CASES IN BANKRUPTCY. that whether an action will, under any circumstances, lie in a court of law on a decree of the High Court of Chancery, is a point which may, perhaps, still be open Ex parte BROWN, in re FENWICK.-July 9. Joint-stock Companies Winding-up Act, 1848-Contributo further consideration when the question is raised. tory-Calls-Bankruptcy. The Master included the Name of A. on the List of Con- The petition in this case was presented by Mr. John fiat. An action at law is not maintainable upon a decree of a court of equity for a specific sum of money, founded on equitable considerations only. (See Car penter v. Thornton, 3 B. & Ald. 52). Soper (8 B. & C. 16) the authority of Carpenter v. In Henley v. Thornton was much discussed at the Bar, and its authority was recognised by the Court; but it appears, from the case of Henderson v. Henderson. (6 Q. B. 288), is It is, however, not necessary for me to decide whether a legal or equitable debt, inasmuch as it is clear that the money which Mr. Fenwick has been ordered to pay the right of proof, and the consequent discharge by certificate, are not confined to legal debts, but extend executor or a trustee having money in his hands. to cases of equitable demand, as in the case of an (Walcott v. Hall, 2 Bro. C. C. 305). So, where trustees the stocks having risen, it was held that the persons inimproperly sold stock, and afterwards became bankrupt, terested might prove for the price at the date of the commission. (Ex parte Shakeshaft, 3 Bro. C. C. 196). And where an administratrix improperly continued the property in trade with the partners of the estate, Lord Eldon ruled that the next of kin might elect to prove against her separate estate or the joint estate of the partnership. (Ex parte Watson, 2 V. & B. 414). In Ex parte Gardiner (11 Ves. 49) Lord Eldon allowed trustees a sum of money which the bankrupt represented himself to be possessed of, and agreed to settle upon his marriage. An order of a court of equity for payment of money is a proveable debt: Wall v. Atkinson, (2 Rose, 196), the marginal note of which is as follows:- An order of the Court of Chancery for payment of a sum of money may be proved under the commission, and will be barred by the certificate: a certificated bankrupt, therefore, may be ordered to be discharged the order.' The Lord Chancellor, in his judgment in out of custody upon an attachment for disobedience of the last-mentioned case, says, 'An order of this Court for payment of money has been held to be a debt proveable in bankruptcy, and, as a debt proveable, will be barred by the certificate. In the case of Mr. Williams, a bankrupt, (1 Sch. & Lef. 196), the bankrupt, pend ing his examination, and as he was returning from it, was arrested, by virtue of an attachment issued by the Court of Chancery in Ireland, for a contempt, in not paying money into court pursuant to a decree. The Lord Chancellor said, 'that the process of attachment had issued to compel payment by the bankrupt of a sum of money due by the bankrupt, in some shape or other, as a debt; to whom the debt was due was not material.' A party, entitled to a legacy under a will, filed a bill in Chancery against the executor for an ac count, and for payment of his legacy, and obtained an interlocutory order for the payment of a certain sum into court, after which the executor became bankrupt. The Court refused an order for the legatee to prove for the specific sum mentioned in the order of the Court of Chancery, but gave him leave to go before the commissioners and prove for such a sum as might be due to him. (Ex parte Lowdon, 1 M., D., & De G. 583). In the last case, the Court said that it was impossible for the Court to say, on the mere production of the interlocutory order of the Court of Chancery, that the sum mentioned in such order amounted to a conclusive debt, and the application was made before the choice of assignees. By sect. 79 of the Winding-up, Act the list of the contributories is conclusive when settled, unless cause be shewn by the person objecting, to the satisfac tion of the Master; and by sect. 99 it is declared, that, except on special leave of the Court, no appeal shall lie against any proceeding of or before the Master, relating to the winding-up of the affairs of the company, after the expiration of fourteen days after the order, &c. complained of shall have been made, or after service of been present. Mr. Fenwick did not make any objec the same, in case the party complaining shall not have tion to the list of contributories as settled by the Master, nor did he appeal against the order of the Master, by which he was directed to pay the sum of 49187. 9s. 11d., his apportioned share of the call which the Master, under the 83rd section, made on the contributories included in the list which he had settled. By sects. 