BROWN v. HOOPER. Ca. re.-Delay after judgment.-Discharge. Where judgment has been obtained against a defendant in custody under a ca. re, and one month elapses without further proceedings being taken, the defendant is entitled to his discharge. The defendant was arrested under a ca. re. in August, and in default of giving bail remained in close custody. On the 7th of September the plaintiffs obtained final judgment against him. Isaac Campbell now moved for the discharge of the defendant, on the ground that the plaintiffs had not proceeded to charge him in execution within a reasonable time as required by the Administration of Justice Act, 1885, s. 95. Ghent Davis.-The English Rule 124 H. T. 1853, requires the plaintiff to charge the defendant in execution within the Term next after trial or judgment. That must be regarded as reasonable time, and the plaintiffs have until the close of the present term to do so. The 95th section of the Act does not say that if the plaintiffs do not charge the defendant in execution within a reasonable time he should be discharged. The Statute does not anywhere say what result is to follow. The defendant is not entitled to a writ of supersedeas. The 90th section says when the defendant may be discharged under such a writ, and the present case does not come within that section. [9th October, 1885.] TAYLOR, J.-The 87th section of the Act permits any person arrested upon a writ of capias (and in that section a ca. re. is meant,) to apply at any time after his arrest for a summons or rule on the plaintiff to show cause why he should not be discharged out of custody. It has been held in Ontario that an application under the corresponding section of the statute there, can be made only when the defendant is in custody under mesne process. Kidd v. O'Connor, 43 U. C. Q. B. 193; Bark of Montreal v. Campbell, 2 C. L. J. N. S. 18. In the present case the defendant is in custody under mesne process, and he applies for his discharge on the ground that the plaintiffs have not proceeded to charge him in execution with all reasonable dispatch. The judgment was recovered on the 7th of September, and a month has elapsed without any proceeding being taken. In the absence of any reason for not proceeding more promptly being assigned, I must hold that the plaintiff has not proceeded according to the requirements of the 87th section, and that the defendant is entitled to his discharge. BOYD v. IRWIN. (IN CHAMBERS.) Capias-Discharge of Prisoner-Action upon County Court Judgment. 1. A capias will not be set aside on the ground that the plaintiff has no cause of action, unless that fact clearly appears. 2. Where the debt is sworn at $135, bail ordered at $200 is not excessive. 3. Semble. An action will lie upon a County Court judgment. Colin H. Campbell for the plaintiff. T. D. Cumberland for the defendant. KILLAM, J.-The defendant is held to bail under a capias ad respondendum, issued by order of the County Judge of the Western Judicial District. This is an application to discharge him from custody. The action is brought on a judgment of the County Court of the County of Brandon recovered by the plaintiff against the present defendant and another not a party to this action. Objection is taken that there is no cause of action shown, it being contended (1) that no action will lie in this Court upon a judgment of a County Court, and (2) that both the parties against whom the judgment is recovered must be now sued. The latter ground is clearly untenable, as it could only be taken upon a plea in abatement accompanied by proof of residence of the co-debtor within the Province, and I have nothing to show where the codebtor resides. In support of the first ground are cited Berkeley v. Elderkin, 1 E. & B. 805; McPherson v. Forrester, 11 U. C. Q. B. 362; and Donnelly v. Stewart, 25 U. C. Q. B. 398. In Berkeley v. Elderkin it was held that no action would lie in a Superior Court in England upon a judgment of a County Court constituted under 9 and 10 Vic., c. 95. In Donnelly v. Stewart and McPherson v. Forrester it was held that no action would lie in a Superior Court in Upper Canada upon a judgment recovered in a Division Court under 13 & 14 Vic., c. 53, and Con. Stat. U. C., c. 19. The ground taken in these cases is that it was the policy of the County Courts Act in England and of the Division Courts Act in Upper Canada to provide an easy and cheap remedy. for the recovery of small debts, and that it gives special remedies for enforcing the judgments both against the property and as against the person of the debtor; the protection given to certain of his property exempt under it from seizure would not be had in the Superior Court, and as the judge could make orders for payment of debt by instalments the judgment was not final. For the plaintiff is cited the statement in Archbold's Practice 12th Ed. p, 747, that "if the action be brought on the judgment of an inferior Court the defendant may be held to bail, although he was held to bail in the original action." It is also contended that as the cause of action was clearly stated in the affidavit on which the defendant was held to bail, the order of the County Judge cannot be reviewed and overruled upon this point in chamThe only authority cited by Archbold to support the above quotation is Davies v. Leckie, Barnes 94. This is a very old case, decided in the reign of George II., the judgment sued on being that of the Palace Court. Berkeley v. Elderkin is decided altogether upon a principle implied from the peculiar objects, constitution, powers and procedure of the County Courts under 9 & 10 Vic., c. 95, and it was held before that an action would lie upon a judgment