steward, was so closely connected with the court which ultimately tried them, that it is impossible to say it could exist after the court had been abolished.
ALDERSON and PLATT, BB., concurred.
Judgment for the defendants. There was a cross rule in this case, and the question was, whether mules used in a cotton factory are fixtures? JUDGMENT.
December 16, 1850.-PARKE, B.-This case was argued a few days ago; a part of the case was disposed of, and this is the remainder. The question remaining to be disposed of in this case is whether cotton-spinning machines, which were fixed by means of screws, some in wooden fastenings, some to let in with lead in a molten state in stones, for the purpose of receiving the screws, were, by law, distrainable for the rent of the mill in which they were affixed. Before the machines were so attached, they were mere chattels, and undoubtedly they were distrainable chattels. The question is whether they lost that character by being attached to the floor in the manner described. The question is to be determined exactly in the same way as it would have been if the statute had decided that no chattels can be distrained which were not the subject of distress at common law, except those provided for by the statute. This distraint of chattels is not. Neither the power to levy a distress, given by the statute of Will. 3, nor the power to impound on the premises given by the 11 Geo. 3, extends the right of distress to chattels not before the subject of it; still less does the right of the landlord for a year's rent before the goods taken in execution can be removed, afford a reason for holding that all goods that can be taken in execution can also be distrained. We must decide the case in the same way as if the distrainer was obliged to take the chattels distrained immediately to a public or a private pound. At common law, things fixed to the freehold, and which become part of it, cannot be distrained: for two reasons,-Lord Gilbert, C.B., says, "whatever is part of the freehold cannot be distrained, for what is part of the freehold cannot be severed from it without detriment to the thing itself in the removal, consequently, that cannot be a pledge which cannot be restored in statu quo to the owner. Besides, what is fixed to the freehold is part of the thing demised, and the nature of the distress is not to presume part of the thing itself for the rent, but only inducta illata upon the soil or house. Hence it is that doors, windows, furnaces, &c., affixed to the freehold are not distrainable." Gilbert on Distress, 34 to 48, and on the sole ground that they were parcel of the freehold in the construction of law: keys, windows, and chartiers concerning the realty are not liable to be distrained. It was, besides, a rule at common law that things which could not be restored in the same plight and condition cannot be distrained for rent: that is laid down in Comyn's Digest, 47, and Gilbert on Distress, in the part I have already cited. We have, therefore, to decide whether these machines fall within either of these categories, otherwise they were not protected; they do not fall within the latter, for, being taken to be part, they must be brought back without damage to themselves. If they are not of a perishable nature
they would not suffer by careful removal. If it were necessary to take some to pieces in order to remove them, that circumstance would make no difference, for that might occur with respect to chattels with respect to which there is no question, as, for instance, a post bedstead, which could not be carried to a pound without being first taken to pieces, and the distrainee would have no reason to complain that they were restored to him in a disjointed state at the pound, where he must attend to receive them, and that he should be saved the trouble of taking the beds to pieces again in order to replace them if they had been restored at the time. Nor does it make any difference that the distrainee would be obliged to bear the expense of refixing the machinery. Precisely the same objection might be made to a distress on any article which it required expense to carry back from the pound and restore to its former position. A distrainee at common law must be at the trouble and expense of taking back his goods from the pound. This practical inconvenience is now obviated by the power of impounding upon the premises. The only question therefore is, whether the machinery, when fixed, was parcel of the freehold and this is a question of fact depending on the circumstances of each case, and principally on two considerations; first, the annexation to the soil, or if brick, the house to which it is united, whether it can be easily removed integra et salva, or not without injury to itself or the fabric of the building. Secondly, upon the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causá, or that of the Year Book, 28 Hen. 7, 13, pur rente en quel' propriete remain, &c., en la possession, or merely for a temporary purpose, or the more complete enjoyment
and use of it as a chattel. Now, in considering this case, we cannot doubt the machines never being part of the freehold, but were attached slightly to it, and were capable of being removed without the least injury to the fabric of the buildings, the object and purpose of annexation was not to improve the inheritance, but was to render the machinery steadier and for the more convenient use of the inheritance. They never were part of the freehold any more than a carpet would be, which is attached to the floor by nails for the purpose of keeping it stretched out, or curtains, or looking glasses, pictures, and other matters of an ornamental nature which have been slightly attached to the walls of a dwelling, as furniture, and which is probably the reason why those and similar articles have been held in different cases to be removable. The machines would have passed to the executors: that is laid down by Lord Lyndhurst, in Trappes v. Harter (2 Cro. & M. 153), they would not have passed by the conveyance or demise of the mill; they never ceased to have the character of moveable chattels, and were therefore liable to the distress: the result is that Mr. Watson's rule will be discharged, and Mr. Martin's rule will be made absolute.
