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the power formerly exercised by the Commissioners on circuit.
Now it appears to us clear that the County Court Judge has a power of re-hearing in certain cases. The words of the 10th section of 10 & 11 Vict. c. 102, are most general. Every County Court, to which a petition shall be referred and transmitted, "shall have and possess the same power and authority with respect to every such petition; and shall make all such orders, give all such directions, and do all such matters and things requisite for the discharging or remanding of such prisoner, and otherwise respecting such prisoner, his schedule, creditors and assignees, as the said Court for the Relief of Insolvent Debtors, or any Commissioner thereof might make, give, or do in the matters of such petitions heard before such Court or Commissioner under such acts." For what such Court or Commissioner might do, &c., in the matter of re-hearing a petition, we must refer to the 96th section of the 1 & 2 Vict. c. 110. "Every such adjudication as aforesaid by the said Court, Commissioner, or Justices aforesaid, with respect to any prisoner, and the order thereupon so made as aforesaid, shall be final and conclusive, and shall not be reviewed by the said Court, unless the said Court shall thereafter see good and sufficient cause to believe that such adjudication has been made on false evidence, or otherwise improperly made or fraudulently obtained, in which case it shall be lawful for the said Court, upon the application of such prisoner, or any creditor of such prisoner, to order such prisoner, upon due notice to be given to such persons and in such manner as the said Court shall direct, to attend or to be brought up, and the said matter to be re-heard before the said Court, &c., as the case may require, who shall thereupon re-hear the same, and shall and may, if just cause shall appear, annul the original adjudication and order thereupon made in such case, and shall have the same powers and authority upon such re-hearing as upon any original hearing in pursuance of this act, and may adjudicate upon such matter accordingly."
MONTHLY COMMENTARY. A QUESTION of some importance in practice was recently raised in the Cheshire County Court, the report of which will be seen in another column. Goods having been taken in execution of the process of the County Court, two distinct claims were made to them, and two Interpleader Summonses were consequently issued. On the hearing, both of these summonses were dismissed, and the claimants ordered to pay the costs. The order as to the costs, however, was not enforced, but the High Bailiff retained his own costs out of the proceeds of the execution. Upon an application made to the learned Judge to compel the High Bailiff to reimburse the amount of the costs, he ruled that the High Bailiff was authorized to retain the money, under the 148th Rule of Practice.
The question is not free from difficulty, but we think, upon the whole, that the learned Judge did not come to a right conclusion. By the 118th
section of the County Courts Act, the Judge is authorized to make such order between the parties in respect of the costs as to him shall seem fit, and Rule 148 provides that the costs of the Bailiff shall be retained by him out of the amount levied, unless the Judge shall otherwise order. The question, therefore, resolves itself into this :-Does the order that the claimant should pay the costs affect the Bailiff, or is its operation confined to the plaintiff and defendant in the Interpleader? The Bailiff is indirectly a party to the proceedings, though his name does not appear as plaintiff or defendant. The Summons is issued upon his application and for his benefit, and he is entitled to his costs against the immediate parties. Over these costs the Judge has an absolute discretion, and we do not see how the Bailiff, in many instances, can obtain his costs without an express order for them. If the plaintiff succeeds in the Interpleader, he takes his goods, and if there is no order made as to the costs, the Bailiff cannot recover them against either party. He has no lien on the goods, and it would be unjust if he had, as he had never any right to take them. He must therefore, in any such case, rely upon the special order of the Judge. Now suppose an order made upon the defendant to pay the costs, could not the Bailiff claim the benefit of it, and enforce the payment of his fees and expenses under it? It is constantly done. Applying, therefore, the same rule to the present case, it follows that the order upon the claimant to pay the costs might have been enforced by the Bailiff, and that, independently of the 148th Rule, he might have recovered his costs.
The object of that rule was, not to give the Bailiff a general lien upon the goods for his costs, but to provide for cases where the Summons is dismissed without costs. Where the Judge thinks fit not to order the claimant to pay the costs, there is only one other party that can be made liable to them, namely, the defendant; and as he is also the party entitled to the proceeds of the execution, the Commissioners very judiciously directed that in such a case the costs should be deducted out of the money already in the Bailiff's hands. We think, therefore, that the words "unless the Judge shall otherwise order," mean unless the Judge shall order any other person than the defendant in the Interpleader to pay the costs. the present case the claimant was ordered to pay, and the fund in the Bailiff's hands was consequently discharged.
