« PreviousContinue »
the plaintiff opened bis case without knowing what the defence would be, and the result has been to show the inconvenience of trying a case without pleadings."
The Chancery Pay Office is becoming the subject of grave remarks on account of the arrears of work which now exist, and the authorities are being blamed for not supplying a staff sufficient for the purposes of the office. Not many days ago, as we are credibly informed, some papers bespoken so long ago as May last were not then ready for delivery. This may be an exceptional instance, and we cannot believe that any large amount of the work of the department is in arrear. If, however, only half of the interval between this and May last, or even a quarter or an eighth be the period of arrears, it becomes a very serious matter. To take the case of an ordinary banker, what would a customer do who could not ascertain the amount of his balance in five minutes, nor have his pass-book made up for several months after he asked for it? The Chancery suitors are not able to transfer their account to another banker, but it is not possible to discern in that fact a reason why they should be treated so scurvily as they are. Moreover, although we are not writing in the interest of the officials, we may add that the extra burden entailed on those who have to do the work has caused a wide-spread discontent in the office, which it is reasonable to expect the needed increase in the staff would immediately allay. The Treasury official who has the charge of investigating this department, and the task of suggesting the changes necessary, should see to it that steps are at once taken whereby existing grievances should be effectually remedied.
Considering The Uncertainty as to the meaning of the word "lodger" which, notwithstanding the efforts of learned judges with reference to the Franchise Acts, prevailed at the time of the passing of the Lodgers Goods Protection Act, 1871, it is odd that no definition of " lodger" should have been included in that Act. The result has been that in Phillips v. Benson (26 W. E. 214, L. B. 3 C. P. D. 26), the Common Pleas Division constructed a definition of the term, with reference to the supposed intention of the Act "to protect the goods of persons between whom and the landlord there is no direct privity "—a process, we venture to think, savouring somewhat of begging the question. AVe should have thought that the object of the Act was to protect the goods of persons having a clearly subordinate occupation of part of a house only, and that the question in each case ought to be Has the person who wishes to avail himself of the Act a subordinate occupation of part of the house, or the principal and substantial occupation of the whole house? A case of Ball v. Priest before a police court, a report of which we printed last week, raised a new point under the Act. A person occupying a part only of certain premises claimed to be a "lodger," although he only used his part of the premises for business purposes, and did not sleep or live there. The question, therefore, arose whether the "lodger" must actually dwell in or inhabit the lodging. It is clear that in its ordinary popular meaning the word involves the idea of residence, and we think the magistrate was right in holding that a person who merely uses a part of a house for business purposes is not a lodger within the Lodgers Goods Protection Act.
versity of Leipsic. On another occasion (In the Goodsof Bonelli, 24 W. E. 255, L. E. 1 P. D. 69) Sir Jakes Hannen refused to decide a question of Italian testamentary law upon the affidavit of a gentleman describing himself as a "certified special pleader," and " familiar with Italian law," there being nothing to show that hehad obtained his familiarity with Italian law otherwise than by studying it in England. Upon an indictment for bigamy, the first marriage of the prisoner having taken place in Scotland (A v. Savage, 13 Cox. C. C. 178), Mr. Justice Lush refused to allow the Roman Catholic priest by whom the first marriage had been solemnized to prove that it was valid according to ther law of Scotland. Cartwright v. Cartwright and Anderson (26 W. E. 684) was a divorce suit, in which ib became necessary to prove the validity of a marriagesolemnized in Canada, and Sir J. Hannen refused toallow the Canadian marriage law to be proved by Mr. Bompas, Q.O., who had for many years practised in Canadian appeals before the Judicial Committee of thePrivy Council, since otherwise the court would have to> accept the opinion of any English barrister who had practised before the Judicial Committee as evidence of the law of any part of the British dominions from which the Privy Council is the final court of appeal. In the face of these authorities the Master of the Rolls naturallyrefused to accept the affidavit of a person described as a "law agent" to prove a point of foreign law.