April 29, 1851.
BEARCROFT v. GEORGE. County Courts-Costs.
Macnamara moved for a rule that one of the Masters of this court be directed to tax the plaintiff's costs in this It was an action of debt brought for 71. The defendant had paid into court 21. 12s. 6d. and so pleaded. That sum had been taken out, and a nolle prosequi entered as to the residue. The defendant's costs upon the nolle prosequi had been paid by the plaintiff, who wished to be paid his costs of the suit in respect to the money paid into court. It was then contended that the plaintiff was entitled to these costs under the Reg. Gen. Trinity Term, 1 Vict., notwithstanding the County Court
Act, 13 & 14 Vict. c. 61, sects. 11 and 13; and that it had been so decided by Platt, B., at Chambers, in Jones v. Power (16 L. T. 493.) The 43 Geo. 3, c. 46, s. 3, was analogous. Keene v. Deeble (3 B. & C. 491); and Roe v. Rose (2 C. & M.) were cited.
POLLOCK, C. B.-At present we give no opinion whatever upon the subject; but the costs of a rule here, the Master informs us, would be about 157.; so that if you succeeded upon the rule your client must be a loser by obtaining it; and if he failed he would still be worse off. If you think it beneficial to your client's interest to proceed, or should the plaintiff persist under these circumstances in asking for a rule, take it. Rule nisi (if desired.)
May 9, 1851.
BREESE V. OWENS.
County Court-Action under 201.-Writ of trial directed to County Court judge instead of sheriff.
The 3 & 4 Will. 4, c. 42, s. 17, provides that in any action depending in any of the Superior Courts for any debt or demand not exceeding 201. the court or a judge, if satis fied that the trial will not involve any difficult question of fact or law, and such court or judge should think fit so to do, may order that the issue joined be tried before the sheriff of the county where the action is brought, or any judge of any Court of Record for the recovery of debt in such county. The County Court Act (9 & 10 Vict. c. 95, s. 3) enacts that every court holden under that act shall be a Court of Record.
Query, Can an order be made directing a judge of the Semble, By Pollock, C. B. and Alderson, B., it can; the County Court to try such issue? County Court judge being a judge of a Court of Record, and within the meaning of the 3 & 4 Will. 4, c. 42; by Parke and Platt, BB., it cannot; for although the County Court judge may be a judge of a Court of Record, yet such courts as the County Courts, established under the 9 & 10 Vict. c. 95, are not such courts as are within the meaning of the 3 & 4 Will. 4, c. 42.
This was an action brought against the defendant, an attorney, to recover the sum of 31. 1s., 17. 13s. 6d. of which had been paid into court, leaving 17. 7s. 6d. for which the action proceeded. A summons had been taken out by the plaintiff, under the 3 & 4 Will. 4, c. 42, requiring the defendant to show cause why the issue joined between them should not be tried before (not the sheriff, but) the judge of the County Court. The defen dant opposed the application: but Mr. Justice Wightman made an order that it be tried before the County Court judge. Accordingly, a rule nisi having been obtained to set aside that order, and all subsequent proceedings thereon, with costs,
Bramwell showed cause.-After this order of Mr. Justice Wightman was made, the plaintiff delivered, on the 28th of March, the issue, &c., in the usual way to the defendant. The cause went down to trial in the ordinary course, and was tried before the judge of the County Court of Newtown, in the county of Montgomery, on the 9th April last. My affidavit states also, that the defendant's agent there attended the trial, and crossexamined the witnesses; but a verdict was found against the defendant for 11. 7s. 6d. The learned judge had a perfect right to make this order, that the writ of trial be directed to the judge of the County Court, instead of the sheriff, as the 3 & 4 Will. 4, c. 42, s. 17, enacts, that in any action depending in any of the said Superior Courts, for any debt or demand, in which the sum sought to be recovered and indorsed on the writ of summons shali not exceed 201., it shall be lawful for the court in which such suit shall be depending, or any judge of any of the said courts (if such court or judge shall be satisfied that
the trial will not involve any difficult question of fact or law, and such court or judge shall think fit so to do), to order and direct that the issue or issues joined shall be tried before the sheriff of the county where the action is brought, or any any judge of any Court of Record for the recovery of debt in such county, and for that purpose a writ shall issue, directed to such sheriff, commanding him to try such issue or issues by a jury, to be summoned by him, and to return such writ, with the finding of the jury thereon, indorsed, at a day certain in term or in vacation to be named in such writ; and thereupon such sheriff or judge shall summon a jury, and shall proceed to try such issue or issues. The judge of a County Court therefore has power to try causes under the section of that act, because he is a judge of a Court of Record. The County Courts