The subject of Mr. SHAW's letter is one that deserves the consideration of the Commissioners appointed under the recent act to amend the proceedings of the County Courts. Goods are taken in execution to which a third party puts in a claim as mortgagee. He delivers a notice of his claim one day only before the return of the Summons, and not five clear days as required by the 145th Rule. The defendant objects to the case being heard, on the ground of the inadequacy of the notice. The Judge reluctantly decides that the objection is valid, and refuses to adjourn the proceedings in order to enable the claimant to give
the required notice. The result was, that the wards, if approved, to the Committee of the claimant lost his goods, which were taken for the debt of another.
Whether or not the Judge was right in refusing to adjourn the proceedings, we are not prepared to say, but it is at least a question upon which different Judges may fairly entertain different opinions. The act requires that five clear days notice of the plea of the Statute of Limitations be given, and in that case the 67th Rule contains an express provision that "the Judge may, on such terms as he shall think fit, adjourn the hearing of the cause to enable the defendant to give such notice." The 145th section, on the contrary, contains no such proviso, but simply requires that notice shall be given five clear days before the return of the Summons. The simple question therefore is, whether the words of the 86th rule are sufficient to enable the Judge to adjourn an Interpleader Summons when the required notice has not been given by the claimant. That rule provides that "where anything required by the practice of the Court to be done by either party, before or during the hearing, has not been done, the Judge may, in his discretion, and on such terms as he shall think fit, adjourn the hearing to enable the party to comply with the practice."
COSTS IN THE COUNTY COURTS. (From the Law Times.)
THE LAW OF CALLS. (a) THE last point for consideration in our division of this subject, is the manner in which any one who has incurred the liability to pay calls may be discharged from this obligation. And this may happen in two ways: 1. By his own acts; 2. By the acts of the company. himself to free him from the liability to pay calls, the 1. Of the acts which may be performed by a party first and most direct mode is by a sale of his shares, and a registration of the new proprietor as the purchaser, according to the 7 & 8 Vict. c. 110. But if at the time of the sale the seller has not paid all calls on every share held by him, he cannot transfer any share, unless a provision to the contrary be contained in the company's deed of settlement. And though the vendor may have paid calls after having entered into the contract for sale, yet he cannot call upon his vendee to pay them, for in such a case the law does not imply an undertaking by the vendee to indemnify the vendor against subsequent calls: (Humble v. Langston, 7 M. & W. 517; Wordsworth's Law of Railways, 336.) Before making the contract of sale, therefore, the parties should stipulate for calls will cease only on his transferree being registered expressly upon this point. The liability of a shareholder at the registrar's office, and this registration will not be granted until the transferree has executed the deed of settlement.
While treating on this part of our subject, we may remark that a transfer of railway shares from an original THE Committee of the Judges are now engaged in subscriber to the undertaking, made before the formation the task of carrying into practical operation the passing of, the act of Parliament, is good, although the of a register of proprietors, pursuant to, but after the provision for securing to the Attorneys a fair remu- transferror be never registered as a proprietor: (Sheffield, neration for their professional services in the Ashton-under-Lyne, and Manchester Railway Company v. County Courts. It is of great importance that their Woodcock, 7 M. & W. 574.) Subject to the stipulations deliberations should result in a scale of fees that contained in the act of Parliament or deed of settlement shall carry out the objects with which we first pro-regulating the affairs of the company, the transfer of moted the suggestion which was afterwards adopted shares should be made by deed duly stamped. The Brighton Railway Act, 1 Vict. c. 119, s. 155, requires the by the Legislature. To achieve a permanent success the scale must be such as will not be deemed to be under the hands and seals of both parties. The conveyance of shares to be by writing duly stamped, and unjust either to the public or the Lawyers. If clause afterwards calls the instrument a "deed of sale or too high it will excite the active hostility of the transfer." It was held that this conveyance must, in one; if too low, it will be treated with contempt order to satisfy the statute, be by deed; and, therefore, by the other. The Judges to whom the work has that an instrument of transfer of shares, with the name been entrusted are conscious of the importance and of the purchaser in blank, and handed over by him to the the difficulty of the duty, and they have sought the plaintiff, by whom, on the sale of such shares to the defendant, the defendant's name was inserted as the advice and assistance of the experienced of the purchaser, was