counts, may be sued for by separate plaints (m). A plaintiff entered two plaints in the county court, one for 197. 19s. for goods sold and delivered, work and labour, and money paid; the other for 191. for money lent. The particulars annexed to the first consisted of items from November, 1845, to the 12th of July, 1849, amounting together to 271., which sum was reduced to the amount above mentioned by a set-off. The particulars of the second plaint consisted of three items, from April, 1846, to the 14th of July, 1849. The plaintiff recovered judgment in the first cause for 171.; in the second for 191. Upon a motion for a prohibition, it was held that the items in the two plaints were not so connected as to form one cause of action, although they might have been recovered under one count (n). CHAP. IV. excess, or ad Abandonment by Plaintiff of Excess, or Admission of Abandonment Set-off.]-In cases in which a plaintiff, in order to bring by plaintiff of his claim within the jurisdiction of the county court, mission of setabandons the excess over 501., or admits a set-off, and off. sues for the residue, the abandonment or admission of the set-off must be entered on the particulars before service (o). The abandonment should be entered on the judgment; since, by the statute, " entry of the judgment" must be made accordingly" (p). Where a debt of 501. is due, the fact of commencing an action in the county. court for a sum less than 50l. is not of itself an abandonment of the excess; and unless it appears by the judgment, or some previous proceedings, that the plaintiff has done some act of abandonment in court, it will be no bar to a future action (q). It has been held, however, to be sufficient if the abandonment be entered on the particulars and judgment at the hearing (r). (m) Wickham v. Lee, 12 Q. B. 521; S. C., 18 L. J., Q B. 21; 12 Jur. 628. (n) Kimpton v. Willey, 1 L., M. & P. 280; S. C., 19 L. J., C. P. 269; 14 Jur. 762. It did not appear that the set-off had been resorted to in the course of the trial to reduce the plaintiff's demand, otherwise this would have been a ground for prohibition. See ante, p. 49. (0) Rule 43. (p) 9 & 10 Vict. c. 95, s. 63, p. 391. (q) Vines v. Arnold, 8 C. B. 632; S. C., 19 L. J., C. P. 98; Apothe caries' Company v. Burt, 5 Exch. (r) Isaacs v. Wyld, 7 Exch. 163; ant's consent. PART I. When title is in dispute. When Title is in Dispute.]-When a question arises, whether the title to any corporeal or incorporeal hereditament is in dispute, so as to oust the jurisdiction of the county court, the title set up must be more than a mere suggestion or assertion of right; it must be a bonâ fide claim, and one that can exist in law (s); that is, it must not be one which is set up merely in order to prevent the county court from exercising its rightful jurisdiction. Where, however, the question of title is actually raised in fact before the court, the judge cannot continue to try the case because it appears to him that the claim to title is not supported by bona fide evidence; as, for instance, that it is founded on a forged deed, or that there is no such sufficient evidence as could be left to a jury in support of it (t). The judge should ascertain whether the title is truly in question; if, however, he should assume jurisdiction where title is in question, a superior court will grant a prohibition (u). Where it does not appear upon the face of the proceedings that title is in question, the judge of the county court has jurisdiction to inquire whether it is so or not; but his decision on the point is open to revision in one of the superior courts, on motion for a prohibition on affidavit (x). Where in an action of trespass to land the defendant pleaded not possessed, it was held, on a motion to deprive the plaintiff of costs, that, the plea having put in issue title, the county court could not have adjudicated on the case (y). But, in order to entitle a plaintiff in trespass to realty to the costs of an (s) Lloyd v. Jones, 6 C. B. 81; S. C., 12 Jur. 657; Lilley v. Harvey, 5 D. & L. 648; S. C., 17 L. J., Q. B. 357; 12 Jur. 1026; Emery v. Barrett, 27 L. J., C. P. 216. See the facts of this case, post, Chap. XIII. See