« PreviousContinue »
the plaintiff opened his case without knowing what the versity of Leipsic. On another occasion (In the Goods defence would be, and the result has been to show the of Bonelli, 24 W. R. 255, L. R. 1 P. D. 69) Sir JAMES inconvenience of trying a case without pleadings.” HANNEN refused to decide a question of Italian testamen
tary law upon the affidavit of a gentleman describing
himself as a "certified special pleader," and " familiar THE CHANCERY PAY OFFICE is becoming the subject of with Italian law," there being nothing to show that he grave remarks on account of the arrears of work which had obtained his familiarity with Italian law otherwise now exist, and the authorities are being blamed for not than by studying it in England. Upon an indictment supplying a staff sufficient for the purposes of the office. for bigamy, the first marriage of the prisoner having Not many days ago, as we are credibly informed, some taken place in Scotland (R. V. Savage, 13 Cox. C. C. papers bespoken so long ago as May last were not then 178), Mr. Justice Lush refused to allow the Roman ready for delivery. This may be an exceptional instance, Catholic priest by whom the first marriage had been and we cannot believe that any large amount of the solemnized to prove that it was valid according to the work of the department is in arrear. If, however, only | law of Scotland. Cartwright v. Cartwright and An. half of the interval between this and May last, orderson (26 W. R. 684) was a divorce suit, in which it even a quarter or an eighth be the period of arrears, it became necessary to prove the validity of a marriage becomes a very serious matter. To take the case of an solemnized in Canada, and Sir J. HANNEN refused to ordinary banker, what would a customer do who could allow the Canadian marriage law to be proved by Mr. not ascertain the amount of his balance in five minutes, BOMPAS, Q.C., who had for many years practised in nor have his pass-book made up for several months after Canadian appeals before the Judicial Committee of the he asked for it? The Chancery suitors are not able to | Privy Council, since otherwise the court would have to transfer their account to another banker, but it is not accept the opinion of any English barrister who had possible to discern in that fact a reason why they should practised before the Judicial Committee as evidence of be treated so scurvily as they are. Moreover, although the law of any part of the British dominions from which we are not writing in the interest of the officials, we the Privy Council is the final court of appeal. In the may add that the extra burden entailed on those who face of these authorities the Master of the Rolls naturally have to do the work has caused a wide-spread discon- refused to accept the affidavit of a person described as a tent in the office, which it is reasonable to expect the "law agent” to prove a point of foreign law. 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
THE INTEREST in Mr. Justice FITZGERALD's summing up changes necessary, should see to it that steps are at once
in the recent trial at Dublin had been somewhat anticitaken whereby existing grievances should be effectually
pated by his various rulings during the trial. His charge remedied.
to the jury is chiefly noteworthy for the definition which
it contains of the crime of conspiracy. He laid it down CONSIDERING THE UNCERTAINTY as to the meaning of the that, when persons are united for a common purpose, word “lodger” which, notwithstanding the efforts of each of them is responsible for every act done with a learned judges with reference to the Franchise Acts, pre. common intent by the others, no matter how widely vailed at the time of the passing of the Lodgers Goods Pro- they may be separated from one another, and even tection Act, 1871, it is odd that no definition of " lodger" though they be unknown to one another. A common should have been included in that Act. The result has been design might therefore be inferred from independent that in Phillips v. Henson (26 W. R. 214, L. R. 3 C. P. speeches of the traversers, although delivered at different D. 26), the Common Pleas Division constructed a defini. | times and places. He stated that secrecy is not an tion of the term, with reference to the supposed intention essential ingredient in the offence of conspiracy, and he of the Act “to protect the goods of persons between pointed out that if one of the objects of the League whom and the landlord there is no direct privity '-a were to prevent the enforcement of the Queen's writ it process, we venture to think, savouring somewhat of would be an illegal assembly, and all its members would begging the question. We should have thought that be guilty of conspiracy and responsible for the illegal the object of the Act was to protect the goods of persons acts of one another. He appears also to have directed having a clearly subordinate occupation of part of a house the jury that the case of all the traversers stood upon only, and that the question in each case ought to be the same footing, and that they must be either all con. Has the person who wishes to avail himself of the Act victed or all acquitted. 3 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 te printed last week, raised a new point under
Sir RICHARD Couch's appointment as a member of the the Act. A person occupying a part only of certain
| Judicial Committee of the Privy Council qualifies himpremises claimed to be a "lodger," although he only
for taking part in the hearing of appeals, although he used his part of the premises for business purposes, and
will not, as regards emolument, occupy the same position did not sleep or live there. The question, therefore,
as the late Sir JAMES COLVILE. The 3 & 4 Wil!. 4, c. 41, arose whether the “lodger" must actually dwell in or
s. 1, empowered “his Majesty from time to time, as and inhabit the lodging. It is clear that in its ordinary
when he shall think fit, by his sign manual, to appoint popular meaning the word involves the idea of residence,
any two other persons, being Privy Councillors, to be and we think the magistrate was right in holding that a
members of the said committee" in addition to the experson who merely uses a part of a house for business
officio members nominated by the same section ; and purposes is not a lodger within the Lodgers Goods Pro
this power is not superseded by the Judicial Committee tection Act.
