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Review: Stephen's Digest of County Court Cases decided in the Superior Courts.

nion on the conduct of the Judge, but declining to grant the information because Mr. Shaw had, in the first instance, applied to the Chancellor to remove the defendant, which application had been refused. It did not appear on what grounds the Chancellor had refused inquiry.

The Cases are arranged for convenient reference in the alphabetical order of the subjects decided. The most important are -Action; Agreement; Appeal; Commitment; Costs; Court; Evidence; Inter

pleader; Jurisdiction; Prohibition; Sug

gestion; &c.

As an example of the utility of the work and the method in which the learned counsel has treated the subject, we extract the following passages on the interesting topic of Costs:


Action, application to Court, Practice, Levi

v. McRae, 22 L.J. 311, Q.B.

"In any action in the Superior Courts in which the plaintiff shall prima facie be disentitled to costs by reason of the 11th section of the 13 & 14 Vict. c. 61, if there be facts which would take the case out of the prohibition of that section, semble that the Master could not take notice of those circumstances, but that application should be made to the Court or a Judge under the 15 & 16 Vict. c. 54, s. 4, for an order directing that the plaintiff shall recover his costs before the plaintiff applies to the Master to tax them.

"Action on judgment, false plea of nul tiel record, construction of 9 & 10 Vict. c. 95, s. 129-43 Geo. 3, c. 46, s. 4. Slater Mackay, 1 C. C. C. pt. 6, p. 346; 19 L. J. C. P. 88; 13 Jur. 1081.

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of action; he then applied to a Judge at Chambers, under the 13 & 14 Vict. c. 61, and obtained an order for costs on the statement of the attorney's clerk, unsupported by affidavit. rescind such order, it not appearing by the On an application to the Court for a rule to affidavits that any objection was made to the Judge at Chambers entertaining the case, the Court refused the rule.

"A rule having been subsequently granted on amended affidavits,


Held, that the 13th section of the County Court Extension Act, which gives power to a his costs in certain cases, was not applicable Judge to make an order for the plaintiff to have to the above case; but that the plaintiff was entitled to his costs under Reg. Gen. Trin. Term, 1 Vict.

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Appeal, plaintiff's right to be nonsuited.
Robinson v. Lawrence, 21 L. J. Ex. 36, 2
C. C. C. pt. 9, p. 538.

"1851, December 1.-Ex.

"In an action in a County Court, the plaintiff retains the common law privilege of electing to be nonsuited at any time before the Judge gives his verdict.

"In appeals from County Courts brought in the Court of Exchequer, the successful party in the appeal will, as a general rule, have


"November 26, 1849.-C. P. "An action was brought in a Superior Court for 151. 38. 6d., and the defendant allowed judgment to go by default. The plaintiff then sued on the judgment for the debt and costs," (exceeding in all 201.) for the purpose of obtaining execution against the defendant's person. To this action there was a false plea" of nul tiel record.

"Held, that in such a case the Court will

exercise its discretion under 43 Geo. 3, c. 46, in favour of the plaintiff.

"Held, also, that the 129th section of 9 & 10 Vict. c. 95, does not apply to cases of judgment by default.

"Affidavit, construction of, 13 & 14 Vict. c. 61, ss. 11, 13. Power v. Jones, 1 C. C. C. p. 422.

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January 24th and 31st, and February 7th, 1851.-Ex.

Arbitrators, money had and received, exces-
sive demand, payment. Fernley v. Branson,
1 C. C. C., pt. 7, p. 460.
February 17, 1851.-Q. B.-On appeal from

the Manchester County Court. provided that the costs of the submission and "A lay arbitrator, under a submission which award should be in the discretion of the arbiof remuneration. The plaintiff was compelled trator, awarded to himself an excessive amount to pay that sum in order to get the award. The amount having been reduced by the Master upon taxation.