also Mountnay v. Collier, 1 E. & B. 630. As to title in cases of replevin, see Chap. XV. (1) Marsh v. Dewes, 17 Jur. 558. In Lilley v. Harvey, ante, the claim was for rent, and the defendant said he was the owner of the premises, having bought them at an auction, but he produced no evidence whatever to establish the fact; so that it appeared on the proceedings that the claim was a mere pretence to avoid the jurisdiction. In Marsh v. Dewes, the defendant, in answer to a plaint for trespass, asserted title to the premises upon the ground which involved a question of legitimacy, and then produced but slight and inconclusive evidence. (u) Lilley v. Harvey, ante; Chew v. Holroyd, 8 Exch. 249; S. C., 22 L. J., Exch. 95. (x) Thompson v. Ingham, 14 Q. B. 710; S. C., 1 L., M. & P. 216; 19 L. J., Q. B. 189; 14 Jur. 429; Sewell v. Jones, 19 L. J., Q. B. 372; Pearson v. Glazebrooks, L. R, 3 Exch. 27. See also the observations as to the extent to which an inferior court should inquire into the reality of an objection made to its jurisdiction, per Sir W. Scott, in The Warrior, 2 Dods. Adm. Rep. 289. (y) Timothy v. Farmer, 7 C. B. 814. action in a superior court, he must show not only that the defendant pleaded not possessed, but that at the trial the title was really and bonâ fide in dispute (≈). Where a defendant, who was sued in a county court for double value for holding over premises, under the 4 Geo. 2, c. 28, admitted that he was tenant to the plaintiff at the time when the rent accrued, from which the holding over commenced, it was held, on a motion for a prohibition, that he could not avail himself of the objection that title was in dispute (a). The title to an incorporeal hereditament comes in question whenever either its existence or the right to it is disputed (b). The office of parish clerk is an hereditament, and where such an officer sued an inhabitant for a customary annual payment, it was held that the county court had not jurisdiction (c). A paving rate imposed by act of Parliament is not an incorporeal hereditament, and may be sued for in the county court (d); nor is the jurisdiction of the county court ousted by the fact that the local act, which imposes it, gives a power to sue only "in any of her Majesty's courts of record at Westminster," if that act were passed before the County Court Act (e). An action by a tenant against his landlord to recover half the amount of a rate, which by statute was to be paid by the tenant and deducted from the rent, is not one in which title comes in question (f). The amount paid for enforcing an order of justices to abate a nuisance, under 18 & 19 Vict. c. 121, s. 19, may be recovered in a county court, although title does come in question, for express power is given to the county court by that act (g). Where a railway company by their special act were entitled to charge a certain toll on carriages passing on their line, it was held that the county court had jurisdiction to (s) Latham v. Spedding, 17 Q. B. 440; S. C., 20 L. J., Q. B. 302. But see Williams v. Jones, 15 L. T. 248. (a) Wickham v. Lee, 12 Q. B. 521. (b) Adey v. The Trinity House, 22 L. J., Q. B. 3. (c) Stephenson v. Raine, 2 E. & B. 744; S. C., 23 L. J., Q. B. 62. (d) Baddeley v. Denton, 4 Exch. 508; S. C., 18 L. J., Exch. 44. (e) Stuart v. Jones, 1 E. & B. 22; S. C., 22 L. J., Q. B. 3; 16 Jur. 1020. (f) Gwynne v. Knight, 1 Exch. 802. (g) Reg. v. Arden, 2 E. & B. 188; The Guardians of Hertford Union v. Kimpton, 11 Exch. 295. CHAP IV. PART I. Malicious prosecution. Balance of accounts between partners. decide whether the company could make a particular charge, and also to say whether coal-trucks come within the denomination of "carriages" in respect of which toll was by the act payable (h). But "rates and duties," payable by vessels under a local harbour act, have been held not to be within the jurisdiction of the county court (i). The above exceptions do not prevent a county court from trying a disputed custom. Where the question at issue was the customary right upon a public navigable river for the owner of a wharf so to moor his vessels that they extended to an adjoining wharf belonging to another person, it was held that a county court might try the right (k). The provision, ousting the jurisdiction of the county court where title is in question, applies to proceedings for the recovery of small tenements (1) under sect. 50 of 19 & 20 Vict. c. 108. But it does not apply to proceedings in replevin (m). Malicious Prosecution.]