18

Remedy under the New County Courts Act against Tenants holding over.

assistants as he shall deem necessary, and to issued under the 122nd section, above give possession accordingly: provided always, cited, also varies materially from that which that entry upon any such warrant shall not the 1 & 2 Vict. authorised. The justices' be made on a Sunday, Good Friday, or Christwarrant was to be executed within not less mas-day, or at any time except between the hours of nine in the morning and four in the than 21, or more than 30, days from its afternoon: provided also, that nothing herein date, instead of seven and ten days, as now contained shall be deemed to protect any per- prescribed, and the officer to whom the son by whom any such warrant shall be sued warrant was directed was commanded "to out of the County Court from any action which enter by force, if needful, into the premises, may be brought against him by any such and give possession of the same to such tenant or occupier for or in respect of such landlord or agent." The late act declares, entry and taking possession where such person that the warrant issued by the judge shall had not, at the time of suing out the same as aforesaid, lawful right to the possession of the same premises."

be a sufficient warrant to the bailiff to enter upon the premises with assistants, and give possession, but it does not expressly authoThis section differs from the correspond-rise him to effect an entrance by force; and ing provision of the statute 1 & 2 Vict. the question will therefore arise, whether mainly in these particulars. Whilst the if a contumacious tenant barricades the jurisdiction, under the 1 & 2 Vict., was premises and refuses admittance to the confined to cases in which the tenant bailiff, his warrant will justify the latter in "held at will, or for any term not exceed breaking open the outer door and forcibly ing seven years," those words are omitted ejecting the inmates. We are not in in the 9 & 10 Vict., and the authority of possession of the precise form of warrant the judges of the County Courts extends which it is proposed to adopt in such cases. to cases where the relation of landlord and Number 30 of the forms of proceeding in tenant is not founded upon a tenancy at the Small Debts Courts settled by the will, or a term limited to seven years. The judges, (ante, p. 443,) is the form of a operation of the 1 & 2 Vict. also was con- judgment for the recovery of a tenement, fined to cases in which the tenant held, and a directory note is added to it in these "either without being liable to the pay- words :-"The warrant for the execution ment of any rent, or at a rent not exceed of this order may be drawn from this form.” ing the rate of 207. a year, and upon which The responsibility of drawing the warrant, no fine shall have been reserved or made therefore, we presume, is intended to be payable." The recent act, it will be ob- thrown upon the plaintiff, or his attorney, served, applies to cases where the value of and upon looking to the form of the judg the premises, or the rent, does not exceed ment upon which the warrant is founded, the sum of 501. by the year, and upon we find it adjudicates that a warrant shall which no fine shall have been paid. The issue" to require and authorise the bailiff substitution of 501. for 201., as the maximum of the said court to give possession of the of the annual value or rent, considerably said house (&c.) to the said plaintiff," but enlarges the scope and bearing of the the judgment does not in terms disclose enactment, and renders it applicable to a that the bailiff is to be authorised to enter different class of holdings; but we strongly by force if necessary, although the mandasuspect that the conjunctive branch of the sentence, printed in italics, will restrict the operation in a manner not contemplated by those who undertook the task of adapting the clause. The words "upon which no fine shall have been reserved or made payable," as found in the 1 & 2 Vict., are dif- Section 126 of the act of last session, ferent in their meaning and effect from the directing how the execution of warrants of words "upon which no fine shall have been possession may be stayed, is, with a few paid." According to our understanding of immaterial verbal alterations, copied from the last-mentioned words, the effect will be the corresponding section of the statute 1 & to exclude from the operation of the act 2 Vict., and, after enacting that such warevery case Kiftwhich the tenant has paid rant, without the right of possession, shall any sum of money by way of fine, either upon entering into possession, or subsequently without any reference to the amount of the rent. The warrant to be

PE

tory part of the warrant given by the statute 1 & 2 Vict. c. 74, expressly directed the officer "to enter by force, if needful," and with or without assistance, "into and upon the said tenement, and to eject thereout any person."

1

b See Form No. 3, in the schedule to stat. & 2 Vict. c. 74.

1 & 2 Vict. c. 74, s. 3.

Remedy under the New County Courts Act against Tenants holding over.

