ney with his father, and duly served his clerkship for the five years from their execution. H. did not know till nearly the end of his time that it was necessary that the articles should be stamped and enrolled. After his service was out, they were handed to him by his father, who had always kept possession of them, and, being unstamped, on application to the Lords of the Treasury, they permitted them to be stamped on payment of 50%. penalty, pursuant to the 19 & 20 Vict. c. 81, s. 3. The father made affidavit that he omitted to have the articles stamped and enrolled within six months of the execution, from his being "wholly without the means of paying the stamp-duty, and because he thought that under the above section they could be afterwards stamped on the payment of a penalty; that he had no preconceived plan to article his son speculatively, but solely with the intention of ultimately stamping and enrolling the articles." Under the circumstances the Court, on the authority of Ex parte Bishop, 9 C. B. 150 (E. C. L. R. vol. 67),-allowed the articles to be enrolled and the

*361] service under them to be computed from the date of their execution; Crompton, J., dissenting. Cockburn, C. J., in his judgment, hits the true principle by which these cases should be governed. "The Court," he says, "has always been ready to interfere for the protection of the revenue: but, under this recent Act, the revenue can interfere and protect itself; and, if the Lords of the Treasury, after inquiry, think fit to allow the articles to be stamped, we ought to assume that they are the best judges of what is essential for the best interests of the revenue." And Wightman, J., says: "The Courts formerly had to protect the revenue when articles were not duly stamped. By the 19 & 20 Vict. c. 81, s. 3, the difficulty is obviated by the power which the treasury has given to it to order, at its discretion, instruments to be stamped after the six months, on payment of certain penalties. It may be, if the treasury were of opinion that the loss was not obviated by the penalty of 501., they would not interfere: but, whether it be for the loss or gain of the revenue, they are the best judges; and, they having decided to allow the articles to be stamped, I do not see why this Court should interfere." The objects aimed at by the legislature in all the Acts for the regulation of attorneys, are, the protection of the revenue, and the securing honest and skilful practitioners." Crompton, J., in delivering the judgment of the Court of Queen's Bench in this matter (31 Law J., Q. B. 184), says: "The statutes (6 & 7 Vict. c. 73, ss. 8, 9, and 7 & 8 Vict. c. 86, ss. 1, 2, 3), make an application to the Court necessary for the purpose of reckoning the service previous to the enrolment; and this has always been considered as still necessary since the passing of the 19 & 20 Vict. c. 81, s. 3, which allows the affixing of the stamp after *362] the expiration of six months from the date of the articles, *at the discretion of the Commissioners of the Treasury, which could not previously be done.(a) In all the cases which have occurred nce this discretion was given to the Commissioners of the Treasury, ne principle on which the Court has always acted, is, to consider whether there has been any mistake in the matter, as to which the clerk was not to blame; and, if it appeared that the applicant had been led to suppose that he had been serving under articles which were

(a) See 7 G. 4, c. 44, s. 4.

properly stamped and enrolled, and with regard to which the other requisites had been properly performed, the Court has granted the application, so that the party might not be prejudiced in a case in which he had naturally supposed that he was serving under proper articles. But, in the present case, the clerk knew almost from the commencement of his service that he was not serving under valid articles, and he could not have made any mistake about it, except for the first few months. If we were to grant this application, and allow the service to date back, we should have to do so in all cases in which the Commissioners have thought proper to allow the stamp to be affixed in effect, we must say that our functions are to cease, and in every case that we are to be governed by the discretion of the Lords of the Treasury." That, it is submitted, is far too narrow a view of the duty of the Court.

ERLE, C. J.-We will speak to the other Judges before we dispose of this application. Cur, adv. vult.

ERLE, C. J., now delivered the judgment of the Court:

In this case, the Court of Queen's Bench refused to *allow the affidavit of the execution of the articles to be enrolled [*363 nunc pro tunc, and the service to count from the date of the articles, after reading the affidavits then before that Court: and we beg leave to say that we concur in the reasons for the refusal, as expressed by my Brother Crompton: see 31 Law J., Q. B. 184.

The legislature has required the Courts to see that many conditions: intended to secure skill and respectability in attorneys have been complied with, among others, indirectly, that the stamp duty on the articles of clerkship has been paid. As to this payment, the treasury has a direct duty in respect of the revenue; but, beyond that, the Judges have a duty to see either that the money has been paid in due time, or the delay accounted for, before they allow the enrolment, and. order the service to count as above mentioned.

