Superior Courts: Queen's Bench.-Exchequer. Held, that a warrunt for the arrest as an offender, under the 6 & 7 Wm. 4, c. 76, of the town clerk, for not delivering up on his removal from office his books and papers, and for not rendering accounts of moneys received, cannot be executed on a Sunday, inasmuch as it is of a civil and not a criminal nature; and also, that his detention under a second warrant, while in custody under the first, was void; and order for his discharge on habeas corpus. THIS was an application for the discharge of the defendant, who had been brought up on habeas corpus, out of custody. It appeared that he had been arrested as an offender under the 6 & 7 Wm. 4, c. 76, for not having delivered up his books and papers, and rendered accounts as town clerk, on his removal from office. Gray in support, on an affidavit the arrest took place on a Sunday, and urged that it was void under the 29 Car. 2, c. 7, s. 6,' and that the detainer upon a second warrant which had been issued was irregular. Pashley and Cole, contrà. The Court said, the defendant was commit. ted for not performing a duty, but for no offence that was indictable within the exception of the Stat. Car. 2, and could not therefore be arrested on a Sunday; and he could not be taken under the second warrant while in custody under the first, and he was accordingly discharged. Sturges v. Joy. Nov. 3, 1853. INSOLVENT DEBTOR.-ENTRY OF SATISFACTION ON JUDGMENT UNDER WARRANT OF ATTORNEY.-JURISDICTION. Held, that this Court has no jurisdiction under the 1 & 2 Vict. c. 110, s. 92, to direct satisfaction to be entered on a judgment under a warrant of attorney, on payment of the debts in respect of which it had been given, but that such power is confined to the Insolvent Debtors' Court. THIS was a rule nisi on the provisional as 15 signee of an insolvent, for satisfaction to be entered on a judgment under a warrant of attorney, on payment of the debts in respect of which it had been given. By sect. 87 of the 1 & 2 Vict. c. 110, it is enacted, that before adjudication, the prisoner shall execute a warrant of attorney to confess judgment for the amount of debts in the schedule; and by sect. 92, that if "it shall appear to the satisfaction of the said Court of Insolvent Debtors that all the debts in respect of which such adjudication was made have been discharged and satisfied, it shall be lawful for such Court" "to order satisfaction to be entered on such judgment." Sir F. Thesiger and Addison showed cause, on the ground of want of jurisdiction. Channell, S. L., and Bovill, in support. The Court said, the intention of the Act was to confine this jurisdiction to the Insolvent Debtors' Court, and that this Court could not interfere, and the rule was therefore discharged with costs. Lipson v. Harrison. Nov. 3, 1853. ACTION FOR SALVAGE OF VESSEL.-JURIS DICTION. Held, that an action cannot be maintained for salvage from the owners of a vessel which had stranded, on behalf of a sailor, but must be brought in the Admiralty Court. THIS was a motion for a rule nisi to set aside which was brought by a sailor on board the the nonsuit and for a new trial in this action, Swiftsure to recover salvage from the owners of the Lady Worsley, which had stranded on the coast of Africa. On the trial before Wightman, J., a nonsuit had been directed. Atherton, Q. C., in support. The Court said, there was no contract either the masters of the vessels. But the claim express or implied, but, if any, it was between should have been made in the Court of Admiralty, and the rule must be refused. The sum of money paid into Court in pursuance of particulars claiming only such amount, under a misconception, had been taken out of Court and the costs taxed and paid. It was then discovered that the pleadings would be a bar to further relief to which the plaintiff was entitled, and a Judge's order was obtained for leave to repay such sum and costs to the defendant. A rule nisi to rescind the Judge's order was discharged with costs. THIS was an action to recover for the plain 16 Superior Courts: Exchequer.