83 and 84 the Master is empowered to make calls on the contributories, or on such individual contributories, or classes of contributories, as he may think proper, but so far only as such contributories shall be liable at law or in equity to pay the same; and the Master is to apportion the amount to be raised by the call among the several contributories, according to their several liabilities." After referring to the proceedings before the Master in this case, and to the orders made, the commissioner proceeded:-"The effect of these several orders, which have been made by the Master under the Winding-up Act, so far as the same in any way relate to Mr. Fenwick, is this, viz. that, before the bankruptcy, the High Court of Chancery declared that Mr. Fenwick was liable, in law or in equity, to pay the sum of 49181. 9s. 11d. to the official manager of the company, such sum being the balance appearing due from Fenwick on his account with the company; and that an order, called the balance order, having been made by the Master on the 29th December, 1848, by which Fenwick was ordered, within one month from the 29th December, 1848, or within four days after the service of the order, to pay to the official manager the sum of 49187. 9s. 11d.; and a copy of such last-mentioned order having been served on the bankrupt personally on the 4th January last, it was the duty of Fenwick to pay this sum to the official manager on the 9th January last. The bankrupt, however, did not obey the order, or pay any part of the money comprised in the order; and at the time when he signed and filed a declaration of insolvency-the act of bankruptcy on which the fiat is founded the whole of the said sum of 49187. 98. 11d. was due from him to the official manager. Such was the position of the bankrupt, and such were the obligations upon him as a member of the North of England Joint-stock Banking Company, which was absolutely dissolved on the 30th December, 1848, under the Winding-up Act, and upon him as one of the individuals ineluded in the list of contributories as settled by the Master, at the time he became a bankrupt. Here I wish to observe, that the sum that Fenwick was ordered to pay is a clear ascertained balance found by the Master to be due from him. See the 86th section, by which the Master is positively directed to make an order for the payment to the official manager of the balance which shall be due from the respective contributories. The cases to which I have already referred, for the purpose of shewing, amongst other things, that an order of a court of equity for payment of a sum of money creates a proveable debt, seem to me to establish that this sum of 4918/. 9s. 11d., which Fenwick was ordered by the Master to pay before his bankruptcy, is a debt proveable by the official manager against the estate of Fenwick. The proceedings that took place under the Winding-up Act, before the bankruptcy, made Fenwick solely and individually liable to the payment of this sum. If there was a legal obligation upon him before his bankruptcy to pay this sum, he was liable to be sued for it at law; but if the obligation was only an equitable one, the law, in such a case, would not imply a promise on his part to pay, because it cannot be said that a man, compelled by a court of equity against his will to pay a sum of money, agrees to pay the money; the law, in such a case, does not imply a promise. (See Carpenter v. Thornton, judgment of Holroyd, J.) Admitting that the obligation upon Fenwick to pay this money was not a legal but an equitable one only, the sum of money is proveable as an equitable debt, inasmuch as the debt existed before and at the time of the bankruptcy; the amount of the debt had then been ascertained, and it has a lawful consideration, being a demand founded, if not upon contract, upon the equita ble doctrine of contribution. The 52nd section of the 6 Geo. 4, c. 16, relates to sureties and persons liable for the debts of bankrupts. In the case of Ex parte Young (3 V. & B. 31) it was decided, that a partner, though not a surety strictly, is a person liable within this seetion; and in Ex parte Watson, in re Sheath, (4 Madd. 477), it was decided, that a solvent partner, winding up the partnership concerns, is entitled to prove, under the commission against the bankrupt partner, the share of the loss or deficiency which each partner ought to have borne, as a debt against his separate estate. In this case the Vice-Chancellor, (Sir J. Leach), in his judgment, states as follows:-Each partner is a principal debtor for his own share, and they are mutually sureties to the creditors for the share of each other. The petitioner, Watson, who is a partner with the Sheaths, and who had wound up the concerns of the partnership, and had paid the whole deficiency or loss, amounting to 30,7007., was a surety for the one-third as to which Abraham Sheath the elder was the principal debtor, and in like manner a surety for the one-third of Chalie Sheath; he can only prove, against the estate of Abraham Sheath the elder, that one-third as to which he was his surety, and he is entitled to the same proof against the estate of Chalie Sheath.' In the case of Wallace v. Swinburn, (1 Exch. 203), where the plaintiff, the