October 1854, defendant had impleaded the plaintiff by civil-bill T. T. 1856. process, before the Assistant-Barrister of the county of Limerick, Exchequer. MOORE v. at the Civil-bill Court then held for the Limerick division of said county, for the sum of £4. Os. 8d., for goods sold and delivered, O'DONNELL. being respectively a sum and cause of action within the jurisdiction of the said Assistant-Barrister and the said Court; and the said civilbill process was duly served upon plaintiff, being resident within said division; and the defendant caused a notice to be indorsed upon the said civil-bill, of his (the defendant's) intention to seek for a decree against the person of the plaintiff, at the original hearing of the said cause: and the defence then went on to state that the Assistant-Barrister, having competent jurisdiction, issued a decree, against the person of the plaintiff, for payment of said debt and costs; and that the plaintiff was arrested and imprisoned under and in execution of the said decree, and which was the offence complained of. The plaintiff, to so much of the said defence as alleged that the defendant caused a notice to be indorsed upon the said bill, of the defendant's intention to seek for a decree against the person of the plaintiff at the original hearing of said cause, filed a replication, stating that the said notice was not so indorsed upon the said civilbill process according to the statute in such case provided. this replication, the defendant rejoined that the notice was so indorsed; and further, that the civil-bill process in the said cause was duly, and, according to the statute in such case made and provided, served on the plaintiff, he being, at the time of such service, usually resident in the said Limerick division, being the division of the said county of Limerick in which the Session at which the said cause was to be heard and determined was to be and was held, and being the division of said county where the said Court was held, at which the defendant was required to appear; and the said process was, by the oath of the process-server, in open Court, before the said Assistant-Barrister, satisfactorily proved (as the fact was) to have been duly served; and that it was also duly proved (as the fact was) that the house, in which the defendant was at the time of such serving duly resident, was situate within the said division where the said Court was held, at which the said plaintiff To T. T. 1856. was required to appear; and that such proceedings were had in Exchequer. said action, that the said Assistant-Barrister had jurisdiction and MOORE V. it was his function and duty to hear and determine the said cause, O'DONNELL. and to inquire and decide between the plaintiff and defendant in said cause whether the said notice had been duly indorsed upon the said civil-bill as aforesaid; and the said Assistant-Barrister did so inquire and decide between said plaintiff and defendant that such notice had been so duly indorsed on the said civil-bill; and that it is stated and averred, in and by and on the face of the said decree, and the record thereof remaining in said Civil-bill Court, that the said notice was duly indorsed on the said civil-bill as aforesaid, and the said decree and record on the face of them are good and valid, and show jurisdiction in the said Assistant-Barrister to make said decree; and that the plaintiff is therefore estopped and concluded from denying that the said notice was so indorsed as aforesaid. Demurrer to the second paragraph of the rejoinder, upon the following grounds :-Firstly, that it contained no averment that the said notice was either annexed to or indorsed upon the civil-bill process, as by the statute required. Secondly. That the Assistant-Barrister had no jurisdiction to make a decree against the person of the plaintiff, unless said notice was annexed to or indorsed upon the said civil-bill. Thirdly. That the statement or averment on the face of the decree and the record thereof, to the effect that the said notice was duly indorsed on the civil-bill, is no proof of jurisdiction in the Assistant-Barrister to make a decree against plaintiff's person. Fourthly. That the decree and record being good and valid on the face of them, did not show any jurisdiction in the AssistantBarrister to make said decree against plaintiff's person, as his jurisdiction depended on the fact of the indorsement of the notice. O'Mahony (with him D. Lynch), in support of the demurrer. By the 11 & 12 Vic., c. 28, ss. 1 and 6, arrest was abolished in all cases where the debt was under £10. The Civil-bill Act allows the Assistant-Barrister to grant a decree against the person of the Exchequer. MOORE v. defendant, where the sum demanded is under £10. 14 & 15 Vic., T. T. 1856. c. 57, ss. 116, 118; which last is the one under which the present proceeding has been taken. There is a difference in pleading the decrees of Courts between those of a superior and of an inferior ju- O'DONNELL. risdiction, viz., that in the former, all things are presumed which were necessary for the foundation of the judgment; whilst in the latter, the jurisdiction must be specially averred and the fact proved: Moravia v. Sloper (a); Herbert v. Cook (b); Morse v. James (c); Ladbroke v. Gyles (d). The question is, whether the party to the cause should not justify under the record of the Court, and the whole record be produced? Barker v. Braham (e)-[PENNEFATHer, B. There is no doubt but that the party must produce the judgment.]