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tion of the legislature, that long and intricate accounts, consisting of various items, should not be tried before an inferior tribunal." In Bateman y. Smith, the defendant was an infant, and the jury found the damages to be under 40s., as the plaintiff could only recover for necessaries furnished her. Here, however, the only question is, what was the value of the work done by the plaintiff at the time of the commencement of the action? Such value could only be ascertained by, evidence; and a surveyor, who had been previously appointed by the plaintiff and defend. ant, stated that he estimated it at 337. 13s. ld. Both the statutes must be taken in pari materiâ ; and if this case falls within the exception in the 48, Geo, 3. it is out of the 22 Geo. 3, altogether.
Mr. Serjeant Bosanquet, in support of the rule. The defendant is at all events entitled to enter a suggestion under the 14th section of the 48 Geo. 3, or the 12th and 32d sections of the 22 Geo. 3, or either of them ; for if the plaintiff's demand were recoverable under the latter statute, as being under 40s. the plaintiff is barred of his costs by the 14th section of the former. It must be observed, that this is not the case of a debt or contract for a specified sum, but what the plaintiff might be entitled to for work and labour done by him for the defendant, and which the jury ultimately found to be due, and not the sum the plaintiff might think proper to demand in the first instance, The Court will not encourage critical comments in cases of this description; for in Benson v. Hemming (a) it was decided, that where a reduction is made by payments in part, the plaintiff is not entitled to costs, where the damages are under the limited amount; and that
(a) 2 Barnes, 282: Ist edit. 1754 ; 3d edit. 353.
although a statute is inaccurately penned after a good precedent, yet the Court is bound by it. All statutes of this description must be considered in pari materid, and receive a uniform construction. Here, it appears that the original cause of action was less than 40$. ; and in Fitzpatrick v. Pickering (a) it was held, that where a plaintiff obtains a verdict for less than that sum, the defendant may enter a suggestion, that he resided in Middlesex, although the plaintiff failed to prove a larger amount in consequence of the absence of a witness : and in Gross v. Fisher(b) the Court observed, that “ there is a difference between the case of mutual debts subsisting where the plaintiff's demand is more than 40s. the defendant's demand, at the time of the commencement of the action, reducing it to a less sum; and the case where the plaintiff's original demand was more than 40s., and the defendant, before the commencement of the action, has, by payment in part, reduced it to less than 40s. In the first case, mutual debts are subsisting at the commencement of the action; in the latter case not: for payment of part by the defendant to the plaintiff himself, is not a debt owing by the plaintiff to the defendant, but a discharge of the plaintiff's demand' pro tanto.” So in Horn y. Hughes, Lord Ellenborough said (c), that " as it appeared that less than 51. was due at the time of bringing the action, by means of a part payment, of which the plaintiff must have been cognizant,” the case was within the statute 39 and 40 Geo. 3. c. 104 ; and his lordship mentioned the absence of a witness as the only substantive cause for the plaintiff's failing to prove the whole of his demand. So, here, the plaintiff's debt was reduced by part payments, under the sum of 40s., which the jury have decided by
(a) 2 Wils. 68.
(6) 3 Wils. 48.
- 8 East, 348.
their verdict: and in Jordan v. Strong (a) it was held, that the defendant's pleading a tender to an action of assumpsit for goods sold, did not preclude him from entering a suggestion to deprive the plaintiff of his costs, under the latter statute.
Lord Chief Justice DALLAS.- I think that in this case a suggestion ought not to be entered, either on the facts which have been stated to the Court, or as being 'within the meaning of the statutes 22 Geo. 3. c. 27, and 48 Geo. 3. c. 51. It is quite clear that the intention of the legislature in passing acts of this description, was to afford encouragement to poor persons, so as to enable them to avoid the expense of litigation in superior Courts. Wherever, therefore, it dis-, tinctly appears that a plaintiff's original demand is under forty shillings, or where a debt, originally above that sum, has been reduced below it by partial paya : ments, the action should be brought in the inferior Court. I abstain from saying any thing as to a demand, where the sum recovered is reduced under the limited amount by means of a set-off; as whether a defendant may be entitled to a suggestion or not, must depend upon the facts of each particular case. There may be cases of different descriptions; as in the first place, where the reduction has been made by payments on account; secondly, by set-off; or lastly, as in a case of this description, where the statutes are not intended to apply, and where the question does not arise
the balance of an account, or by means of a set-off; but where there is a demand for work and labour done by measurement, and in which it is a fair question for a jury to decide what sum the plaintiff may be entitled to, or what may be justly due to him
(a) 5 Maul, & Selw., 196.
for such work and labour, on a quantum meruit, to be ascertained by evidence at the trial. The plaintiff's original debt was not to be referred to the verdict of the jury, but whether he had a fair, reasonable, and probable cause for litigating the question, whether bis demand amounted to more than 40s. or not. It occurred to me when this application was made, that this was the line to be taken, and that the jury might in such a case find a less sum to be due to the plaintiff than he originally demanded, without casting any imputation as to the fairness or unfairness of such demand. In support of this, I need only advert to the distinction taken by Lord Ellenborough in Horn v. Hughes (a), where his Lordship observed, that " it was unnecessary to say what the Court might have thought, if it had appeared that the plaintiff had a reasonable ground for bringing his action for more than 51.; but that from the absence of a witness, or other cause, without his default, he had failed in proving his whole demand.” Now here, it appears to me, that the plaintiff had a reasonable ground for bringing this action, for measured work performed by him for the defendant. A surveyor, appointed jointly by him and the plaintiff, and with the approbation of the former, was called on to measure and value the work, and he, on such measurement, estimated the value at 33l. 13s. 1d., which, after reducing all the payments made by the defendant, would have left a balance of 8l. 15s. Id. due to the plaintiff. So reasonable a ground for bringing an action in a superior Court did not appear to Lord Ellenborough, in Horn v. Hughes; and here the jury reduced the value of the work, so as to give the plaintiff damages under 40s., when at the time of bringing the action he sought to
(a) 8 East, 348.
recover 9l, 78. Ith, or, at all events, the amount of the valuation as made by the surveyor, and he delivered his particulars accordingly, : I am therefore of opinion, that this case does not fall within the Rochester Court of Requests Acts; and although Lord Elenborough, in Horn v. Hughes, mentioned the absence of a witness as a reason for refusing a suggestion, yet bis Lordship only put that by way of illustration; for, he observed, that" if from any other cause, it had appeared that the plaintiff had a reasonable ground for bringing his action for more than 51. it would have been sufficient to prevent. a. suggestion from being entered.' Acting therefore on that principle, and applying it, to the facts of this case, I think that the present action was properly brought; and consequently, that there is no ground for entering the suggestion for which the application has been made.
Mr. Justice PARK. I am entirely of the same opinion. : The principle to be applied to statutes of this nature has been most fully and accurately stated by my Lord Chief Justice. The statute 22 Geo. 3, c. 27, is intituled "An act for the more easy and speedy recovery of small debts within the city of Rochester," &c. But the terms of the 48 Geo. 3, are far stronger; which, after reciting the former act, and that it would greatly tend to the improvement, and encouragement of the trade of that city, and to the necessary support and protection of useful credit within the same, extends the jurisdiction of the Rochester Court to sums not exceeding 51. From the facts before the Court, it appears that this is not a small debt, but that the plaintiff's original demand amounted to 341. 58. id. for measured work and labour. This case therefore cannot be said to fall within the provisions of the above statutes. Besides, it must be recollected, that this demand was not reduced