defendant, and another person were co-sureties for A., by a joint and several promissory note payable on demand, and the plaintiff paid less than his share before the defendant's bankruptcy, but subsequently to the bankruptcy more than his (the plaintiff's) proper portion, it was decided, in an action by the plaintiff for one-third of the sum paid, that the case was not within the 25th section of the 6 Geo. 4, c. 16, as the plaintiff was not a person liable for the bankrupt's debt. Parke, B., in delivering the judgment of the Court, says, 'The cases decided on the statute have given a construction to the latter words, "liable to the debt of the bankrupt," and shew that they were meant to apply to those cases in which there subsisted, at the time of the bankruptcy, a relation analogous to that of surety and principal between the person who is to prove and the bankrupt, and which, as between themselves, made the former liable for the debts of the latter. If a surety only had been mentioned, it might have been held that the statute applied only to those cases where the person was a surety by express contract with the creditor; but the words "liable for" were added to embrace those cases where a person was the principal debtor with respect to the creditor, but, by agreement with the bankrupt, the latter was to pay the debt, and so with respect to him he became a surety.' And the learned judge, after referring to several authorities, and particularly to the case of Ex parte Watson, says, "that upon the ground of each partner being surety for the other, rested the opinion of Lord Chief Justice Tindal in Aggerton v. Fourdrinier, (6 Bing. 306).' And he further observes, ' In all these cases the party is liable, in the nature of a surety, for what is, as between himself and the bankrupt, the bankrupt's debt, and for which, by express or implied contract, he at the time of the bankruptcy ought to provide.' It is true, that a joint-stock banking company, established under the 7 Geo. 4, c. 46, and other acts, with power to sue in the name of a public officer, is not to be considered as an ordinary copartnership, but a corporate body, and such joint-stock company is not affected by that which may be known to any individual shareholder. The public officer, who represents a fluctuating body, sues for the existing body of shareholders, and such existing body of shareholders may be different persons from those who were so at the time when the cause of action accrued. (See Hales v. Page, 3 C. B. 16, the judgment of Tindal, C. J., who also refers to what fell from Mr. Baron Parke in Steward v. Dunn, 12 Mee. & W. 664). Now, though it is quite true, that, according to these cases and others, a joint-stock banking company is not an ordinary partnership, I am of opinion, and it seems to me to be clear, that if the affairs of this company had been wound up before the bankruptcy of Fenwick by the company themselves, and upon a final settlement of the accounts the amount of the loss incurred had been ascertained, and the amount to be provided for by Fenwick, and his aliquot share of that loss, had also been clearly ascertained, and after the bankruptcy of Fenwick his co-shareholders had paid the full amount of the losses, including Fenwick's aliquot share, such co-shareholders would have come within the designation of persons liable for the debt of the bankrupt, within the meaning of the 52nd section, and have been entitled to prove his share of the loss under his fiat, as a separate debt due from him to them. But, in this case, have the amount of partnership loss, and the aliquot share of the bankrupt partner, been ascertained before the bankruptcy? The Master is empowered, by the 83rd section of the 11 & 12 Vict. c. 45, at any time before the assets of the company shall have been collected or converted, and if the assets remaining to be collected shall not be capable of being immediately realised, although such assets may not appear to be insufficient, and also after the assets of the company shall have been wholly exhausted, to make calls on the contributories, &c. After referring to the proceedings before the Master, I am not prepared to say that this sum of 49187. 9s. 11d. is to be considered as the bankrupt's ascertained aliquot share of the loss sustained by the bank, which he ought at the time of the bankruptcy to have provided. If this sum of 49187. 9s. 11d. is such ascertained aliquot share, then, in that case, the effect of the Winding-up Act is nothing more than this, viz. to render this sum proveable against the separate estate before all the partnership debts are paid; whereas, if such act had not passed, the sum would have been proveable against the separate estate, but not until after the payment of all the partnership debts. It is obvious that it makes no difference to Fenwick's separate creditors whether such proof is made before or after the payment of the partnership debts, if the actual amount of deficiency of the company has not been ascertained, and if it must remain doubtful until the affairs of the bank shall have been finally wound up and settled, and the respective claims of the contributories upon each other and upon the company shall have been adjusted and settled, whether the whole of the said sum of 49187. 