Surrey, to barge timber from Swindon Wharf to London, at any wharf there, at 16s. per ton, to include all charges except wharfage. It was necessary to haul the timber from the place where it lay to be loaded on board the barges, and, at times, when the horses of Marshall were not on the spot, the carrier supplied horses, and hauled the timber. A plaint was afterwards levied in the county court for the district of Swindon, against Marshall, for 501., the balance of account claimed by the carrier, including two items, amounting to 1. 16s., for hauling and it was held, that the hauling of the timber and the carriage of it to London constituted but one cause of action; and that, as such cause of action did not arise until the delivery of the timber in London, the judge of the Swindon county court had no jurisdiction to try the plaint under the 9 & 10 Vict. c. 95, s. 60. [JERVIS, C. J.-That case is in substance the same as In re Walsh.] In Re Fuller, 2 Ellis & B. 573 (E. C. L. R. vol. 75), A. by will bequeathed to his servant F., "should my executors think proper," 201., "conditional on his continuing to conduct himself faithfully in all respects," and appointed executors: the will was made in the district of the county court of K., and the testator died there: the executors renounced probate; and M. took out letters of administration with the will annexed in the Prerogative Court of the Archbishop of Canterbury: M. resided in London; F. by leave of the judge of the county court of K. sued M. in [*507 that court for the 201.: on a rule to set aside a judge's order for a prohibition,-it was held that the grant of letters of administration was part of the cause of action, and that the judge of the county court of K. had not, under the 9 & 10 Vict. c. 95, s. 60, jurisdiction in respect of it over M., who was not within his district; and on that ground the rule to set aside the judge's order was discharged. Lord Campbell there says, "It is not made out that the cause of action arose within the district." And Coleridge, J., says, "I think it quite clear that the grant of the letters of administration, and the acceptance of them by the defendant, are in this case essential parts of the cause of action." [JERVIS, C. J.-This point seems scarcely to have been considered there.] That the order is an essential part of the cause of action, is clear from Smith v. Rolt, 9 C. & P. 696 (E. C. L. R. vol. 38). Here, the order given at Oxford was an essential part of the cause of action: but for that, there would have been no cause of action at all: it was the very foundation of the cause of action. [MAULE, J.-A thing may be the foundation of a cause of action without being part of it.] The 128th section, which gives concurrent jurisdiction, shows that the legislature intended the whole cause of action, when dealing with summonses to be issued against persons residing out of the jurisdiction: see Ghislin v. Deen, 13 Jurist, 82. The object of the legislature evidently was, to save expense to parties: it was never intended that the 60th section should apply to the case of a contract for the sale of goods entered

into in one part of the kingdom, and perfected by delivery at another and distant part.

*508] Aspland, for the respondents. (a)-The 60th section *must be be read in connexion with the 128th and 129th: and, so reading it, it manifestly means, not the whole cause of action in the sense contended for on the other side, but such cause of action as entitles the plaintiff to recover. [MAULE, J.-Was not the giving of the order for the goods a part of the cause of action?] Not for the purpose of s. 60: it is part of the foundation, but not of the cause of action. [MAULE, J.-The judge of the county court seems to have thought that the order, being a mere verbal order, had nothing to do with the case. Now, it seems to the court, and probably to you also, that, whether the order was written or verbal makes no difference. But you say, that, suppose there had been a contract in writing at Oxford, and the plaintiffs performed their part of it, viz., by the delivery of the goods, at Manchester, the whole cause of action would arise in the latter place.] It is not intended to carry the argument quite so far as that. But there are two or three cases which seem to show that the cause of action arises in the place where the goods are delivered. Thus, in Copeland v. Lewis, 2 Stark. N. P. C. 33 (E. C. L. R. vol. 3) the defendant, who resided at Aberystwith, in Cardiganshire, gave an order to the traveller of the plaintiffs (who were dealers in London) at Aberystwith for a chest of tea: nothing was said as to the place of delivery, but the tea was in fact delivered by the plaintiffs to a carrier in London, to be conveyed to the defendant. Jervis, for the plaintiff, contended that the cause of action arose in *London, where the *509] goods were delivered; and he referred to Harwood v. Lester, 3 B. & P. 617, where goods having been delivered to a carrier in London, according to an order of the defendants in Leicestershire, it was held that an action could not be maintained in the county court of Leicestershire, and therefore the Court of Common Pleas refused to stay the proceedings in an action in that court, although the debt amounted to less than 40s.: and where Heath, J., intimated that authorities were to be found in the books, to show, that, where goods are sent from one county into another, the cause of action is to be considered as arising in the county from which they are sent, and not in that where they are delivered and he also cited Dutton v. Solomonson, 3 B. & P. 582, to show that a delivery of goods by the vendor on behalf of the vendee to a carrier not named by the vendee, is a delivery to the vendee. And (a) The points marked for argument on the part of the respondents, were,— "That the cause of action sufficiently arose within the jurisdiction of the county court: "That the facts stated in the case showed that the judge had jurisdiction to try the action : "That the fact of the delivery of the goods to the railway company at the station within the district of the court, conferred jurisdiction:

"That a judgment is to be presumed to be valid until the contrary is shown; and that it did not appear affirmatively on the case that the cause of action did not arise within the district, wholly, or sufficiently to confer jurisdiction, or that the judge had no jurisdiction."

Lord Ellenborough said that he acceded to the opinion of Heath, J., and that, where nothing was said as to any carrier, according to common sense it is to be understood that the goods are to be delivered in the most usual and convenient way." [CRESSWELL, J.-It would rather seem that there was no delivery to the defendant at all there, until the goods reached Aberystwith.] It was assumed that a delivery to the carrier in London was a delivery to the defendant. In Huxham v. Smith, 2 Campb. 21, it was ruled by Lord Ellenborough, that, if a merchant abroad orders goods of a shopkeeper within the city of London, to be put on board a ship lying beyond the limits of the city, and the shopkeeper sends them from his shop to be shipped in pursuance of the order, the price of the goods may be sued for in the Mayor's Court, as a debt arising within the city. [CRESSWELL, J.-In that case, as well as in Harwood v. Lester, the order was received in London. Here, the order was received at Oxford. MAULE, J.-Under the old county court system, the whole cause of action must have arisen within [*510 the jurisdiction. Would the order be no part of the cause of action?] In Emery v. Bartlett, 2 Lord Raym. 1555, 2 Stra. 827, it was held, that, in an action in an inferior court, by the payee of a note against the maker, though the declaration states that the note was made for value received, it need not state that the value was received within the jurisdiction of the inferior court: nor, in an action in an inferior court upon an account stated, need it be alleged that the sums in arrear concerning which the parties accounted were in arrear within the jurisdiction of the inferior court. [MAULE, J.-Suppose there was the most ample proof of the delivery of the goods to the defendants at Manchester, you must still have evidence of the order.] Griffits was not called upon to reply.

JERVIS, C. J.-It has been decided over and over again that the "cause of action" in the 9 & 10 Vict. c. 95, s. 60, means "the whole cause of action." I therefore think the county court judge in this case was wrong in assuming jurisdiction. The whole cause of action clearly did not arise in Manchester. The mere delivery of the goods at the railway station there was not enough: the plaintiffs were bound further to prove the order; and that was given and received at Oxford. The appeal, therefore, must be allowed.

MAULE, J.-I also think that there should be a nonsuit in this case, on the ground stated by the Lord Chief Justice. Upon the critical construction of the words of the 60th section, as well as upon the spirit of the enactment, I think it clearly means the whole cause of action. And there is good reason for this. A defendant is liable to be sued in the place where he resides, and where the whole contract or cause of action arises. *That is a thing which he can and is bound to [*511 take notice of: and it is convenient. The words of the section are plain and simple. When the legislature meant to deal with a part

of the cause of action,—as in s. 128,-they knew how to express themselves. I think we are bound by the decisions of the Courts of Queen's Bench and Exchequer to which we have been referred; and more especially by the cases of Buckley v. Hann, 5 Exch. 43,† and Re Fuller, 2 Ellis & B. 573 (E. C. L. R. vol. 75), in which latter case the Court of Queen's Bench thought the letters of administration an essential part of the cause of action. Everything that is requisite to show the action to be maintainable, is part of the cause of action.

CRESSWELL, J., and WILLIAMS, J., concurred.

Judgment of nonsuit.(a)

(a) See Hernaman v. Smith, 10 Exch. 659.† The defendant offered a reward of 201. to be paid on conviction of any person for stealing sheep. The defendant apprehended one Rock at Newnham, in the county of Gloucester, on a charge of sheep-stealing; and Rock was tried and convicted at the next Hereford assizes. And the Court of Exchequer held, on the authority of the principal case, that the whole cause of action for the promised reward did not arise within the jurisdiction of the county court at Newnham, the conviction (which took place out of the jurisdiction) being an essential part of it.

*512]

*BOWES v. The Right Hon. THOMAS HENRY BARON RAVENSWORTH. Jan. 22.

