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papers mentioned in the particulars of demand, and did did not in fact find the value of the same, or of any of them.

Kemplay, for the plaintiff, now moved that the order of Martin, B., should be rescinded, and the writ of prohibition issued in pursuance thereof, quashed, with costs. Detinue is, it is submitted, within the jurisdiction of the county-courts, as established by the 9 & 10 Vict. c. 95, and extended by the 13 & 14 Vict. c. 61. The old county-courts unquestionably had jurisdiction in actions of detinue, by justicies, to an unlimited amount,-Com. Dig. County (C. 5), citing 4 Inst. 266, F. N. B. 85 F; and, by plaint, under 40s.,-Com. Dig. County (C. 8), citing 2 Inst. 312, 4 Inst. 266; except in detinue for charters relating to the title to land. By the 9 & 10 Vict. c. 95, s. 3, the old jurisdiction is transferred to the newly created courts. That section enacts "that every court to be holden under this act, shall have all the jurisdiction and powers of the county-court, for the recovery of debts and demands, as altered by this act, throughout the whole district for which it is holden, and there shall be a judge for each district to be created under this act, and the county-court may be holden simultaneously in all or any of such districts; and every court holden under this act shall be a court of record." [Jervis, C. J. What sense do you give to the words "as altered by this act?"] As altered as to the districts. The 58th section, which defines the jurisdiction of the 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 countycourt, 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 comes a limita

tion which in no degree affects this question,-“ provided always that the court shall not have cognisance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair, market, or franchise, shall be in question, or in which the validity of any devise, bequest, or limitation under any will or settlement, may be disputed, or for any malicious prosecution, or for any libel or slander, or for criminal conversation, or for seduction or breach of promise of marriage." It will be said that the judge of the county-court has no power to compel the delivery of the thing detained. That, however, is not an insuperable difficulty, inasmuch as the judgment in detinue is not necessarily limited to the re-delivery of the chattel. In Williams v. Archer, antè, Vol. V, p. 318, in detinue for railway scrip, which had been delivered up to the plaintiff after action brought, under a judge's order, it was held that the verdict and judgment were properly confined to an assessment of damages for the detention,-by analogy to the case of the re-delivery of charters being rendered impossible by reason of their having been burnt. In delivering the judgment of the court of error there, Parke, B., says: "In Rolle's Abridgment, Detinue (E), it is said, that, in detinue of charters, if the issue be upon the detinet, if it be found that the defendant has burned the charters, the judgment shall not be to recover the charters, for, it appears that he (the plaintiff) cannot have them: but he shall recover the value of the land in damages. A reference is, however, made to a contrary decision in the Year Book, T. 17 E. 3, fo. 45, pl. 1. In that case, the jury found that the charters were burned by the defendant. Shardelow, J., said that the issue was only on the detinue, which detinue was found, and the judgment, it was agreed by the court, should be, to recover the charters, and damages to 10 marks, and that the defendant should be distrained to

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return them. By analogy to this case, the judgment
given for the plaintiff on this record would be wrong.
But the case does not appear to be law; for, Brooke, in
his Abridgment, Detinue de Brins, pl. 25, says that
Newton and Paston (both justices of C. B.) in 21 H. 6,
36, say that, if, in detinue of charters, the charters are
burnt, the plaintiff shall recover all in damages. The
like is laid down in M. 3 H. 6, fo. 19, pl. 31; and
Brooke, and also Rolle, in their Abridgments, evidently
adopt that position as good law. If that be so,-and it
seems to us that it is,—we may, on the authority of that
case, hold that the jury may find the facts specially
whereby a re-delivery of the goods to the plaintiff has
become impossible, and so confine themselves to an
assessment of damages. If the jury can do so where the
destruction of the chattel takes place, and so it cannot
be recovered in specie, they may do so also where its
previous re-delivery renders the recovery of the chattel
useless." So, in Jones v. Dowle, 9 M. & W. 19, where
the defendants parted with the possession of the chattel
to a stranger, the plaintiff had a verdict with damages
to the value. In Phillips v. Jones, 12 Q. B. 859, 867,
Parke, B., says: "Upon referring to the precedents, it
appears that the plaintiff in detinue has a right to re-
cover the goods in specie, and, in case of non-delivery,
the value, and the option of giving up the goods, or
paying the value, is in the defendant, who, by refusing
to deliver the former, renders himself liable to pay the
latter. It was so laid by Frowike, C. J., Keilw. Rep.
64. b. He
He says 'that the judgment is, that the plaintiff
shall recover the goods or the value; then shall issue a
writ to the sheriff to distrain the defendant to deliver
the goods, and, if he will not, then the value as it is
taxed by the inquisition. And so it is in the election of
the defendant to deliver to the plaintiff the goods or the
value.' And the same law is laid down in Paler v.