19

be deemed a trespass, although no entry tion of a bond to be given "on moving for be made under the warrant, proceeds as a new trial, or to set aside a verdict, judgfollows:ment, or nonsuit," we are at a loss to con"And in case any such tenant or occupier ceive why these words have been introwill become bound, with two sufficient sureties, duced. It is clear, however, that this proto be approved by the clerk of the court, in vision renders the previous enactment much such sum as to the judge shall seem reasonable, less stringent and effective. The tenant regard being had to the value of the premises, who desires to retain possession has a right and to the probable cost of such action, to sue to demand that the proceedings under the the person by whom such warrant was sued warrant shall be stayed, upon complying out with effect and without delay, and to pay with the requirements of this section. The all the costs of the proceeding in such action in case a verdict shall pass for the defendant, or bond by the tenant and his sureties is to the plaintiff shall discontinue or not prosecute be made at the cost of the landlord, the his action or become nonsuit therein, execution tenant may bring his action for the trespass upon the warrant shall be stayed until judg- in any court he thinks fit, and until the acment shall have been given in such action of tion be finally disposed of, the landlord, trespass; and if upon the trial of such action however indisputable his title, has no of trespass a verdict shall pass for the plaintiff, such verdict and judgment thereupon shall su- means of obtaining possession of the prepersede the said warrant." mises. When the action of trespass has been determined, the landlord's remedy, where the bond is forfeited, is by an action of debt on the bond, a circuitous and expensive proceeding, which a landlord may well feel some reluctance in resorting to.

It will be observed that there is no direction as to the court in which the action of trespass is to be prosecuted, and we apprehend, therefore, that it is left to the discretion of the tenant or occupier, who considers himself aggrieved, to sue in one of the superior courts, if he estimates his damage at any sum exceeding 201., or to proceed in the County Court, if he is satisfied with damages under 201.

The next section of the 9 & 10 Vict., (s. 127,) with respect to the form and effect of the bond given by the tenant or occupier for staying the execution of the warrant of possession, contains some additions to the parallel clause in the act 1 & 2 Vict., which are in a great degree unintelligible. The section is as follows:

any

As already intimated, considerable doubt is entertained whether the authority of the justices in petty sessions, under the statute 1 & 2 Vict. c. 74, in regard to tenements rented at a sum not exceeding 207. per annum, is superseded by the provisions of the County Courts Act, or continues in force. The act 1 & 2 Vict. c. 74, is not expressly repealed by the act of last session, but the 6th section, to the sweeping character of which we have already had occasion to refer, enacts, that after the County Courts have been established, "every act of parliament heretofore passed, so far as the "Every bond given on the removal of same respectively relate to or affect the juaction out of the county court, or upon staying risdiction and practice of the courts so the execution of any such warrant of possession established, or give jurisdiction to any aforesaid, or on moving for a new trial, or to court, or to any commissioner of bankset aside a verdict, judgment, or nonsuit, shall ruptcy, with respect to judgments or orders be made to the other party to the action at the obtained in the courts so established, shall costs of such other party, and shall be approved be repealed." The question, therefore, is, by the judge, and attested under the seal of the court; and if the bond so taken be forfeited, whether the stat. 1 & 2 Vict. empowering or if, upon the proceeding for securing which justices to issue warrants of possession in such bond was given, the judge before whom specified cases, is an act which relates to such proceeding shall be had shall not certify or affects the jurisdiction and practice of upon the record in court that the condition of the County Court? In one sense, it unthe bond hath been fulfilled, the party to whom doubtedly is! It gives to justices the the bond shall have been so made may bring an action of debt, and recover thereon: provided always, that the court in which such action as last aforesaid shall be brought may by a rule of court give such relief to the parties liable upon such bond as may be agreeable to justice and reason, and such rule shall have the nature and effect of a defeasance to such

bond."

As the preceding clauses make no men

of 201. value, as is now conferred on the same jurisdiction, in regard to tenements judges of the County Courts. Still it does not relate to or affect the new jurisdiction in such a manner as to prevent or preclude its effective exercise, and in the absence of any judicial decision, we are disposed to

think the courts will hold that the 1 & 2 Vict. is not repealed by necessary impli

cation.

c 2

20 Unauthorised Examination of Party by Arbitrator.-Lord Chancellor's Bankruptcy Bill. UNAUTHORISED EXAMIN TION ceived it. The usual clause giving the OF PARTY BY ARBITRATOR.

arbitrator authority was, by consent, struck out; and examining the plaintiff afterwards