— Parson v. Lloyd (f) shows that where a Court has no jurisdiction of the cause, the whole is coram non Judice, and that the defendant could not justify under a process, void for want of jurisdiction; therefore he must be admitted to show want of jurisdiction. Without the indorsement of the notice required by the 118th section, the Assistant-Barrister would have had no jurisdiction, and therefore that fact should have been averred and proved. In pleading the decree of an Inferior Court, nothing is intended in favour of the jurisdiction; but it must appear, by what is set forth on the record, that the Court had jurisdiction: Sollers v. Lawrence (g); Read v. Pope (h); Lessee Coffey v. Rahilly (i); Gosset v. Howard (k); Davies v. Evans (1). The judgment of a County Court in England is not conclusive, and the existence of the facts necessary to the regularity of such judgment is a question for the jury: Thompson v. Blackhurst (m). In Condon v. Earl of Kingston (n), it was held to be open to the defendant to show that the case was not within the jurisdiction of the Assistant-Barrister. T. T. 1856. MOORE v. C. Barry (with Joshua Clarke), contra. The 11 & 12 Vic., c. 28, leaves the civil-bill jurisdiction untouched. The provision as to the indorsement of this notice is at O'DONNELL. direction to the plaintiff, and not to the Assistant-Barrister, for the foundation of his decree. In Mr. Henn's case, decided in the Queen's Bench this Term (a), the adjudication of the Grand Jury Sessions was upheld, notwithstanding the omission of the service of the notice on an occupier, as required by the 6 & 7 W. 4, c. 116, s. 55. The jurisdiction of the Assistant-Barrister did not depend on the indorsement; he had a general jurisdiction, and his decree is conclusive as to the fact of the indorsement having been made. In the next place, it is averred in the decree and in the record that the notice was duly indorsed. In Thompson v. Blackhurst, the marginal note differs from the judgment, as it was only in the case of Courts not of Record that the judgment was held not to be conclusive; but where there is a record it cannot be controverted: 2 Smith's Lead. Cas., p. 608, citing Rex v. Carlisle, where Lord Tenterden says:-"The authorities are clear, that a party "cannot be received to aver as error in fact a matter contrary "to the record." The following authorities show that processes and orders, even of Inferior Courts, are conclusive, until rescinded or avoided: Brittain v. Kinnaird (b); Gray v. Cookson (c) ; Ackerley v. Parkinson (d); Re Clarke (e); Rex v. Mitton (f); Strickland v. Ward (g); Aldridge v. Haines (h); Ashcroft v. Bourne (i); Mould v. Williams (k). These are nearly all magistrates' cases, and therefore, a fortiori cases, as a magistrate's order is not of record: Ayrtown v. Abbott (1). Section 97 of the last Civil-bill Act makes the Court of the Assistant-Barrister a Court of Record, and that record cannot be gone behind. Could it be gone behind, to show non-service of the civil-bill process? If the party be resi (a) Not yet reported. (c) 16 East, 13. (e) 2 Q. B. 619. (y) 7 T. R. 631, n., 633, n. (b) 1 Brod. & B. 432. (d) 3 M. & S. 411. (f) 3 Esp. 200, n. (i) 3 B. & Ad. 684. (k) 5 Q. B. 469. (1) 14 Q. B. 1. Exchequer. MOORE บ. dent in the jurisdiction, all other matters are to be inquired of by T. T. 1856. the Assistant-Barrister only, and his decision is conclusive as to those matters. The Civil-bill Act, section 105, provides that no proceeding shall be considered invalid on account of mere verbal or technical errors, and enables the Assistant-Barrister, or the Judge on appeal, to determine what is such. O'Mahony, in reply. Regard must be had to the nature of the jurisdiction conferred by the Civil-bill Act on the Assistant-Barrister. His ordinary jurisdiction is to grant a decree against the person, for sums from £10 up to £40, where the parties reside in his jurisdiction; but the jurisdiction in the present case is an extraordinary jurisdiction, to punish fraud by arrest and committal to prison. The sections of the Civil-bill Act, as to this, must be read together; they are sections 116 and 117, and section 118 is a continuation of the 117th section. [PENNEFATHER, B. I do not agree with that; the classes are quite distinct. The proviso at the end of the 118th section, that the debt shall not be extinguished, refers to those cases mentioned in the 117th section, where fraud has been committed; and in such cases the committal is to be for the period of three months, and does not extinguish the debt; but the proviso does not seem to refer to the cases provided for by the 118th section. The 118th section does not treat the power of arrest conferred by it as a punishment at all, but merely as a mode of execution, in place of that taken away by the 11 & 12 Vic., c. 28.]-By 8 & 9 Vic., c. 127 (the Small Debts Act), there must be the service of a summons, to show cause for default of payment of the debt, to warrant the jurisdiction; and where a debtor was arrested under that Act he obtained his discharge, because the warrant for his committal did not show that he had been summoned to show cause: Re Kinning (a); Buchanan v. Kinning (b); Harper v. Carr (c). They should plead both the judgment and the circumstances which gave jurisdiction.-[PENNEFATHER, B. Suppose a common-place pro (a) 1 Cox & Mac., Co. Ct. Cas., 16. (b) Ibid, 504. (c) 7 T. R. 270. O'DONNELL. |