Hardyman, Yelv. 71."

[Maule, J. Here, the goods are

not destroyed. Your argument is, that you are entitled to put detinue on the same footing as trover, because there are certain exceptional cases in which the judgment in detinue may be for damages only? Jervis, C. J. The argument against you will be, that, in order to bring the case within the statute, it must be such an action of detinue as must be for damages only. Maule, J. I do not see why the county-court should not have jurisdiction in detinue, unless there is some express provision to prevent it. I think the question will turn upon the 6th and 11th sections of the 13 & 14 Vict. c. 61. Jervis, C. J. Rather, upon the 1st section, as explained by those two. Section 2 also may be useful: it provides that the extension act and the former act shall be read and construed as one act: if so, the 58th section of the 9 & 10 Vict. c. 95, may be read as if it contained the word "demand," as well as "debt or damage."] The 1st section of the 13 & 14 Vict. c. 61,-reciting the 9 & 10 Vict. c. 95, and 12 & 13 Vict. c. 101,-enacts, "that the jurisdiction of the several courts holden or to be holden under the said act of 9 & 10 Vict. c. 95, shall extend to the recovery of any debt, damage, or demand, not exceeding the sum of 50l., and to all actions in respect thereof (save and except the several actions specified in the proviso in s. 58, of the same act); and that the several powers and provisions of the said several acts of the 10th and 13th years of Her Majesty, and all rules, orders, and regulations which have been or may be made in pursuance of the said acts, or either of them, shall extend to all debts, damages, and demands which may be sued for in the said courts, or any of them, not exceeding the sum of 501., and to all proceedings and judgments for the recovery of the same, or otherwise in relation thereto respectively, as fully, to all intents and purposes, as the same respec

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tively are now or may be applicable to debts, damages,
and demands within the present jurisdiction of the said
courts." The 6th section, which regulates the fees to
be taken by barristers and attorneys in the county-
courts, speaks of "the debt, damage, or demand claimed
in any plaint in covenant, debt, detinue, or assumpsit:"
and s. 11 classes "detinue" amongst those actions of
contract wherein, if the plaintiff, suing in a superior
court, recovers less than 201., he shall lose his costs.
[Williams, J. Has not the defendant a right to have
the judgment in the alternative, so as to enable him to
exercise the option to restore the chattel, where it exists
in specie?] Phillips v. Jones certainly shews that he
has
[Maule, J. The power to give damages for the
detention, is merely incident to the judgment.] In
Henry v. Earl, 8 M. & W. 228, there was a plea to the
damages: and, in Crossfield v. Such, 8 Exch. 159, it
was held, that, if, in detinue for goods, all or any are
delivered up after action brought, the plaintiff cannot
have judgment to recover the goods so delivered to him,
or their value; but he may have judgment to recover
damages for their detention, if he has sustained any
damage; and may have judgment to recover the resi-
due of the goods, or their value, and damages for their
detention.

Assuming that the action of detinue is not within the jurisdiction of the county-court, there is no ground for prohibition here, the judgment being in trover, in which the court clearly had jurisdiction; and the court will not inquire whether the defendant was properly served with a plaint in trover; that being mere matter of practice. [Maule, J. Has the judge of the countycourt power to amend a proceeding which is not within his jurisdiction?] His doing so may be irregular. [Maule, J. If he has no jurisdiction, he can neither amend nor adjourn, nor do anything else: it is coram