In re Hardy v. Walker; Ex parte M'Fee.

branch of the laws which is peculiarly the subject of the jurisdiction of this court. This point was treated as a secondary point by the learned counsel who argued the case. The first ground he showed was clearly untenable, and not likely to meet with great attention. That was answered by the learned counsel for the plaintiffs by a very inaccurate representation of the authority in Bunbury, to which I have referred. The attention of the court was certainly not given to this point in the manner its importance deserved, and no one was there to protect the interests of the crown. The case appears to be very unsatisfactory, and decidedly ought not to be considered as overruling the established course of the Exchequer, which is a part of the law of the land.

I may add, that the lord chief baron entirely concurs in the opinion which I have expressed as to the old practice of the Court of Exchequer.

Judgment for the crown.

In re HARDY v. WALKER. Ex parte M'FEE.1

November 4, 1853.

County Court Interpleader - Erroneous Decision as to Sufficiency of Claim-Prohibition.

Where a county court judge decides that the particulars of a claim in an interpleader summons are not sufficient according to the rules made under the County Courts Act, and refuses on that account to hear the claimant, a prohibition lies to stay the further proceedings under the execution, if the particulars ought to have been held sufficient.

A claimant, in the particulars delivered, in pursuance of the 145th rule, was described as of 24 Elizabeth Street, Islington, whereas his true address was 20 Elizabeth Terrace, Isling

ton:

Held, that the address was sufficiently set forth; and that the county court judge was not justified in dismissing the summons.

An execution having issued out of the County Court of Middlesex, held at Brompton, in a plaint of Hardy v. Walker, and goods seized under it, one J. M'Fee claimed to be the owner, and an interpleader summons was duly issued. The claimant then delivered at the office of the clerk of the court the following notice:

"Take notice, that a particular of the goods and chattels, the subject of this interpleader summons, and alleged to be the property of James M'Fee, the claimant herein, is set forth in the schedule hereunder written; and that the said James M'Fee claims the said goods and chattels, and that the grounds of his claim are: that, on or about the 1st day of February, 1852, he purchased a portion of the said

123 Law J. Rep. (N. s.) Exch. 57; 9 Exchequer Rep. 261.

In re Hardy v. Walker; Ex parte M'Fee.

goods under a distress levied thereon for 221. 10s. rent due to one Mr. Field; and that the person who distrained thereon and sold the same to claimant was Henry Perry, appraiser, 10 Little St. Andrew's street, Upper St. Martin's Lane, and for the consideration mentioned and set forth in a certain assignment, bearing date the 27th. day of December, 1852, made between William Snowball Walker of the first part, and the claimant of the other part; and the said William Snowball Walker did assign unto the said claimant the remaining portion of the said goods and chattels. Dated this 9th day of June, 1853.

"Yours, &c.

(Signed)

C. VALLANCY LEWIS,

Attorney for JAMES M'FEE, of No. 20 Elizabeth street, Islington, broker and dealer in furniture."

The schedule of the goods was annexed. At the hearing of the interpleader summons, it appeared that the claimant lived at 20 Elizabeth Terrace, Islington, when it was objected that the 145th rule' had not been complied with; and the learned judge held that the objection was fatal, and dismissed the summons. Application was then made, at chambers, to Parke, B., and his lordship granted a prohibition to prohibit the selling of or proceeding with the execution on the goods or chattels so seized and taken in execution in the plaint of Hardy v. Walker, and the doing of any thing that might lead to the damage of the said James M'Fee.

Udall, now moved for a rule nisi to set aside the prohibition. The decision of the county court judge was correct, for the 145th rule distinctly requires the name, description, and address of the claimant to be fully set forth. The rules were made under the 12 & 13 Vict. c. 101, s. 12, and are of the same force and effect as if the same had been enacted by authority of parliament. But, even, if the description ought to have been held sufficient, it would only be a wrong decision on a point of practice, and prohibition will not lie in such a case. The judge was rightly seised of the question, and the sufficiency of an address is necessarily a matter of fact to be decided according to the particular circumstances of each case. This court refused to interfere where execution had issued against a defendant who had never been served, or in any way had notice of the plaint, because service was a question of practice for the judge of the County Court to decide. Robinson v. Lenaghan, 2 Exch. Rep. 333. He cited also Thompson v. Ingham, 14 Q. B. Rep. 710, and Regina

1 By that rule, the claimant is required, "five clear days before the day on which the summonses are returnable, to deliver to the said officer, or leave at the office of the clerk of the court, a particular of any goods or chattels alleged to be the property of the claimant, and the grounds of his claim; or in case of a claim for rent, of the amount thereof, and for what period, and in respect of what premises the same is claimed to be due; and the name and description and address of the claimant, shall be fully set forth in such particulars."

In re Hardy v. Walker; Ex parte M'Fee.

v. Richards, 20 Law J. Rep. (N. s.) Q. B. 351; s. c. 3 Eng. Rep. 410. To allow this prohibition will be to establish the right of reviewing the decision of the county court judge as to all the other particulars required by the rule, which will be highly inconvenient. The form of the prohibition is also wrong, for it purports to prohibit the carrying out the judgment of the court in a plaint to which the claimant is no party.

[PARKE, B. When the interpleader summons has been heard, the cause may go on.]

POLLOCK, C. B. I am of opinion that there should be no rule. The whole matter lies in a small compass. There is a suit between two persons in the County Court, and there is judgment against the defendant. Then there is execution against the defendant's goods, and the goods of another person are taken. He then makes a claim on the goods, and gives an incorrect but sufficient address, and his claim ought to have been attended to. The judge on a purely technical ground refuses to hear it; and my brother Parke then issues a prohibition, and says you shall not go on with the execution until the claim to the goods is properly determined. I think that he was quite right.