9s. 11d. was equitably due from Fenwick at the time of his bankruptcy. I am of opinion that the whole of that sum is, nevertheless, now proveable against his separate estate, under and by virtue of the provisions of the Winding-up Act, and upon the grounds which I have already stated, independently of the doctrine of partnership and co-suretyship. I have only to add, that I have given this subject much consideration, and that, for the reasons I have stated, I shall allow this sum of 49187. 9s. 11d. to be proved by the official managers of the North of England Joint-stock Banking Company against the separate estate of the bankrupt.' Swanston, F. S. Williams, and Brooksbank, for the petition, referred to the 34th, 50th, 60th, 62nd, 66th, 83rd, 88th, and 95th sections of the Joint-stock Companies Winding-up Act, and contended that the proof ought never to have been admitted, and should now be expunged, the more especially as the leave of the Master was not obtained to the proof. Bacon and J. V. Prior, in support of the proof, were not called on. KNIGHT BRUCE, V. C.-Supposing the statute so often mentioned not to have passed, and all things else to have been as they now are, it is plain enough that such a proof as that in question could not have been sustained in any manner or in any form. The ques tion is, whether the statute, whatever anomalies may arise in cases like the present, has or has not made a difference; and I think that it very plainly has. I am of opinion, without doubt, that the sum was proveable, and, subject to the observations I am about to make, well proved. I have alluded to anomalies; the nature of one of them is sufficiently exhibited by the proof of the Central Bank of Scotland for a debt due from the company. It is a difficulty almost inevitable, and, if it should come into practical operation, the Court must deal with it as well as it can. The requisitions of the act must, however, be obeyed, which would not be the case if this demand were held not to be proveable. It has been objected that the leave of the Master was not obtained for this proof; but I collect that this point was not raised before the commissioner, and I appre hend that I ought to consider the objection as waived, subject to this remark, that I shall think it expedient to be informed now whether the Master approves of the proof. [The solicitor, who was present, stated that the Master now approved of the course which had been taken.] Then let the prayer of the petition be refused, with costs, without prejudice to any application which may be made by any person to the Master or to the Court. VICE-CHANCELLOR WIGRAM'S COURT. SENTANCE. PORTER.-July 12 and 14. Practice-Costs of unnecessary Litigation. In a Suit for the delivery up of Deeds in the Defendant': Possession, and upon which he claimed a Lien, it was referred to the Master to ascertain the Amount of the Defendant's Lien. The Master stated to the Partis the Amount which he intended to report; whereupon the Plaintiff offered to pay that Sum to the Defendant, together with his Costs of Suit up to that Time. The Defendant refused the Offer, but did not except to the Report afterwards made by the Master, in accordance with his Statement :-Held, on Motion, at the hearing on further Directions, that the Defendant ought to have accepted the Plaintiff's Offer; that the Litigation subsequent thereto was useless; and that each Party should pay his own Costs subsequent to the Report, including those of the Motion. The bill sought to recover from the defendant certain deeds belonging to the plaintiff, and upon which the defendant claimed a lien. The amount of the lien being disputed by the plaintiff, the usual reference was directed to the Master. Before issuing his report the Master stated to the parties the amount which he should find, being a less amount than that claimed by the defendant. The plaintiff then offered to pay to the defendant the amount the Master intended to report, together with his costs of suit up to that time. This offer was refused by the defendant; and on the Master afterwards reporting, in conformity with his previous statement, the cause was set down on further directions. At the same time a motion was made by the plaintiff, by leave of the Court, that the defendant should not be allowed his costs subsequent to the Master's report, and should be ordered to pay the plaintiff's costs after that period. T. Greene and W. Morris, in support of the motion, cited Sivell y, Abraham, (8 Beax. 596), as an authority for staying proceedings in a cause when the party sought to be charged was ready, and willing, and offered to do or pay all that the other asked. The plaintiff had offered to pay all that was due to the defendant; but was unable to move, upon interlocutory motion, to stay proceedings, as