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Copies may be obtained, postage free, direct from the pubMODERN CONVEYANCING, with Practical and Ex- lisher, or by order of any bookseller. planatory Notes. By WILLIAM HUGHES, Esq., Barrister-atJOHN CROCKFORD, 29, Essex-street, Strand. Law, Author of "The Practice of Sales," "Practice of Mortgages," "The New Stamp Act," &c. CONCISE CONTENTS OF PART IV. 1. Assignment of leasehold premises held for a term of ninety-nine years, determinable on three lives, with usual covenants. 2. Assignment of a leasehold messuage for the residue of a term of ninety-nine years, determinable on three lives, with the licence of the lessor, the purchaser covenanting with the lessor not to assign or underlet without licence, and to perform the covenants of the lease. 3. 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A specimen copy sent for seven stamps. SUNDAY, OCTOBER 1. COUNTY COURTS CHRONICLE. master is not responsible. Thus, if a servant in driving his master's coach, by his negligence, runs against and injures another coach, the master is responsible for the injury thereby occasioned. But if the servant wilfully and wantonly drives against the other coach, the master is not responsible: (McManus v. Cricket, 1 East, 106.) CONTRACTS OF HIRE. We have in our former article discussed the nature of contracts of hire in general, and the rights and liabilities of those who let personal chattels. In the present article it is our intention to consider the duties and liabilities of the hirer. The duties of the latter are thus stated by Story: "The engagements of the person who takes anything to hire, are, to put the thing to no other use than that for which it is hired; to use it well; to take care of it; to restore it at the time appointed; to pay the price of hire; and in general to observe whatever is prescribed by the contract, or by law, or by custom :" (Bailm. 397.) own immediate servants, or by contractors with them, or their servants. Such injuries are in the nature of nuisances; but the same principle which applies to the personal occupation of land or houses, by a man or his family, does not apply to personal moveable chattels, which in the ordinary conduct of the affairs of life, are intrusted to the care and A blacksmith who, personally and by means management of others, who are not the serof his servants, is in the habit of shoeing vants of the owners, but who exercise employhorses for hire, engages that the men he em- ments on their own account, with respect to ploys are reasonably competent to do the work, the care and management of goods for any and if, either through unskilfulness or neg-persons who choose to intrust them with ligence, his servant so shoes a horse as to injure them." or lame it, the master is responsible; but if the servant maliciously and intentionally drives a nail into the horse's foot in order to lame him, the employer is not liable: (Boson v. Sandford, 2 Salk. 440.) The amount of care the hirer is bound to take of the thing hired depends in a great degree upon the nature of the thing itself, and the particular circumstances which may happen to surround it. The hirer must take the same If the owner lets a thing, and also a man to care of the subject of the hire as the owner, use or take care of it, such man is the servant being a reasonably careful man, would under of the latter and not of the hirer. Thus, if a the particular circumstances, take of it. Thus, In the first place it is the duty of the hirer to person hires a coach and horses of a stable- the hirer of a horse is bound to supply him take care of the thing hired, and if in conse- keeper for a journey, and the horses are driven with suitable food during the time of the quence of his negligence or default the thing is by the servant of the latter, the hirer is not hiring, and if he neglects to do so he will injured or destroyed, he will be liable to an responsible for any injury done by the servant render himself liable to an action: (Handford action for damages at the suit of the owner. in the course of the journey: (Sammell v. v. Palmer, 1 Br. & Bing. 359.) If a hired But what degree of care or diligence the hirer Wright, 5 Esp. 263.) And the rule is the horse is exhausted and refuses its food, the is bound to employ is a matter concerning same though the coach belongs to the hirer, hirer is bound to abstain from using it, and if which there exists some diversity of opinion. and the horses and driver only are furnished he does so, he is answerable for all the conSir William Jones contends that since the con- by the stable-keeper: (Quarman v. Burnett, sequences: (Bray v. Mayne, 1 Gow. 1.) And tract is one of mutual benefit, the hirer is 6 M. & W. 499.) In that case the Court of if the horse is seized with illness during the bound only to use ordinary diligence, and is Exchequer drew a distinction between the hire journey it is the duty of the hirer to procure responsible for ordinary negligence only. On of moveable goods and the occupation of fixed the attendance of a farrier, if such can be obthe other hand, it is laid down in Buller's Nisi property, and whilst admitting the authority of tained, and if, instead of doing so, he unskilfully Prius that the hirer must use every possible cases where the occupiers of houses have been prescribes for the horse himself, in consequence care, and is liable for even slight negligence: held liable for the acts of persons who were of which it dies, he will be answerable for the (p. 72.) And Lord Holt in the case of Coggs not their servants, they laid it down as an loss, though he acts bona fide; but he will not v. Bernard (2 Ld. Raym. 909), says that "if invariable rule that nothing short of the rela-be responsible if the death be occasioned by goods are let out for a reward, the hirer is tion of master and servant can render the the negligence or unskilfulness of the farrier: bound to the utmost diligence; such as the bailee of goods liable for the unauthorized acts (Dean v. Keat, 3 Camp. 4.) Negligence is a most diligent father of a family uses." Sir of others. "The liability," said Parke, B., by relative term; and the value and liability to William Jones seems to have followed Pothier virtue of the principle of relation of master injury of the article, and the means of security in his interpretation of the word "diligentis- and servant must cease where the relation possessed by the hirer, are material circumsimus," as used in the Digest, whilst Lord itself ceases to exist; and no other person stances in estimating the degree of care and Holt, also taking the civil law as the founda- than the master of such servant can be liable, diligence which are required of him: (see tion of his doctrine gives to the Latin word, on the simple ground that the servant is the Batson v. Donovan, 4 B. & Al. 21.) its ordinary grammatical signification. It would servant of another, and his act the act of another; appear on principle that the hirer should use consequently, a third person entering into a conreasonable care and diligence in the custody tract with the master, which does not raise the and use of the thing hired, and such as he relation of master and servant at all, is not would take in the custody and use of his own thereby rendered liable; and to make such goods; and such is the law now firmly esta-person liable, recourse must be had to a blished in the American courts: (Story, 398.) Hence the hirer being responsible only for that degree of diligence which all prudent men use in keeping their own goods of the same kind as the thing hired, it follows that he can be liable only for such injuries as are shown to come from an omission of that diligence, or, in other words, for ordinary negligence. Thus, if a man hires a horse, he is bound to ride it moderately, and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food: (Jones on Bailm. 88.) And if he does so, and the horse in such reasonable use is lamed or otherwise injured, he is not responsible. If two persons jointly hire a horse and carriage, and one of them is guilty of misconduct or negligence in driving, both will be liable for the damage thereby occasioned. But if only one be the hirer, and the other invited to ride, the hirer alone will be responsible: (Davy v. Chamberlain, 4 Esp. 229.) The responsibility of the hirer is not confined to his own default and negligence, but it also extends to the acts of his servants and children (Jones on Bailm, 89.) If a readyfurnished house or lodgings be hired, and the hirer's servants or children injure the furniture, the hirer is responsible. So, if a man hires a horse, and the hirer's servant carelessly leaves open the stable door, in consequence of which the horse is stolen, the hirer is bound to make good the loss: (Coggs v. Bernard, 2 Ld. Raym. 909.) In order, however, to make the master liable the servant must be acting in the service of his master, or in obedience to his orders; and if he does any wilful or malicious injury the different and more extended principle, namely, We have already seen that the master is not liable for the wilful and unauthorized act of his servant; he is not therefore liable if his servant, without any negligence on his part, steals the thing hired. Thus, if a trunk is deposited with an upholsterer for a reward, the contents of which are stolen by his servants, notwithstanding all reasonable care in the custody by him, he will not be answerable for the loss: (Finucane v. Small, 1 Esp. 314.) But if a watch be left with a watchmaker for repairs, and it is left in his shop in a less secure manner than he keeps his own, and it is stolen by his servants, he will be responsible for the loss: (Broadwater v. Blot, Holt, N. P. R. 547.) If, notwithstanding reasonable care on the part of the hirer, the thing hired is injured or destroyed by inevitable casualty, he will not be held responsible. Thus, if a warehouseman has used reasonable precautions to preserve goods deposited in his warehouse, and the goods are, notwithstanding such precautions detroyed by rats or mice, he is not bound to make good the loss: (Cailiff v. Danvers, Peake, 114.) The loss or injury does not appear to be any, even prima facie proof of negligence, and the burden of proving such negligence in an action by the owner against the hirer will in general be upon the plaintiff: (Finucane v. Small, 1 Esp. 314; Cooper v. Barton, 3 Camp. 5.) In the next place, the hirer is bound to use the thing hired according to the stipulations of the contract. And if the thing is used for a different purpose from that contracted for, or if it be used in a different manner or for a longer period, the hirer will be answerable for the damages thereby occasioned, and such misuser amounts to a conversion for which an action of trover will lie: (Bac. Abr. “Bailment, C.") Whether or not the hirer of a thing who has done an act which amounts to a conversion in law, be answerable for all losses history, mechanical and philosophical inventions, instruments, or designs," but, excepting the Royal Institution for the advancement of literature and the diffusion of useful knowledge. The act provides a simple form of grant or conveyance which will, in all cases, be sufficient, and no bargain and sale, or livery of seisin shall in any case be