are expressly made Courts of Record by the County Courts Act, 9 & 10 Vict. c. 95, section 3 of which enacts, "that every court to be holden under this act shall have all the jurisdiction and powers of the County Courts for the recovery of debts and demands, as altered by this act, throughout the whole district for which it is holden; and there shall be a judge for each district to be created under this Act; and the County Court may be holden simultaneously in all or any of such districts; and every court holden under this act shall be a Court of Record." This action was for the recovery of a debt, and it was within the county; consequently the order is valid: (Clarke v. Warren, 2 Dowling, 774.) Some objection is raised because the order directs the judge of the County Court to try the cause, and the sheriff to return the writ; but that is a mere irregularity, from the printed form of order being used, as it usually is directed to the sheriff, and not altered throughout by the clerk; and, being an irregularity merely, it has been clearly waived by the defendant's accepting it without any objection, and afterwards attending by his agent the trial of the cause. It would seem to be the practice also now to direct writs of trial under such circumstances to judges of the County Courts instead of the sheriff, as heretofore. [ALDERSON, B.-I have made several orders.] Then it is to be said, the sheriff was directed to summon the jury; and Farmer v. Mountfort (8 M. & W. 266), cited to show that a writ of trial directed to the recorder of a borough, commanding him to summon a jury of his county, was irregular. And the same case in 9 M. & W. 100, where a writ of trial was directed to the recorder of a borough directing him to summon a jury of the borough duly qualified according to law, it was held regular, and that it was not necessary, under the 3 & 4 Will. 4, c. 42, s. 17, that the jury should be taken from the county. No doubt a recorder cannot summon a jury from any part of England; but the judge does not here summon the jury: it is the bailiff or officer of the court. Further, if this case be doubtful, the proceedings are on record, and the court will decide, so that the defendant may avail himself of a writ of error if he pleases; and that is a course the court usually adopts: (Walker v. Needham, 1 Dowl. N. S. 220.)
The COURT then called upon the other side. Lush (Thompson with him), in support of the rule-It becomes necessary, in the first place, to see what courts were in existence at the time the 9 & 10 Vict. c. 95, passed, establishing courts held under that act, to be the so called Courts of Record, in order to ascertain whether it could be ever intended by the Legislature that these County Courts should be the Courts of Record, contemplated under the 3 & 4 Will. 4, c. 42, s. 17, to substitute or give the same power to a County Court judge as to a sheriff, to try issues between parties. At the time the 9 & 10 Vict. c. 95, passed, there were then subsisting various descriptions of minor courts; for instance, Courts of Requests, Borough Courts, and County Courts as originally constituted. The new County Courts Act is
only, in fact, a substitution of the present courts for the previous Courts of Requests, with additional power to enforce larger amounts; and the judge of a County Court rather sits with the powers of the ancient Courts of Requests than of a Court of Record. These two sections, the 16th and 17th, of the 3 & 4 Will. 4, c. 42, assume that the judge has power to summon a jury, which is not the case with the County Court judge. No doubt the judge, under the newly-constituted County Court, has power to order a jury to be summoned as for his own court, but the bailiff, in fact, does it in every case. Again, what jury is the County Court judge to summon? What number? or where from? or what should be their qualification? A County Court jury is to consist of five only, under the County Courts Act: he has no power to summon a jury of twelve, the only number qualified to try the causes contemplated under the 3 & 4 Will. 4, c. 42, s. 17. The qualifications, also, of jurors, are different in the one case to the other, as well as the locality from whence they are to be summoned. Again, could the County Court judge examine either of the parties to the suit? Clearly, not, under the 3 & 4 Will. 4, c. 42. Then the writ is altogether informal, and not in compliance with the 17th section; neither is the order of the learned judge, as the County Court judge is directed to try the cause, and the sheriff to return the writ with the finding of the jury thereon indorsed. This being so, the court will set it aside, as well as all the subsequent proceedings. POLLOCK, C. B.