The Interest in Mr. Justice Fitzgerald's summing upiu the recent trial at Dublin had been somewhat anticipated by his various rulings during the trial. His charge to the jury is chiefly noteworthy for the definition which it contains of the crime of conspiracy. He laid it down that, when persons are united for a common purpose, each of them is responsible for every act done with a> common intent by the others, no matter how widely they may be separated from one another, aud even though they be unknown to one another. A common design might therefore be inferred from independent speeches of the traversers, although delivered a t different times and places. He stated that secrecy is not an essential ingredient in the offence of conspiracy, and he pointed out that if one of the objects of the League were to prevent the enforcement of the Queen's writ it would be an illegal assembly, and all its members would be guilty of conspiracy and responsible for the illegal acts of one another. He appears also to have directed the jury that the case of all the traversers stood upon the same footing, and that they must be either all convicted or all acquitted.
Sir Richard Couch's appointment as a member of the Judicial Committee of the Privy Council qualifies him for taking part in the hearing of appeals, although he will not, as regards emolument, occupy the same position as the late Sir James Colvile. The 3 & 4 Will. 4, c. 41", s. 1, empowered "his Majesty from time to time, as and when he shall think fit, by his sign manual, to appoint any two other persons, being Privy CouuDillors, to ba members of the said committee" iu addition to the exofficio members nominated by the same section; and this power is not superseded by the Judicial Committee Act, 1871.
The Ruling of the Master of the Rolls in Saldanha v. A ndrews, which we briefly noted last week (p. 219), illustrates the jealousy with which the courts regard the admission of the evidence of experts upon questions of foreign law. Thus, in Bristow v. Sequeville (5 Ex. 275), the Court of Exchequer refused to allow the law of Prussia, upon a question of stamp duty, to be proved by a witness who hud merely studied that law at the Uni
Since it was decided that reporters should be admitted to the meeting of the bar on Thursday afternoon, oar readers will have before them full reports of the proceedings in the daily papers before these lines reach them, and we therefore think it unnecessary to print the outline of the speeches and resolutions with which we have been furnished.
THE CORRUPT AND ILLEGAL PRACTICES BILL.
It is about twenty-seven years since the consolidating Corrupt Practices Prevention Act was passed. This was, and still remains, a temporary Act only, having been renewed from year to year with divers amendments up to the present time, and expiring on the 31st of December, 1881. It had the advantage of being a complete code, and the necessity for the consolidation which it effected may be seen by glancing at its schedule of repeals, which contains ten statutes from 7 Will. 3, c. 4,, to 5 & 6 Vict. c. 102, all of which, it should be borne in mind, would be revived if by any accident the present legislation upon the subject should be allowed to lapse.
The present Bill, in form at any rate, is far inferior to its predecessor of 1854. It is Dot only a temporary statute, being expressed to continue until the 31st of December, 18S2. but it makes scarcely any attempt at consolidation. Of the seven Acts scheduled to the Act of 1880, one only—the insignificant 21 & 22 Vict. c. 87, relating to the payment of travelling expenses—is wholly repealed. We cannot but think that the time is come, not only for permanent, but consolidating legislation, and the necessity for renewing and amending the Ballot Act affords an additional reason why this should be done in the present session.
Passing from the form of the Bill to its substance, the general remark we have to make is that, while the penal clauses are, as a rule, unduly severe, the preventive clauses are, as a rule, happily conceived and easy to understand. Some of the former, we should imagine, it will be found useless to press in Parliament, and we can only account for their introduction ou the supposition that the authors of the Bill have proceeded on the system of asking for the impossible in order the more easily to obtain the possible.
Let us now proceed to examine seriatim the more important of the 59 clauses.