required, nor more than one witness to the execution by the conveying party. And though the grant be made without any valuable consideration, it shall not be invalidated by the death of the donor, within twelve calendar months from the execution thereof, a provision rendered necessary by the Statutes of Mortmain. Further provisions are also made to enable persons with limited interests to convey land for the use of such institutions. The officers of the Duchy of Cornwall, under the authority of a warrant from the Special Commissioners, Corporations, sole or aggregate, Ecclesiastical or Lay, Justices of the Peace, Commissioners and others holding lands for any public purposes in England, Wales, or Ireland, are empowered, subject to certain conditions mentioned in the act, to grant or convey land not exceeding one acre in extent, for each institution, for the purposes of the above-named institutions. And tenants in tail or, for life with the consent of the remainder man (if any), and persons beneficially interested in land but not possessed of the legal estate, may grant or convey a like quantity of land for the same purposes, either absolutely or for a term of years. Such grant or conveyance of the waste of a manor by the lord having the effect of barring all rights of common over the land conveyed. however caused, that occur after such conversion, is a matter that may admit of a diversity of opinion, though the weight of authority seems to be for the affirmative. In the case of Davis v. Garrett (6 Bing. 720), this point underwent much consideration. That was an action against the owner of a barge for the loss of a cargo of lime. It appeared in evidence at the trial, that the master of the defendant's barge had deviated from the usual and customary course of voyage, without any justifiable cause; and that afterwards, and whilst the barge was out of its course, in consequence of strong and tempestuous weather, the sea communicated with the lime, which thereby became heated, and the barge caught fire, and the master was compelled, for the preservation of himself and the crew, to run the barge on shore, where both the lime and the barge were entirely lost. In delivering judgment Lord Chief Justice Tindal said, "The objection taken is, that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course, and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course. But, if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plaintiff For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Parker v. James (4 Camp. 112), where the ship was captured whilst in the act of deviation, no such ground of defence was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm, if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defendant, who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable. But we think the real answer to the objection is, that no wrongdoer can be allowed to apportion or qualify his own If it shall appear to the governing body of any wrong; and that, as a loss has actually hap-institution (not having a royal charter, nor pened, whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had not been done. It might admit of a different construction, if he could show, not only that the same loss might have happened, but it must have happened, if the act complained of had not been done." to recover. To be continued. THE NEW JURISDICTION OF THE COUNTY COURTS UNDER THE The governing body of the institution is to be the council, directors, committee, or other body, to whom, by act of Parliament, charter, or the rules and regulations of the institution, the management of its affairs is entrusted; or, if no such body has been constituted on the establishment of the institution, the members may, upon due notice, create for themselves; and for the purposes of the act, a member shall be a person who, having been admitted according to the rules and regulations, shall have paid a subscription, or shall have signed the roll or list of members. tution, may be sued in the manner herein before provided; but if the defendant shall be successful in any action or other proceeding at the instance of the institution, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the institution, and in the latter case shall have process against the property of the said institution in the manner above described." (s. 25.) The second branch of the jurisdiction given by the act is for the dissolution of the institutions and the adjustment of their affairs. This is contained in sects. 29 and 30, thus, "Any number not less than three-fifths of the members of any institution may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the institution, its claims and liabilities, according to the rules of the said institution applicable thereto, if any, and if not, then as the governing body shall find expedient; provided, that in the event of any dispute arising among the said governing body or the members of the institution, the adjustment of its affairs shall be referred to the judge of the County Court of the district in which the principal building of the institution shall be situated, and he shall make such order or orders in the matter as he shall deem requisite, or, if he find it necessary, shall direct that proceedings shall be taken in the Court of Chancery for the adjustment of the affairs of the institution." (s. 29.) "If, upon the dissolution of any institution, there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said institution or any of them, but shall be given to some other institution, to be determined by the members at the time of the dissolution, or in default thereof by the judge of the County Court aforesaid; provided, however, that this clause shall not apply to any institution which shall have been founded or established by the contributions of shareholders in the nature of a jointstock company.” (s. 30.) Provisions are also made for facilitating legal proceedings by and against the institutions in all courts, and sects. 