'Held, that the arbitrator could not by his award conclusively fix the amount of costs. And, further, that the plaintiff might recover the excess beyond the amount of fair remu neration in an action against the arbitrator for money had and received to his (the plaintiff's)

"In an action of debt in a Superior Court, the defendant paid into Court the sum of 127. 13s. 3d., and the plaintiff took out that sum in satisfaction of his claim, and entered a nolle prosequi as to the residue of the causes "As between attorney and client, attorney's


Review: Stephen's Digest of County Court Cases decided in the Superior Courts.

fees. Exparte Clipperton, re Green, 1 C. C.
C. pt. 3, p. 136.

66 Thursday, May 11th, 1848.-Q. B.
"The 91st section of the County Courts'
Act of 9 & 10 Vict. c. 95, limiting the fee of an
attorney for appearing or acting in the said
Court, extends equally to the costs between
attorney and client, and also to all matters
done by the attorney in relation to the suit
previously to the hearing.

"As between attorney and client, construction of 9 & 10 Vict. c. 95, s. 91. Exparte Keighley, re Keighley v. Goodman, 1 C. C. C., pt. 5, p. 284.

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Attorney, privilege. Jones v. Brown, 1 C.
C. C., p. 102.

"Easter Term, 1848.-Ex.

trespass was issued on the 25th March, 1847, and plaintiff recovered 408. damages, and the County Court for the district was not actually established until after the 25th, although it had been directed to be formed by the order in Council on the 11th March.

"Held, that the right to sue in the Superior Court was not affected by the terms of the 129th section of Statute 9 & 10 Vict. c. 95.

"Death of one of two defendants, affidavit. Lewis v. Farrant, 1 C. C. C., pt. 5, p. 301.

"Easter Term, 1850.—C. B. "Where the death of one of the defendants is suggested on the record of a writ of trial, the affidavit to deprive the plaintiff of costs is properly entitled to a suit by the plaintiff against the surviving defendant only. defendants were not persons within the 9 & 10 "But the affidavit should negative that both Vict. c. 95, s. 128, so as not to give concurrent jurisdiction to the Superior Courts. And the affidavit is not sufficient if it merely negatives the fact of the surviving defendant being within section 128.

"Laches in application. Reid v. Gardiner, 17 Jur. 442 Exch.

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Semble, that an application for costs under the 15 & 16 Vict. c. 54, s. 4, may be made after any lapse of time. A cause in which the Superior Courts and a County Court had concurrent jurisdiction was brought in the former, and tried in February, 1852, the defendant being then absent from England on a voyage to Australia. The plaintiff having obtained a verdict and accepted his damages, applied for costs under that Statute in January, 1853; held not too late. (Orchard v. Morsy, 7 Exch. Rep. 387, in notis, distinguished.)

"No time is fixed within which an application for costs is to be made under the 15 & 16 Vict. c. 54, s. 4, in cases where the County Courts and the Superior Courts have concur"An attorney is still privileged to sue in a rent jurisdiction. Judgment was obtained by Superior Court for debts and demands within the plaintiff in February, 1852, and the damthe jurisdiction of the County Court, notwith-ages paid, but no application for costs was standing the provisions of the 67th and 129th made until January, 1852, the defendant havsections of the County Court Act (confirming ing been out of the jurisdiction during that the decision of the Court of Queen's Bench in time. Held, that the plaintiff was entitled to the case of Lewis v. Hance, p. 19.) his costs.

"A rule to deprive an attorney plaintiff of costs, who had sued in the Superior Court upon a cause of action within the jurisdiction of the County Court, will be discharged with


Practice. Latreille v. Barrett, 14 Jur. 336 (Exch.)

“Exchequer, April 18, 1850.

"Where a plaintiff obtained a verdict in a Superior Court for a sum of money for which

"County Courts' Act. Parker v. Crouch, 1 he ought to have sued in a County Court, C. C. C., pt. 1, p. 42.