THE Conflicting principles of the systems as a witness for himself was so much in established in the superior courts, and about fraud of the defendant; that the award to be put in operation in the County Courts made in the plaintiff's favour, upon his throughout England are curiously exemplified in a case very recently reported.d

own evidence, ought not to be allowed to stand, unless the defendant by his own As our readers are aware, the form of conduct had waived the objection. The an order of reference commonly used, con- learned judge was of opinion, that by contains a stipulation that the arbitrator shall tinuing to attend the reference, and crossbe at liberty, if he shall think fit, to ex- examining the plaintiff, the defendant had amine the parties to the suit upon oath. not disqualified himself from taking the In the case referred to, where the defend- objection, and therefore, that it was sufant was an executor, and not likely to be ficient, and the award must be set aside. personally cognizant of the transaction The examination of a plaintiff for himwhich formed the subject-matter of the self, which is considered eminently conaction, it was agreed, upon a reference of ducive to the ends of justice as adthe cause to a lay arbitrator, that the ministered in the new County Courts, is stipulation authorising the examination of held to be so repugnant to principle in the the parties should be struck out. In the superior courts, that an award made under course of the proceedings under the refer- such circumstances is thereby vitiated. ence, however, the plaintiff was called by This is an anomalous state of things, which his attorney to support his own case, and it is not desirable should be suffered to his evidence was admitted by the arbitrator, continue much longer. although objected to, the arbitrator appearing to think that he had a discretionary power to admit the plaintiff to be examined. The defendant's counsel thereupon crossexamined the plaintiff, and endeavoured to establish a claim of set-off by his evidence. The award was in favour of the plaintiff, and the matter came before Wightman, J., sitting in the Bail Court, upon an application to set aside the award, on the ground, that by permitting the plaintiff to be examined, he admitted evidence not legally admissible without express authority to 1. Former enactments respecting bankrupts repealed. 1 & 2 Geo. 4, c. 15; 6 Geo. 4, c. 16; Wm. 4, c. 7; 1 & 2 Wm. 4, c. 56; 2 & 3 Wm. 4, c, 114; 3 & 4 Wm. 4, c. 47; 5 & 6 Wm. 4, c. 29; 6 & 7 Wm. 4, c. 27; 1 & 2 Vict. Vict. c. 122; 7 & 8 Vict. c. 96; 7 & 8 Vict. c. 111; 8 & 9 Vict. c. 58; 9 & 10 Vict. c. 28. Not to revive repealed acts.

that effect.

In the course of the argument, the learned judge observed, that in practice, even when power is given to examine the parties, it is not usual to examine the plaintiff for himself, or the defendant for himself; and in the course of his judgment, (which was pronounced after much consideration,) the learned judge said, that although he had been unable to find an express decision as to the power of an arbitrator to allow a party to give evidence as a witness, without an express authority for that purpose, upon principle such a

THE LORD CHANCELLOR'S NEW

BANKRUPTCY BILL.

THIS is a bill "to consolidate the Statutes

and amend the Law of Bankruptcy." It recites, that it is expedient to amend the Laws relating to Bankrupts, and to consolidate the same so amended in one act and to make other provisions respecting bankrupts. It is therefore proposed as follows:—

1

c. 110; 2 Vict. c. 11; 2 & 3 Vict. c. 29; 5 & 6

2. Confirmation of all things done under repealed acts.

3. Construction of act. "Her Majesty." "Lord Chancellor." "The court." Fiat." "Annulling." 66 "Month." Assignees." "Oath." "Bank." "Estate." "Base fee." "Estate tail." "Actual tenant in tail." "Tenant in tail." "Tenant in tail entitled to a base fee." Settlement. Singular and plural. Gender. 4. Aliens and denizens. Scotland and Ire

course seemed objectionable and an excess
of the authority of the arbitrator. Under
the special circumstances of the present land.
case, however, it was clear the plaintiff
ought not to have tendered his own evi-
dence, nor ought the arbitrator to have

a Smith v. Sparrow, 16 L. J. 139, B. C.

Construction beneficial to creditors.

5. Court of Bankruptcy a court of record. 6. Court of Review abolished.

7. Jurisdiction of Vice-Chancellor to hear

re-appeals. To be attended by Chancery registrars, &c. Documents to be filed in Chancery. Fees payable for filing, &c.

The Lord Chancellor's New Bankruptcy Bill.

21

8. Petitions, &c., to be transferred to Secre- sum as the Lord Chancellor thinks fit for extary of Bankrupt's Office. Fees.