the Court would not decree the delivery up of documents upon an interlocutory application. Bacon and Tenison Edwards, for the defendant, in sisted that he was not bound to take the sum found to be due by the Master's report, and had a right to take the opinion of the Court, by way of exception, as to the amount to which he was entitled. The application was without a precedent, and the Court would not establish one in the present case. Greene replied. Sir JAMES WIGRAM, V. C., said, he thought the defendant ought to have accepted the offer made to him by the plaintiff, and to have delivered up the deeds. His refusal had been the cause of all the subsequent useless litigation, which might have been avoided if he had accepted the plaintiff's offer. The case was a new one, and the plaintiff, therefore, would not have his costs subsequent to the Master's report; but neither would the defendant be allowed subsequent costs. The order would be, that, on payment by the plaintiff of the amount found to be due by the Master's report, and the defendant's costs up to that time, the deeds should be delivered up to the plaintiff, and each party pay his own costs subsequent to the report, including those of the motion. CHALK. RAINE.-July 18 and 19. Exhibit proved by Affidavit at the hearing upon Bill Held, also, that, by Sect. 9 of Stat. 9 & 10 Vict. c. 95, after a County has been divided into Districts by Order in Council, for the Purposes of the Act, it is in the Discretion of the Lord Chancellor either to make many Judges of the same County Court, and, by limiting_the Jurisdiction of each, in his Appointment, to One District, to prevent them from having any joint or coordinate Jurisdiction, or to appoint One Person to be the Judge of the County Court, and to hold it in as many Districts as, by the Appointment, he is directed. Held, also, that this Construction is not inconsistent with the Words of the 3rd Section, which are, that there shall be a Judge for each District to be created under the Act; and that the County Court may be holden simultaneously in all or any of the Districts; because, by the first Paragraph, it is only declared that there cannot be Two Judges in any one District; and by the second, that, if the Lord Chancellor, in his Discretion, appoint more Judges than One of any one County Court, those Judges are empowered to hold the County Court simultaneously in all or any of the Districts. Held, also, that the same Person may, at the Discretion of the Lord Chancellor, be a Judge of Two different County Courts. Parham, Esq., to shew by what authority he claimed This was a quo warranto, calling upon Benjamin to have, use, and enjoy the offices, privileges, liberties, and franchises in the information mentioned, and to receive certain fees. The information, after reciting an Order in Council published on the 6th February, 1847, after the passing of stat. 9 & 10 Vict. c. 95, giving one month's notice of the intention to proceed under the act, and then two other Orders in Council published on the 10th March, by the first of which it was ordered, among other things, that on the 13th March the several courts holden for the recovery of small debts or demands, under the provisions of any act or acts cited in one or both of the Schedules (A.) and (B.) of stat. 9 & 10 Vict. c. 95, should be abolished; and by the second it was ordered, among other things, that stat. 9 & 10 Vict. c. 95, should be put in force in every county throughW. Morris tendered an affidavit in proof of the deed, out England and Wales on the 15th March, 1847, and under the 43rd Order of August, 1841, citing Fielder v. that the whole of the said counties, except &c., should Cage (Pract. Reg. (Wy.) 219) and Rowland v. Sturgis, be divided into the several districts thereinafter speci(2 Hare, 520), and asked for the appointment of a re-fied, and that the county court of each of the said coun A bill by a specialty creditor of a deceased intestate against the administratrix and heiress-at-law and her husband, for payment out of the assets, real and personal, and for a receiver. The joint answer did not admit the deed under which the plaintiff claimed, but stated that the assets, real and personal, were insufficient to meet the claim. The plaintiff set the cause down for hearing upon bill and answer, without filing replication. At the hearing, ceiver. Bacon and Nalder, for the defendant, objected to the evidence tendered, on the ground that no replication had been filed. (Jones v. Griffith, 14 Sim. 262). They objected also to the appointment of a receiver. Sir JAMES WIGRAM, V. C., received the evidence tendered, and made an order for a receiver, observing, as to the latter point, that, as the answer admitted the assets to be insufficient to pay the debt, the plaintiff was the only party interested, and had a right to make as much as he could. By an Order in Council of the 10th March, 1847, made in Pursuance of Stat. 9 & 10 Vict. c. 95, the County Court of Worcestershire was directed to be held at several Towns and Places