Michaelmas Term, 1847.-Ex. "Until a Court was established under the County Courts' Act, so that a plaint might

and signs judgment for the amount recovered and his costs, the defendant should move to set aside the judgment altogether, and not so much as relates to the costs.

have been entered therein at the time of action"
brought, sec. 129, which deprives the plaintiff
of costs in any action "for which a plaint
might have been entered under this Act," did
not apply.

"Therefore, where a writ in an action of

Preliminary business. Re Toby, 1 C. C.

p. 243.

"Trinity Term, 1850.-Q. B. "The 91st section of 9 & 10 Vict. c. 95, limiting the fees of an attorney for 'appearing

Legal Statistics.-Objections to the Publication of Lists of Warrants of Attorney, &c. 375

or acting' on behalf of any person in the County Court, applies only to the appearing and acting in Court, and not to matters done by the atttorney in relation to the suit previously to the hearing."



For some time after the abolition of imprisonment for debt upon mesne process the Legislature appeared to side more with the debtors than the creditors, until it became apparent, after the new law had been a short time in operation, that the power in the hands of creditors was insufficient to protect them from being robbed by designing and dishonest traders. In fact, this branch of law appears to be always carried to one extreme or the other: there appears to be a sort of natural conflict perpetually raging between debtors and creditors, and no law between them has ever yet been, or, perhaps, can be perfect. Of late years, however, the law has been so al2,690 tered in favour of creditors, that they are now 2,877 possessed of almost absolute power over their 244 debtors, so much so as to render it very 1,468 hazardous for a tradesman to attempt to carry on business, except with ready money.

FROM a return to the House of Commons ordered to be printed 9th February last, it appears that

The number of public Acts since the year
1800, which were passed in the 21 remaining
sessions of the reign of Geo. 3, was.
And of local and personal Acts
Of private Acts, printed

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not printed

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Amongst other powers lately given to creditors, was one (at the suggestion, I believe, of

The number of public Acts during the 11 ses- a committee of some of the highest firms in

sions of Geo. 4, was

And of local Acts

Of private Acts, printed

not printed


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1,105 London) that all "judges' orders" should, to 1,470 be binding in the event of bankruptcy, be 511 filed. A similar plan was previously in opera156 tion with respect to warrants of attorney and

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cognovits, but they were rarely given, because 3,242 the Profession almost invariably advised their clients to consent to judges' orders instead, as the latter were not required to be registered 708 until the passing of the Bankrupt Law Conso860 lidation Act. Now, the simple fact of regis234 tering anything, whether warrant of attorney, 107 cognovit, or judges' order, or any instrument of a similar nature, would not perhaps be at 1,909 all objectionable (rather the contrary), but it has lately become the practice to compile lists

The number of public Acts during the 17 ses- of these documents for circulation amongst

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WARRANTS OF ATTORNEY, BILLS scribing for them. When they were produced,

OF SALE, &c.

By means of the law of arrest on mesne process, as it existed a few years ago, creditors were possessed of enormous power, which they were able to put in force by merely making an affidavit of debt, without giving any notice whatever.

The power alluded to was often wielded in the most unscrupulous manner, until at last the indignation of the public was fairly roused, and an Act was passed abolishing the right, except in the cases of debtors who were about to leave the country, and then only by order of a Judge upon an application supported by affidavit, and showing special cir


the names of some retail traders in the country, who were customers of the house, were pointed out, and I was informed that instructions had been sent to the travellers for the firm to close their accounts immediately, and all because they had signed a warrant of attorney or cognovit, given perhaps from the best of motives, and without a thought of the security being used unfairly against other creditors. In the instances I have mentioned, who can doubt that ruin must have followed. The accounts closed, immediate payment required, and credit stopped-stopped too, not only at the particular house alluded to, but most likely by all others in the trade. All this was done, be it remembered, without the knowledge of the unfortunate debtors, who probably remain to this day, totally ignorant of the cause of their al

