Lord Abinger, C. B., is reported to have said: "I cannot say that we should interfere in a very doubtful case; but if the decision of the Judge were clearly and manifestly wrong, the Court would interfere to set it right." Now that is an inaccuracy, and I have corrected it in my own hand in the copy of Meeson & Welsby which is in this Court. What Lord Abinger said was, that the order of beginning is a matter for the disposal of the Judge at Nisi Prius; but if his ruling "did clear and manifest wrong," the Court would interfere to set it right; and that view of his language is confirmed by the note appended to the report of Edwards v. Matthews, in the Jurist. By that rule I am prepared to abide, for it would be an extreme hardship to grant a new trial on such a ground alone, where substantial justice has been done between the parties. Admitting, therefore, for the sake of argument, that my Brother Alderson was wrong in this case, in holding that the burthen of proof lay in the first instance on the defendant (which, however, I by no means admit, and indeed I think he was right, although I do not pronounce a positive opinion upon that point); still, upon the examination of the witness, it is perfectly clear what the result of the case would have been, had the ruling of my learned Brother been that for which the defendant's counsel contended. ALDERSON, B.-I agree with the other members of the Court in the rule which they have laid down, and still think that I was correct in holding, at the trial, that the defendant was the party who was bound to begin. Rule refused (a). (a) In Cannam v. Farmer, 3 party had begun, unless also some Exch. 700, Rolfe, B., said: "The injustice has arisen from that cir 1850. BRANDFORD V. FREEMAN. 1850. Nov. 9. NURDIN V. FAIRBANKS. In an action of JOYCE moved for a rule calling upon the plaintiff to debt brought Court, to reco ver the sum of 91. 108., the in the superior shew cause why all proceedings in this action should not be stayed on payment of the debt without costs, on the ground of the action being frivolous; or why the defendant should not be at liberty to enter a suggestion to deprive the plaintiff of costs under the County Courts Act, 9 & 10 Vict. c. 95. defendant pleaded, except as to 87. 148., never indebted, and as to that sum tender before action, and payment of that amount into Court. A verdict hav ing been found for the plaintiff for 168., the Court refused to stay the proceedings. of the debt, without costs, on the ground that the action was frivolous, as brought to recover a sum less than 408. It was an action of debt brought to recover the sum of 97. 10s. The defendants pleaded, except as to 87. 14s., never indebted, and as to that sum so excepted, tender before action, and payment of that amount into Court. The plaintiff joined issue upon the first plea, and traversed the last, and issue was joined thereon. The cause was tried before the Secondary, and the plaintiff obtained a verdict upon payment upon the first issue, with 16s. damages, and upon the other issue the defendant had the verdict.-There are two grounds for this motion. In the first place, the defendant is clearly entitled to enter a suggestion under the 9 & 10 Vict. c. 95; and secondly, the action is frivolous, and ought not to have been brought in the Superior Court, as the amount which the plaintiff substantially sought to recover in it is less than 40s. The jury have found that the tender was made before action brought; it is in effect, therefore, a payment before action, and the whole amount of the plaintiff's claim was under 40s., the substantial claim being for 16s. only. [Parke, B.-Upon the first point you are entitled to a rule, but clearly not upon the second. The object of the Courts in staying actions for sums under 40s. is to prevent frivolous actions from being brought, where the amount recovered would not justify the costs to be incurred; but suppose an action for 100% were brought, and the amount found to be due were to be reduced by tender or payment below the sum of 40s., how could it be said that the action was frivolous?] The effect of the finding of the jury is, that the plaintiff ought to have accepted the amount tendered. [Alderson, B.— An action is not frivolous which is brought to try the question of a tender; but where a man brings an action to recover 40s. only, the thing to be tried is frivolous upon the face of it.] Stutton v. Bament (a) seems to be an authority for the defendant's position. [Parke, B.-The present action was not brought to recover a sum of less amount than 40s., but in reality of much greater amount. When the plaintiff sued out his writ, he might not be aware that the defendant would plead a tender and pay the amount into Court. Pollock, C. B.-It appears to me that if the defendant's argument be true, in every case where the amount is reduced by a good defence below the sum of 40s. the defendant would be entitled to succeed upon an application of this nature.] POLLOCK, C. B.-We are all clearly of opinion that upon this point there ought not to be a rule. Upon the other point the defendant may take a rule. PARKE, B., and ALDERSON, B., concurred. Rule accordingly. 1850. NURDIN V. FAIRBANKS. (a) 3 Exch. 831. 1850. Nov. 19. In re DEARDEN, Gent., one &c. On the appli- ATHERTON moved for a rule, directing the Master to cation of an allowed to sub attorney to be substitute the name of Josiah Heaton Dearden, on the roll of attornies of this Court, in the place of Josiah Dearden; and that the Master be at liberty to make an indorsement of such alteration of name on the admission of the applicant. stitute the name of J. Heaton D. on the roll of attornies, in the place of J. D., this Court re the roll, but directed the Master to make a me morandum on the roll oppo name, stating that he was now known by The affidavit in support of the motion stated, that the fused to alter application was made in consequence of Mr. Dearden having adopted the name of Heaton, which was the name of a near relation, from whom he had received certain property. -This application is made to avoid the expense which the site the party's party would incur by appearing to sign his name again upon the roll of attornies; and he, therefore, applies for a similar rule to that which has already been granted by the other Courts. [Alderson, B.-The Master cannot sign the attor ney's name. Pollock, C. B.-The proper course will be, not to alter the name on the roll, but to make a memorandum in the margin of the roll opposite the party's name, stating that the within Josiah Dearden is now known by the name of Josiah Heaton Dearden; and that such memorandum is ordered by rule of Court.] the name of J. Heaton D., and that the memorandum was made by rule of Court. 1850. DERRY, Public Officer of THE DEVONSHIRE AND CORNWALL DEBT Fourth plea.-As to 390l. 13s. parcel, &c., that before the accruing of the causes of action, &c., to wit, on &c., it was corruptly, and against the form of the statute in such case made and provided, agreed by and between the defendant and the said co-partnership, that the said copartnership should then and thenceforth, and from time to time, as the defendant should require, lend to him certain sums of money, of such amount respectively as he should require, but so that all the sums of money so to be lent by them to the defendant should not, in the whole, exceed 10007, by paying out of their own monies, and over and above such monies of the defendant as they might hold, to such persons as should be the lawful holders of, and should present to them for payment, cheques signed by the defendant, so as that the amount of the said cheques so to be paid out of their proper monies should not exceed the sum of 1000l., upon certain terms, viz. that the said co-partnership should forbear to give to defendant day and time for the repayment of all the said sums, to wit, until the said co-partnership should demand such repayment; and that, for and in respect of such forbearance, the defendant should pay to them certain the tiff certain sums, partly under the name of interest, and partly under the shift and chevisance of commission, at the rate of 10. per cent. The plea then averred, that the plaintiff did cash the defendant's cheques, and that the usurious interest was so charged:-Held, on special demurrer, that the plea was good, although it did not state how much of the excess beyond 51. per cent. was for usurious interest, and how much for commission, it appearing that the agreement for the gross sum to be paid for interest and commission was done colourably, so as to enable the plaintiff to get more than 57. per cent. In pleading usury, the defendant need only bring the transaction within the 12 Anne, stat. 2, c. 16; and if the plaintiff relies upon the 2 & 3 Vict, c. 37, as exempting the case from the operation of the statute of Anne, that should come by way of replication. |