THE RULING of the Master of the Rolls in Saldanha v. Andrews, which we briefly noted last week (p. 219), Since it was decided that reporters should be admitted illustrates the jealousy with which the courts regard the to the meeting of the bar on Thursday afternoon, our admission of the evidence of experts upon questions of readers will have before them full reports of the proforeign law. Thus, in Bristow v. Sequeville (5 Ex. 275), ceedings in the daily papers before these lines reach the Court of Exchequer refused to allow the law of them, and we therefore think it unnecessary to print the Prussia, upon a question of stamp duty, to be proved by outline of the speeches and resolutions with which we a witness who had merely studied that law at the Uni- | bave been furnished.
THE CORRUPT AND ILLEGAL
For a candidate (in addition to the above).- If corrupt THE CORRUPT AND ILLEGAL
practice committed with his knowledge. "he shall not be
capable of ever being elected to or sitting in the House of PRACTICES BILL.
Commons” for the county or bcrough in which he was It is about twenty-seren years since the consolidating
candidate, "or of being elected to or of sitting in the Corrupt Practices Prevention Act was passed.
| House of Commons” for any place wbatever for ten years.
This was, and still remains, a temporary Act only, baving been In addition to this, we read in the Bill that if renewed from year to year with divers amendments up to the election court reports that a candidate “has been the present time, and expiring on the 31st of December, guilty by his agents of any corrupt practice in re1881. It had the advantage of being a complete code, ference to the election,” “that candidate shall not be and the necessity for the consolidation which it effected capable of ever being elected to or sitting in the House of may be seen by glancing at its schedule of repeals, which Commons” for the county or borough in which he was contains ten statutes from 7 Will. 3, c. 4, to 5 & 6 a candidate. Vict. c. 102, all of which, it should be borne in mind, We do not think it possible or desirable that the perwould be revived if by any accident the present legisla- etual disqualification of the candidate guilty“ by his tion upon the subject should be allowed to lapse.
gent" should pass. We cannot even see any necessity The present Bill, in form at any rate, is far inferior to for extending, as is done by section 86 of the Act of its predecessor of 1854. It is not only a temporary | 1854, the disqualification to other than personal acts. statute, being expressed to continue until the 31st of But if something must be done” in this direction, December, 1882, but it makes scarcely any attempt at surely the disqualification for an existing Parliament, consolidation. Of the seven Acts scheduled to the Act which obtains under section 36 of the Act of 1854, is of 1880, one oply-the insignificant 21 & 22 Vict. c. 87, sufficient. Disqualification for the candidate's own relating to the payment of travelling expenses—is borough or county is, it need hardly be said, in a large wholly repealed. We cannot but think that the number of cases tantamount to exclusion from political time is come, not only for permanent, but con life. So much for “ corrupt practices." solidating legislation, and the necessity for renewing The next eight clauses of the Bill, which deal with and amending the Ballot Act affords an additional “illegal practices” are far more satisfactory. By reason why this should be done in the present session, clause 7 it is declared, amongst other things, to be an
Passiog from the form of the Bill to its substance, illegal practice to act as paid canvasser; and by clause 8 the general remark we have to make is that, while the it is further declared to be an illegal practice to pay for penal clauses are, as a rule, unduly severe, the preven- the conveyance of electors to or from the poll by any tive clauses are, as a rule, happily conceived and easy to mode of conveyance. A bill of merely two clauses to understand. Some of the former, we should imagine, this effect would go very far towards checking present it will be found useless to press in Parliament, and we election abuses. Under the existing law, no doubt, no can only account for their introduction ou the supposi. payment may be made by a candidate except through tion that the authors of the Bill have proceeded on the an authorized agent, and every payment must be pubsystem of asking for the impossible in order the more lished to tbe world. But there is practically no limit to easily to obtain the possible.