-I must confess that the argument on behalf of the defendant has considerably shaken the confidence I at first entertained upon this case; so that now my determination is to leave the parties to a writ of error. I think that this cause was tried before a judge of a Court of Record within the meaning of the 17th section of the 3 & 4 Will. 4, c. 42; the 9 & 10 Vict. c. 95, commonly called the County Court Act, expressly enacting that the courts holden thereunder should be Courts of Record. We are not to find the motives of the Legislature in framing Acts of Parliament, but to construe them as they are made, putting the most reasonable construction upon the terms used which appears to us to be consistent with the intention expressed in giving effect to the whole. The County Courts have power to decide on matters within their jurisdiction in as full and as ample a manner as the Superior Courts of Westminster. I know no difference, and therefore, where there is a clause in an act of Parliament which clearly and expressly enacts that those courts so to be holden under that act shall be Courts of Record, the judge of such a court is, for all purposes, a judge of a Court of Record. It would, as it appears to me, be very dangerous, in such cases, to look back and say, "But, at the time when that act passed, making these courts Courts of Record, they were only such and such courts, for which the existing ones were meant to be a mere substitution, and the intention of the Legislature was different to that which is expressed in the act of Parliament; at least, it is very doubtful to me if it be so. The effect of the argument has, however, certainly shaken my judgment. Two of my learned brothers here incline to think it is not a Court of Record, and not within the intention or operation of the 3 & 4 Will. 4. I think it is, myself, and that this rule ought to be discharged. The court is, however, equally divided upon the point, and the defendant can bring a writ of error. Part of the order is irregular, at all events.
PARKE, B.-My mind is not made up upon this case; and the arguments of Mr. Lush and Mr. Thompson have certainly caused me to entertain some doubt about it. On reading the 17th section of the 3 & 4 Will. 4, c. 42, and also the 3rd section of the 9 & 10 Vict. c. 95 (the County Courts Act), the inclination of my opinion at present is, that those County Courts directed to be holden under or by virtue of that act, are not the Courts of
Record intended to be within the meaning or contemplation of the 17th section of the previous act. The writ of trial under a judge's order may be directed to the sheriff of the county, or a judge of any Court of Record, for a debt in such county. But was it intended to operate upon Courts of Record of this description within the meaning of the act of the 3 & 4 Will. 4, at the time that act was passed? By the 3rd section of the County Courts Act, there is no doubt that the County Courts holden under it are Courts of Record; but are they so for all purposes beside the enactments in that act, or were they declared to be Courts of Record by the new act for new matter arising only under that act? My present impression is, that a judge of a County Court, under the 9 & 10 Vict. c. 95, s. 3, although judge of a Court of Record, is not such as was intended by the 17th section of the 3 & 4 Will. 4, c. 42; at the same time I have doubts upon the subject, and am by no means certain that this is so. It is a point for a Court of Error to determine. It seems to me that, by the expression of a Court of Record, it meant a Court of Record ejusdem generis at that time. I think myself, that the judgment here should be arrested, and so leave the plaintiff to bring the writ of error; but as we differ in our present opinions, the rule will be discharged, and the defendant will bring the writ of error.
ALDERSON, B.-I think a County Court judge is not only a judge of a Court of Record under the 3rd section of the 9 & 10 Vict. c. 95, but is such a judge of a Court of Record as comes within the meaning of the 17th section of the 3 & 4 Will. 4, c. 42, for all the purposes required by it; still, should this view be the correct one, the judge of the County Court must sit and try the cause in the same way as a judge at common law; he could not examine either party to the suit, and he must have the usual number of jurymen in the ordinary way; and, indeed, if he did not proceed in all respects according to the rules of the common law, a new trial may be moved for, and would be, no doubt, obtained. This is, at present, my view of the matter, although I do not give it as a positive opinion; the question is open to some doubt.
PLATT, B.-The distinction which Mr. Lush has pointed out, seems to me to be the correct one. The 3 & 4 Will. 4, c. 42, s. 17, meant by any judge of any Court of Record, such Courts of Record as were subsisting at the time that act of Parliament passed, not any subsequent Court of Record, established by a new act of Parliament as a Court of Record, for the purpose of carrying out the particular objects and effect of such new act. I do not think we are to look at the act so as to construe it literally, but to see and judge, as far as we can. as to what was the real object and intention of the Legislature at the time the act was passed. When the 3&4 Will. 4, c. 42, became law, it was certainly not then intended that county courts, as at that time holden, should try issues of the description referred to in the 17th section of that act. My impression is at present strong upon the subject, yet at the same time I own it is not altogether free from doubt.
