1849. WOODHAMS บ. NEWMAN. tained, is insufficient; it does not allege, as it ought to do, Brooker v. Cooper (a),—that, at the time of the commencement of the suit, the plaintiff and defendant were resident within twenty miles of each other.(b) A case of reduction of the demand by set-off is not within the words, or the policy, of the statute 9 & 10 Vict. c. 95. The 58th section, which defines the jurisdiction of the county-court, enacts, "that all pleas of personal actions, where the debt or damage claimed is not more than 207., whether on balance of account or otherwise, may be holden in the county-court, without writ; and all such actions brought in the said court shall be heard and determined in a summary way in a court constituted under this act, and according to the provisions of this act:" and then follows a proviso which is inapplicable to this case. The only other sections that have any bearing upon this question are, the 128th and the 129th. The 128th enacts, "that all actions and proceedings which before the passing of this act might have been brought in any of Her Majesty's superior courts of record,-where the plaintiff dwells more than twenty miles from the defendant, or where the cause of action did not arise wholly, or in some material point, within the jurisdiction of the court within which the defendant dwells or carries on his business at the time of the action brought, — or where any officer of the county-court shall be a party, except in respect of any claim to any goods and chattels taken in execution of the process of the court, or the proceeds or value thereof,-may be brought and determined in any such superior court, at the election of the party suing or proceeding, as if this act had not been passed." And the 129th section enacts, "that, if any (a) 18 Law Journ. N. S., Exch. 41. (b) The affidavit upon which cause was shewn supplied this defect. action shall be commenced, after the passing of this act, in any of Her Majesty's superior courts of record, for any other cause than those lastly-herein before specified, for which a plaint might have been entered in any court holden under this act, and a verdict shall be found for the plaintiff for a sum less than 207. if the said action is founded on contract, or less than 57. if it be founded on tort, the said plaintiff shall have judgment to recover such sum only, and no costs; and, if a verdict shall not be found for the plaintiff, the defendant shall be entitled to his costs as between attorney and client; unless, in either case, the judge who shall try the cause shall certify on the back of the record that the action was fit to be brought in such superior court." Under the old courts of requests acts, the suggestion to deprive the plaintiff of costs, or to entitle the defendant to costs, was only allowed where the debt, originally above, was reduced below the limited amount by part payment, Clark v. Askew (a), Horn v. Hughes (b), Fountain v. Young (e), Walker v. Watson (d), or by a plea of the statute of limitations, Rothery v. Munnings (e), infancy, Bateman v. Smith (g), or the statute of limitations, Stilwell v. Bracher (h); the statutes did not apply to cases where the demand was reduced by a set-off, Pitts v. Carpenter (i), Gross v. Fisher (k), Cottle v. Lang (a) 8 East, 28., on the Southwark act, 22 G. 2. c. 47. 8. 6. (b) 8 East, 347., on the London act, 39 & 40 G. 3. c. civ. 8. 12. (e) 1 Taunt. 60., on the Southwark act, 46 G. 3. c. lxxxvii. s. 12. (d) 8 Bingh. 414., 1 M. & Scott, 674., on the Halifax act, 17 G. 3. c. xv. s. 30. the London act, 39 & 40 G. 3. (g) 14 East, 301., on the (h) 1 D. & L. 231., on the Middlesex act, 23 G. 2. c. 33. s. 19. (i) 2 Stra. 1191., 1 Wils. 19., on the London act, 3 Jac. 1. c. 15. (k) 3 Wils. 48., on the Mid (e) 1 B. & Ad. 18, n., on dlesex act, 23 G. 2. c. 33, 8. 19. 1849. WOODHAMS V. NEWMAN. 1849. v. NEWMAN. man (a), Jenkinson v. Morton (b), Bailey v. Chitty. (c) In Jones v. Harris (d), Taunton, J., says: "The cases WOODHAMS of Bateman v. Smith and Chadwick v. Bunning (e) shew, that, if the damages found by the jury for the plaintiff are reduced to less than 40s., in consequence of the original contract between the parties, or of part payments before action brought, the defendant is entitled to double costs under this act. But, if the plaintiff had an original demand against the defendant, exceeding 40s., and for which a verdict must have been found at common law, before the statute which gave the set-off, the case might be very different. It is not necessary now to give any opinion on that point; there are very good reasons why a case in which the plaintiff's demand is reduced by a set-off should