To that part of clause 2 which prohibits treating by other persons than the candidate himself, no reasonable objection can be taken. The only wonder is that the 4th section of the Act of 1854, for which it is substituted, was allowed to remain limited to candidates so long. Nor is there any objection to extending the operation of the section to non-electors. Bnt we think that the disfranchisement of the parties concerned should be the main penalty, and to enact, as is done by clause 6, that the guilty parties are to be liable to imprisonment with hard labour, is going a little too far. The qui tarn action for a penalty of £50 provided by the Act of 1854 is, we think, sufficient.
To clause 3 we have a very decided objection. It runs thus:—
"The expression 'corrupt practice,' as used in this Act, me»D3 treating as defined by this Act [clause 2], or bribery, nndue influence, or personation, as defined by the Corrupt Practices Prevention Acts as amended by this Act, or as recognized by the ommon law or the law of Parliament, and every offence which is a corrupt practice within the meaning of this Act shall be a corrupt practice within the meaning of the Parliamentary Elections Act, 1868."
Looking to the severe punishment awaiting any person, fvtn a candidate by his agents (clause 5), guilty of a corrupt practice, the very least that can be required of the originators of the Bill is that they should define "corrupt practice " within the four corners of the Bill itself, and not leave it to be discovered from the " law of Parliament" and the other sources enumerated in the clause. When that is done, the Legislature may properly be aeked to fix the punishment. As fixed at present by clauses 4—6, the punishments are :—
For ai.'j person.—T«n years' disfranchisement and disqualification for beingeleited to the House of Commons, with 1 atilitr to two years' imprisonment with hard labour and a fine of £500.
For a candidate (in addition to tlie above).—If corrupt practice committed with his knowledge, "he shall not be capable of ever being elected to or sitting in the House of Commons" for the county or bcrough in which he was candidate, "or of being elected to or of sitting in the House of Commons" tor any place whatever for ten years.
In addition to this, we read in the Bill that if the election court reports that a caudidate "has been guilty by his agents of any corrupt practice in reference to the election," "that candidate shall not be capable of ever being elected to or sitting in the House of Commons" for the couuty or borough in which he was a caudidate.
We do not think it possible or desirable that the peretual disqualification of the caudidate guilty " by his gent" should pass. We cannot even see auy necessity for extending, as is done by section 86 of the Act of 1854, the disqualification to other than personal nets. But if ''something must be done" in this direction, surely the disqualification for an existing Parliament, which obtains under section 3G of the Act of 1854, is sufficient. Disqualification for the candidate's own borough or county i?, it need hardly be said, in a large number of cases tantamount to exclusion from political life. So much for " corrupt practices."
The next eight clauses of the Bill, which deal with "illegal practices" are far more satisfactory. By clause 7 it is declared, amongst other things, to be an illegal practice to act as paid canvasser; and by clause 8 it is further declared to be an illegal practice to pay for the conveyance of electors to or from the poll by any mode of conveyance. A bill of merely two clauses to this effect would go very far towards checking present election abuses. Under the existing law, no doubt, 110 payment may be made by a candidate except through an authorized agent, and every payment must bj published to tbe world. But there is practically no limit to the payment of canvassers and cabmen. Paid canvassers are, it is true, disqualified from voting by 30 & 31 Vict, c. 102, s. 11, but theirfathers, sous, brothers, &c, are not, so that they may, by their relations, be as many in number as the electors themselves, and they may each be paid as much as the most unblushing debaucher of constituencies may choose to give them. Paid canvassers are a mere nuisance to honest voters, and more often than not send in false returns to their employers. We hope and believe that both these clauses will pass. A supplementary provision (clause 40) to that abolishing the payment of travelling expenses—namely, that each elector in a county shall have a polling place within three miles of his residence—is copied from the Ballot Act, 1872, section 5, merely altering " four" miles to " three." It should be expressed whether the distance is to be measured by the nearest road or a straight line, and the number of miles —if there is to be an alteration—might well be " two" instead of "three."