the payment of canvassers and cabmen. Paid canvassers Let us now proceed to examine seriatim the more im. are, it is true, disqualified from voting by 30 & 31 Vict. portant of the 59 clauses.
c. 102, s. 11, but their fathers, sons, brothers, &c., are not, To that part of clause 2 which prohibits treating by so that they may, by their relations, be as many in number other persons than the candidate himself, no reasonable as the electors themselves, and they may each be paid as objection can be taken. The only wonder is that the much as the most unblushing debaucher of constituencies 4th section of the Act of 1854, for which it is substi. | may choose to give them. Paid canvassers are a mere tuted, was allowed to remain limited to candidates so nuisance to honest voters, and more often than not send long. Nor is there any objection to extending the opera in false returns to their employers. We hope and betion of the section to non-electors. But we think that lieve that both these clauses will pass. A supplementary the disfranchisement of the parties concerned should be provision (clause 40) to that abolishing the payment of the main penalty, and to enact, as is done by clause 6, travelling expenses-namely, that each elector in a county that the guilty parties are to be liable to imprisonment shall have a polling place within three miles of his with hard labour, is going a little too far. The qui tam residence-is copied from the Ballot Act, 1872, section 5, action for a penalty of £50 provided by the Act of 1854 merely altering “four" miles to “ three." It should be is, we think, sufficient.
expressed whether the distance is to be measured by the To clause 3 we have a very decided objection. It runs nearest road or a straight line, and the number of miles thus:
-if there is to be an alteration-migbt well be “two" The expression corrupt practice,' as used in tbis Act, instead of “three." means treating as defined by this Act [clause 2], or bribery, We also read-clause 8 (c)—that no payment is to be undue ipfloence, or personation, as defined by the Corrupt made “for exhibiting bills, addresses, or notices, or for Practices Prevention Acts as amended by this Act, or as re. the use of any house, building, erection, place, board, or cognized by the common law or the law of Parliament, and thing for the purposes of any such exhibition.” This every offence which is a corrupt practice within the meaning | provision, which is rather clumsily worded, goes, we of this Act sball be a corrupt practice within the meaning of think, a little too far. To put down “boardmen" may the Parliamentary Elections Act, 1868.”
be all very well, but nothing can be more legitimate in Looking to the severe punishment awaiting any person. itself than to disseminate the views of a candidate; and even a candidate by his agents (clause 5), guilty of a it seems to be rather hard to confine such dissemination corrupt practice, the very least that can be required of to the pages of a newspaper-and it may be remarked the originators of the Bill is that they should define that newspaper advertisements figure amongst other “ corrupt practice" within the four corners of the Bill authorized expenses mentioned in one of the schedules itself, and not leave it to be discovered from the “law of -which may not always be sufficiently within the Parliament" and the other suurces enumerated in the reach of electors. Again, to prohibit, as is done clause. When that is done, the Legislature may properly by clause 9, the use of "licensed premises " be asked to fix the punishment. As fixed at present by for committee rooms is to deprive candidates in clauses 4–6, the punishments are :
many cases of the most convenient, and in some cases For any person.-Ten years' disfranchisement and dis. | of the only cheap, committee rooms that can be had. If qualitication for being elected to the House of Commons, with something must be done in this direction, why not allow lability to two years' imprisonment with bard labour and a the candidates to obtain municipal or school board buildfine of £500.
| ings free of expense, or allow the “licensed premises”
to be used on the condition that only non-intoxicants | nobody's business to prosecute anybody, and we think should be sold therein upon the day of election ?
that clause 33 provides the desired machinery as well as Clause 13 provides the punishment for illegal practices. such a thing could be done. It is liability to a fine of £100 on summary conviction Amongst the "miscellaneous” provisions, that which and disfranchisement and disqualification for offices principally calls for notice is clause , 36, which enables for five years. Alter the £100 to £20, and the five years the Public Prosecutor, or any number of electors not less to two, and we see no objection to this, nor to the pro- than ten, to procure a special commissioner, “ being one vision of clause 14 that “illegal” as well as “corrupt" of her Majesty's counsel," to be sent down, upon the practices shall be reported by the election court, under election judges [should not this, by virtue of clause 31, section 10, sub-section 14, of the Parliamentary Elections be judge.?] having reasonable cause to believe that Act, 1868.