21, 22, and 23 provide that “ Any institution incorporated established for any particular purpose or pur- which shall not be entitled to sue and be sued poses), that it is advisable to alter, extend, or by any corporate name, and every institution abridge such purposes, it may submit the pro- not incorporated, may sue or be sued in the position in writing to its members, a majority of name of the president, chairman, principal secthree-fifths of whom, subject to certain formali-retary, or clerk, as shall be determined by the ties and to the disallowance of the Board of Trade, may adopt such proposition and carry it into effect. The jurisdiction given to the County Courts by the act is of a twofold description. To enforce the payment of penalties and calls, and for winding up the affairs of the institution. The first branch of jurisdiction is given by sects. 24 and 25, as follows: "In any instiLITERARY AND SCIENTIFIC INSTI-tution the governing body, if not otherwise TUTION ACT, 1854. By the 17 Vict. c. 112, provisions are made with the object of affording greater facilities for procuring and settling sites and buildings in trust for institutions established for the promotion of science, or the fine arts, or for the diffusion of useful knowledge, for simplifying legal proceedings by and against such institutions, and also for the dissolution of such institutions and the adjustment of their affairs under certain defined circumstances. The institutions to which these provisions apply are thus more specifically defined by the 33rd section. "The act shall apply to every institution for the time being established for the promotion of science, literature, the fine arts, for adult instruction, the diffusion of useful knowledge, the foundation or maintenance of libraries or reading-rooms for general use among the members, or open to the public; or public museums and galleries of paintings and other works of art; collections of natural rules and regulations of the institution, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion; provided, that it shall be competent for any person having a claim or demand against the institution to sue the president or chairman thereof, if, on application to the governing body, some other officer or person be not nominated to be the defendant." (s. 21.) legally empowered to do so, may, at any meet- "No suit or proceeding in any civil court ing specially convened according to its regula- shall abate or discontinue by reason of the tions, make any by-law for the better govern-person by or against whom such suit or proance of the institution, its members or officers, ceedings shall have be brought or continued and for the furtherance of its purpose and dying or ceasing 21 the character in the object, and may impose a reasonable pecuniary name whereof he shall have surd or been sued, penalty for the breach thereof, which penalty, but the same suit or proceeding shall be conwhen accrued, may be recovered in any local tinued in the name of or against the successor court of the district wherein the defendant of such person." (s. 22.) shall inhabit or the institution shall be situated, as the governing body thereof shall deem expedient provided always, that no pecuniary penalty imposed by any by-law for the breach thereof shall be recoverable unless the by-law shall have been confirmed by the votes of threefifths of the members present at a meeting specially convened for the purpose." (s. 24.) 66 Any member who may be in arrear of his subscription according to the rules of the institution, or may be or shall possess himself of or detain any property of the institution in a manner or for a time contrary to such rules, or shall injure or destroy the property of the insti If a judgment shall be recovered against the person or officer name on behalf of the institution, such judgment shall not be put in force against the goods, chattels, or lands, or against the body of such person or officer, but against the property of the institution, and a writ of revivor shall be issued setting forth the judgment recovered, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the institution only, and requiring to have the judgment enforced against the property of the institution." (s. 23.) And if the trustees, as legal owners of the property of the institution, are made liable to the payment of any tax or other demand, the 19th section of the act makes provisions for their indemnification. CASES AFFECTING THE JURISDICTION AND PRACTICE OF THE COUNTY COURTS DECIDED IN THE SUPERIOR COURTS SINCE THE PUBLICATION OF THE "SIXTH EDITION OF COX AND LLOYD'S COUNTY COURTS PRACTICE. NOTWITHSTANDING the apparent simplicity of those provisions in the different County Court Acts by which the jurisdiction of the courts is regulated, and notwithstanding the numerous decisions thereupon that have from time to time been reported, new questions continually arise, and points occur which, in many instances, could not have been foreseen until brought to light by the exigencies of actual practice. Whether the jurisdiction of the new County Court extends to all actions of replevin is a question lately raised, but still undecided. In Harries v. Hands and another (3 Mac. H. & S. 20; 7 C. C. Chron. 