We also read—clause 8 (c)—that no payment is to be made "for exhibiting bills, addresses, or notices, or for the use of any house, building, erection, place, board, or thing for the purposes of any such exhibition." This provision, which is rather clumsily worded, goes, we think, a little too far. To put down " boardmen " may be all very well, but nothing can be more legitimate in itself than to disseminate the views of a candidate; and it seems to be rather hard to confine such dissemination to the pages of a newspaper—and it may bo remarked that newspaper advertisements figure amongst other authorized expenses mentioned in one of the schedules —which may not always be sufficiently within the reach of electors. Again, to prohibit, as is done by clause 9, the use of "licensed premises" for committee rooms is to deprive candidates in many cases of the most convenient, and in some cases of the only cheap, committee rooms that can be had. If something must be done in this direction, why not allow the candidates to obtain municipal or school board buildings free of expense, or allow the "licensed premises" to be used on the condition that only non-intoxicants should be sold therein upon the day of election F
Clause 13 provides the punishment for illegal practices. It is liability to a fine of £100 on summary conviction and disfranchisement and disqualification for offices for five years. Alter the £100 to £20, and the five years to two, aud we see no objection to this, nor to the provision of clause 14 that "illegal" as well as " corrupt" practices shall be reported by the election court, under section 10, sub-section 14, of the Parliamentary Elections Act, 1868.
We come now to the heading "Election Expenses." Each candidate is to have one election agent only, who must, of necessity, be a " solicitor of the Supreme Court." The succeeding clauses under this head, which fix a maximum beyond which expenses must not go, do not call for notice, except clause 20, which restricts the " personal expenses " of the candidate to £20. Here we can only ask, What are personal expenses?
Clause 27 is of some importance to the profession. It runs as follows :—
Where a person who is a barrister or solicitor, or who belong! to any profession, the admission to which is regulated by law, appears from the evidence given before any election couit, or election commissioners, to have been guilty of or privy to any misconduct in reference to an election, it shall be the duty of the Director of Public Prosecutions to bring the matter before the Inn of Court, High Court, or tribunal h iving power to take cognizance of any misconduct of such person in his profession, and such Inn of Court, High Court, or tribunal may deal with such person in like manner as in any case of misconduct by such person in his profession.
To this we can see no reasonable objection. It is to be observed that the whole cognizance of tho offence and the amount of the punishment are both left to be dealt with according to the absolute discretion of the "tribunal" who may if they please 'let the peccant member off with a reprimand.
Cf clause 28, providing for the annual publication in the register of all persons incapacitated for voting by either corrupt or illegal practices, we would express our cordial approval. This is quite new, we believe, in election law, unless the scheduling of the names of offenders to reports of select committees (see 30 & 31 Vict. c. 102, ss. 18—1G) can be called a publication of their names. And although this form of punishment has disappeared from our Adulteration Acts aud our licensing Acts, and now survives only, we believe, in the Sale of Bread Act of William the Fourth (6 & 7 Will. 4, c. 37, s. 12), we cannot but think it a wholesome mode of educating public opinion to disapproval of an offence.
Clauses 30—84 very materially alter and affect the procedure on election petitions. Clause 31 substitutes a tingle judgo for the two judges who have tried petitions since 1879 under 42 & 43 Vict. c. 75, which statute is repealed. Of this all we have to Bay is that, unless it becomes law, it will become necessary in the interest of the general administration of justice to increase the number of judges. Whether it ought to become law or not is too long a question to discuss in this article. Clause 33 provides for the attendance of a barrister or solicitor of not less than ten years' standing at the trial of every election petition. He is to be nominated by the Director of Public Prosecutions, with the approval of the Attorney-General, and is to attend as the representative of the director, "and it shall be the duty of such representative to obey any directions given to him by the election court with respect to the summoning and examining of any witness to give evidence on any such trial, and with respect to the prosecution of any person for any corrupt or illegal practice, and with respect to any person to whom notice is given to attend with a view to report him as guilty of any corrupt or illegal practice," &c. Some machinery is no doubt wanting for the purposes of bringing to justice offenders detected at the trial of an election petition, where it is
nobody's business to prosecute anybody, and we think that clause 33 provides the desired machinery as well as such a thing could be done.