corrupt practices have prevailed, “The barrister so We come now to the heading “Election Expenses." appointed,” continues the section, “shall forth with proEach candidate is to have one election agent only, who ceed to the county or borough, and there hold an open must, of necessity, be a “solicitor of the Supreme Court." | court for the trial of persons charged with corrupt or The succeeding clauses under this head, which fix a illegal practices, and shall, for the purposes of this Act, maximum beyond which expenses must not go, do not have all the powers of a petty sessional court in addition call for notice, except clause 20, which restricts the “per to the powers conferred by this Act. Any person who sonal expenses" of the candidate to £20. Here we can has been guilty shall be liable to be imprisoned," &c. only ask, What are personal expenses ?
These clauses, if fully worked, cannot fail to strike with Clause 27 is of some importance to the profession. It special awe the whole district into which the special runs as follows :
commissioner is seut. Where a person who is a barrister or solicitor, or who
Other "miscellaneous" clauses, 37 aud 38, visit with all belongs to any profession, the admission to which is regu
the penalties of bribery, &c., licensed persons who perlated by law, appears from the evidence given before any mit any act which constitutes a treating or undue influelection court, or election commissioners, to have been guilty ence, and punish with forfeiture of licence any licensed of or privy to any misconduct in reference to an election, it person personally guilty of a corrupt practice. It is, shall be the duty of the Director of Public Prosecutions to however, humanely added that “any holder of such a bring the matter before the Jon of Court, High Court, or license shall not be under any obligation to supply tribunal having power to take cognizance of any miscon.
meat, drink, or entertainment or provision, to any per. duct of such person in his profession, and such Inn of Court,
son in case the supply thereof is demanded for the purHigh Court, or tribunal may deal with such person in like
poso of any corrupt or illegal practice." We should manner as in aoy case of misconduct by such person in his
have thought such a provision unnecessary, but it may be profession.
well to be on the safe side. To this we can see no reasonable objection. It is to Of the clauses dealing with “legal proceedings" be observed that the whole cognizance of the offence
(42–7), it is material to observe that persons charged and the amount of the punishment are both left to be with corrupt practices may be found guilty of illegal dealt with according to the absolute discretion of the practices; that on any prosecution, whether on indict. “ tribunal” who may if they please let the peccant ment or summarily, the person prosecuted is to be a member off with a reprimand.
competent witness, and that there is an appeal against Cf clause 28, providing for the annual publication in a summary conviction to quarter sessions. Purists will the register of all persons incapacitated for voting by no doubt object to introducing the examination of the either corrupt or illegal practices, we would express our accused by a side wind, but we, ourselves, see no objeccordial approval. This is quite new, we believe, in election law, unless the scheduling of the names of offenders! We think it very doubtful whether the Bill will pass to reports of select committees (see 30 & 31 Vict. c. 102, in its present shape. If it should have to be dropped 89. 18-16) can be called a publication of their names. as a whole, some two or three clauses might stand as And although this form of punishment has disappeared admirable amendments of the present law. But if it is from our Adulteration Acts and our Licensing Acts, and seriously intended to effect all the changes which the now survives only, we believe, in the sale of Bread Act | Bill proposes, we would suggest that it is almost inof William the Fourth (6 & 7 Will. 4, c. 37, s. 12), we dispensable that a " breviate," or memorandum similar cannot but think it a wholesome mode of educating in form to that which accompanied the Militia Bill of public opinion to disapproval of an offence.
1875, and the Weights and Measures Bill of 1878, should Clauses 30-34 very inaterially alter and affect the show the effect of the amendments in intelligible form, procedure on election petitions. Clause 31 substitutes and be put in circulation without delay. We have, a single judge for the two judges who have tried however, already intimated our opinion that the time is petitious since 1879 under 42 & 43 Vict. c. 75, which come for consolidation of the law of the subject. statute is repealed. Of this all we have to say 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
At the Hansion-house, on Tuesday, John Withers was become law or not is too long a question to discuss in
brought before Mr. Alderman Ellis for examination, charged this article. Clause 33 provides for the attendance of a with having stolen money belonging to his master, Mr. barrister or solicitor of not less than ten years' standing Burchell, solicitor, of Mark-lane. The defendant had been at the trial of every clection petition. He is to be the prosecutor's mauaging clerk, receiving a salary of £200 nominated by the Director of Public Prosecutions, with per annum, and a bonus of £20. The cashier of the prosethe approval of the Attorney-General, and is to attend cutor stated that on the 17th of December last he handed as the representative of the director, “and it shall be the the defendant certain moneys, among which was a sum of duty of such representative to obey any directions given
£3, for which the defendant rendered an account as having to him by the election court with respect to the summon.