9. Vice-Chancellor a court of record. 10. References to commissioners.

11. Lord Chancellor to direct sittings of Vice-Chancellor.

12. Mode of application to Vice-Chancellor. Mode of appeal to the Lord Chancellor.

13. Vice-Chancellor may direct issues. 14. New trial of issues.

15. Costs in the court of Vice-Chancellor. 16. Appeal to the House of Lords.

penses of office.

43. Power to appoint clerks to master. 44. In case of sickness or other reasonable cause, the duty of the master may be performed by his chief clerk.

45. Reduction of number of registrars, and payments to them. Offices of five registrars abolished, but to receive their present salaries for life. Proviso if they hold any other public offices.

46. Registrars, their number and appoint

17. On appeals as to proofs, dividend to be ment. set apart.

18. Determination of Vice-Chancellor in favour of appeals touching such decisions to be final, unless appealed against within one month. 19. Commissioners.

20. The powers of commissioners. 21. Each commissioner to be a court. 22. Each court a court of record. 23. Commissioners to exercise original jurisdiction of court of review.

24. Appeal from any order of any court of bankruptcy.

25. Powers given to her Majesty with respect to sittings of the court.

26. Bankruptcies depending in the country to be removed into such of the courts as the Lord Chancellor may think fit.

27. Courts to be auxiliary to each other for proof of debts and examination of witnesses. 28. London commissioners.

29. Country commissioners. District courts. 30. Lord Chancellor may attach the country commissioners to districts.

31. Lord Chancellor may authorize any commissioner or registrar in London, or other qualified person, to act for or in aid of any country commissioner or registrar, and vice versá; or any country commissioner or registrar of one district to act for or in aid of any country commissioner or registrar of any other district, as may be required.

32. Lord Chancellor authorized to give nenessary directions where courts shall sit.

33. Court of Review and subdivision courts declared to have been courts of record.

34. Oath of Vice-Chancellor and commissioners.

35. Subdivision courts. Mode of forming subdivision courts in case of non-attendance of any commissioners of the subdivision to which cause is referred. Proviso for reduction in number of commissioners.

36. Adjournment of examinations to subdivision courts. Trial of disputed debts.

37. Accountant in bankruptcy.

38. Lord Chancellor to appoint clerks to

accountant.

39. Taxing officer. Tenure of office, duties, and removal.

40. Taxation of costs. Charges of auctioneers, appraisers, valuers, and accountants, to be taxed.

41. Sum to be paid on the taxation of bills. 42. Sums received by the master to be paid into the Bank of England, after deducting such

47. Registrar to act for commissioner. 48. Court may send a registrar to take proof of debts, &c. where expedient. Examinations to be taken down.

49. Documents to be filed in master's office. 50. Master to keep abstract of all proceedings.

51. Duties of chief registrar transferred to master.

52. Official assignees. Appointment. Their duty. Official assignee to act as sole assignee till creditors' assignees chosen.

53. Proviso restricting the authority of official assignees.

54. Power to court to appoint another official assignee on death or removal.

55. Power to appoint official assignees to act with the existing assignees under fiats or commissions, and to whom the latter shall deliver over effects.

56. Remuneration to official assignee. 57. To exempt official assignee from personal liability.

58. Lord Chancellor to appoint messengers. Ushers to be appointed by commissioners.

59. The Lord Chancellor to make general orders as to duties of officers of Court of Bankruptcy, who are to hold office during good behaviour, but are removeable by Chancellor.

60. All attorneys and solicitors may practise in the Court of Bankruptcy.

61. Clerk of enrolments abolished.

62. Providing for the custody of records under former commissions.

63. Liberty to search.

64. Deposition of deceased witness of petitioning creditor's debt, trading, or act of bankruptcy to be evidence of the matters therein contained.

65. No fiat to be received in evidence unless first sealed.

66. Office copies made evidence in certain cases. Costs of producing original instrument when not allowed.

67. Proceedings in bankruptcy, purporting to be sealed with the seal of the court, to be received as evidence.

68. Sum to be paid to the secretary of bankrupts on the granting of every fiat. Application thereof.

69. Assignee of bankrupt's estate to pay 201 to the like account.

70. Sums to be paid on commissions or fiats moved into the Court of Bankruptcy, or into any of the country courts, under which the

The Lord Chancellor's New Bankruptcy Bill.