ALDERSON, B. I am of the same opinion. It would be a mere mockery of justice if such objections were to be listened to. The learned judge has made a mistake, and he ought to hear the claim. The name and address were given so that they could mislead nobody. The county courts ought to be free from any technicality such as this.

PLATT, B. The county court judge is properly prohibited from proceeding in the plaint, because his doing so would only be the consequence of his having improperly declined jurisdiction. The interpleader summons ought to be properly disposed of before he proceeds any further.

PARKE, B. The jurisdiction of the county court judge to go on with the plaint is taken away as soon as the claim is properly put forward. The rules do not by words or by implication make the county court judge conclusively judge of the fact whether the claim is in conformity with the rules or not. It is not a mere point of practice, but a question of jurisdiction, and the county court judge can neither give himself jurisdiction where he has it not, nor deprive himself of jurisdiction where he has it, by an erroneous decision on a matter of fact. Thompson v. Ingham. I was satisfied on looking at the affidavits that the address was sufficient. The object of giving an address is to ascertain who the claimant is, and unless the most minute technicality is to be required this was sufficient. It was, therefore, right to prohibit the judge from going on with the original plaint.

Rule refused.

Arnold v. Bainbrigge.

ARNOLD V. BAINBRIGGE.

November 5, 1853.

Pleading-Set-off - Nil Debet, Evidence under — Joint Debt.

Where to a plea of set-off the plaintiff replies that he is not indebted as in the plea alleged, he may under this replication avail himself of the objection that the debt is due not from himself alone, but from a third party jointly with him.

THIS was an action on an award, in which the plaintiff sought to recover 2,2502.

Replication That "the plaintiff was not nor is indebted as in the plea alleged."

At the trial, before Wightman, J., at the last Liverpool Summer Assizes, it appeared that the debt which formed the subject of the set-off was not due from the plaintiff alone, but from him and other persons jointly. For the plaintiff it was objected that a joint debt due from the plaintiff and others could not be set off against a separate debt due to the plaintiff alone, and that the objection was open to the plaintiff under the replication in question. The judge was of this opinion, and the jury accordingly found a verdict for the plaintiff for the amount of the claim.

Knowles now moved for a new trial, on the ground of misdirection. The plaintiff is not at liberty under this form of declaration to object that the subject-matter of the set-off is a joint debt. A plea of setoff resembles a counter declaration; if the defendant had sued the plaintiff for the debt attempted to be set off, the plaintiff would have been precluded from objecting under a plea similar to this replication, that the debt was a joint one.

Richards v. Heather, 1 B. & Ald. 29.

Per Curiam. The replication must be held to have that meaning, which will make the plea good. The meaning of the plea is, that the plaintiff alone is indebted to the defendant, for a debt cannot be made the subject of set-off unless it be mutual and due in the same right. The replication alleges that the plaintiff is not so indebted. There is no ground for a rule.

1 23 Law J. Rep. (N. 8.) Exch. 59.

Rule refused.

Hills v. Laming.

HILLS v.LAMING and Others.

November 16, 1853.

Patent - Validity and Novelty - Estoppel by Deed.

A declaration in covenant stated that letters-patent had been granted to the defendant for improvements in purifying gas, and that other letters-patent had been granted to the plaintiff for an improved mode of manufacturing gas, and that certain parts of the plaintiff's invention intended to be secured, had been claimed in the specification; that disputes had arisen between the parties as to their rights under the letters-patent to the use of oxides of iron, for the purpose of purifying gas; that to put an end to such disputes, the parties covenanted with each other for a mutual right of using the patents on the terms of giving notice of the beginning to use the same. Breach, want of notice. Plea, that the plaintiff's patent was not a good and valid patent in this, that it was not new, and the plaintiff' was not the true and first inventor:

Held, that the intention of the deed was to prevent disputes between the parties, and that the defendants were estopped by the deed from denying the validity of the patent, its novelty, and that the plaintiff was the true and first inventor.

COVENANT. The declaration stated that by indenture, dated the 24th of July, 1851, made between the plaintiff and the defendant, after reciting that letters-patent, under the great seal, dated, &c., had been granted to the defendant, for improvements in purifying gas, and that other letters-patent had been granted to and were vested in the plaintiff, for an improved mode of manufacturing gas, and that certain parts of the invention intended to be thereby secured were claimed in the specification thereof, and that disputes had arisen between the said parties thereto as to their rights, under the said letters-patent, to the use of oxides of iron, for the purpose of purifying gas; that to put an end to the said disputes, the parties covenanted with each other that they should have liberty to use the two patent inventions so granted to the plaintiff, and vice versa; and within fourteen days after either party should begin to use the inventions of the other, he should give fourteen days' notice of his having done so. The declaration stated other provisions in the deed, which are not material, and alleged as a breach that the defendants began to use the plaintiff's invention, and did not give notice to the plaintiff of their having so done.

The defendants pleaded, setting out the deed in extenso, that the plaintiff's patents were not good and valid patents, in this, that they were not new as to the public use and exercise thereof, and that the plaintiff was not the true and first inventor of the said alleged inventions.

Demurrer on the ground, first, that the defendants are estopped by the recitals of the articles of agreement from setting up that plea, since it denies the validity of the patent, which is admitted in their recitals; secondly, that the defendants are estopped by the words con

123 Law J. Rep. (N. s.) Exch. 60; 9 Exchequer Rep. 256.