By an enclosure-act, reciting that the defendant was lord of the manors of A. and B., it was enacted that nothing therein contained should be construed to defeat or prejudice his rights as such lord; but that the lord, his heirs and assigns, should hold and enjoy all manorial rights, and also all mines, minerals, and quarries, &c., belonging to the said manors, in as full and ample a manner as if the act had not been made; "and also full and free liberty at all times hereafter of making, &c., and of granting to any other person or persons any wagon-ways or other ways in, over, or along the commons or waste land (intended to be allotted and enclosed), and to do every other act now in use, or which shall hereafter be used or invented, which shall be necessary to be done for the purpose of winning, working, leading, and carrying away the said mines, minerals, and quarries within and under the said last-mentioned commons, &c.; and also for the leading, carrying, and conveying the coals and the produce of any other mines and minerals from or under any other lands and grounds whatsoever :". Held, that the words "produce of any other mines and minerals" did not mean the produce of mines and minerals other than coals, but the produce of mines and minerals other than the "mines, minerals, and quarries" before mentioned; and consequently, that the defendant had a right to use a railway constructed by him under the power so given to him, for the purpose of carrying coke, such coke not being made from coal worked out of the waste which was the subject of the enclosure.

THIS was an action brought by the plaintiff against the defendant for the purpose of trying a right of way claimed by the defendant for the conveying of coke over the plaintiff's land; and, by consent of the parties, and by order of Maule, J., made on the 8th of November, 1854, according to the Common Law Procedure Act, 1852, the following case was stated for the opinion of the court :

The piece of land over which the defendant claims a right of way to carry coke, is in the possession of the plaintiff, and is in Blackburn. Fell, and parcel of the manor of Hecton, otherwise Ayton, and Ravensworth, otherwise Lamesley, in the county of Durham, and was formerly

part of a common or waste land, called Blackburn Fell, since enclosed in pursuance of an act of parliament, passed in the 41 G. 3 (c. exliv.), intituled "An act for dividing, allotting, and enclosing certain commons and other commonable lands in the parochial chapelries of Lamesley and Tanfield, or one of them, in the county of Durham," a copy of which accompanied the case.

By the award of the commissioners appointed and *acting

under that act, dated the 13th of March, 1818, the said piece [*513

of land was allotted to the Rt. Hon. John Bowes, Earl of Strathmore (from whom the plaintiff derives his title), in full of his proportion and interest in the commons wherein he was entitled to right of common.

By the same award, an allotment was made to the defendant (then Sir Thomas Henry Liddell), as lord of the manors of Ayton and Ravensworth, in the following terms:-"We do hereby set out, allot, appoint, and award unto and for the said Sir Thomas Henry Liddell, Bart., and his successors, as lord of the manor of Hecton otherwise Ayton, and Ravensworth otherwise Lamesley, in full compensation and satisfaction of his and their right and interest of, in, and to the soil of the said common, moors, or tracts of waste land, and for his consent to the said division, allotments, and enclosure, one full sixteenth part in value (quantity, quality, and situation considered) of and in the commons, moors, or tracts of waste land called Blackburn Fell, Burden Moor, Headley Fell, and Beamish East Moor, otherwise part of Blackburn Fell, respectively, 112a. 2r. 12p. of land in one entire plot, as the same is now staked and set out by stakes and landmarks, situate on the said Blackburn Fell."

The following clause in the said act (s. 40) bears on the present case: -Provided always, and be it further enacted, that nothing in this act contained shall be construed or adjudged to defeat, lessen, or prejudice the right, title, or interest of the said Sir Thomas Henry Liddell, as lord of the manors of Hecton otherwise Ayton, and Ravensworth otherwise Lamesley, his heirs or assigns, or any of them, of, in, and to the seignory and royalties incident and belonging to the said manors; but that the lord of the said manors, his heirs and assigns, shall and may, from time to time, and at all times *hereafter, hold and enjoy [*514 all courts, perquisites, and profits of courts, and services, and all yearly and other rents and acknowledgments reserved and usually paid, and which are due and demandable for all, any, or every of the houses, buildings, cottages, intacks, or enclosures now built, made, being, or standing in or upon the said commons, moors, or tracts of waste land, or the boundaries thereof, or in or upon any ground formerly part of the said commons, moors, or tracts of waste land now held or enjoyed in severalty, and which heretofore had been, or which ought to be paid, made, or performed by the owners or possessors for the time being of such houses, buildings, or cottages, or of any of the intacks or enclo