Decision of Questions of Title arising incidentally.]Besides those actions having for their immediate object the adjudication of claims which are not within the jurisdiction of the County Court, except by consent, questions of title not unfrequently arise in the course of the trial of those actions which on their face are within the jurisdiction of the County Courts. Thus, an action may be brought for the value of a tree, which it is alleged that the defendant has wrongfully cut down. The defence may be that the tree was growing on the defendant's own land. The question of title to the freehold then becomes a question incidentally arising in the cause, but which must be decided in order to dispose of the claim. Again, in an action for rent, if the tenancy under the plaintiff be denied, a question of title to the tenement may arise. Both parties may be quite willing that the Judge of the County Court should decide between them; but, as the law stood before the new act, the Judge had no power to do so, and consent would not confer jurisdiction for this purpose (f). Nor do the provisions already mentioned meet this case, for they only relate to actions in which the question of title or other matter out of the ordinary jurisdiction of the County Courts is the very thing to be tried, and in respect of which the County Court has jurisdiction by the consent of both parties given before action. The County Court Commissioners thought that a jurisdiction might be beneficially conferred by the consent of both parties, when the question arises incidentally to the claim, which it is the immediate object of the action to enforce; and they recommended, therefore, that if both parties are willing to have the case decided by the County Court Judge, an entry to that effect should be made on the minutes of the Court, and then that the judgment should be binding on the parties, so far as the immediate question in dispute is concerned, but should not be evidence of title between the parties or persons claiming by, through, or under them in any other proceeding (g). The new act accordingly provides, that " in any action in the County Court in which the title to any corporeal or incorporeal hereditament, or to any toll, fair, market, or franchise, shall incidentally come in question, the Judge shall have power to decide the claim which it is the immediate object of the action Vict. c. 108" in the "Schedule of Form No. 2. (f) Report of the County Court Commissioners, pp. 25, 26. (g) Report, pp. 25, 26. to enforce, if both parties at the hearing shall consent in any writing signed by them or their attornies to the Judge having such power; but the judgment of the Court shall not be evidence of title between the parties or their privies in any other action in that Court or in any proceeding in any other Court; and such consent shall not prejudice or affect any right of appeal of either of the parties to such first-mentioned action" (h). The parties may thus have the benefit of a proceeding similar to that of a reference to an arbitrator, and obtain an immediate decision at a small expense, instead of being forced to proceed in a Superior Court at an expense, and with an amount of inconvenience far exceeding the value of the matter in dispute; while, at the same time, future rights or ulterior proceedings are not compromised (i). A form of the necessary consent in the above case is provided by the forms of proceedings appended to the rules (k). It will be observed that there is a distinction between the nature of the consent required to give jurisdiction under sect. 25, and that required under sect. 23. The consent given before action does not interfere with the mode of trial, which may be by the Judge or a jury as in ordinary cases (1); but the consent last spoken of, with respect to the decision of questions of title arising incidentally, confers the power on the Judge alone; nor is the power so conferred on the Judge merely confined to the question of title so incidentally arising; for the power given to him by sect. 25 is the decision of the claim, and the consent form runs in this way:-"We [or, the respective attornies of], the plaintiff and defendant, do hereby, under the provisions of sect. 25 of 19 & 20 Vict. c. 108, consent that this action shall be decided by the Judge of this Court." It seems clear, therefore, that if such a question of title should arise incidentally on the trial of an action in which a jury is had; on the parties consenting in the manner above mentioned, the functions of the jury are wholly at an end, and no consent can give them power to decide even any question of fact that may be involved in the case, apart from that of title. (h) 19 & 20 Vict. c. 108, s. 25. (i) Report of the County Court Commissioners, p. 26. (k) See post, Appendix, Form No. 32. (1) See post, Chapter VI. 5. CONCURRENT JURISDICTION OF THE SUPERIOR COURTS. It has been elsewhere observed, "that, although power is given to claimants to proceed in the County Court for the recovery of the various demands within its jurisdiction, there is nothing which absolutely prevents parties from bringing their actions in the Superior or other existing Courts if so minded. The deprivation of costs when the parties proceed in the Superior Court operates, however, practically to give the County Court exclusive jurisdiction over certain cases; and in some few other instances it will be seen, that the County Court is the only tribunal in which an action at law can be successfully maintained. Thus, no Superior Court of Common Law can try the right to a legacy or distributive share of property, or the balance of a partnership account; the remedy being in equity, unless the sum in question be within the amount over which the County Court has jurisdiction. It is not, however, in every case that a claimant, by suing in the Superior Court for the recovery of a demand over which the County Court has jurisdiction, runs a risk of being deprived of costs. In many cases a concurrent jurisdiction is expressly reserved to the Superior Courts, and therefore, having ascertained the extent of the general jurisdiction of the County Courts, it becomes necessary, before determining whether a claim should be pursued in those Courts, to ascertain, first, those cases where a plaintiff is at perfect liberty to sue in the Superior Courts at Westminster; and, secondly, those cases where he runs the risk of being deprived of costs if he does so, and where, therefore, he ought to sue in the County Court" (m). Concurrent Jurisdiction where the Cause of Action arises out of the District, &c.]