134), the plaintiff in the County Court sought to recover damages for a distress made to satisfy the expenses of apportionment under the Tithe Commutation Acts; the defendants applied for a prohibition, on the ground that the jurisdiction of the new County Courts in replevin only extends to cases of distress for rent in arrear and damage faisant, and Coleridge, J., granted a rule to show cause, which was afterwards made absolute, no cause being shown. The first express mention of replevin in the County Court Act occurs in the 119th section, where it is declared and enacted, "that all actions of replevin in cases of distress for rent or damage faisant, which shall be brought in the County Court, shall be brought without writ in a court held under this act." Does this section give the jurisdiction, or does it only regulate the practice? By the 3rd section it is enacted, "that every court to be holden under this act shall have all the jurisdiction and powers of the County Court for the recovery of debts and demands, as altered by this act." Is the action of replevin an action for the recovery of a debt or demand within the meaning of this section? And again, the 58th section enacts, that all pleas of personal actions, where the debt or damage claimed shall not exceed 201., may be holden in the County Court without writ." Can the limitation apply to actions of replevin, where not only a question of damages but also the title to the goods distrained comes in issue? conceded that the defence had ousted the court of its jurisdiction. In cases of interpleader, the County Court possesses an exclusive jurisdiction, with which the Superior Courts have no power to interfere. There is no appeal, and no limits to the jurisdiction. M'Kellar v. Summers (7 C. C. Chron. 179), was a plaint entered in the Kent County Court to recover the sum of 231. 5s. 6d., for which, together with costs, the plaintiff obtained judgment. Upon this judgment execution was issued, and a large quantity of bricks, machinery and other articles of the value of about 400l. were seized, and an interpleader summons having been taken out, the officers delayed the sale, but continued in possession of the goods. An application was afterwards made for a certiorari or a prohibition, both of which were refused. As to the certiorari, Alderson, B. said, "there is no record; this proceeding is a mere excrescence engrafted on the original plaint, and we cannot interfere." And the whole court were of opinion that there was no excess of jurisdiction that they could prohibit. And not only has the County Court an exclusive jurisdiction to try cases of interpleader, but there is no appeal against its decision. Let the suit be once heard on the merits, then, however erroneous may be the judgment, there is no means provided by which it can be questioned. In Beswick v. Boffey (23 L. J. 89, Ex.; 7 C. C. Chron. 33), an appeal was brought under the 13 & 14 Vict. c. 61, s. 14, against an interpleader order, but the Court of Exchequer were unanimously of opinion that no appeal lay, and the Court of Common Pleas acting upon that decision dismissed the appeal in the case of Frazer v. Fothergill, 23 L. J. 53, C. P. It is a well-established principle that the Superior Courts will not interfere to review an erroneous decision of a County Court judge, except on appeal in the regular way, and that only in cases where such appeal is expressly given by the act. The case of Er parte Southgate (7 C. C. Chron. 180), was another application of this principle. There the defendant was sued in the County Court of Colchester as administrator of A. and as executor of B.; and the judge of the court refused to allow evidence that he was not the executor of B., or to call upon the plaintiffs to elect in which character they would sue the defendant; and he further refused to call upon the attorney to prove that he was properly appointed by the plaintiffs who sued in their corporate capacity, but gave judgment generally against the defendant, without distinguishing the proportions for which he was liable in each character. Upon this the defendant applied for a prohibition, which was refused, and Pollock, C. B., in delivering the judgment of the court, said: "It may be that the County Court judge ought to have decided differently; but a wrong decision is no ground for a prohibition. If a judge of a County Court-there being a matter brought before him, without a particle of evidence one way or the other. were to find a verdict against the defendant, it would be very wrong; but it is no ground for a prohibition." Actions involving questions of title to corporeal or incorporeal hereditaments are, by the proviso in the 58th section, excluded from the jurisdiction of the County Court. Marsden v. Wardle (3 Mac. H. & S. 11; 7 C. C. Chron. 84), was an action brought in the Staffordshire County Court to recover the amount of a promissory note made by the defendant in favour of and payable to the plaintiff. At the trial the defendant contended On the other hand, if the matter comes that the consideration for the note had failed, before the court on appeal, where such lies, and in support of that ground of defence, he every mistake of the judge, whether upon the produced evidence to show that the note had general law or upon a point of practice will be been given by way of deposit upon the pur- inquired into and set right. In the case of Crisp chase of real estate, and that the abstract and others v. The York, Newcastle, and Berwick which was subsequently delivered, disclosed an Railway Company (7 C. C. Chron. 