-Analytical Digest of Cases. tiff's dismissal from the defendant's theatre, where he was engaged for three years under an agreement. It appeared that the particulars claimed for four weeks' salary only, under a misconception, and, on that amount being paid into Court, it had been taken out and costs taxed and paid. It was afterwards found that the pleadings covered any claim for damages in respect of future salary, and a summons had been taken out for the plaintiff to be at liberty to repay the 327. with costs, and an order having been made by Parke, B., this rule had been obtained to set it aside. Hawkins showed cause; Bramwell and Wordsworth in support. The Court said, the taking out of the money appeared to have been done under a misconception as to the effect of the existing pleadings and the plaintiff's rights, and he was entitled to come in and set himself right on payment of all the costs. The rule would therefore be discharged, and, as it was an appeal from the Judge, with costs. ANALYTICAL DIGEST OF CASES, Courts of Common Law. COUNTY COURT CASES. ABANDONMENT OF EXCESS OVER 201. 1. Evidence of. The levying in the County Court of a plaint for a sum less than 201., part of a larger demand exceeding that amount, is not, per se, an abandonment of the excess. In order to constitute such an abandonment, the plaintiff must do some act in Court, at the trial, indicating his intention to abandon the excess, semble. The plaintiff, in January, sold goods to the defendant for 177., for which he sent in his bill. In the following month he sold him another quantity of similar goods for 217. 10s., and sent in his bill for 387. 10s. the amount of both purchases. The plaintiff afterwards levied a plaint in the County Court for the 171. He did not appear at the trial, but the defendant attended and admitted the debt, for which judgment was accordingly given. To an action for the 21s. 10s., the defendant pleaded the proceedings in the County Court, averring that the plaintiff had thereby abandoned the excess of his debt above the amount recovered there: Held, that such proceedings were not evidence of an abandonment. Vines v. Arnold, 7 D. & L. 277. 2. Practice.-A plaintiff, having a claim exceeding 50%., sued in a County Court for 501. At the trial an entry was made on the particulars and judgment, that he abandoned the ex cess over 501. Held, that the Court had jurisdiction under 9 & 10 Vict. c. 95, s. 63. The proper course, however, in such a case, is to enter the abandonment on the summons before service. Isaacs v. Wyld, 2 L. M. & P. 676. Cases cited in the judgment: Vines v. Arnold, 8 C. B. 632; Brunskill v. Powell, 1 L. M. & P. 550. And see Claim above 50l.; Jurisdiction, 14. APPEAL. Observations of Judge.-Whether an appeal lies from the County Courts where the plaint has not been tried by a jury, quare. Per Maule, J. ww The observations made by the Judge of the County Court in delivering judgment, do not legitimately form part of the case upon appeal; and cannot be referred to either as finding a fact, or as giving a reason for the judgment. East Anglian Railway Company v. Lythgoe, 2 L. M. & P. 221. APPEAL COSTS. 1. In an appeal from the County Court, as a general rule, the successful party is entitled to costs. Robinson v. Lawrence, 7 Exch. R. 123; Hunt v. Wray, ib. 125. 2. Refusal to nonsuit.-Where the plaintiff, before verdict, applied to be nonsuited, which the Judge refused, but stated that he would give the plaintiff leave to move to set aside the verdict and to enter a nonsuit, and the plaintiff, without moving in pursuance of such leave appealed against the decision, the Court allowed the plaintiff the costs of the appeal. Outhwaite v. Hudson, 7 Exch. R. 380. 3. As a general rule, the successful party in Outhwaite v. an appeal is entitled to costs. Hudson, 7 Exch. R. 380. 4. The Court will always order the unsuccessful party to pay the costs of an appeal from a County Court. Robinson v. Lawrence, 2 L. M. & P. 673. CERTIFICATE FOR COSTS. 1. Semble, that a Judge may grant a certificate to entitle the plaintiff to costs under the 129th sect of the 9 & 10 Vict. c. 95, at any time before the taxation of costs. Tharrati v. Trevor, 6 Exch. R. 187. 2. Under the 12th section of the County Courts Extension Act, 13 & 14 Vict. c. 61, a Judge has power to certify for costs, where the sum recovered in actions of contract is 207., and in tort 51. Garby v. Harris, 7 Exch. R. 591. CERTIORARI. 