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Exchequer.

COSTER

v.

WILSON.

mises, a certain rent (that is to say) the sum of 57. 58. 10d. of lawful British money, was then and there reserved, due, and payable from the said Thomas Coster to the said Mary Curran, certain goods and chattels of him the said Thomas Coster, to prevent the said Mary Curran from distraining the same for the said sum of money, being such arrears of rent so reserved, due, and payable as aforesaid, the value of such goods and chattels so as aforesaid conveyed and carried off, not exceeding the value of 50l. of lawful money of Great Britain, contrary to the form of the Statute in such case made and provided, whereupon the said Thomas Coster, after being duly summoned to answer the said charge in the said information, appeared on this 12th day of May, in the year of our Lord 1837, at Woolwich aforesaid, in the said county before us the said justices, and having heard the charge contained in the said information, declared that he was not guilty of the said offence. Whereupon we the said justices did proceed to examine into the truth of the charge contained in the said information, and did examine several credible witnesses, being all proper witnesses upon oath as to the truth of such charge; and it manifestly appearing to us that the said Thomas Coster is guilty of the said offence charged upon him in the said information; we do hereby determine, declare, and adjudge, that the said Thomas Coster is guilty of the said offence with which he is so charged, and by this our order, under our hands and seals, do declare and adjudge the said Thomas Coster forthwith to pay to the said Mary Curran, the landlord of the said messuage and premises, the sum of 107. 118. Sd. of lawful money of Great Britain, (which we have inquired into and ascertained to be double the value of the said goods and chattels in the said information mentioned), according to the form of the Statute in that case made and provided." Dated the 12th May, 1837. Signed and sealed by the two defendants.

The sum of 107. 117. 8d. remaining unpaid, and there being no goods of the plaintiff on which a distress could be made, the plaintiff, on the 29th of June, 1837, was apprehended upon the following warrant of commitment.

"Whereas Thomas Coster, late of the parish of Woolwich in the county of Kent, labourer, was, by an order dated the 12th day of May, 1837, under the hands and seals of Sir Thomas Maryon Wilson, Baronet, and Sir John Webb, Knight, two of Her Majesty's justices of the peace, acting in and for the said county of Kent, residing near the place whence the goods and chattels hereinafter mentioned were removed, and not being interested in the messuage and premises whence such goods and chattels were removed as hereinaftermentioned, ordered to pay the sum of 107. 11s. 8d. of lawful money of Great Britain to Mary Curran of Woolwich aforesaid, in the said county, widow, being double the value of certain goods and chattels of the said Thomas Coster, which the said Thomas Coster was then and there before us duly found, adjudged, and declared guilty of having fraudulently conveyed away, and carried off from a certain messuage and premises situate in Shorts Alley, in the parish of Woolwich aforesaid, in the said county, whereof the said Thomas Coster had been for some time previous and was then and there the tenant by the month, under and from her the said Mary Curran, certain goods and chattels of him the said Thomas Coster to prevent the said Mary Curran from distraining the said goods and chattels for arrears of rent due to the said Mary Curran, from the said Thomas Coster, for the said messuage and premises. And whereas the said Thomas Coster having notice of our said order has refused and neglected to pay, and hath not paid the said sum of 107. 118. Sd.

pursuant thereto, and the same hath been fully proved before us; And whereas it appears to us, by the return of Joseph Butterfill, constable of the said parish of Woolwich, dated this 23d day of June instant, that he hath made diligent search for, but doth not know of nor can find any goods and chattels of the said Thomas Coster, by distress and sale whereof the said sum of 102. 118. 8d. may be levied, pursuant to our warrant duly made and issued for the levying the said sum of 107. 11s. 8d. by distress and sale of the goods and chattels of the said Thomas Coster. These are therefore to command you the said constable of Woolwich aforesaid, to apprehend the said Thomas Coster, and convey him to the said house of correction, at Maidstone aforesaid, and deliver him there to the said keeper of the said house of correction; and these are also to command you the said keeper of the said house of correction, to receive him the said Thomas Coster into the said house of correction, and there to keep him to hard labour without bail or mainprize for the space of six months, unless the said sum of 107. 11s. 8d. so ordered to be paid as aforesaid, shall be sooner satisfied. Given under our hands and seals at Woolwich aforesaid, in the said county of Kent, the 23d day of June, in the year of our Lord, 1837." Signed and sealed by the two defendants.