been paid by him for certain fees in connection with a law. ing and examining of any witness to give evidence on any
suit, and which he, as managing clerk to the prosecutor, was such trial, and with respect to the prosecution of any
conducting. It was, however, alleged that the money had
not been so used, and the defendant was charged with stealperson for any corrupt or illegal practice, and with
ing it. It was stated that the defendant also had possession respect to any person to whom notice is given to attend
of certain papers which were important to the prosecutor in with a view to report him as guilty of any corrupt or | his business, and that other charges would be made. 100 illegal practice," &c. Some machinery is no doubt case was eventually adjourned, the defendant being admitted wanting for the purposes of bringing to justice offenders by Mr. Alderman Ellis to bail in two sureties in £100 and detected at the trial of an election petition, where it is himself in £200.
difficulty in logically connecting that result with the RIGHT TO COSTS SINCE THE County Court Acts. This logical difficulty lies at the
bottom of a good deal that has been said on the subject JUDICATURE ACT.
in previous cases that we have discussed. It seems The law as to costs under the Judicature Act appears to absurd to make the question of costs depend on the be with respect to certain questions in a most lamentable amouat claimed, because then any plaintiff by claiming state of doubt and confusion. We took occasion some | a sum above the county court limit could avoid the time ago to discuss the state of the decisions on the sub. rule. On the other hand, if it depends on the ainonut ject. Since then a case of considerable importance recovered, there are cases in which the law seems to tell viz., Stooke v. Taylor (29 W. R. 49, L. R. 5 Q. B. D. | the plaintiff “ though you had a fairly arguable claim to 569)-has been decided. The question involved was the a sum, it may be of a hundred thousand pounds, yet as right to costs where the plaintiff establishes his claim in you recovered only £15, you ought to have brought your an action of contract to an amount exceeding £20, but action in the county court, and therefore cannot have the defendant upon a counter-claim (as distinguished
costs. But for the reason we gave, though the argument from a set-off) establishes his claim to such an amount of the law is illogical, the result is justice. as reduces the balance in favour of the plaintiffs to an The law being thus as to a set-off, the question after amount less than £20. The question was further com- the Judicature Act necessarily arose in the case of a plicated by the fact that it arose, not upon the verdict of counter-claim. In Staples v. Young (25 W. R. 304, L. R. a jury, but upon the award of an arbitrator, and it was 2 Ex. D. 324) the Exchequer Division held that a counter. upon this part of the case that a division arose among claim stood in this respect on the same footing as a setthe judges as to the construction of the submission with off. The question which arises on the words of the regard to costs, to which we will afterwards refer. The County Court Act is as to the meaning of the word more interesting part of the question is that which is in “recover.” In the case of a set-off it is admitted that dependent of this complication.