Amongst the "miscellaneous" provisions, that which principally calls for notice is clause,36, which enables the Public Prosecutor, or any number of electors not less than ten, to procure a special commissioner, "being one of her Majesty's counsel," to be sent down, upon the election judges [should not this, by virtue of clause 31, be judge ?] having reasonable cause to believe that corrupt practices have prevailed. "The barrister so appointed," continues the section, "shall forthwith proceed to the county or borough, aud there hold an open court for the trial of persons charged with corrupt or illegal practices, and shall, for the purposes of this Act, have all the powers of a petty sessional court in addition to the powers conferred by this Act. Any person wlio has been guilty shall be liable to be imprisoned," tc. These clauses, if fully worked, cannot fail to strike with special awe the whole district into which the special commissioner is sent.
Other "miscellaneous " clauses, 37 aud 38, visit with all the penalties of bribery, &c, licensed persons who permit any act which constitutes a treating or undue influence, and punish with forfeiture of licence any licensed person personally guilty of a corrupt practice. It is, however, humanely added that " any holder of Buch a license shall not be under any obligation to supply meat, drink, or entertainment or provision, to any person in case the supply thereof is demanded for the purpose of any corrupt or illegal practice." We should have thought such a provision unnecessary, but it may be well to be on the safe side.
Of the clauses dealing with "legal proceedings" (42—7), it is material to observe that persons charged with corrupt practices may be found guilty of illegal practices; that on any prosecution, whether on indictment or summarily, the person prosecuted is to be a competent witness, and that there is an appeal against a summary conviction to quarter sessions. Purists will no doubt object to introducing the examination of the accused by a side wind, but we, ourselves, see no objection to this being done.
We think it very doubtful whether the Bill will pass in its present shape. If it should have to be dropped as a whole, some two or three clauses might stand as admirable amendments of the present law. But if it is seriously intended to effect all the changes which the Bill proposes, we would suggest that it is almost indispensable that a " breviate," or memorandum similar in form to that which accompanied the Militia Bill of 1S75, and the Weights and Measures Bill of 1878, should show the effect of the amendments in intelligible form, and be put in circulation without delay. We have, however, already intimated our opinion that the time is come for consolidation of the law of the subject.
At the Mansion-house, on Tuesday, John Withers wa? brought before Mr. Alderman Ellis for examination, charged with having stolen money belonging to his master, Mr. Burchell, solicitor, of Mark-lane. The defendant had been the prosecutor's managing clerk, receiving a salary of X'2O0 per annum, and a bonus of £20. The cashier of the proseoutor stated that on the 17th of December last he handed the defendant certain moneys, among which was a sum of £3, for which the defendant rendered an account as having been paid by him for certain fees in connection with a lawsuit, and which he, as managing clerk to the prosecutor, wns conducting. It was, however, alleged that the money had not been so need, and the defendant was charged with stealing it. It was stated that the defendant also had possession of certain papers which were important to the prosecutor in his business, and that other charges would be made. Tbo case was eventually adjourned, the defendant being admitted by Mr. Alderman Ellis to bail in two sureties in £100 and himself in £200.
RIGHT TO COSTS SINCE THE JUDICATURE ACT.
The law as to costs under the Judicature Act appears to be with respect to certain questions in a most lamentable state of doubt and confusion. We took occasion some time ago to discuss the state of the decisions on the subject. Since then a case of considerable importance— vii., Stooke v. Taylor (29 W. fi. 49, L. E. 5 Q. B. D. 569)—has been decided. The question involved was the right to costs where the plaintiff establishes his claim in an action of contract to an amount exceeding £20, but the defendant upon a counter-claim (as distinguished -from a set-off) establishes his claim to such an amount as reduces the balance in favour of the plaintiffs to an amount less than £20. The question was further complicated by the fact that it arose, not upon the verdict of a jury, but upon the award of an arbitrator, and it was upon this part of the case that a division arose among the judges as to the construction of the submission with regard to costs, to which we will afterwards refer. The more interesting part of the question is that which is independent of tliis complication.