specified in the Order, and the County Court of Herefordshire was also to be held at several Places. Afterwards the Lord Chancellor, in further Pursuance of the Statute, by an Appointment in Writing under his Hand, appointed the Defendant to be the Judge of the County Court of Herefordshire to be holden at A., and of the County Court of Worcestershire to be holden at B., C., D., &c., the Places specified in the Order of Council:-Held, that the Appointment was good. ties should be holden, for the recovery of debts and demands under the said act, in each of the districts into which such county should be so divided, in the several cities and towns thereinafter specified as court towns, or towns in which courts were to be holden in each county, in conjunction with the said districts respectively, and in each district the said court should be holden, by the name of "The County Court of holden at -" inserting &c., and that the towns in which courts should be holden in the county of Worcester were Bromsgrove, Droitwich, Kidderminster, Pershore, &c., alleged, that, from the said 15th March, the county court of the county of Worcester to be holden at Bromsgrove, the county court of the county of Worcester to be holden at Droitwich, &c., had been respectively holden under the said act of Parliament and the said Orders in Council; and that the offices of the judges respectively of the said county court for the said districts respectively were public offices of trust, and relating to the administration of justice; and that Benjamin Parham, Esq., after &c., on &c., at Bromsgrove aforesaid, did use and exercise, and from thence continually &c. hath used and exercised, without any legal warrant, the office of judge of the county court of Worcestershire holden at Bromsgrove, and hath received the fees, &c. And the information then alleged, that the said Benjamin Parham, at Droitwich aforesaid, did use and exercise, and hath used and exercised, &c., without any legal warrant, &c., the office of judge of the county court of Worcestershire holden at Droitwich, and hath received the fees, &c., and so on, for the other towns and districts. The plea, after admitting the due making and publishing of the Orders in Council, &c., alleged, that, after the passing of the act, &c., and after &c., and before any user or exercise of the said office of judge of the said county court of the said county of Worcester, by him, the said Benjamin Parham, at any of the said places, the Lord Chancellor, on &c., appointed him, the said Benjamin Parham, then being &c., to be the judge of the county court of the county of Worcester to be holden at Bromsgrove, Droitwich, &c., by an instrument in writing, signed &c., in the words followingthat is to say, "I, the Right Honourable Charles Christopher Lord Cottenham, Lord High Chancellor &c., do hereby, by virtue of an act passed in the tenth year &c., intituled &c., and in pursuance of an order made &c., appoint Benjamin Parham, Esq., &c., to be the judge of the county court of Herefordshire to be held at Broomyard Ledbury, and of the county court of Worcestershire to be holden at Bromsgrove, Droitwich, &c. Given under my hand" &c. And that, by virtue of the said appointment, he, the said Benjamin Parham, &c., did use and exercise &c., without this, that he hath usurped &c. Verification. General demurrer and joinder. The ground of demurrer, as stated in the margin, was, that under stat. 9 & 10 Vict. c. 95, s. 3, there ought to be a judge for each district, and that, therefore, the appointment of the defendant to be a judge in several districts was bad. Sir F. Kelly, Godson, and Mellish, in support of the demurrer *.—The question is, whether the appointment made in this case, by which the defendant is appointed judge in several districts, is not bad; and whether there should not have been a separate judge appointed for each district. That depends upon the construction of the County Court Act, stat. 9 & 10 Vict. c. 95. It is submitted, that, by the true construction of that act, the only power given to the Crown is to divide the counties, by Order in Council, into districts; and that there upon the Lord Chancellor, and not the Queen in Council, is bound to appoint a judge to each district court. The power given to the Crown is contained partly in the 1st, and more particularly in the 2nd section. By sect. 1 it is enacted, that it shall be lawful for the Queen, by the advice of her Privy Council, from time to time to order that the act shall be put in force in such county or counties as to her Majesty, with the advice aforesaid, from time to time shall seem fit. And by sect. 2 it is enacted, that it shall be lawful for her Majesty, with the advice aforesaid, to divide the whole or part of any such county into districts, and to order that the county court shall be holden, for the recovery of debts and demands under this act, in each of such districts, &c. Those are the powers to be exercised by the Queen in Council. Then sect. 3 determines, first, what shall be the effect