be exempted from the operation of the statute. Those reasons may be found very pointedly and very strongly expressed in the case of Pitts v. Carpenter. The court there observed How could the plaintiff tell whether the defendant would set off any thing in that action, so as to be bound to choose that jurisdiction? Besides, he has in effect recovered 4l. 15s. 3d.; because a debt which he must otherwise have paid, is now satisfied." So, in Cottle v. Langman, Best, C. J., says: "It would be an act of injustice to the plaintiff, if this application were allowed to prevail; for, the defendant was indebted to him in the sum of 227.; and, although he was aware that the latter had a counter-claim, yet he refused to give him an account of it; and it did not necessarily follow that the defendant would plead a set-off, or (a) 9 J. B. Moore, 625., on the Bath act, 45 G. 3. c. lxvii. 8. 47. (b) 1 M. & W. 300., Tyrwh. & G. 676., 5 Dowl. P. C. 74., on the Middlesex act, 23 G. 2. c. 33. s. 19. (e) 2 M. & W. 28., 5 Dowl. P. C. 307., on the Middleser act., 23 G. 2. c. 33. §. 19. (d) 1 Dowl. P. C. 374., on the Middlesex act, 23 G. 2. c. 33. s. 19. (e) 5 B. & C. 532., 8 D. & R. 155., on the Middlesex act, 23 G. 2. c. 33. s. 19. deliver particulars, so as to reduce the plaintiff's original demand below 10%. If he had sued the defendant under the local act, he could only have recovered to that amount; and the latter might then have commenced an action against him for the amount of his set-off." It being at the defendant's option to set off the cross demand or not, the plaintiff could not safely proceed for the balance only. [Wilde, C. J. The judge would have first to decide upon the amount of the plaintiff's demand, and then to inquire as to the defendant's set-off, and so balance the account. I think it is impossible that such a case can be within the act.] The defendant's affidavit does not shew within which of the eleven districts into which Middlesex is divided, the cause of action arose, or the parties resided at the time of the commencement of the action. (a) The "county-court of Middlesex" is, in s. 12., recognised as the court which is regulated by the 23 G. 2. c. 33. At all events, the plaintiff would be entitled to the costs up to the time of paying money into court. R. Clarke, in support of his rule. In Fairbrass v. Pettit (b), Parke, B., says: "The sum recovered by verdict, and not the amount claimed, is to be considered the debt for which the action is brought. That was so decided in Shaddick v. Bennett (c), which must govern the present case." The like was held in Drews v. Coles (d), where the demand having been reduced by a set-off so as to bring it within the Bradford court of 1849. WOODHAMS v. NEWMAN. 1849. v. NEWMAN. requests acts (a), the court ordered a suggestion to be entered, to deprive the plaintiff of costs. The cases of WOODHAMS Pitts v. Carpenter, Gross v. Fisher, Cottle v. Langman, Jenkinson v. Morton, and Bailey v. Chitty,―turned upon the particular language of the several statutes. Whether the demand be reduced by payment, by tender, or by set-off, can make no difference. In Laing v. Chatham(b), it was ruled by Lord Ellenborough, that, where the defendant has a set-off against the plaintiff, of which he gives notice under the statute, but does not appear at the trial, to offer evidence of it, the plaintiff may either take a verdict for the whole sum he proves to be due to him, subject to be reduced to the sum really due on a balance of accounts, if the defendant will afterwards enter into a rule not to sue for the set-off; or he may take a verdict for the smaller sum, with a special indorsement on the postea, as a foundation for the court to order a stay of proceedings, if another action should be brought for the amount of the set-off. (c) That case shews that there is no such difficulty as is suggested on the other side. [Wilde, J. What would be the plaintiff's position, in the case put, if the defendant brought his action in another court? (d) Maule, J. How would the plaintiff have framed his plaint in the county-court, if he had wanted to try what was tried here?] The 58th section, which gives jurisdiction to the county-court where the debt or damage claimed is not more than 201, "whether on balance of account or otherwise," clearly embraces reduction by set-off. [Maule, J. Surely it cannot mean balanced by set-off.] WILDE, C. J. I am of opinion that this case does not fall within the 9 & 10 Vict. c. 95., and therefore that the defendant is not entitled to enter a suggestion upon (a) 3 G. 3. c. xix., and 47 G. 3. sess. 2. c. xxxix. (b) 1 Campb. 252. (c) Vide post, p. 672. (d) Vide post, 671 (b). |