129) the imperfect title. And he further contended judge in the County Court left it to the jury to that such defence, whether satisfactorily made say whether the defendants were common out or not, at all events raised a question of carriers, which they found in the affirmative. title which ousted the court of its jurisdiction. But the Court of Common Pleas held, on The judge overruled the objection, and a appeal, that as there was no evidence that the prohibition was applied for on that ground, defendants were common carriers, the judge which Crompton, J. granted after having ought to have told the jury so, and directed heard counsel on both sides; and in the follow-thein to find a verdict accordingly, and that it ing term an application was made to the Court was a misdirection to leave that matter to the of Queen's Bench to set aside Mr. Justice jury at all without express directions how they Crompton's order, but unsuccessfully. Various were to find. objections were taken, but it was throughout In Howard v. Reiner (23 L J. 60 Q. B. 7 C. C. Chron. 10), the plaintiff in the County Court delivered particulars of his claim, containing six items. The fourth was for continuing on his premises, and proceeding to sell after abandonment of a distress. He had given a notice of action pursuant to 5 & 6 Vict. c. 51, s. 19, wherein he stated his cause of action to be "for entering his premises, and seizing three in-calf heifers, under colour of a distress, and also for selling and driving away three heifers belonging to him." The County Court judge held that the plaintiff was not entitled under that notice to give evidence of the fourth item in his particulars; but the Court of Queen's Bench held that he was, and ordered a new trial; Lord Campbell, C. J. observing, "I am surprised that such subtle technicalities should be sent up from the County Court. We have got rid of special demurrers in the Superior Courts, and now we are called upon to consider, by way of appeal from the County Courts, points as alien from the merits as any that ever were raised by special demurrer. The County Courts ought, in my opinion, to decide according to aequum et bonum, without referring such nice questions to the Superior Courts. Now in the present case there must be, I am sorry to say, a new trial; because the learned judge excluded evidence which, I think, ought to have been admitted." The judges of the Superior Courts have power to order attorneys' bills for business done in those courts to be taxed, notwithstanding that they are made the subject of proceedings in the County Courts. In the case of Ex parte Cooper (7 C. C. Chron. 130), such a bill was pleaded by way of set-off, and the full amount allowed by the judge, yet Cresswell, J. made an order for it to be taxed, which the Court of Common Pleas refused to set aside. Upon the practice on appeal to the Superior Courts, the case of Figg v. Wilkinson has furnished two decisions, which are as follows:A County Court judge, in settling a case for an appeal, directed that a certain document should be inserted, and he signed the rough draft, upon the understanding that the document was to be set forth in the fair copy. The draft was also sealed with the seal of the County Court. The judge afterwards refused to sign the fair copy containing the documents, he then considering that he was funnots officio, by having signed the imperfect draft; but it was held that the judge was not funus officio, but that he ought to sign and send up the perfect case: (23 L. J. 5, Ex.) At the trial in the County Court judgment was given for the plaintiff, whereupon the defendant determined to appeal, and, on the 1st of July, a draft case was signed and sealed by the judge, with an order by him that the summons and a receipt should be inserted in it. These documents being in the hands of the attorney for the defendant, at Witney, and a Sunday intervening, they could not be obtained and inserted in the case until the 4th of July, and on the 6th copies were transmitted to the rule office of the Court of Exchequer, pursuant to rule 163, which directs that "the appellant shall, within three clear days next after the case is signed and sealed, transmit two copies thereof, by post, or otherwise, in conformity with the provisions of the 13 & 14 Vict. c. 61." The plaintiff obtained a rule to show cause why the appeal should not be struck out and proceedings stayed on the ground that the rule had not been complied with. But the court discharged the rule and held, that the case was transmitted in time, for although the judge put his name manually to the case on the 1st of July, the signature was on the understanding that it was not to be considered as put until certain documents were introduced: (9 Ex. 475; 3 Mac. H. & S. 1.) The decisions upon questions of costs have been proportionately numerous during the last two Terms. In Reg. v. Harden (7 C. C. Chron. 35) the following points were ruled:-Where a party in a court below successfully takes an objection which has the effect of stopping the proceedings against him, and afterwards, upon an application for a mandamus to compel the Court to proceed, he unsuccessfully shows cause, he will, as a general rule, be compelled to pay the costs of such mandamus. If, how ever, there are special circumstances which show that his resistance to the mandamus was well founded, he will not be compelled to pay them. A. B. was sued in the County Court to recover the costs awarded against him for expenses, &c., of the guardians of a union, in proceeding against him for a nuisance, under the provisions of the 11 & 12 Vict. c. 123 (the Nuisances Removal Act.) At the trial he objected that he was not the owner of the ditch where the alleged nuisance was, and, that, as title to land came into question, the Court was by sect. 58 of 9 & 10 Vict. c. 95. deprived of its jurisdiction to try the case; and the judge, being clearly of this opinion, refused to give judgment. But upon a motion to the Court of Queen's Bench for a mandamus, the Court held, that the 3rd sect. of the 11 & 12 Vict. c. 123, gave the County Court jurisdiction in cases within its provisions, notwithstanding that the title to hereditaments incidentally arise, and made the rule absolute for a mandamus. An application was subsequently made to the Court of Queen's Bench for the costs of the rule for the mandamus against the defendant in the action, who had shown cause against it, but the Court held that under the special circumstances of the case, the defendant was warranted in his opposition to the rule, and dismissed the application. Where the plaintiff in an action brought in a Superior Court, recovers a sum not exceeding 201. in an action on contract, or not exceeding 57. in an action for a tort, and the judge does not certify, he will not be entitled to his costs unless he proves either that the plaintiff and defendant lived more than twenty miles from each other, or that the cause of action arose in some material point within the district where the defendant dwelt or carried on his business at the time of action brought, or that an officer of the County Court is a party to the suit. The necessity, therefore, frequently arises of ascertaining what is a "dwelling," or carrying on business within the act, and the cases thereupon will be found collected in Cox and Lloyd's Practice, pp. 63, 65, 138, et seg. (6th edit.) Since then a few more decisions have been reported. In Mitchell v. Hender (3 Mac. H. & S. 22,) a surgeon and accouchcher who lived within the district of the County Court of Liskeard, was sued in a Superior Court for a debt which had wholly arisen within the district of the Launceston County Court, and judgment was obtained against him for the sum of 101. 16s. 8d. It appeared, however, in answer to an application for costs by the plaintiff, that the defendant, though he lived within the Liskeard district, was in the constant habit of attending patients within the Launceston district, and Coleridge, J., held that he carried on his business there, and refused the application. In delivering judgment, the learned judge observed, "The limit given for dwelling is within the jurisdiction of the Court; and it is the same as carrying on his business: if it is within the jurisdiction that is sufficient. Now, there must, undoubtedly, be something personal, and not by agent merely; the dwelling must be personal, and so must be the carrying on of the business. Suppose, however, the nature of the business is to be moving about, that would be a carrying on of his business, in doing its work and effecting its objects." That the carrying on of business must be personal has been also laid down in other cases. and in a recent case (Whiley v. Stiff, 7 C. C. Chron. 58.) the following observations on that subject were made. Alderson, B. said "Suppose the case of a joint-stock bank, the business of which is carried on by clerks, under the superintendence of directors, the shareholders could not be sued in consequence, in the district in which that place of business was; it may perhaps be doubted whether the directors could." And Parke, B., said "The case of a dormant partner in a firm that carried on business, or a business that was entirely carried on by an agent only, would not, I think, be a carrying on of business within the meaning of the act, enabling the dormant partner in the one case, or the principal in the other, to be sued in the District Court where the business was being carried on." In Stokes v. Grissell (3 Mac. H. & S. 24.) the plaintiff applied for costs upon an affidavit stating "that the deponent had heard and understood that the defendant had retired from business; that he did not know of the defendant carrying on any business within the district, and did not believe that the defendant carried on his business within the district; that he had made inquiries, but that, though he had heard that the defendant did carry on his business at Stangate Sawmills, he had heard that he had ceased to carry on his business altogether." And it was held that in the absence of any affidavit by the defendant to the contrary, the affidavit of the plaintiff was sufficient as to question of carrying on business. It was also ruled in the same case that the twenty miles are to be measured in a straight line, and not merely by the nearest road. (To be continued.) MONTHLY COMMENTARY. THE New Common Law Procedure Act contains many provisions which are, in express terms, made applicable to proceedings in the County Court. Sect. 103 provides that the enactments of sects. 19 to 32 shall apply to every civil court of adjudicature in England and Ireland. And in some other sections also such as the 3rd and the 6th, express reference is made to the County Court. But the 18th section is not within either of these categories; and whether or not it is intended to regulate the proceedings in the County Courts may admit of some doubt. That section enacts, that "upon the trial of any cause the addresses to the jury shall be regulated as follows: the party who begins, or his counsel, shall be allowed, in the event of his opponent not announcing at the close of the case of the party who begins, his intention to adduce evidence, to address the jury a second time at the close of such case, for the purpose of summing up the evidence; and the party on the other side, or his counsel, shall be allowed to open the case, and also to sum up the evidence (if any); and the right to reply