In this case, the applicant in the Queen's Bench accounted for the omission because he relied on a promise that the money would be paid for him, and had gone on with the service in the hope that the promise would be performed. As a general rule, this could not be accepted as sufficient. But the further affidavits show that the applicant has been deprived of the money which was fairly his right, by an emergency which we may most justly infer was entirely unforeseen by

him.

He had been the managing clerk for an attorney who died leaving a widow and a young son who could not take up the business and carry it on. He gave his services to them and their friend to keep that business together, and has succeeded in doing so. The son, as soon as he was admitted an attorney, gave him his articles; and the widow promised to pay the stamp duty; and so he became bound to He has thus been obliged to continue in the service: and *he states that he was in constant belief that the widow would [*364 perform her promise. When that belief failed, he obtained the money for himself near two years before the term of service expired, and satisfied the claim of the treasury, and now makes this application.

He is stated to be thoroughly competent; and, being of the age of C. B. N. S., VOL. XII.-15

forty-two, delay is of worse consequence than it would be to a younger

man.

Some of these facts were not before the Judges of the Court of Queen's Bench. We have conferred with them since; and, under the circumstances above stated, that Court concurs with us, and we now grant the application. Rule granted.

HAYWARD and Another v. DUFF. May 9.

The defendant having been arrested on a ca. sa. after the plaintiff had proved his debt under a fiat against him, applied by summons for his discharge, and to set aside the ca. sa. The Judge made the order, imposing as a term that the defendant should bring no action. Having availed himself of the order so as to obtain his discharge,-Held, that the defendant could not afterwards move to set aside so much of it as restrained him from bringing an action.

THE plaintiffs having recovered a judgment against the defendant, the latter became bankrupt, and the plaintiffs proved their debt under the fiat, and one of them was chosen trade assignee. The bankrupt failing to come up to pass his examination, the proceedings were adjourned sine die, without protection. The plaintiffs then issued a ca. sa. upon their judgment, and took the defendant in execution. The defendant applied to the Commissioner to discharge him from custody. The Commissioner declining to interfere, an application was made to Byles, J., at Chambers, who, upon hearing the parties, made an order that the ca. sa. be set aside, and the defendant discharged *365] from *custody, and that no action should be brought against any party. The defendant drew up the order, and was discharged; but he did not serve the order on the plaintiffs. Eight days after his discharge from custody, the defendant brought an action against the plaintiffs and their attorney for the wrongful arrest. A summons was thereupon taken out to stay the proceedings in that action. The summons was transferred to Byles, J., and he made an order for a stay of proceedings.

Daly, on a former day in this term, obtained a rule nisi to set aside so much of the first order of Byles, J., as directed that no action. should be brought. He referred to the 182d section (a) of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), and *366] *submitted that the learned Judge had no power to impose the

terms he did.

(a) Which enacts that "no creditor who has brought any action or instituted any suit against any bankrupt in respect of a demand prior to the bankruptcy, or which might have been proved as a debt under the bankruptcy, shall prove a debt under such bankruptcy, or have any claim entered upon the proceedings, without relinquishing such action or suit, and the proving or claiming a debt under a fiat or petition for adjudication of bankruptcy by any creditor shall be deemed an election by such creditor to take the benefit of such fiat or petition with respect to the debt so proved or claimed: provided that such creditor shall not be liable to the payment to such bankrupt or his assignees of the costs of such action or suit so relinquished by him, and that, where any such creditor shall have brought any action or suit against such bankrupt jointly with any other person or persons, his relinquishing such action or suit against the bankrupt shall not affect such action or suit against such other person or persons; provided also that any creditor who shall have so proved or claimed, if the fiat or petition for adjudication be afterwards suspended or dismissed, may proceed in the action as if he had not so proved or claimed," &c.

Merewether now showed cause.-The learned Judge had full authority to impose the terms he did. In Lorimer v. Lule, 1 Chitt. R. 134, the Court say: "When a defendant applies to us to set aside proceedings for irregularity, we have a discretionary power of imposing upon him just and equitable terms as a condition or qualification of our interference; and we shall not suffer a party so applying to prosecute an action of trespass merely on account of such a slip in practical accuracy. When a case of malicious issuing or undue execution of process is laid before us, we will impose no such restraint; but this is not a case of that description." And in Wentworth v. Bullen, 9 B. & C. 840, 850, Parke, J., says, that "the contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of a Judge." And he further says that the absence of the words "by consent" makes no difference. If the party takes a benefit under the order, everything upon the face of it must be presumed to have been consented to. The learned Judge here would not have set aside the ca. sa. without imposing terms. [BYLES, J.-I was under an impression that the defendant was asking more than he was entitled to, as to the ca. sa., and so put him under terms.]

