and pleaded that the said sum was sufficient to satisfy the plaintiff's claim. The plaintiff then took out a summons to refer the cause to an arbitrator under the 3rd section of "The Common Law Procedure Act, 1854," and Watson, B., before whom the summons was heard, made an order that the "cause be referred to the County Court judge of Essex." A copy of the order was thereupon sent to the clerk of the County Court of Essex, at Colchester, with a request that an early day might be appointed for the reference. The clerk in answer sent a copy of a letter to him from Mr. Gurdon, the judge of the County Court, which was in the following terms: "Dear Sir, "Brantham, "Cummins v. Birkett. 18th Dec. 1857. Supposing it was intended to refer this case to me, which I have no means of knowing, I could only reply as I did once before, that my time is already fully occupied with the business of the several courts over which I preside, and the duties of which I am paid for discharging. If the parties are not willing to get this order revoked and another arbitrator appointed, they must take such course as they shall be advised. "Yours faithfully, "WM. GURDON." cause to an officer of the The plaintiff then took out a summons to rescind the order of reference and refer the Court or some other arbitrator. consent to the order, and it was in consequence dismissed. Application was again made to Mr. Gurdon to take the reference, but he stated that he "adhered to his former determination and declined to accept it, as his time was fully occupied in County Court business." It appeared that there were other judges of County Courts in Essex. Milward, in last Term (Jan. 15), moved for a rule to shew 1858. CUMMINS v. BIRKETT. 1858. CUMMINS υ. BIRKETT. cause why the order of reference should not be rescinded, on the ground that the plaintiff did not wish to proceed before an unwilling arbitrator. The Court intimated an opinion that this was not a proper application, inasmuch as the County Court judge was bound to obey the order of the Court; and they granted a rule calling on him to shew cause why he should not proceed with the reference pursuant to the order, against which Bovill and Mellish shewed cause (Feb. 1).-First, the Judge's order was improperly directed. It did not refer the matter in dispute to the " County Court of Essex," but to the "County Court judge of Essex." Mr. Gurdon is judge of the County Court held at several places in Essex and amongst others at Colchester; and there are other judges of County Courts held at other places in Essex.— Secondly, an action for dilapidations is not a matter of mere account within the meaning of the 3rd section of the Common Law Procedure Act, 1854. The claim is not for work or labour, but in the nature of waste. [Martin, B., referred to Chapman v. Van Toll (a).]—Thirdly, it is optional with the County Court judge whether he will proceed with the reference or not. The matter is referred to him as an arbitrator, not as judge of the County Court. The 3rd section of the Common Law Procedure Act, 1854, empowers the Court or a Judge to decide mere matter of account in a summary manner, "or to order that such matter be referred to an arbitrator appointed by the parties, or to any officer of the Court, or, in county causes, to the judge of any County Court." This reference would not be a proceeding in the County Court. Certain modes of procedure must be adopted in County Courts, viz., the plaint, the answer, the trial, and the entry of judgment. The (a) Q. B., M. T. 1857, Nov. 9. judge has no power to make rules for himself, and there are certain officers, such as the clerk, bailiff, &c., who have certain specified duties to perform, and who are not the officers of the judge but of the Court. By the 19 & 20 Vict. c. 108, s. 26, causes may be referred to a County Court where the claim does not exceed 501., or has been reduced to that amount by payment or set-off; but in such case it is provided by the 65th Rule of the County Courts, that the cause shall be heard as if a plaint had been originally entered in that Court. Under the 3rd section of the Common Law Procedure Act, 1854, there is no limit as to the amount of the claim. Besides, where is the judge to hold his sittings? Could he do so in the Court-house, or in any one of his districts, or in an adjoining county? Again, a County Court judge may appoint a deputy: could he under an order of reference? These considerations shew that a reference to a County Court judge under this Act is not to him in his judicial capacity, but as an ordinary arbitrator; and, consequently, he is at liberty to refuse it if he thinks fit. A committee of County Court judges have expressed an opinion that it is optional. Besides a fee of 27. 2s. only is allowed to a County Court judge for each meeting; and he must necessarily incur some expense, as for instance in stamping the award, &c. [Pollock, C. B.-No doubt those expenses would be allowed as incurred by him in the discharge of his duty as a Judge.] The 19 & 20 Vict. c. 108, s. 79, enables the Treasury, with the consent of the Lord Chancellor, to alter the fees allowed to County Court judges; but if this is not a proceeding in the County Court they would have no jurisdiction under that Act. When the County Court judges were prevented from practising at the bar, it was doubted whether the prohibition applied to arbitrators, and the object of the 3rd section of the Common 1858. CUMMINS v. BIRKETT. 1858. CUMMINS v. BIRKETT. Law Procedure Act, 1854, was to remove all doubt on the subject. Milward, in support of the rule.-First, Mr. Gurdon comes within the definition in the order of reference, and it is brought to his knowledge that he is the person intended. The description is immaterial; and an award made by him would be perfectly good.-Secondly, the matter in dispute consists of matter of mere account. The sole question is as to the value of the work and materials; and the form of action in which it arises makes no difference. Besides the plaintiff is only bound to make out, "to the satisfaction of the Judge," that his claim is a mere matter of account, and he has done so: the affirmative is on the defendant to shew that it is not. Thirdly, Mr. Gurdon was bound to proceed with the reference. Such an order is equally compulsory on a judge of the County Court as on an officer of the superior Courts: the statute makes no distinction between them. The expenses incurred in the reference would be allowed. Cur. adv. vult. The judgment of the Court was now delivered by MARTIN, B.-This was a rule calling upon Mr. Gurdon, a judge of a County Court in Essex, to shew cause why he should not proceed with a reference. The facts were these.-An action had been brought by a succeeding rector against his predecessor, to recover damages for dilapidations of a rectory house and premises in Colchester in Essex, and a sum of 4007. had been paid into Court by the defendant. The plaintiff claimed damages ultra. A summons was taken out, which was heard before my brother Watson, who, upon hearing the parties, thought that the amount of the dilapidations was a matter of account within the meaning of the 3rd section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), and he made an order that it should be "referred to the County Court judge of Essex." The order was delivered to Mr. Gurdon, who declined to take the reference, and in consequence a rule was moved for, which was drawn up in a form suggested by the Court. Cause has been shewn against it, and three grounds urged. First, that the order was not properly directed. It appeared that Mr. Gurdon's appointment is to be a judge of the County Court of Essex, and amongst others at Colchester; and that there are other judges of County Courts in Essex to be held at other places. We think that this objection is not tenable. Mr. Gurdon was a judge of a County Court in Essex: one of the places in which he was to act is Colchester, and we feel no doubt that he was the person intended by Baron Watson's order, and was sufficiently designated. But, were there any doubt upon this point (and we think there is none), it would be no objection to Mr. Gurdon now acting upon this rule and proceeding with the reference. The second objection was, that the matter in dispute was not a matter of mere account within the meaning of the 3rd section. In our opinion it was so; but, whether it was so or not, we are clearly of opinion that it affords no answer to this rule. The jurisdiction is given to the judge upon its being made appear to his satisfaction that the matter in dispute consists of matter of mere account which cannot conveniently be tried in the ordinary way. It is the judge who is to be satisfied, and if he be in error there is an appeal to the Court and his order may be rescinded; but we are most clearly of opinion that neither the officer of the Court itself nor the judge of the County Court can VOL. III.-N. S. M EXCH. 1858. CUMMINS v. BIRKETT. |