the plaintiff only “recovers” the balance. The question The question, briefly stated, seems to be how far the same under the Judicature Act is whether, where there is a considerations ought to apply to counter-claim as apply counter-claim, the plaintiff recovers the total amount of to set-off. It seems undoubted that when the original the cause of action established in his favour, and the claim is reduced by way of set-off, properly so called-1 defendant recovers the total amount of the counter-claim that is, by such a set-off as could have been pleaded under established in his favour, or whether the plaintiff only the statutes of set-off-the plaintiff only recovers the recovers the balance. The late Lord Chief Justice and balance within the meaning of the County Court Act. At Mr. Justice Manisty, in Stooke v. Taylor, refused to first it may appear, on principle, doubtful whether this follow Staples v. Young, and went into very elaborate should be so. It is true that a balance may be small, but arguments, based upon the phraseology of the Judicature the claims on either side may be very large, far exceeding Act, to show that the former is the case, and Mr. Justice the county court limit. It may be said that the plaintiff | Field does not appear to differ from them in this respect, ought to give credit and sue for the balance only. It though on the further point, with regard to the effect is very easy to say so. But matters that in law are of the order of reference, he differed. The Chief called liquidated may be, in fact, of very doubtful Justice devotes a considerable amount of pains to amount, as in the case of work and labour, money had establishing the proposition that there is an essential and received, and various other matters. It may depend moral distinction between the two cases. We confess on nice questions of law whether liquidated amounts are | that a great number of the distinctions which he due. It may theoretically be the case that a person elaborates do not commend themselves to us as moral ought to know how much he ought to give credit for, but distinctions, but rather as distinctions of form. Cogent in fact it may be a very difficult question how the account arguments may, no doubt, be derived from the stands. Suppose a plaintiff has a good claim against a de. technical forms of legal procedure, and the words fendant for £1,000, and the defendanthas a clear set-off of of the Judicature Act as applied to such technical £350, and it is a disputed question, depending on nice forms; but, looking to the question what the law ought questions of law and fact, whether the defendant has a to be, rather than what it is, those arguments further set-off of £635. In such a case, of course, a are not, from that point of view, satisfactory. plaintiff could not sue in the county court, so he brings | The most substantial distinction that is established his action in the superior court, and the defendant by the judgment is given in the words “and there is establishes his claim to the doubtful sum. Thereupon this further essential difference between these two forms the plaintiff recovers £15 and loses his costs in the ab of procedure, that when the defendant's claim is for sence of a certificate. This may appear at first a little liquidated damages—in other words, one of set-off-the hard, because the idea of the provisions of the County plaintiff, in his claim, can give credit for the amount, Court Act would appear to be that the plaintiff ought to and so avoid the costs of the set.off; whereas, when the have sued in the county court, and if he chooses to sue in claim is for unliquidated damages, he is unable so to thesuperiorcourt, when he ought to have sued in the county protect himself." It is to be observed, however, that court, he is not to have costs. Whereas, in our hypo. this proposition only applies when the defendant's claim thetical case, it is clear he ought not to have sued in the is unliquidated, but it might happen that the plaintiff's county court. But the practical answer that may be claim was unliquidated, whereas the defendant's was made to this argument seems to us to be that the man liquidated. The language of the Judicature Act is who recovers so trifling a balance in a big litigation exactly the same in the one case as the other. By the ought not in justice to have the costs. The balance is statutes of set-off the claims on both sides must be an accidental trifle. It alone would never have been liquidated; the Judicature Act allows set-off or countersued for originally. The defendant in our hypothetical claim where either claim is, or both claims are, uncase substantially succeeded. The real question at issue liquidated. Stress is laid in the judgment on the words between the parties was the disputed item of £635. that “such set-off or counter-claim shall have the same It is hard enough on the defendant that, being substan. effect as a statement of claim in a cross-action, so as to tially successful, he should lose all his costs on account of | enable the court to pronounce a final judgment in the the trumpery balance. Still he ought to have paid the same action both on the original and the cross-claim.” It £15 into court, and consequently must bear his own is urged that these words show that the true view is that -costs. It would be hard that he should have to bear the the claim and counter-claim are in the nature of cross. costs of both parties.
actions, and that there are really two recoveries. This We think the rational conclusion is that it is right would apply, be it observed, to a case where the plaintiff's that a plaintiff who does not recover more than $20 demand being unliquidated, the defendant's set-off was should not have his costs, though there may be some liquidated, as this is a case within the Judicature Act,
and not within the statutes of set-off; but here the plain. tiff could give credit for the set-off ex hypothesi.