void: (Hebblewhite v. McMoime, 6 M. & Profession, through the Law Societies. But indi- W. 200; 2 Rail. Cas. 51.) Where the statute directed that viduals may lend their aid, and doubtless they will the deed of transfer should be kept by the company, and be welcomed if their hints are short and practical. a memorial of it entered in a book, and such entry was But something more than this is desirable. There made dated 7th April, it was held, in an action for calls, should be some public discussion of the question that this was sufficient evidence to show when the entry what the scale of fees should be. Perhaps, as the was, in fact, made: (The Birmingham and Aylesbury parent of the measure itself, the LAW TIMES Where the act required a transfer of shares to be by deed, Railway Company v. Thompson, L. J. 1841, 124, Q. B.) might fitly be the vehicle for such a discussion, and a transfer of shares was executed by the seller, with and any hints appearing here would not only be a blank for the purchaser's name, and the consideration sure to reach the proper quarter, but they would was stated untruly; but the purchaser afterwards signed have the benefit of being reviewed by the whole and transmitted to the company, in pursuance of the act, Profession, and any objections or improvements a proxy paper, describing him as the proprietor of the started before the scale of fees is finally deter-him for calls on such shares, that he was precluded from shares it was held, in an action by the company against mined. We invite our practical readers to give disputing the validity of the transfer: (Sheffield, Ashtontheir thoughts to this subject, of such great under-Lyne, and Manchester Railway Company v. Woodimportance to them, and oblige us with suggestions cock, 7 M. & W. 574.) A Railway Act declared, that for costs in the County Courts which we will "all shares in the undertaking should, to all intents and endeavour to submit in the best form to the con- purposes, be deemed personal property, and be transsideration of their legal brethren first, and after(a) By GEORGE HARRIS, Esq., Barrister-at-Law.
missible as such, and should not be deemed to be of the nature of real property." It was held that such shares might be sold by verbal contract: (Bradley v. Holdsworth, 1 Horn. & Hurlst. 156.)
An act of Parliament incorporating a company, provided, that until a transfer of shares should be delivered to the secretary, the seller should be liable for all future calls, and that no shareholder should be entitled to transfer any share until he should have paid all calls for the. time being due upon it. It also enabled the company to make calls on the shareholders, and enacted that if at the time appointed for payment of a call the holder of any share failed to pay it, the company might sue "such shareholder," and a form of declaration was given, stating that "the defendant is a holder of one or more shares." It also provided that on the trial it should be sufficient to prove that the defendant, at the time of making the call, was a holder of one or more shares, and enabled the company, on nonpayment of any call, to declare the shares forfeited: it was held, that a person who was a shareholder at the time when a call was made, and notice thereof given to him, but who had, before the call became payable, transferred his shares and delivered the transfer to the secretary, was liable to be sued for the calls: (see Shaw v. Rowley, 16 M. & W. 810; S. C., 16 L. J. 180; The North American Colonial Association of Ireland v. Bentley, 19 L. J. 427, Q. B.)
On the 13th March a shareholder in a joint stock company, subject to the Companies Clauses Consolidation Act, 1845, executed a deed of transfer of his shares, and his broker lodged the deed of transfer with the secretary of the company for registration. The secretary refused to register it, on the ground that a call made upon the shares before the 13th March remained unpaid until the 14th April. Upon application for a mandamus to the secretary to enter and register a memorial of the deed of transfer, it was held, that, by sect. 16 of stat. 8 & 9 Vict. c. 16, the right to transfer shares was taken away until all calls made in respect thereof had been paid, and the deed of transfer was therefore void: (Re J. Hall v. The Norfolk Estuary Company, 16 Jur. 149, Q. B.)
The discharge of a proprietor of shares from his liability to pay calls, by a forfeiture of shares, has already been discussed under a previous division of this subject. A bankrupt who has obtained his certificate is absolved from liability, in respect of calls made subsequently to his bankruptcy, on shares held by him previous to his bankruptcy (North Staffordshire Railway Company v. Burnside, 2 M. D. 120.)
were liable, the company would be left entirely without remedy, while, on the other hand, the husband and wife would be entitled to all the benefits of their proprietorship. Where the shares are transferred into the names of the trustees of the marriage settlement, and duly registered as their property by the officer of the company, the trustees thereupon become liable, in the same way as purchasers of shares, to all calls upon them, and should be authorized to discharge these out of the estate vested in them; and, in this case, the person assigning to them, as also her husband, is effectually relieved from liabilty to pay the calls.