shall be the same as at present.' In Terms the above enactment only applies to trials before a jury; and in cases tried before a judge alone under the provisions of the act, the old practice must be followed, unless the judges should determine otherwise. The right to reply and to sum up the evidence is not of the same essential importance to the parties where an experienced lawyer has to decide upon both law and facts, as where the latter are left to a jury who are more likely to be swayed by the arguments last addressed to them; and that may be the reason why the words of the section are not more general. Neither the different Statutes or the Rules of Practice contain any directions as to the mode of conducting cases in the County Courts; but the 74th section of the 9 & 10 Vict. c. 95, enacts, "that on the day in that behalf named in the summons, the plaintiff shall appear, and thereupon the defendant shall be required to appear to answer such plaint; and on answer being made in the court, the judge shall proceed in a summary way to try the cause, and give judgment without further pleading or formal joinder of issue." From this it would appear that the intention of the Legislature was to give the Judge of the County Court an uncontrolled authority to regulate the mode of proceeding, and the order of addressing himself or the jury. It is, however, provided by the 78th section of the same Act, that "in any case not expressly provided for in the Act, or by the Rules of Practice, the general principles of practice in the Superior Courts of Common Law may be adopted ano applied, at the discretion of the judges, td actions and proceedings in their several courts." Under these provisions, the mode of conducting hitherto prevailing in trials at Nisi Prius, has been invariably adopted by the County Court Judges in all contested cases; and more particularly in those tried by a jury. Under the same provisions the new practice may also be adopted, and the Legislature, in not expressly making the 18th section of the New Common Law Procedure Act applicable to the County Courts, may have intended to preserve to the judges of those courts the same discretionary power. The following letter addressed to the Editor of the LAW TIMES, discloses an important defect in County Court practice. Mr. Parker writes thus : "The following facts may be interesting and instructive to those who are unacquainted with the procedure of County Courts:-I caused process to issue from a Metropolitan County Court on behalf of a client. Defendant consented to judgment, and an order was made for payment by instalments. No instalment was paid.-I applied to the judge to commit, and an order of commitment was made. So far all went well, and I paid 21. 7s. 4d. for the commitment and warrant-that is, 17. for hearing fee, and 17. 78. 4d. for warrant against the body, with mileage (the costs of the previous proceedings amounted to 4l. 14s. 1d). The matter being entirely out of my hands and in those of the officer of the court, all I could do was to inquire many times at the always met by a negative, I ceased to apply, the court if defendant was taken; and, my inquries being distance from my office being great. Between two and three months after order for commitment made, my clerk met defendant in the street, and was informed by him that he had been arrested, and, in order to avoid being locked up, had offered cash for ployer (who was present at the time and confirmed more than half the debt and the security of his emthe offer) for the balance, but that the officer rejected this and took him to gaol, where he remained for the ten days, and was then released; and that having He shortly afterwards took the benefit of the Insolvent suffered this penalty he was resolved not to pay at all. Acts. The officers of the court, in answer to my inquiries, confirmed defendant's statement. Neither I as attorney, nor my client as principal, ever received the slightest intimation from the court or its officers of the offer made by the defendant, or of his imprisoneagerly accepted. As it is, not a fraction of debt or ment; the offer of part payment would have been costs has been paid by defendant. The contempt of court was atonedt or; but I submit ti. at the creditor's rights and attempt to recover we e strangely forgotten and defeated by the proceedings detailed." Some means should be provided for enabling the High Bailiff to communicate with the parties or their attorneys as to proposals made, and compromises in cases where execution has issued. A discretion cannot be left to the officer; but means may be adopted whereby he may put the parties in communication with each other, and thus carry out more effectually the object for the attainment of which process has been issued. LATE CASES ON THE LAW AND PRACTICE OF THE COUNTY COURTS. (a) 23. Cases on Questions of Appeal. WE purpose bringing the present series of articles on the cases determined by the Superior Courts relative to the County Court, to a close in the consideration of the decisions relating to appeals. As regards this subject, it must be premised that in all cases in which jurisdiction was given to the County Court by stat. 9 & 10 Vict. c. 95, the judgment of the court was final and conclusive between the parties, s. 89, no method of reviewing the judge's decision, whether in point of point of law or fact, existing. In cases, however, in which a more extended jurisdiction is given by the later act, 13 & 14 Vict. c. 61, there is an appeal to a court constituted for that purpose, and in actions whers the debt or damage sought to be recovered is (a) By GEORGE HARRIS, Esq., Barrister-at-Law. |