1. Return of-Held, that a certiorari, under the 121st section of 9 & 10 Vict. c. 95, ought to be made returnable so as to allow sufficient time for the preliminary inquiries which the section directs. Mungean v. Wheatley, 6 Exch. R. 88. Analytical Digest of Cases: County Court Cases. 2. Removal of plaint.-Semble, the power given by the 9 & 10 Vict. c. 95, s. 90, to remove a plaint by certiorari from a County Court, is not taken away by the 13 & 14 Vict. c. 61, s. 16. Parker v. Bristol and Exeter Railway Company, 6 Exch. R. 184; 2 L. M. & P. 136. 3. Removal of plaint.-Affidavit, insufficient. -Costs.-Where a certiorari had issued by leave of a Judge under 9 & 10 Vict. c. 95, s. 90, to remove a plaint from a County Court, upon an affidavit which did not disclose certain facts which might have induced the Judge to impose terms, as to costs, upon the party applying, the Court quashed the writ. Parker v. Bristol and Exeter Railway Company, 2 L. M. & P. 136. 4. Amount of security.-Judge's duty.-It is the duty of the Judge of the County Court, where the declaration required by section 121 is made, to fix the amount of security, before requiring the execution of the bond. Mungean v. Wheatley, 2 L. M. & P. 155. 17 goods supplied, at the price stated in the agreement. This agreement was executed by both parties, at a place within the jurisdiction of a Court within which the defendant dwelt at the time of action brought, and the amount recovered was below 201.: Held, that this was not a case in which the Superior Court had concurrent jurisdiction; and therefore, that the plaintiff was not entitled to costs. Norman v. Marchant, 7 Exch. R. 723. 2. Dwelling.-Semble, that if a plaintiff does dwell, within the 9 & 10 Vict. c. 95, s. 128, in two places, one of which is more than 20 miles from the dwelling of the defendant, the Superior Courts have concurrent jurisdiction under the 128th sect., as it could not have been suggested on the roll that the plaintiff did not dwell more than 20 miles from the defendant. M'Dougal v. Paterson, 2 L. M. & P. 681. 3. Costs, order for. Application against Judge's order.-In a case where the Court of Queen's Bench had concurrent jurisdiction with the County Court by Stat. 9 & 10 Vict. 5. For removal of Plaint.-Attachment.-The c. 95, s. 128, the plaintiff recovered only 40s. delivery of a writ of certiorari to a person acting as clerk in the public office of the County Court is a sufficient delivery to the Judge. But service is not sufficient for the purpose of an attachment against the judge for disobedience. Where the writ has not been delivered to the Judge personally, he should, semble, be ruled to return it, before proceedings are taken by way of attachment against him. Brookman v. Wenham, 2 L. M. & P. 233. And see Jurisdiction, 13. CLAIM ABOVE 501. Abandonment of excess.-When to be made. -Where a plaintiff, having a cause of action to an amount exceeding 50l., issues a plaint in a County Court for that amount only, it is not necessary, in order to give the Court jurisdiction, that entry of the abandonment of the excess should appear on the plaint or summons; but it is sufficient if such entry be made at the hearing of the cause. Isaac v. Wyld, 7 Exch. R. 163. Cases cited in the judgment: Grimbly v. And see Abandonment of Excess over 501. CONCURRENT JURISDICTION. 1. Costs. The plaintiff and defendant, who dwelt less than 20 miles apart, entered into a written agreement, by which the former engaged to supply the latter with goods of a certain quality and at a specified price. After the delivery of a portion of the goods, the defendant refused to take the remainder, on the ground that they were not of the quality agreed upon. The plaintiff thereupon sued the defendant in one of the Superior Courts, to recover the amount of the goods so delivered; and, at the trial, he gave in evidence the written agreement, and recovered a verdict for the amount of the damages. This sum he accepted from the defendant without prejudice to any claim for costs; and he summoned the defendant to show cause before a Judge at Chambers, why the costs should not be taxed, and paid by defendant to plaintiff. The