Under this warrant the plaintiff was conveyed to Maidstone goal. A writ of habeas corpus having been obtained, the plaintiff was, on the 4th July, discharged by Patteson, J., at chambers, on the ground that the warrant was invalid. It was objected at the trial, that the warrant of commitment was bad. The Chief Justice stated to the jury, that the warrant embodied the order, and that, in his opinion, it was valid. A verdict having been found for the defendant,

Platt moved for a rule to shew cause why the verdict should not be set aside, and a new trial granted on the ground of misdirection.-The magistrates have no jurisdiction to decide a case like the present, where there are conflicting claims to the premises from which the goods are removed, and where the payment of rent to one of the claimants shews an absence of all fraud on the part of the plaintiff.—[Parke, B.—Fraud is a question for the adjudication of the magistrates.]-The order of the magistrates is bad, as it does not appear on the face of it, that they received evidence upon oath as to the value of the goods.--[Lord Abinger, C. B.-They state in their order that they examined witnesses upon oath, and then they find, as part of the charge against the plaintiff, that he was guilty of removing goods of less value than 50%.]—This statement of the magistrates does not form part of the charge against the plaintiff, but merely amounts to a shewing of their jurisdiction. The warrant of commitment is also bad, as it does not appear that any complaint was made in writing, or that the witnesses were examined on oath.

Per Curiam.-The warrant of commitment incorporates the order, inasmuch as it recites it. The Court must construe the conduct of magistrates fairly and liberally. There will be no rule.

(a) As to whether a proceeding under this Statute is an order or a conviction, and as to the distinction between an order and a conviction, see Rex v. Bissex, Burn. tit. "distress" sect. 5; Rex

Rule refused (a).

v. Middlehurst, 1 Burr. 399; Rex v.
Morgan, Cald. 156; and the observation
of Williams, J., in Day v. King, 5 Ad.
& Ell. 367; 2 Har. & Woll. 178, S. C.

Exchequer.

COSTER

1.

WILSON.

Exchequer.

The Blackheath

Court of Requests' Act excepts from the jurisdiction of the Court any debt "for any sum being the balance of an account originally exceeding 5l."

Held, that this does not apply

to accounts

containing items amount ing in the whole to moro than 51. and reduced by part payments

from time to
time, so that
at no one

time was there
so much as
Bl. due.

POPE and others v. BAYNard.

ASSUMPSIT for goods sold and delivered. Plea:-Non-assumpsit. The plaintiff claimed the sum of 37. 178. 6d. being the balance due for coals supplied to the defendant between August, 1832, and July, 1836. The cause was tried before the under-sheriff of Middlesex, when a verdict was found for the plaintiffs for the amount claimed. In Hilary Term, Welbsy obtained a rule to shew cause why a suggestion should not be entered on the record, in order to entitle the defendant to costs under the Court of Requests' Act for the hundred of Blackheath, &c., (6 & 7 Will. 4, c. 120).

By the 21st section of that Statute, the commissioners of the Court of Requests are empowered to decide and determine all disputes and differences between party and party, for any sum of money not exceeding 5l., in all actions or causes of debt, and in all cases of assumpsit or insimul computasset, &c., &c.

Section 22 enacts, that nothing in the Act contained shall extend to enable the said Court to judge, determine, or decide on (inter alia), any debt for any sum being the balance of an account originally exceeding 51.

Section 74 enacts, that if any action or suit for any amount recoverable in the said Court of Requests, shall be sued or prosecuted in any of his Majesty's Courts at Westminster, or elsewhere out of the said Court of Requests, and it shall appear to the judge or judges of the Court in which such action or suit shall be tried, that at the time of commencing such action or suit the defendant was within the jurisdiction of the said Court of Requests, and was liable to be warned and summoned before the said Court for such debt or demand, then and in such case the said judge or judges shall not allow the plaintiff any costs of suit, but shall award that the plaintiff shall pay such costs to the defendant as he shall justly prove that he hath incurred in the defence of such action or suit.

The following appeared from the affidavits to be the state of accounts between the parties:

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Moody shewed cause.-This is an action for the balance of an account originally exceeding 57. The cases on the Court of Requests' Acts, may be

divided into two classes: one, where the right to costs depends upon the amount recovered by verdict, the other, where the jurisdiction of the inferior Court depends upon the nature of the demand. This case falls within the latter class. The cases in which it has been held that a debt reduced by part payment was within the provisions of the Act, will be found to belong to the former class, Clarke v. Askew (a). But in a case like the present, part payments do not bring the debt within the exception of the Statute. In Fountain v. Young (b), which arose on the Southwark Court of Requests' Act, (45 Geo. 3, c. 87), the exception in the Statute was, of "any debt for any sum being the balance of an account on demand originally exceeding 57.," and it was held that a debt originally exceeding 57. but reduced below that amount by a part payment, was within the exception. In Abley v. Lill (c), where the exception was of debts "for any sum being the balance of an account or demand originally exceeding 57.," the Court held that an action to recover 31. 68. remaining due on a bill of exchange for 81. 68. with interest, was within the exception. This very point arose in Moreau v. Hicks (d), but the Court there gave no express judgment upon it. The omission of the words "on demand" in the present Act, shews the intention of the legislature to exclude cases such as this from the jurisdiction of the Court. Suppose the plaintiff had claimed in his particulars the whole amount, without giving credit for the sums paid, can it be said that the Court of Requests would have had jurisdiction. The plaintiff must prove his whole account in order to make out the balance due. It will be productive of much inconvenience if such a case as this be held to be within the Act, as the commissioners.will be unable to tell whether or not they have jurisdiction, until the case has been investigated.