376 Objections to Publication of Lists of Warrants of Attorney.-Points in Equity Practice.

tered position, though the effect must have power over debtors of a most atrocious chabeen painfully apparent. The compiling and racter, totally opposed to every principle of circulating of these lists was commenced about justice and honourable feeling. the same time, or soon afterwards, by another office of a similar character, then by one or two of the principle trade protection societies, and afterwards by others, until at last the system has become general amongst all those societies which are sufficiently large to bear the


When the system of compiling and circulating these lists was first introduced, some slight check existed in the shape of fear of actions for libel, which I have no doubt might be sustained, particularly in cases where special damage could be proved. But the offices and societies have now grown bold by practice, and The law has thus gradually made it com- from not having been interfered with, all fear pulsory to register, first, warrants of attorney, is cast aside, and every man, honest or disthen cognovits, then Judges' orders (the use of honest, who has ventured to give a security each of which in turn has been abandoned by required by law to be registered, is held up to the Profession, because of the injurious effect all persons, but to wholesale traders in partito their clients of registering), and in the last cular, as one to whom credit cannot safely be Session of Parliament it was made compulsory given; and that too without any statement of to register bills of sale also; attorneys conse- the circumstances under which he has given quently now often advise their clients to con- the security; thus leaving the poor but possent to an immediate judgment, and sometimes sibly honest tradesman the miserable and unto place themselves entirely at the mercy of satisfactory remedy of an action for libel-an their creditors, rather than incur the fearful expensive and heart-breaking process to any penalty of having their names put into what person, but most so to him whose fortunes can only be deemed a "Black List," where and prospects may by the operation of the systhe fact is recorded, where it remains unalter- tem which I have attempted to describe, be able, without any explanation of attendant cir- stated in one word—ruin. cumstances, and to be used as a reference for many years, long after the debt has been satisfied.




In a suit instituted by a next friend on behalf of an infant, the defendant deposited certain deeds and papers under the common order for inspection. The infant had since attained his age of 21 and repudiated the suit.

The law having thus commenced what I cannot but designate as a most mischievous proceeding (though never, I venture to assert, LIEN OF NEXT FRIEND with the view of its being made use of in the manner I have described, but merely as a means of preventing secret preferences), the various offices and societies have, one after another gradually encroached upon the license which they have assumed, until at last reserve is thrown aside, and the lists are now publicly printed, and sent to any person who chooses to pay a few shillings for them. One of these On a motion for the delivery out of Court of the last-I have just seen, and there I find the deeds and papers, the Vice-Chancellor the names of M.P.'s, baronets, barristers, and Kindersley said " The next friend wants to others (some of whom will be rather astonished have his costs; the question is, how does he to find their transactions made so public),

found a

mixed up with retail traders, who had much make out his right to retain the deeds in Court better have signed a declaration of insolvency for the purpose of protecting his claim for at once, than have placed themselves in the costs? Now, over and over again, I have position of having their names exposed as de- contention arise out of the distinction faulters from one end of the kingdom to the other, with no other prospect before them than between an order for production, and an order that of a hopeless and endless struggle to ob- for deposit. There is no similarity between them; tain a livelihood, unless they have the means, the order for deposit is made when it is necesas, alas, so few have, of purchasing all their sary to secure the deeds for the party entitled commodities for cash. to them. This is not an order for deposit. It is a mere order for production of the deeds for the purpose of discovery, and the defendant is ordered for that purpose to place them in the

I have before stated that attorneys often advise their clients now not to sign either of the various documents required by law to be registered, but rather to submit to immediate judgment. This will in a short time have the effect of greatly decreasing the number of those hands of the clerk of records and writs; when documents, and then it is not unlikely that an that purpose is satisfied, when the discovery has attempt will be made to carry the system out been obtained, the party who left the deeds by another mode; but this I will not dilate has a right to have them back, subject to the upon by anticipation, as I hope that Parliament will soon provide a remedy for the wrong it has discretion of the Court to retain them if it sees unwittingly, but indirectly, created, and by that they may be further required in course of means of which it has given to creditors a the suit, or at the hearing; for that the Court