Whether the infancy of a shareholder be a sufficient plea to an action for the recovery of calls made upon him, has been considered until lately a question of some doubt. This point has, however, been set at rest by the case of The Newry and Enniskillen Railway v. Coombe the younger (18 L. J. 325, Ex.) In this case an action having been brought against the defendant for calls, according to the forms prescribed by the 8 Vict. c. 16, he pleaded that he became possessed of the shares by contract, and not otherwise, and that at the time he purchased the shares of the company, and became an original subscriber to the undertaking, he was an infant; and that afterwards, and during his infancy, he repudiated and disaffirmed the contract, of which he gave the company due notice, and that he then held the shares at their disposal, and thence hitherto had always held the shares at the plaintiffs' disposal. Upon demurrer to this plea, the court held the plea to be good, and that it was a sufficient answer to the action.
Two other cases on this subject have since been decided. A plea alleging that the defendant had become possessed of the shares while he was an infant; that the calls were made while he was an infant; that he had never ratified the contract with the plaintiffs, and had derived no benefit or advantage whatever from the shares, is bad on demurrer. Infants purchasing shares in railway companies are in the same position as if they had purchased real property, and taken possession of it, in which case they would be liable to all the obligations ordinarily attached to the possession of such property, such as the payment of rent, unless during infancy or on their arrival at majority they disclaimed the agreement. The court of Q. B. had held that infants were liable under the Railway Acts, but this court thought there was an implied exception in favour of infants and lunatics in those acts: (see Leeds and Thirsk Railway Company v. Fearnley, 4 Ex. 26; Newry and Enniskillen Railway Company v. Coombe, 3 Ex. 565.) Infants have the power of purchasing shares, for they may be presumed to be beneficial, and by registration they non-acquire an interest which makes them shareholders until they avoid the agreement by disclaiming it: (The North Western Railway Company v. McMichael; Birkenhead, Lancashire, and Chester Railway Company v. Pilcher, 11 Jan. 1851 (Ex.) A. having been sued in two several actions for railway calls, appeared by his guardian, and pleaded to each, that after he had bought the shares in question an agreement was entered into between himself and the plaintiffs, that the latter should place his name on the register of shareholders, which was done accordingly; and that at the several times of the purchase of the shares, of the agreement for registering, and placing the defendant's name on the register, and of the making of the calls, the defendant was and still is an infant under the age of twenty-one years. The plea in one of these cases further averred that the defendant had not and did not seek to derive any profit or advantage from being such registered shareholder. In the other case this latter allegation was omitted: held, that inasmuch as the effect of the above statute is to enable infants to acquire and hold shares in public companies, and to render them liable in respect thereof, subject to their
On the marriage of a shareholder who is a feme sole, her liability to the payment of calls on her shares devolves upon her husband, who becomes entitled to them, and who is liable to be sued with her in the event of payment of the calls. Where, however, previous to the marriage of a feme covert, her estate has been assigned by her to trustees for the purposes of settlement, independent of her intended husband, this assignment, preventing him from obtaining possession of the shares, and being, moreover, necessarily subject to her liability to pay the calls on her shares, the property will remain subject to this charge after her marriage, although the husband as well becomes liable for this debt: (see Owens v. Dickenson, 1 Cr. & Ph. 48; Murray v. Barbe, 3 Mylne & K. 209; Lockwood v. Slater, 5 Bo. & A. 303.) The estate is, indeed, still that of a feme sole, and is not affected by the marriage, having been disposed of prior to that event; and it would be manifestly unjust that her husband should become exclusively liable to the incumbrances on an estate which never comes into his possession, and which do not arise until after the marriage: (vide Heard v. Stamford, 3 P. Wms. 409; S. C., ca. temp. Talbot, 173.) The debt, moreover, like that secured by a mortgage, attaches to the estate as much as to the person. But, if neither the wife nor the husband
right to repudiate the same at any time during minority, and it did not appear by either of the foregoing pleas that the defendant had so repudiated before action brought, they constituted no answer to the actions to which they had been respectively pleaded: (The Midland Great Western Railway Company of Ireland v. Quin, 3 Ir. Jur. 278 (Q. B. Ireland.)
There can, however, be no doubt that in a case of this nature the company may avail themselves of the remedy by forfeiture and sale of the shares of the infant defaulter to defray the amount of his call, and the interest and expenses, provided the infant has done all the requisites to constitute him a shareholder in the undertaking, so as to become registered in the list of shareholders (though his execution of the deed of settlement would be a nullity), as the debt attaches to the estate as well as to the person of the shareholder.