PARKE, B.-I wish to add, that I quite agree with my brother Alderson as to the course the judge should take in trying a cause under these acts, if it should be determined that he has any right to try; certainly he must go according to the rules of the common law, if at all.
Rule discharged, without costs; proceedings to be stayed for a week, that defendant may bring a writ of error.
May 1, 1851.
FRY v. WHITTLE.
The affidavit to found a motion for a suggestion to deprive a plaintiff of costs, under the County Courts Act (9 & 10 Vict. c. 95, ss. 128 and 129), must allege with certainty and precision that the plaintiff did not at the time of the commencement of the action dwell more than twenty miles from the defendant, and where the affidavit stated that the plaintiff at the time of the commencement of the action dwelt at Birmingham, which is within twenty miles from Wolverhampton, the place where the defendant dwelt and carried on his business at the time this action was commenced:
Held, insufficient, as not showing distinctly that the plaintiff and defendant dwelt within twenty miles of each other at the time the action was commenced. This was an application for leave to enter a suggestion upon the roll, to deprive the plaintiff of costs, under the County Courts Act (9 & 10 Vict. c. 95.)
The affidavit upon which the rule nisi was granted, stated that the above-named plaintiff now dwells, and at the time of the commencement of this action dwelt, at Birmingham, in the county of Warwick, which is within twenty miles from Bilter, aforesaid, the place where the defendant now dwells, and also within twenty miles from Wolverhampton, in the said county of Stafford, the place where this deponent dwelt and carried on his business at the time this action was commenced by the plaintiff against the defendant.
Joyce showed cause.-The affidavit is objectionable and defective in this respect; it states that at the time of the commencement of the suit, the plaintiff dwelt at Birmingham and the defendant at Wolverhampton, and that Birmingham is within twenty miles from Wolver hampton. It may be quite consistent with this statement that the plaintiff's residence is more than twenty miles distant or apart from where the defendant dwells, which is what the act requires. In Johnson v. Ward (7 C. B. 868) it was held that the affidavit in a similar case must allege with certainty and precision that the plaintiff did not at the time of the commencement of the action dwell more than twenty miles from the defendant. In Duck v. Barton (1 L. M. & P. 201) the affidavit was insufficient which stated the defendant carried on his business within the jurisdiction of the Southwark County Court, and that the plaintiff did not dwell more than twenty miles from the defendant, but dwelt within twenty miles of the defendant, on the ground that it did not show distinctly that the defendant dwelt within twenty miles from where the plaintiff dwelt. Paterson v. Davis (6 C. B. 235), cited in Duck v. Barton, and upon which that case was decided, is to the same effect. In Kirby v. Hickson (1 L. M. & P. 364) the affidavit stated, that the plaintiff dwelt and still dwells in K. street, within twenty miles of defendant, who dwelt, and still dwells, in P. street. This was held insufficient for not showing that the residences were within twenty miles of each other. In Room v. Cotton (1 L. M. & P. 729) the affidavit stated that plaintiff, at the commencement of the action, did not dwell more than twenty miles "from the defendant," was held bad for not saying "from the defendant's residence;" and in Brooker v. Cooper (3 Ex. 112) the court laid down that the defendant must show affirmatively that the case is not within the exceptions contained in section 128. The court may take judicial notice, perhaps, of the boundary of a county, but certainly not of a town.
Pashley, in support of the rule.-The court will not be astute in discovering difficulties where a clear primâ facie case is made out, and the affidavit is reasonably conelusive. In this case there can be no reasonable doubt, upon reading this affidavit, that when this action was commenced the defendant resided within twenty miles of where the plaintiff dwelt; and the affidavit states that
(Before ALDERSON, B. sitting alone to hear motions in the plaintiff dwelt at Birmingham, which is within twenty
the Court of Exchequer Chamber.)
County Court-Suggestion form of affidavit.
miles from Wolverhampton, where the defendant dwelt. [ALDERSON, B.-Suppose they lived twenty-five miles
apart from each other, and upon this affidavit the party making it was to be tried for perjury, do not you think you could go to the jury for an acquittal with perfect success?] That would depend upon circumstances. No doubt it lies upon the defendant here to make out that the act of Parliament has been complied with; and the question is, whether he has not done so with reasonable certainty. Part of Birmingham may be within and part without the distance, and it is as fair to presume it within as without the town. [ALDERSON, B.-How can you say that from Wolverhampton includes Wolverhampton?] In Wilkinson v. Goston, 9 Q. B. 137, it was determined that the word from was to be taken as including, not excluding, the date there mentioned; and Patteson, J., said: "This demurrer is founded upon the notion that the word 'from' must be exclusive, otherwise I cannot see how the demurrer can be sustained." And again: "The demurrer is wrong in assuming that that the word 'from' must be exclusive; though I agree that prima facie it is so." And Williams, J., says: "To say that the word is necessarily exclusive would, I think, be erroneous."