The question, briefly stated, seems to be how far the same considerations ought to apply to counter-claim as apply to set-off. It sveins undoubted that when the original claim is reduced by way of set-off, properly so called— that is, by such a set-off as could have been pleaded under the statutes of set-off—the plaintiff only recovers the balance within the meaning of the County Court Act. At first it may appear, on principle, doubtful whether this should be so. It is true that a balance may be small, but the claims on either side may be very large, far exceeding the county conrt limit. It may be said that the plaintiff ought to give credit and sue for the balance only. It is very easy to say 90. But matters that in law are called liquidated may be, in fact, of very doubtful amount, as in the case of work and labour, money had and received, and various other matters. It may depend on nice questions of law whether liquidated amounts are due. It may theoretically be the case that a person ought to know how much he ought to give credit for, but in fact it may be a very difficult question how the account stands. Suppose a plaintiff has a good claim against a defendant for £1,000, and the defendauthasaclear set-off of £350, end it is a disputed question, depending on nice questions of law and fact, whether the defendant has a further set-off of £635. In such a case, of course, a plaintiff could not sue in the county court, so he brings his action in the superior court, and the defendant establishes his claim to the doubtful sum. Thereupon the plaintiff recovers £15 and loses his costs in the absence of a certificate. This may appear at first a little hard, because the idea of the provisions of the County Court Act would appear to be that the plaintiff ought to have sued in the county court, and if he chooses to sue iu thesuperiorcourt, when he ought tohavesuedinthecounty court, he is not to have costs. Whereas, in our hypothetical case, it is clear he ought not to have sued iu the county court. But the practical answer that may be made to this argument seems to us to be that the man who recovers so trifling a balance in a big litigation ought not in j ustice to have the costs. The balance is an accidental trifle. It alone would never have been sued for originally. The defendant in our hypothetical case substantially succeeded. The real question at issue between the parties was the disputed item of £635. It is hard enough on the defendant that, being substantially successful, he should lose all his costs on account of the trumpery balance. Still he ought to have paid the JE15 into court, and consequently must bear his own costi. It would be hard that he should have to bear the costs of both parties.
We think the rational conclusion is that it is right that a plaintiff who does not recover more than £20 should not have hi? costs, though there may be some
difficulty in logically connecting that result with the County Court Acts. This logical difficulty lies at the bottom of a pood deal that ha3 been said on the subject in previous cases that we have discussed. It seems absurd to make the question of costs depend on the amount claimed, because then any plaintiff by claiming a sum above the county court limit could avoid the rule. On the other hand, if it depends on the amount recovered, there are cases iu which the law seems to tell the plaintiff " though you had a fairly arguable claim to a sum, it may be of a hundred thousand pounds, yet as you recovered only £15, you ought to have brought your action in the county court, and therefore cannot have costs. But for the reason we gave, though the argument of the law is illogical, the result is justice.