Thus, an infant who rents premises for residence, or land for the purposes of cultivation, and which are not for his necessary occupation, is liable to be distrained on for rent; and, in some cases, an action for debt may be sustained against him for it: (See Cro. Jac. 320; Kirton v. Elliott, 2 Bulstr. 69.) In certain cases infants are also liable to incur forfeiture of lands, as by doing anything to the disinherison of the lord, as wilful waste: (Co. Cop. s. 59, tr. 136; Prec. Ch. 568; 1 Stra. 447.)
In the case Ex parte Thomas, re North of England Joint-stock Banking Company (Joint-stock Coms. Law J. 143), it was decided that the executrix of a deceased shareholder in a banking company, who, since her testator's death, had not received dividends, nor complied with the requisitions of the company's deed for obtaining possession of the shares, was held to be a contributory as executrix of her testator in respect of the shares held by him.
We have, lastly, to consider what acts done by a company will discharge its shareholders from the liability to pay calls. These are of two kinds: first, a change in the constitution or objects of the company; second, the dissolution of the company.
1. The change must be a material one, and not a mere discretionary deviation from the original plan in an immaterial point. Thus, by the terms of the Brighton Railway Act, the directors were entitled to recover for calls in arrear, upon proving that the defendant was a proprietor, and that notice of the call had been given according to the act, unless the defendant should prove that he had paid the full amount of his subscription. Defendant pleaded, amongst other things, that the calls were made for purposes other than those warranted by the act. This plea, however, was refused on the ground that the act limited the answer to be given to the company's action for a call: (The London and Brighton Railway Company v. Wilson; Same v. Fairclough, 6 Bing. N. C. 135; ib. 270; 8 Dowl. 40.) In the same case the defence pleaded was, amongst other things, that there had been a deviation from the original line, and the money called for was in respect of such deviation. The court said, the effect of allowing such an answer as this would be, that if there is any deviation to the extent of three yards, with the consent of the person whose land immediately adjoins, and at the risk of the directors and of the company generally, every individual subscriber, from the moment that deviation is made, may stay his hand, and refuse his call, and the whole concern be broken up altogether; and, accordingly, the plea was disallowed. So also, in the same case, as to the plea that fewer shares had been allotted than were required by the statute, which enacted that, "notwithstanding anything in the several subscription-deeds or contracts relating to the said several lines, the capital of the company hereby incorporated shall be 1,800,000l., divided into 36,000 shares," it was said that this was not an available plea, for there were, if not in fact, yet in contemplation of law, 36,000
shares. See also The South Eastern Railway Company v. Hebblewhite (12 Ad. & E. 497); and Davis v. Hawkins (3 M. & S. 488); but see also The Midland Great Western Railway Company v. Gordon (16 M. & W. 804), where it was held that the undertaking sanctioned by act of Parliament was so different from that pointed out in the subscribers' agreement, as to save the subscribers from being bound by it.
The Midland Great Western Railway Company of Ireland was incorporated by act of Parliament on the 21st of July, 1845. A new company was registered on the 31st of July, 1846. A. signed the subscribers agreement and parliamentary contract of the last-mentioned company, which gave the directors of the proposed company powers to go to Parliament to procure the incorporation of the proposed company, and to amalgamate it with the first-mentioned company. The directors were the same persons in both companies. An act of Parliament for the extension was passed on the 21st of July, 1846, but only for one half the distance and one half the capital. The act empowered the Midland Great Western Company to make the line, to raise the capital, and to admit new shareholders, &c. After the act had been passed, and after the powers of the directors of the proposed new company had expired by want of fresh registration, a meeting was called of the directors of the first-mentioned company (who were also directors of the other company), who passed a resolution to amalgamate the companies, and to admit the shareholders of the new company as shareholders of the amalgamated company on certain conditions. A. did not accept the proposed terms. The amalgamated company brought an action against A. to recover calls due in respect of his shares in the proposed new company: it was held that A. was not liable to pay such calls, and that he was not a shareholder of the amalgamated company: (Edmund v. Midland Great Western Railway Company of Ireland: Leach v. Same; Johnston v. Same, 16 L. T. 505; Ex. Ch.)