of the exercise of those powers; and, secondly, what judges shall be appointed. It says, that every court to be holden under this act shall have all the jurisdiction and powers of the county court for the recovery of debts and demands, as altered by this act, throughout the whole district for which it is holden; and there shall be a judge for each district to be created under this act, and the county court may be holden simultaneously in all or any of such districts; and every court holden under this act shall be a court of record. And by sect. 9 it is enacted, that the Lord Chancellor shall be the person to appoint as many fit persons as are needed to be judges of the county court under this act, &c. Now, sect. 3 is the most important section, and that upon which the present question principally turns. In the first place, it takes a distinction between the courts to be holden under the act, and the old county court; it *June 5 and 6, coram Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ. says, that every court to be holden under this act shall have all the jurisdiction and powers of the county court: and, in the second place, it clearly makes each court to be holden under this act a separate and distinct court; for the jurisdiction which it gives to each court to be holden under this act shall be exercised, it says, throughout the whole district for which it is holden; which is as much as to say, "and throughout that district only:" and then, having so distinctly made each court a separate court, it explicitly declares," and there shall be a judge for each district to be created under this act." It does not seem easy to invent words more peremptory and more decisive. If there were not to be a separate judge appointed for each district, why were these words introduced at all? If they are not there for the sole purpose of declaring that there shall be a different judge appointed for each district, they are useless. The power of appointing judges is given by sect. 9. If that section stood alone, as to this matter, the appointment of judges would have been fully authorised. Then it is impossible to suggest a reason why these words in the 3rd section should have been superadded upon those in the 9th, unless for the very purpose of enacting, that there should not only be judges appointed under this act, but that there should be a separate judge ap pointed for each district. The strong argument arising from the force and simplicity of these words as they stand, and from their evident inutility, unless for the purpose suggested, is supported by every part of the statute. The very words next in order, in the 3rd seetion, shew that it was the intention of the Legislature that the judges of the different courts should be different persons. By these it is enacted, that the county court may be holden simultaneously in all or any of the districts; that is to say, that the district courts in the same county may be holden simultaneously. But how could that be, unless the judges were different persons? In sect. 5 not two districts are to be assigned, but a district is to be given to the court thereby made a county court. Sect. 10 contemplates one district, one court, and one judge. In sect. 16, suggesting certain things to be done on the death of any judge appointed under this act, it is not the "districts" for which he was appointed which are mentioned, but the Legislature speaks of the "district." So in sections 18 and 19. In sect. 24 it is said, that "for every court under this act there shall be a clerk." Now, those words are of themselves as explicit as words can be; but they are immediately followed by these, "and whom the judge, that is, the judge for every court, shall appoint" &c. And then sect. 12 is very important, in order to shew the construction put by the Legislature on the statute; for there, speaking of the county of Middlesex, it is said, that the county clerk of Middlesex shall be entitled to be appointed the first judge under this act of such of the districts as he shall select, and that all suits and proceedings pending before him at the time of the division of the county into districts shall be continued as if they had commenced before him, under this act, in the district, it is said, so selected by him. That clearly shews, that, in the contemplation of the Legis lature, he would only be judge of one district. And again, in sect. 56 the words are," that the judge of each district shall hold the court in each place" &c. The appointment is bad for another reason, namely, that the Lord Chancellor has, by it, incorporated a district of the county of Hereford with districts of the county of Worcester, and he has no power so to do: it is only to be done by an Order in Council. The Lord Chancellor has only power to appoint judges to districts defined by the Privy Council; he cannot consolidate districts. The Attorney-General and Phipson, in support of the rule.-It is submitted, that, upon the true construction of the statute, there is but one court in each county, 1 2 庭 |