of a County Court as constituted before that Act. Williams v. Jones, 13 M. & W, 628. The other contention of the plaintiff requires more consideration. It is shown here that application was made to the County Judge to discharge the defendant from custody on the grounds here mentioned, and that as he was leaving Brandon to hold courts in other parts of his district, he requested the defendant to have the application determined by a judge of this court in chambers, and it is argued that I should feel as free to consider the application upon all points as would be the County Judge himself if it were now before him. There is, however, one difficulty about my doing this, in the fact of my being wholly ignorant whether he had considered or determined the points now raised, and in the consideration that if he had done so he could hardly change his decision and discharge the defendant. I am, therefore, hampered to this extent in my consideration of the matter, that İ should require to feel even more free from any doubt on the point in order to discharge the defendant, than I would deem necessary if I had made the order on which he is held. The authorities, both English and Canadian, upon the jurisdiction of a judge in chambers to discharge a prisoner so held to bail, are so fully considered by Gwynne J, in the case of Damer v. Busby, 5 Ont. Pr. R. 356, and the principles to be deduced from them are there so clearly laid down that that case is now generally accepted as a leading authority. I concur fully in all that is there laid down. At page 380 Gwynne J, says: "No appellate jurisdiction whatever, as it seems to me, is given to a single judge. It is hardly to be conceived that the Legislature conte mplated giving to a county court judge in a Superior Court case, an appellate jurisdiction (merely upon the original materials) over his own order for arrest made in the case; and the jurisdiction which the statute gives to any single judge is that given to a county court judge where he has himself made the order." And at page 393, Gwynne J, says: "The only case in which, as it seems to me, the judge to whom an application to discharge the prisoner from custody is made under the provisions of the Act, upon the same material only as was before the judge making the order, should assume the right of discharging the prisoner, would be the case of a manifest defect appearing in the material necessary to be supplied to call the judicial function into action." He suggests as an example a case in which proof by affidavit being required by the statute to entitle the judge to make an order, he makes it without noticing the defect, upon a paper containing all the requisite allegations and in the form of an affidavit, but without jurat or signature of a commissioner or of any person appearing to have administered an oath, and presumes, quite correctly, I think, that any judge would on this being shown at once discharge the prisoner arrested under an order so made. He also draws a distinction between "a cause of action not technically stated in an affidavit and an affidavit showing clearly that no cause of action does exist," evidently implying that in the latter instance also a judge would feel free to discharge the prisoner. Here also I agree that if a judge not having his attention drawn to the point, under a mistaken view of the law upon which it needs only that there be pointed out to him clear authority to convince him that there is no doubt of the nonexistence of the cause of action which he erroneously supposed to exist when he made the order, makes an order to hold to bail, he would at once on the error being pointed out order the discharge of the prisoner. I think also that I must hold that if it is clear beyond any reasonable doubt to the mind of another judge to whom the application for the discharge is made, that that which the plaintiff sets up as a cause of action is not a legal ground of action at all, he will assume that the order was made through inadvertence, and that the judge who made the original order would himself at once grant the discharge if he had the benefit of the same arguments. It only remains to be considered whether the objects, constitution, powers, practice and procedure of our County Courts, under Con. Stat. Man., c. 34, are so similar to those of the English County Courts under 9 and 10 Vic., c. 95, that it is so far beyond reasonable doubt that the decision in Berkeley v. Elderkin is binding as to force me to the conclusion that the order to hold to bail must have been inadvertently made. Some differences between our County Court Act and that in England, and between both and the Division Courts Act of Ontario, require here to be pointed out. By the English Act, s. 3, the County Courts are definitely constituted Courts of Record. By Con. Stat. U. C. c. 19, s. 5, it is provided that the "Division Courts shall not be held to constitute Courts of Record. Vic., c. 23, s. 1, Ont., the following words are added to above s. 5 of Con. Stat. U. C. c. 19: "But the judgments in the said courts shall have the same force and effect as judgments of Courts of Record." This addition was made after both McPherson v. Forrester and Donnelly v. Stewart were decided. In our County Courts Act there are no words directly constituting the County Courts Courts of Record; but s. 129 provides that "all judg ments in County Courts in this Province shall have and continue to have the same force and effect as judgments of Courts of Record." By Con. Stat. U. C. c. 19, s. 115, it was provided that "no costs shall be recoverable in any suit brought in any court for the recovery of any sum awarded by judgment in a Division By 32 |