2. The dissolution of a company may happen either by the joint consent of the shareholders, or by the operation of law, as the bankruptcy of the company. A dissolution to be binding upon all the shareholders, must be come to and decided upon, in conformity with the stipulations in that behalf contained in the deed of settlement. The company then become ipso facto dissolved. By 7 & 8 Vict. c. 111, amended by the act of 1848, to which we are about to refer, fiats in bankruptcy may issue against public companies; but, until the affairs of the company in each case are wound up, the respective shareholders continue liable for any call made upon them for the purpose of carrying into effect such winding up.
By the Joint-Stock Companies Winding-up Act of 1848, which has been amended and still further carried out by 12 & 13 Vict. c. 108, it is enacted, “that it shall be lawful for the Master from time to time to make calls on the contributories as he may think proper (but so far only as such contributories respectively shall be liable at law or in equity to pay the same), for raising such amount as may be necessary to pay the debts or liabilities of such company,' or the costs of winding it up. And by sect. 84, the Master is directed to apportion the amount of calls to be made. But, as we have already intimated, this subject is beyond our province to treat of under the present head.
PAYMENT OF FEES BY STAMPS.
TO THE EDITOR OF THE COUNTY COURTS CHRONICLE.
SIR,-I believe the present Lord Chancellor stated in the House of Lords during the last session of Parliament, that it was intended for all the fees of the Law Courts to be paid by stamps; it is therefore to be hoped that the County Court fees will be included in this new operation, and have the effect of doing away
with the enormous expenses of treasurers, and the travelling of themselves and their clerks; and as nothing can be more simple or free from objection than this method of paying to the Government the fees which the clerks of the County Court receive from the suitors. For instance, the stamp can be affixed to the original summons (or other document) and the copy served, so that the former is returned by the clerk having the stamp to exhibit to the inspector, and the like with the orders of the court, the subpoenas, and the warrant of execution. And on the entry in the plaint book of the special defence, an order in this case should be drawn up ex parte, the copy served at the time, and the original (having the stamp) returned by the clerk. Now, in this case, even the collector of Kings' taxes, or the Exciseman, or the sub-distributor of stamps, could examine and compare the stamps on the proceedings with the plaint, execution, and minute-book, to ascertain that the proper number of stamps have been made use of. The mileage (if any) for the service can be given to the bailiff on handing him the summons or execution, and the out-district fees or charges forwarded to the Treasury with monthly account, to be settled with the out-bailiff quarterly; and the following may be the form of the stamps to be used according to the amount of poundage :
Varying the centre according to the different fees, thus:—“ Application and summons (out of district), 2s. 4d." "Subpoena, 2s. 2d. ;" "Special Defence, 1s. 6d. ;" "Order (without jury), 4s. 6d. ;' "Order (with jury), 6s. 6d.,"
sample, but I don't know how many were bad." Yes, your Honour, they were all bad, and I lost money by them." The judge then said, "Stand down, verdict for the defendant." An attorney's clerk, standing by, whispered to Mr. Knill to ask for costs, which he did. The judge answered "With costs, yes." Mr. G. upon this got into a rage, and said "This is very odd law to take away my potatoes and make me pay costs too.' I have been advised to send this to you, and if you like to publish it you will please to do so without my name, as I am afraid of offending the judge. I am, Sir, yours, &c. A MIDDLESEX FARMER.
TO THE EDITOR OF THE COUNTY COURTS CHRONICLE.
SIR-I enclose you the following copy of a Case and Opinion which I think furnishes an instance in which the law operates unjustly, and requires an alteration.
There are cases in which the bailiff of the County Court may seize goods which never belonged to the execution debtor. A readyfurnished house may supply an example of that sort. Indeed, I do not know that the bailiff might not seize the goods of any person in his district when armed with an execution.
It could never have been intended to expose the property of the public to such danger, but, if so, it certainly could not have been intended to preclude any remedy where a technical rule had not been complied with, perhaps from its having been impossible to do so. I remain, yours, &c. GEORGE JOHN SHAW.
8, Furnival's Inn, September 15, 1852.
Ex parte C.
Execution, 28. 4d. ;" | Interpleader-Claim of owner of goods barred by neglect to deliver particulars in due time,
This would render unnecessary the fees to be mentioned in the plaint book, and in toto, the fee book, which is a very plaguy affair. I am, Sir, yours, &c. A SUB-CLERK AT A COUNTY COURT OFFICE 66 IN THE 'PROVINCES."
COMPLAINT OF A FARMER.