-Where a plaint is in substance for a malicious prosecution the county court has no original jurisdiction, although the plaintiff may not so state his claim. Thus where a plaintiff sought to recover against a railway company for loss of time and attendance before a magistrate, upon a complaint and information by the defendants that the plaintiff had ridden in one of their carriages without paying his fare, and the summons was dismissed with costs, it was held that the action could not be brought in the county court (n). Balance of Accounts between Partners.]—The jurisdiction also extends to the recovery of any demand not exceeding 50l., which is the whole or part of the unliquidated balance of a partnership account, or the amount of a distributive share under an intestacy, or of any legacy (h) Hunt v. Great Northern Railway Company, 10 C. B. 900; S. C., 2 L., M. & P. 260; 20 L. J., Q. B. 349; 15 Jur. 400. (i) Adey v. The Trinity House, 22 L. J., Q. B. 3; 17 Jur. 489; S. C., nomine Reg. v. Everett, 1 E. & B. 273. (k) Davis v. Walton, 8 Exch. 153; S. C., 16 Jur. 954; 22 L. J., Exch. 25. (1) Pearson v. Glazebrooks, L. R., 3 Exch. 27. See, too, Kirkin v. Kirkin, decided on sect. 122 of 9 & 10 Vict. c. 96, since repealed, post, Chap. XIII. (m) Fordham v. Akers, 4 B. & S. 578, post, Chap. XV. (n) Hunt v. The North Stafford Railway Company, 2 H. & N. 451. under a will (o). Where real and personal property was left to executors upon trust to sell, and, after paying particular legacies, to divide the residue among certain persons, it was held that the county court had jurisdiction. under the above section to adjudicate on a claim made by one of such persons for a share of the residue, in a plaint against the executors; for in that case no trust came in question except such as is included in every legacy which is to be paid by an executor (p). But where real and personal property was left to a person who was not executor, on condition that he paid to a third person an annuity, it was held that the annuitant could not maintain an action in the county court against the legatee, since the annuity was not a legacy within the meaning of the act (q). So a bequest of money to invest for an infant, and pay it over to him when of age, with power to apply it for him during his minority, is not a "legacy" over which the county court has jurisdiction (r). Where a decree has been made by the Court of Chancery for the general administration of the effects of a testator, that court will, by injunction, restrain a legatee from proceeding in the county court against the executor for the recovery of a legacy (s). CHAP. IV. Legacies. Privilege.]-No privilege, except that of the chan- Privilege. cellor, masters, and scholars of the universities of Oxford Universities. or Cambridge, is allowed to any person to exempt him from the jurisdiction of the court (t); nor can an attorney or other person, by reason of any privilege, claim to sue in a superior court (u). But a privileged person, as a Queen's priest, cannot be arrested under process issued from a county court (x). The jurisdictions of the courts of the chancellors or vice-chancellors of Oxford or Cam- Stannary bridge, or of the lord or vice-wardens of the Stannaries courts. (o) 9 & 10 Vict. c. 95, s. 65, p. 391. (p) Pears v. Williams, 6 Exch. 833; S. C., 2 L., M. & P. 515; 20 L. J., Exch. 381; 15 Jur. 932. See also Re Fuller, 2 E. & B. 573, in which the question arose, but was not decided, whether the county court has jurisdiction where a legacy was left to S., "should my executors think proper," and on the condition that S. behaved faithfully. (9) Longbottom v. Longbottom, 8 Exch. 203; S. C., 22 L. J., Exch. 74. (r) Hewston v. Phillips, 11 Exch. 699; S. C., 25 L. J, Exch. 133. (s) Ratcliffe v. Winch, 22 L. J., (t) 9 & 10 Vict. c. 95, ss. 67, 140. (x) Ex parte Daker, 24 L. J., 131. |