Points in Equity Practice.-Salaries of the County Court Judges.

will provide; but that is not a production for the purpose of deposit with reference to the interest of the parties. If all these deeds had belonged clearly to the defendant, still, if they related to the matters in issue, he might have been ordered to produce them for the purpose of inspection. But when the discovery has been obtained, when the purpose of production is answered, then the right of the defendant is to have them out again. The order here is the common order for production for discovery only, and not for the deposit of the deeds for security; and, on that footing, it would be the clear right of the party who has produced them to have them out. But it is said that the plaintiff is interested in the documents not being delivered out; not because they are his, and ought to be delivered to him, but on behalf of the next friend as against the infant, in order that the deeds may remain until a sufficient security is shown for the payment of the next friend's costs; but that assumes that there has been a declaration of the rights of the parties to the deeds. There is no such declaration, no decree or declaration that they belong at all to the plaintiff.

The real attempt is to treat this as a question whether the next friend has a lien on the deeds. Now it is obvious he has none; he can have no lien on documents merely brought in to enable the plaintiff to obtain inspection of them for discovery.

If they had been deposited for security, that could only be ordered after a determination that, though they were in the hands of one party, some other party was entitled to them or to an interest in them; then the Court would see that they were secured as against the party possessing them. But when they are brought in for discovery, they are not to be retained for any other purpose.

It is really immaterial whether the deeds do or do not belong to the plaintiff; but at any rate it is not determined that they do. I do not mean to say at all that the next friend may not be entitled to his costs, but he has no right to say he has a lien on these deeds for that purpose." Dunn v. Dunn, 3 Drewry, 17.



A REMARKABLE correspondence has been elicited, under an order of the House of Lords, relating to the increase of the salaries of the Judges of the County Courts.


By a Treasury minute, of 23rd August, 1853, it is stated that

"My lords have before them letters from certain of the County Court Judges, setting forth their claims to be paid the maximum salary allowed by the Act 15 & 16 Vict. c. 54. "My lords have before them a statement compiled by their directions, showing—

"1st. The number of cases tried in 1852 in each circuit.

"2nd. The number of days each Judge sat in 1852.

"3rd. The amount of Judge's fees produced in each circuit.

"4th. The number of miles each Judge must travel taking a circuit of his Courts, including extra journeys to Courts requiring to be held oftener than once a month. The actual miles travelled by the Judges are frequently more than here stated, according as they return after one or more Courts or make a circuit.

"5th. The standing of each circuit, according to the number of causes tried, sittings, fees, and miles travelled. "The circuits being arranged in 1, 2, 3, and 4, according to the highest amounts. "In considering the claims put forth, my lords find the greatest difficulty in ascertaining the relative amount of labour performed by the Judge.

"It is obviously improper to take the amount of Judge's fees produced in any one circuit as the sole guide to the amount of labour imposed upon its Judge, as it appears by the statement attached to this minute, that in circuits comprising many Courts, in which the amount of fees produced is very small, the number of days the Judge is required by the Act to sit considerably exceeds the number which the Judges of most of the circuits in which the fees are large do sit.

"For the same reason the number of causes tried cannot be considered as a criterion of the labour which falls on the Judge, as the amount of labour required in the country districts in travelling from Court to Court must be set against the greater number of causes tried in the metropolitan and other urban circuits.

"It is, therefore, only by considering the each circuit that the labour of the Judge can be amount of the different labours peculiar to estimated, and when such an estimate of each circuit is made, the difficulty remains of determining which of the labours required of the Judges should be considered as the most laborious, so as to be able fairly to decide in which of the different circuits the duties are the heaviest.

"Under these circumstances, and having reference to the recent period at which by an Act of the Legislature the salaries of the Judges of these Courts were increased from 1,000l. to 1,2004, per annum each, my lords consider that it would be advisable to consult the Commissioners recently appointed by her Majesty

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