-The jurisdiction given by section 58 of 9 & 10 Vict. c. 95, is by sect. 128 rendered concurrent with that of the Superior Courts, where the parties reside more than twenty miles (n) from each other, or where the cause of action does not arise wholly or in some material (m) Manual of Practice and Evidence, 2nd edit. p. 9. (n) The distance must be computed in a straight line, upon a hori zontal plane, and not by the nearest practical mode of access. Lake v. Butler, 24 L. J. (N. S.) Q. B. 273. point within the district within which the defendant dwells or carries on his business at the time of bringing the action, or where an officer of the Court is a party, except in respect of a claim to goods taken in execution by process of the Court (o). In those cases the action may be brought and determined in one of the Superior Courts at the election of the party suing, the new act not having interfered with the previous law and practice in this respect (p). The numerous points which have arisen with respect to the cause of action arising in "some material point" within the district, and other matters, have been fully stated and discussed elsewhere (q). Concurrent Jurisdiction where the Claim exceeds 51. in Tort and 201. in Contract.]-In those cases where the amount of the legal claim exceeds 57. in tort, and 207. in contract, but does not exceed 50l., the choice of tribunal between the Superior Court and the County Court is vested in the plaintiff, the new act not having made any alteration in this (0) Report of the County Court Commissioners, p. 3. (p) Concurrent Jurisdiction of the Stannaries Courts.]—The provisions of the 9 & 10 Vict. c. 95, s. 141, that nothing shall affect the Courts of the Lord Warden, or of the Vice-Warden of the Stannaries of Cornwall; but that this provision shall not be deemed to prevent the establishment of any County Court within the Stannaries, or to limit or affect the jurisdiction of any Court so established (and the effect of which is to preserve to the Stannary Courts concurrent jurisdiction with the County Courts) is not interfered with by the new act. See Manual of Practice and Evidence, 2nd edit. p. 14. See also 18 & 19 Vict. c. 32, s. 17, post (Chapter V.). Local Courts of Record also have a jurisdiction concurrent with that of the County Court. (q) Manual of Practice and Evidence, 2nd edit. pp. 10, 14. Since the publication of that work, the case of Wood v. Perry, 3 Exch. Rep. 442; 18 L. J. (N. S.) Exch. 161, has been confirmed by the Court of Common Pleas in Bonsey v. Wordsworth, 25 L. J. (N. S.) C. P. 205, where it was held that a tradesman's bill for a series of articles delivered continuously, cannot be split into different causes of action. In that case, the plaintiff, a butcher, living at Uxbridge, supplied meat continuously to the defendant, residing at Chalfont, within the jurisdiction of the Wycombe County Court, and some part of the meat was delivered at Chalfont, but the rest of it was delivered and the orders for all were given at Uxbridge, beyond the jurisdiction; and it was held that the plaintiff had but one cause of action, and that the delivery of part of the meat was a material part of the cause of action under sect. 128 of the 9 & 10 Vict. c. 95, and that therefore the Superior Court had not concurrent jurisdiction with the Wycombe County Court, and the plaintiff was not entitled to costs in the Superior Court. respect (r). The concurrent jurisdiction of the Superior Courts in such cases is not the result of an express reservation as in the case of the cause of action arising out of the district, but is the effect of the stat. 13 & 14 Vict. c. 61, s. 11, depriving the plaintiff of costs in the Superior Courts when an amount not exceeding those sums respectively is recovered, as hereafter mentioned. 6. EXCLUSIVE JURISDICTION OF THE COUNTY COURTS. The stat. 13 & 14 Vict. c. 61, s. 11, enacts, that if in any action commenced in any of her Majesty's Superior Courts of Record in covenant, debt, detinue or assumpsit, not being an action for breach of promise of marriage, the plaintiff recovers a sum not exceeding 201., or if in any action in trespass, trover or case, not being an action for malicious prosecution, or for libel, or for slander, or for criminal conversation, or for seduction, the plaintiff recovers a sum not exceeding 51., the plaintiff shall have judgment to recover such sum only and no costs. In consequence of the penalty by deprivation of costs in the Superior Courts, should the plaintiff not recover a sum to the amount of 201. or 51. according to the nature of the claim, those actions in which he would be so deprived may be treated as constituting the exclusive jurisdiction of the County Courts (s). Of course in those cases where the County Court has no jurisdiction at all (or only by consent of the parties), it would be very unfair to deprive a plaintiff of costs when suing in the Superior Courts; and accordingly when those actions are brought in the Superior Courts the parties are entitled to costs; and if such actions be for any of the excepted cases in sect. 11 of the 13 & 14 Vict. c. 61, viz., for breach of promise of marriage, or for malicious prosecution, or for libel or slander or for criminal conversation, or for seduction, the plaintiff is so entitled to the costs without any certificate or application to the Court, for in those cases the taxing officers of the Court see the subject of the action from the (r) See infra. (8) Report of the County Court Commissioners, p. 25. |