ALDERSON, B.-The affidavit is insufficient, and the rule must be discharged; and as in all the previous cases where it has been discharged it was discharged with costs, so here I wish to follow the precedents.
JOHN PEARS, Administrator, v. JAMES WILSON, Executor.-Udall applied for a prohibition to the judge of the County Court of Durham to restrain him from proceeding further herein. It was a plaint for a share of a residuary estate. The question was, whether the judge had jurisdiction within the 65th section of the County
Cur. adv. vult.
ERRORS FROM THE EXCHEQUER.
(Before CAMPBELL, C. J.; PATTESON, MAULE, WIGHTMAN, CRESSWELL, ERLE, and WILLIAMS, JJ.)
CLEAVE v. JONES.
Statute of Limitations-Evidence-Lord Tenderden's Act
In an action upon a promissory note to which defendant
Upon a bill of exceptions to that ruling : Held, by the Court of Error, that such evidence was admissible to take the case out of the Statute of Limitations, and should have been received and submitted to the jury.
Willis v. Newham (3 Y. & J. 518) overruled.
This was an action brought by the plaintiff against the defendant, Sarah Jones, upon a promissory note, bearing date the 2nd May, 1840, whereby she had promised to pay to the plaintiff 3507., with lawful interest, on demand. The defendant pleaded (amongst other pleas not important to the present inquiry) the Statute of Limitations. Replication. That the causes of action in the declaration mentioned, and each of them, did accrue to the plaintiff within six years next before the commencement of the suit, whereupon issue was joined. The cause was tried at Hereford, before Mr. Baron Rolfe, at the Summer Assizes, 1849, when the plaintiff then and there gave in evidence to the jury in order to show an acknowledgment of the debt within six years, so as to prove his replication to the plea of the Statute of Limitations, a certain account-book in the handwriting of the defendant, containing, among other entries, an unsigned entry, purporting to be an entry of a disbursement by her in the year 1843, in the words and figures following, that is to say,-"1843, Cleave's int. on 3501.-171. 10s." Whereupon the counsel for the plaintiff insisted that such entry was sufficient evidence in law to enable the jury to find the issue upon the plea of the Statute of Limitations in favour of the plaintiff. If the jury were satisfied that the defendant had paid the sum of 177. 10s. to the plaintiff for interest on the sum of 3501. in the first count of the declaration mentioned, within six years next before the commencement of the action (the action having been commenced on the 30th October, 1838): but the learned judge then held, and so informed the jury, that the said entry, not being signed by the defendant, was not sufficient evidence in law for them to find that issue in favour of the plaintiff, but that they were bound in point of law to find that issue for the defendant; no further evidence in support thereof having been given by the plaintiff, the jury accordingly gave a verdict for the defendant upon that issue, and the plaintiff tendered a bill of exceptions to the above ruling or direction to the jury by the learned judge, and assigned as error that the judge declared his opinion to the jury that the said entry, not being signed by the defendant, was not sufficient evidence in law for them to find the said issue in favour of the plaintiff, but that they were bound in point of law to find that issue for the defendant, no further evidence in support thereof having been given by the plaintiff, and that, therefore, the said defendant was entitled to a verdict. Whereas the said entry not being signed by the defendant, the plaintiff's counsel contended was sufficient evidence in law for the jury to find that issue in favour of the plaintiff, nor were the jury bound in point of law to find that issue for the defendant, notwithstanding no further evidence had been given in support thereof by the plaintiff.
Keating, Q. C. (Horn with him), for the plaintiff, in support of the bill of exceptions.-The question in this case turns upon the construction of the 9 Geo. 4, c. 14, s. 1 (commonly called Lord Tenterden's Act), entitled An Act for rendering a written Memorandum necessary to the validity of certain Promises and Engagements." It begins thus: "Whereas, by an act passed in England in the twenty-first year of the reign of King James the First, it was, among other things, enacted, that all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors, or servants, all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, should be commenced within