The law being thus as to a set-off, the question after the Judicature Act necessarily arose in the cose of a counter-claim. Iu Staples v. Young (25 W. R. 304, L. R. 2 Ex. D. 324) the Exchequer Division held that a counterclaim stood iu this respect on the same footing as a setoff. The question which arises on the words of the County Court Act is as to the meaning of the word "recover." In the case of a set-off it is admitted that the plaintiff only " recovers" the balauce. The question under the Judicature Act is whether, where there is a counter-claim, the plaintiff recovers the total amount of the cause of action established in his favour, and the defendant recovers the total amount of the counter-claim established in his favour, or whether the plaintiff only recovers the balance. The late Lord Chief Justice and Mr. Justice Manisty, iu StooJce v. Taylor, refused to follow Staples v. Young, and went into very elaborate arguments, based upon the phraseology of the Judicature Act, to show that the former is the case, and Mr. Justice Field does not appear to differ from them iu this respect, though on the further point, with regard to the effect of the order of reference, ho differed. The Chief Justice devotes a considerable amount of pains to establishing the proposition that there is an essential moral distinction between tho two cases. We confess that a great number of the distinctions which he elaborates do not commend themselves to us as moral distinctions, but rather as distinctions of form. Cogent arguments may, no doubt, be derived from the technical forms of legal procedure, and the words of the Judicature Act as applied to such technical forms; but, looking to the question what the law ought to be, rather than what it is, those arguments are not, from that point of view, satisfactory. The most substantial distinction that is established by the judgment is given iu the words "and there is this further essential difference between these two forms of procedure, that when the defendant's claim is for liquidated damages—iu other words, one of set-off—the plaintiff, in his claim, can give credit for the amount, and so avoid the costs of the set.off; whereas, when the claim is for unliquidated damages, he is unable so to protect himself." It is to be observed, however, that this proposition only applies when the defendant's claim is unliquidated, but it might happen that the plaintiff's claim was unliquidated, whereas the defendant's was liquidated. The language of the Judicature Act is exactly the same in the one case as the other. By the statutes of set-off the claims on both sides must be liquidated ; the Judicature Act allows set-off or counterclaim where either claim is, or both claims are, unliquidated. Stress is luid in the judgment on the words that "such set-off or counter-claim shall have the same effect as a statement of claim in a cross-action, so as to enable the court to pronounce a final judgment in the same action both on the original and the cross-claim." It is urged that theso words show that the true view is that the claim and counter-claim are in the nature of erossactious, and that there are really two recoveries. This would apply, be it observed, to a case where the plaintiff's demaud being unliquidated, the defendant's set-olf was liquidated, as this is a case within the Judicature Act, and not within the statutes of set-off; but here the plaintiff could give credit for the set-off ex hypotheai.
The question is one of considerable difficulty, but we are not convinced that the distinction between set-off and counter-claim, as affecting the right to costs, is morally a substantial one. If the former decisions with regard to set-off under the County Courts Act are based on justice, we doubt whether the substantial justice and expediency of the case may not be in accordance with Staples v. Young, and not with SlooJce v. Taylor. It may be said that the broad view is that a person who has contracted an expensive litigation in the superior court, but has been so far defeated (whether the mode of such defeat is technically called by counter- claim or set-off is immaterial), that he has recovered a wholly insignificant amount, which is less than the county court limit, he ought not to get costs. We have said before that we think the result illogical, because if neither of the claims were proper subjects for the county court, there is a certain absurdity in saying that, because the balance is less than the county court limit, costs shall be taken away, on the ground that the action ought to have been brought in the county court. It is not practically a true presumption that parties know, or ought exactly to know, the amount of the balance on long and complicated accounts, involving sometimes nice questions of fact and law as to liability to large amounts, so that if a plaintiff recovers only £150,000 as against the defendant's set-off of £149,981, it can fairly be said to him, You ought to have given credit for the balance, and sued in the county court. Moreover, in order to determine the balance, it may be necessary for the plaintiff to prove all his claims, so as to overlap the credit given, and in this case would such a claim be fit for the county court?
But if the law as to set-off is right on the grounds we have above discussed, we are not clear that substantially counter-claim ought rot to stand on the same footing. It may be observed that since the Judicature Act, when liquidated demands have been counter-claimed for, great confusion has arisen. In Potter v. Chatnbers(2TW. B.414, L. B. 4 C. P. D. 457) this was treated by the Queen's Bench Division as counter-claim and not set-off, and the plaintiff establishing his claim to more than £50, and the defendant establishing his claim to such an amount as to reduce the plaintiff's claim to £4 2s., the plaintiff was not deprived of costs. Surely it is absurd that the matter should depend on the question whether the sum is claimed by way of set-off or by way of counter-claim, which is a matter of mere form.