Judge, considering that a discretion on this point was vested in him by Stat. 13 & 14 Vict. c. 61, s. 13, refused to make an order. In the next Term but one after this decision, the plaintiff moved the Court of Queen's Bench that the costs might be taxed, and paid to him by the defendant; relying on a decision of the Court of Commor Pleas, since the hearing at Chambers, that the Judge, under s. 13, was bound to grant costs. Held, that the application was too late. Quare, whether the enactment in Stat. 13 & 14 Vict. c. 61, s. 13, that the Judge, in the cases there mentioned, "may" order costs, be imperative, or only permissive. Orchard v. Moxsy, 2 E. & B. 206.' And see Costs; Jurisdiction, 3. COSTS. 1. Application for, under County Courts Extension Act, need not be by affidavit.-An application to a Judge at Chambers by a plaintiff for costs, under the County Courts Extension Act, 13 & 14 Vict. c. 61, s. 13, need not be supported by affidavit, unless the facts are controverted by the defendant. Power v. Jones, 6 Exch. R. 121. 2. Concurrent jurisdiction.—The 13th sect. of the 13 & 14 Vict. 61, by which the Court, or a Judge at Chambers, are empowered to make an order that the plaintiff shall have his costs, is discretionary and not compulsory. Jones v. Harrison, 6 Exch. R. 328. 3. Discretion of Judge.-The power of a Judge to grant costs under section 13 of the 13 & 14 Vict. c. 61, is discretionary. Latham v. Spedding, 2 L. M. & P. 378.1 See now Stat. 15 & 16 Vict. c. 54, s. 4. 18 Analytical Digest of Cases: County Court Cases. 4. Judge's discretion.-Concurrent jurisdic-of suit, in any of her Majesty's Courts of Retion. The Court will not review the discretion cord at Westminster." of a Judge in refusing or granting a certificate for costs under the County Courts' Act, 13 & 14 Vict. c. 61, s. 13. Palmer v. Richards, 6 Exch. R. 335. 66 5. May."-Authority and not discretion. Sect. 13 of the 13 & 14 Vict. c. 61,-which enacts, that where a plaintiff shall make it appear to the satisfaction of the Court, or to a Judge at Chambers, that the action was one in which the Superior Courts had concurrent jurisdiction within sect. 128 of the 9 & 10 Vict. c. 95, or which could not have been brought in a County Court, or which was removed by certiorari, the Court or Judge "may give the plaintiff costs,-confers an authority, and not a discretion, upon the Court or Judge; and the Court or Judge are bound to allow the plaintiff his costs where the case comes within any one of the three cases mentioned in that section. M'Dougal v. Paterson, 2 L. M. & P. 681. On motion for a prohibition in a plaint brought to recover 81. 10s. 8d. for such a rate in the County Court of C., Held, that, though the action given by Stat. 1 & 2 Vict. c. xxxiii., was only in the Superior Courts, it was a plea of personal action within Stat. 9 & 10 Vict. c. 95, s. 58; and the County Court had jurisdiction to try the plaint. In re Stuart v. Jones, 1 E. & B. 22. 2. Power of Judge to nonsuit.—Summons.New trial.-The defendant, a brewer, let to the plaintiff a public-house, on the terms (among others) that the plaintiff should purchase of the defendant all the malt liquor consumed on the premises: provided that, in case of any breach of that agreement, the plaintiff should forfeit, as liquidated damages, the sum of 50l, secured by the promissory note of the plaintiff. The defendant indorsed over the note for value; and the plaintiff having been compelled to pay it, entered a plaint in the County Court against the defendant, and stated in the summons and particulars, that " the cause of action was money paid for the use of the defendant to the indorsee of the note, for which he never received from the defendant any value or consideration." At the trial, before a jury, it appeared that, on the plaintiff's taking possession of the premises in October, 1849, he commenced ordering beer from the defendant, and continued to do so until February, 1850. The plaintiff proposed to prove that the beer supplied by the defendant subsequently to Christmas, 1849, was unmarketable. This evidence was objected to, but received by the Judge. The defendant submitted that there was no case for the jury, and that the plaintiff must be nonsuited. The