RECENT DECISIONS. 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
BLENKHORN v. PENROSE, F., J., 29 W. R. 237. morally a substantial one. If the former decisions with
JONES v. RIMMER, C.A., 29 W. R. 165. regard to set-off under the County Courts Act are based
The lesson of the first of these cases to intending
The lesson of the first on justice, we doubt whether the substantial justice and purchasers is very clear; they must never omit to look expediency of the case may not be in accordance with at any document which is stated in the conditions as to Staples v. Young, and not with Stooke v. Taylor. It may be seen, and of which the purchaser is to be deemed to be said that the broad view is that a person who has l have notice. The doctrine laid down does not differ from contracted an expensive litigation in the superior court, that of the Master of the Rolls in Camberwell Benefit but has been so far defeated (whether the mode of such | Building Society v. Holloway (28 W. R. 222). Although defeat is technically called by counter-claim or set-off is a vendor cannot specifically enforce a contract entered immaterial), that he has recovered a wholly insignificant into under particulars or conditions of sale which stateamount, which is less than the county court limit, he that which is untrue in fact, but add that a document is ought not to get costs. We have said before that we to be seen, which document, if seen, would have informed think the result illogical, because if neither of the claims the purchaser of the untrutbfulness of the particulars or were proper subjects for the county court, there is a conditions of sale, yet if the statement in the particulars certain absurdity in saying that, because the balance is or conditions is not untrue, and the purchaser is not less than the county court limit, costs shall be taken | asked to assume that which the vendor knows to be unaway, on the ground that the action ought to have been true, the vendor will not be precluded from obtaining brought in the county court. It is not practically a true specific performance of the contract by the circumstance presumption that parties know, or ought exactly to that he has not told all the truth, but has left intending know, the amount of the balance on long and compli- | purchasers to ascertain it from a document which may cated accounts, involving sometimes nice questions of | be seen by them. fact and law as to liability to large amounts, so that if a But to this rule there is an important qualification to plaintiff recovers only £150,000 as against the defend. which the case secondly above-mentioned draws attenant's set-off of £149,981, it can fairly be said to him, Yoution. The vendor must not tell so much as to lead ought to have given credit for the balance, and sued in the purchaser reasonably to assume that he has told all, the county court. Moreover, in order to determine the when, in point of fact, he has not done so. In Jones v. balance, it may be necessary for the plaintiff to prove Rimmer the particulars of sale described one of the lots all his claims, so as to overlap the credit given, and as leasehold under a lease the date and parties to which in this case would such a claim be fit for the county were stated. There was no attempt made to state the court ?
terms of the lease, and no mention was made of a But if the law as to set-off is right on the grounds we ground-rent of £43 to which the lot was subject. The have above discussed, we are not clear that substantially | lot having been sold by auctior, the purchaser afterwards counter.claim ought rot to stand on the same footing.
claimed to rescind his contract, on the ground that, the It may be observed that since the Judicature Act, when particulars being silent on the subject of ground-rent, liquidated demands have been counter-claimed for, great | he had been misled, and induced to believe there was no confusion has arisen. Iu Potter v. Chambers (27 W.R.414, ground-rent, or only a nominal one. The particulars L. R.4 C. P. D. 457) this was treated by the Queen's Bench were very distinct as to the rents to be received. Division as counter-claim and not set-off, and the plaintiff from the sub-lessees, but said nothing as to the ground. establishing his claim to more than £50, and the de- rent. The court thought that, considering the univerfendant establishing his claim to such an amount as to
sality of the practice of stating the amount of the reduce the plaintiff's claim to £4 28., the plaintiff was ground-rent in the particulars, the particulars were not deprived of costs. Surely it is absurd that the
calculated to mislead the purchaser, and, consequently, matter should depend on the question whether the sum | he was entitled to have the sale rescinded. 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 Stooke v. Taylor we
CARRARD v. MEEK, C.P.D., 29 W. R. 244. do not propose to discuss it at length. The question The question here was as to whether a bill of saler was whether, the action having been referred, the costs which stated that it is given in consideration of the to abide the event of the reference, what the "event" payment of £81,” that sum having been, in fact, paid was within the meaning of this stipulation? The two months before the execution of the bill of sale, did majority of the court thought that the term "event". “set forth the consideration for which such bill of sale meant the sum in the submission as it would when I was given," under section 8 of the Bills of Sale Act, applied to a verdict of a jury, and consequently that the 1878. One does not see how a bill of sale, which states case must be determined in the same way as if the truly the consideration could be held not to set forth such question arose on a verdict. The dissentient judge consideration. It might be desirable that the Legislature (Mr. Justice Field) thought otherwise, both on the should have said, “And shall also state when such conauthority of Chatfield v. Sedgwick (27 W. R. 70, sideration was paid," but the Legislature bas not said L. R. 4 C. P. D. 459) and on the reason of the thing. this, and the Common Pleas Division held that they had He was of opinion that “event," as used in the agree no authority to add this requirement to the Act. Ia ment of the parties, meant the result of the two claims point of fact, however, the point had been previously taken together. We confess to doubting whether that settled by the Exchequer Division in Credit Company vi is the true meaning of “event" in a submission of an Pott (42 L. T. N. S. 592). action-i.e., 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.
The Scotsman says that, with regard to the proposed ex-tension 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 measure Lord Gifford, one of the Scottish Court of Session judges, I of this kind. In the present state of public business, no bas resigned bis appointment in consequence of ill. I ever, it is not expected that any progress will be male health.
during the present session.