With regard to the other point in Slooke v. Taylor we do not propose to discuss it at length. The question was whether, the action having been referred, the costs to abide the event of the reference, what the "event" was within the meaning of this stipulation? The majority of the court thought that the term " event" meant the sum in the submission as it would when applied to a verdict of a jury, and consequently that the case muBt be determined in the same way as if the question arose on a verdict. The dissentient judge (Mr. Justice Field) thought otherwise, both on the authority of Chatfield v. Sedgwick (27 W. E. 70, L. B. 4 C. P. D. 459) and on the reason of the thing. He was of opinion that " event," as used in the agreement of the parties, meant the result of the two claims taken together. Wo confess to doubting whether that is the true meaning of "event" in a submission of an action—i. t., whether that is what the parties really mean. But we certainly cannot exactly understand the argument by which the late Lord Chief Justice distinguished Chatfield v. Sedgwick. As, however, we have already said, we do not intend to discuss this part of the case.
Lord Gilford, one of the Scottish Court of Session judges, has resigned his appointment in consequence of illhealth.
BLENKHORN v. PENROSE, F., J., 29 W. R. 23;. JONES v. RIMMER, C.A., 29 W. R 165.
The lesson of the first of these case9 to intending purchasers is very clear; they must never omit to look at any document which is stated in the conditions as to be seen, and of which the purchaser is to be deemed to have notice. The doctrine laid down does not differ from that of the Master of the Bolls in Camberwell Benefit Building Society v. Bolloway (28 W. E. 222). Although a vendor cannot specifically enforce a contract entered into under particulars or conditions of sale which state that which is untrue in fact, but add that a document is to be seen, which document, if seen, would have informed the purchaser of the untruthfulness of the particulars or conditions of sale, yet if the statement in the particulars or conditions is not untrue, and the purchaser is not asked to assume that which the vendor knows to be untrue, the vendor will not be precluded from obtaining specific performance of the contract by the circumstance that he has not told all the truth, but has left intending purchasers to ascertain it from a document which may be seen by them.
But to this rule there is an important qualification to which the case secondly above-mentioned draws attention. The vendor must not tell so much as to lead the purchaser reasonably to assume that he has told all, when, in point of fact, he has not done so. In Jonet v. Rimmer the particulars of sale described one of tho lots, as leasehold under a lease the date aud parties to wbicb were stated. There was no attempt made to state the terms of the lease, and no mention was made of a ground-rent of £43 to which the lot was subject. The lot having been sold by auction, the purchaser afterwards claimed to rescind his contract, on the ground that, the particulars being silent on the subject of ground-rent,, he had been misled, aud induced to believe there was no ground-rent, or only a nominal one. The particulars were very distinct as to the rents to be received, from the sub-lessees, but said nothing as to the groundrent. The court thought that, considering the universality of the practice of stating the amount of the ground-rent in the particulars, the particulars were calculated to mislead the purchaser, and, consequently, he was entitled to have the sale rescinded.
CARRARD v. MEEK, C.P.D., 29 W. R. 244.
The question here was as to whether a bill of saler which stated that it is given "in consideration of the payment of £81," that sum having been, in fact, paid two months before the execution of the bill of sale, did "set forth the consideration for which such bill of sale was given," under section 8 of the Bills of Sale Act,. 1878. One does not see how a bill of sale, which states truly the consideration could be held not to set forth such consideration. It might be desirable that the Legislature should have said, "And shall also state when such consideration was paid," but the Legislature has not said this, and the Common Pleas Division held that they had no authority to add this requirement to the Act. Ia point of fact, however, the point had been previously settled by the Exchequer Division in Credit Company v. Pott (42 L. T. N. S. 592).
The Scotsman says that, with regard to the proposed extension of the Summary Jurisdiction (England) Act, 1879, to Scotland, the Government are making inquiries with a view to ultimately giving Scotland the benefit of a measore of this kind. In the present state of public business, however, it is not expected that any progress will be m«Q» during the present session.