plaintiff refused to be non 6. Exercise of power of Judge to give costs under 13 & 14 Vict. c. 61, s. 13. - Where a plaintiff, in an action in the Superior Courts, recovers damages not exceeding those named in Stat. 13 & 14 Vict. c. 61, s. 11, but shows, to the satisfaction of the Court or of a Judge at Chambers, that the action was brought for a cause in which concurrent jurisdiction is given to the Superior Courts and County Courts, under Statute 9 & 10 Vict. c. 95, s. 128, or for which no plaint could have been entered in a County Court, or which has been removed from a County Court by certiorari, he is entitled, under Stat. 13 & 14 Vict. c. 61, s. 13, to his costs ex debito justitiæ; and the Court or Judge has no discretion as to granting or refusing them. Crake v. Powell, 2 E. & B. 210. 7. Execution under sec. 94, after part pay-suited; and the Judge left it to the jury to say ment.-Mandamus for process how directed. If a plaintiff in the County Court, having obtained judgment for debt and costs, receives payment of the debt only, he may, under Stat. 9 & 10 Vict. c. 95, s. 94, require the clerk of the County Court to issue execution against the debtor's goods for the costs only; although the Judge's order in the cause directed that payment should be made to the clerk at the Court-house, and the debt was not paid there or to the clerk at any place. A mandamus to issue execution in such case is properly directed to the clerk, and not to the Judge. Regina v. Fletcher, 2 E. & B. 279. whether the liquor supplied by the defendant was of a marketable quality; and they found a verdict for the plaintiff. On appeal to this Court under the 13 & 14 Vict. c. 61, the case, which was stated by the Judge, set out his direction to the jury, though not necessary to render intelligible the points of law which he formally submitted for the opinion of the Court: Held, in answer to the questions so submitted, -1st, that the term "nonsuit" in the 9 & 10 Vict. c. 95, has the same meaning as in ordinary legal proceedings, and consequently that the County Court Judge had no power to nonsuit the plaintiff against his will, but, in the absence of any case for the jury, should have directed a verdict for the defendant. 2ndly. That the same rule of construction should be applied to the summons and particu lars in the County Courts as in the Superior Courts; and therefore, in this case, the summons and particulars sufficiently described the cause of action, as the defendant could not have been misled by them; and that evidence as to the quality of the beer was admissible under them. Held, also, that, under the 13 & 14 Vict. c. 61, ss. 14, 15, the Court of Appeal is not con Analytical Digest of Cases: County Court Cases. 19 fined to the precise questions submitted to 8. To commit_judgment debtor for non-paythem, but may decide upon the whole case as ment of debt.-Discharge by Insolvent Court.stated; and therefore, looking at the summing The Judges of the County Courts have jurisup in this case, it was erroneous; for the cir- diction under the 9 & 10 Vict. c. 95, s. 99, to cumstance of the defendant having on one or commit a judgment debtor for non-payment of two occasions supplied the plaintiff with bad a debt for which a judgment had been rebeer, did not authorise him to avoid the con- covered in a County Court, although the debtor tract, but he should have returned the beer, has been discharged as to such debt by the and, if better were not sent instead of it, he Insolvent Debtors' Court. Abley v. Dale, 2 might, on the particular occasion, procure L. M. & P. 433. some elsewhere; and if the defendant continued to send bad beer, he might sue him on the implied contract that he would supply beer reasonably fit to be drunk. Stancliffe v. Clarke, 7 Exch. R. 439. 3. Residence of one of several plaintiffs.— Concurrent jurisdiction.—Where one of several plaintiffs dwells more than 20 miles from the defendant, the Superior Courts have concurrent jurisdiction with the County Court. Hickie v. Salamo, 8 Exch. R. 59. Cases cited in the judgment: Parry v. Davies, 1 L. M. & P. 379; Doyle v. Lawrence, 2 L. M. & P. 368. 4. Incorporeal hereditaments-Franchise.Claim of custom.-Wharf.