Daly, in support of the rule.-Lorimer v. Lule was a case of mere irregularity; the judgment having been signed after an appearance entered. This, however, is more than an irregularity. [ERLE, C. J.Having taken the benefit, must you not take the burthen also?] The defendant only took advantage of the order to the limited extent to which he was entitled ex debito *justitiæ. [KEATING, J.-The summons sought to set aside the ca. sa.] The defendant's The defendant's [*367 asking too much could not give the Judge a jurisdiction which he had not.

ERLE, C. J.-I uniformly hold that that which parties accept from me at Chambers they accept in whole. I decide between the parties. One who acts upon an order in any way adopts the whole of it.

WILLES, J.-I find an express decision upon the point in Pierce v. Chaplin, 9 Q. B. 802 (E. C. L. R. vol. 67). There, on motion at Chambers to set aside a judgment and execution for irregularity, on the alleged ground that the judgment had been signed pending a summons for time to plead, which summons the plaintiff's attorney denied having received, the Judge made an order setting aside the judgment and execution without costs, but not embodying any decision as to the irregularity; and he added a direction that the defendant should bring no action. The defendant protested against this addition, but served the order upon the sheriff, who thereupon gave up the goods. And it was held that the defendant, having thus far availed himself; of the order, could not apply to the Court to rescind that part of it which forbade the bringing an action. This rule must be discharged. ERLE, C. J.-And with costs. The rest of the Court concurring,

Rule discharged with costs.

*368]

*LEE v. EVANS. May 13.

The Court will not grant a new trial (before the sheriff) where the sum sought to be recovered is less than 57., merely because the question involved is one of importance to the plaintiff.

THIS was an action by a sack contractor for the hire of sacks, and demurrage for their detention. The sum sought to be recovered was 31. 19s. 9d.

At the trial before the undersheriff of Derbyshire, in order to make out his claim, the plaintiff called one William Beck, the station-master at Rowsley. He had, however, omitted to bring his books. They had been sent for, but had not arrived until after the summing up, when they were tendered, but the undersheriff declined to receive them, and consequently there was a verdict for the defendant.

H. James, on a former day in this term, upon affidavits verifying the undersheriff's notes, and detailing what took place at the trial, obtained a rule nisi for a new trial "on the ground that the books tendered in evidence should have been received, and that there was a miscarriage at the trial on account of their not having been shown to the jury."

Stephens now showed cause.- -A new trial is never granted in cases before a sheriff, where the sum in dispute is under 51, unless the deci sion involves some matter of right, or where the verdict on the former trial passed under such circumstances as would justify the Court in granting the application without costs. None of these circumstances occur in the present case. The whole matter in contest is, whether or not the plaintiff is entitled to recover 37. 19s. 9d. "The principle of the rule," said the Court of Exchequer, in Bryan v. Phillips, 3 Tyrwh. 181, 1 C. & M. 26,† which was a case tried at the assizes, “is, that if there be no *misdirection, the party would have to pay *369] costs; and that would not be worth while in cases under 201 The Courts make it a rule not to grant a new trial when the verdict is for less than 207., unless in a case where they can grant it without costs." A new trial in this case could decide nothing but the question whether the plaintiff is entitled to recover this small amount of damages; and it can only be on payment of costs, for, there has been no miscarriage on the part of the Judge. If the plaintiff was not prepared to try at the proper time, he might have withdrawn the record, or submitted to a nonsuit. Instead of adopting either of those courses, he thought fit to take his chance of a verdict upon the evidence he then had.

H. James, in support of the rule.-The verdict passed for the defendant only by reason of the absence of the books. This being a writ of trial, which must be returned on a certain day, the plaintiff could not withdraw the record, as suggested. [ERLE, C. J.-He might have been nonsuited.] All the expense of going down to trial had then been incurred. [BYLES, J.-Are you right in saying that the record cannot be withdrawn in such a case as this? This Court held the reverse in Shaw v. Owen, 17 C. B. 524 (E. C. L. R. vol. 84).] In effect, that is what the plaintiff is now seeking to do. The rule that a new trial will not be granted in cases before the sheriff, where the verdict or the sum sought to be recovered is below 51., is not