10 THE EDITOR OF THE COUNTY COURTS CHRONICLE.
SIR-I take the liberty of writing to you as the acknowledged organ of the County Courts, and to lay before your readers a statement of my experience of cheap justice. It has been my desire at all times to keep free from all litigation, and so much have I feared the law, that I seldom even attended our County Assizes or Sessions; and I am happy to say, that up to the present time no counsellor or attorney has ever received a shilling of my money. I cannot, however, boast that I bave equally escaped the New Courts, for I was lately summoned and had to pay to the Clerk of the County Court about 31. or 4. for what seemed to me to be nothing at all, and as I cannot make out what business either the judge or his clerk had to make me pay, I shall be much obliged if you can enlighten me on the subject.
I occupy a farm under Lord for which I pay a rent of 2501. a year. In consideration of my supposed profits in farming, and some other matters, I was charged a certain amount of Income Tax which I considered to be an over-charge, and I consequently appealed to the Board in London, who, after some delay, decided in my favour. In the meantime, however, I was summoned for the amount of the tax in the County Court, and although I appeared and told the judge that the matter was then under the consideration of the Board, he decided against me, and made me pay both the
tax and the costs.
Not long after this, I was served with a paper ordering me to attend on the jury in the County Court. Being rather astonished at the cavalier and off-hand way in which the judge had decided my own case, I was not sorry for an opportunity of observing how he behaved towards other people. I was not long there before I was convinced that, however cheap the law might be in the small court, it was not what we farmers call justice. A neighbour of mine had sold a large quantity of potatoes to a dealer, who had sent them to London and sold them. The dealer having refused to pay for the potatoes, my neighbour put him in the court. The case came on, and the judge began in this manner: Well, Mr. Gibson, you say Mr. Knill owes you some money." Mr. G. answered, "Yes, your Honour, I sold him potatoes for which he agreed to pay me 321., and here is the account." Upon which the judge said, "Stop, Mr. Gibson, that will do. Now, Mr. Knill, what have you to say to that?" Mr. Knill said, "Your Honour, the potatoes were not worth half the money. They were not like the sample, half of them were bad." The judge then turned again to Mr. Gibson, and said "Did you hear what the defendant said? Did you sell the potatoes by sample, and were half of the potatoes bad?" Mr. G.: "Yes, I did sell by
A judgment having been recovered in a County Court by one A. against one B.; an execution against the goods of B. was thereupon issued, under which the bailiff seized the goods which had been assigned by way of mortgage to C.
C. claimed these goods in the usual way, and the bailiff took out and served upon all parties an interpleader summons. From some mistake C. omitted to deliver the particulars of the goods and the ground of the claim, until one day before the day for hearing the summons instead of five, as required by the 145th rule. When the case came on the claimant applied for an adjournment, upon the ground of the absence of a witness, which was granted on payment of costs to the execution creditor A., who was paid 5s. for such costs. No objection was then taken to the defective delivery of particulars. When the adjourned hearing came on, an attorney objected on behalf of the execution creditor, that the claim could not be heard, as the rule 145 had not been complied with, and the creditor refused any consent. On the other hand it was argued that the objection ought to have been taken when the summons first came on, and was adjourned, that the acceptance by the creditor of the 5s. costs amounted to a consent, or that, at all events, the court could order some amendment by which justice could be done between the parties. However, the judge reluctantly decided against the claimant on every ground, and refused to hear the case, the effect of which has been that A. has obtained payment of B.'s debt by the produce of C.'s goods.
It is assumed that C.'s claim is valid, for the purposes of argument, and it is contended that the law can hardly entail such serious consequences for the breach of a rule of practice, which, in in the event of absence and many other causes, it may be impossible to observe, and that, although the officers of the court may be protected, yet, that the creditor A. cannot honestly retain the money in question. It may be remarked here, that the proviso respecting the consent of parties seems absurd if the judge be right in this case, for who can be expected to consent if the effect of refusal is to establish the right to have and retain the subject in dispute. This seems as if the execution creditor might be called to account by some means or other.
Your Opinion is requested on behalf of C. upon the question, whether he can sue the execution creditor for money had and received, or any other form of action, or whether any proceeding can be taken to compel the judge to hear the case upon the merits?
I am of Opinion that C. cannot sue the execution creditor in an action for money had and received, or in any other form of action for the proceeds of the execution. The decision of the County Court judge is, I think, conclusive against him, such being the effect of sect. 118 of 9 & 10 Vict. c. 95: (see Tinkler v. Hilder,