-A claim of a custom for the occupiers of a wharf on a navigable river to overlap the adjoining wharfs with their vessels, when being loaded or unloaded, does not raise any question of title to an incorporeal hereditament or a franchise, so as to exclude the jurisdiction of the County Court by the 58th section of the 9 & 10 Vict. c. 95. Davis v. Walton, 8 Exch. R. 153. 5. To adjudicate on trespusses committed.Semble, (Platt, B., dissentiente,) that the 9 & 10 Vict. c. 95, s. 118, which empowers the Judge of a County Court to adjudicate on all claims made to or in respect of any goods," &c., "taken in execution under the process' of the Court, applies to claims made in respect of trespasses committed upon the claimant's house in the course of seizing the goods, as well as in respect of the goods seized. Tinkler v. Hilder, 7 D. & L. 6!. 6. Carrying on business within. Clerk in public office. To entitle a defendant to enter a suggestion on the roll to deprive the plaintiff of costs under the 10 & 11 Vict. c. 71, ss. 40 and 113 (the London Small Debts' Act), on the ground that the defendant carried on his business within the jurisdiction of the Court thereby established; it is not sufficient to show that the defendant is a clerk attending a pub. lic office within the jurisdiction, but residing elsewhere. Buckley v. Hann, 7 D. & L. 188. 9. Claim by residuary legatees against executors.-Where real or personal property is left to executors upon trust to sell, and, after paying certain legacies, to divide the residue among certain persons, the County Court has jurisdiction, under sect. 65, of 9 & 10 Vict. c. 95, to adjudicate on a claim made by one of such persons for a share of the residue, in a plaint against the executors. Pears v. Williams, 2 L. M. & P. 515. 10. Nonsuit. The Judge of a County Court may non suit a plaintiff in all cases in which a Judge of a Superior Court may do so. son v. Lawrence, 2 L. M. & P. 673. Robin 11. Replevin.--Title in question.-Removal of cause.-The County Court has still cognizance of replevin though title comes in question, subject to the power of removal by either party, under section 121 of Stat. 9 & 10 Vict. c. 95. Regina v. Raines, 1 E. & B. 855. 12. Consequences to Judge of acting without. of Record is answerable in an action for an act —Liability in trespass.-A Judge of a Court done by his command when he has no jurisdiction and is not mis-informed as to the facts on which jurisdiction depends. The plaintiff, who dwelt and carried on business at Cambridge, out of the jurisdiction of the Spilsby County Court, was sued in that Court by leave of the Judge, under Stat. 9 & 10 Vict. c. 95, s. 60, the cause of action having arisen within the jurisdiction of the Court; and judgment was duly obtained against him. Afterwards, while the plaintiff still dwelt and carried on business at Cambridge, a judgment summons was issued by order of the Judge of the Spilsby Court, under s. 98, calling upon the plaintiff to be examined as to his estate and effects; and, the plaintiff not appearing, the Judge, knowing the facts, but believing, nevertheless, that he had authority, made an order that the plaintiff should be committed for his contempt. -- Held, that the commitment was without jurisdiction; and that, as the Judge had ordered it under a mistake of the law, and not of 7. Cause of action arising within. The the facts, he was liable in trespass. Houlden v. words in section 40, "if the cause of action Smith, 14 Q. B. 841. arose therein," mean the whole cause of action. 13. Devise. • Charge on realty and perWhere, therefore, in an action by the indorsee sonalty. — Prohibition.—Certiorari.-A plainagainst the acceptor of a bill of exchange, it tiff in a County Court claimed, by his parappeared that the indorsement was written ticulars of demand, 171. Ss., due from the within the jurisdiction of the London Small defendant as administratrix of D., for that Debts' Court, but the delivery to the plaintiff W. by his will bequeathed to D. certain took place out of the jurisdiction: Held, that freehold hereditaments, and also leasehold case was not within the section. Buckley v. and other personal estate, on condition of Hann, 7 D. & L. 188. D. paying unto the plaintiff 4s. a week during 66 |