Welsby, contrà.-The last objection will apply equally to the other class of cases where the jurisdiction is measured by the amount of the verdict. Here it appears, from the plaintiff's own statement, that at no time was there a sum of 51. due from the defendant; that distinguishes this case from Fountain v. Young and Abley v. Lill. The argument on the other side must go to this extent, that even if every article except the last were paid for immediately after the purchase, yet the plaintiff might treat the price of the last item as a balance of account, and sue for it in the superior Court. Cases of this kind, where the account runs on, and part payments are made from time to time, are precisely those where the Court of Requests would be found most useful; and no more difficulty can arise in the investigation of them, than of a single disputed item.

PARKE, B.-As the question is of importance as regards the construction to be put on this and other similar Acts, the Court will take time to consider, in order that the point may be settled.

In the present Term, judgment was delivered by

Cur. adv. vult.

PARKE, B.—In this case an application was made to enter a suggestion to

(a) 8 East, 28, I Stark. 457.
(6) 1 Taunt. 60; 4 Esp. 113.
(c) 5 Bing. 299; 2 M. & P. 534.

VOL

(d) 2 A. & E. 782; 1 Har. & Wol. 87; 4 N. & M. 563.

Exchequer.

РОРЕ

v.

BAYNARD,

L

Exchequer.

POPE

T.

BAYNAKD.

deprive the plaintiff of costs, on the ground that the defendant resided within
the limits of the jurisdiction of the Court for the recovery of small debts at
Blackheath, and that the debt was recoverable in that Court. The case
turned upon the question, whether the debt was so recoverable. (His lord-
ship read the 21st and 22d sections of the Act). The question is, whether
this action was brought for the balance of an account originally exceed-
ing 51.
We think it was not. The plaintiffs sought to recover a balance
of 37. 178. 6d. due for coals, supplied at eight different times between
August, 1832, and July, 1836, in small quantities, on account of which, pay-
ments were from time to time made, so that at no one time was so much as
51. due from the defendant to the plaintiffs. We are of opinion that the
Court of Requests had jurisdiction to decide upon this debt. The meaning
of the term "originally," in the clause in question, is somewhat obscure, and
has not been judicially decided; but we think it is to be understood to apply
to a case where credit was given at one time for an amount exceeding 57.
either in one or different sums, although afterwards the credit might have
been reduced under that sum by part payments, before the commencement
of the suit in the superior Court; and that the Act of Parliament did not
intend to deprive the Court of jurisdiction, whenever the plaintiff should
claim, on the credit side of his account against the defendant, items altogether
exceeding 57., and would, in the usual conduct of a cause, prove to that
amount originally in the first instance, before the defendant would go into
his case of payment. The latter construction might be more convenient to
the commissioners, as they would have no difficulty in ascertaining whether
they had jurisdiction or not; but it would greatly narrow the utility of the
Court, and disable creditors upon running accounts, for very small sums,
from recovering a trifling balance. The former construction extends the
jurisdiction of the commissioners, and gives them full power to decide in all
cases, except where the transactions have been on so large a scale, as that
credit is given at one time for an amount above 51.

It is true that the commissioners are, by this construction, placed in a situa tion of some difficulty; for in taking the account, they will have, if they wish to be quite secure, not merely to ascertain the amount of the debts and credits, but the state of the account at different times; and if they should find that 57. was ever due at one time, they cannot proceed, and the suit must be dismissed. Probably the practical inconvenience will be trifling. For these reasons, we think the rule must be made absolute.

Rule absolute.

April 30.

M'KINNELL v. ROBINSON.

enable another

to play at an illegal game,

Money lent to ASSUMPSIT on a promissory note. Second count, money lent; Third count, account stated. Plea: As to the said second and last counts of the said declaration, the defendant says, that the said sum of 307., in the said second count mentioned, was borrowed by the defendant, as the plaintiff then well knew, and was knowingly lent by the plaintiff to the defendant in a certain

cannot be

recovered back.

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