books, that in no case can an action be brought for part of a debt or duty, without showing the residue satisfied. There is something to this effect in the index to Wms. Saunders certainly, but not in the text. That rule applies not to debts, but to "debt for rent or duty," and refers to an entire rent or duty due. See Moor, 7, pl. 26; 1 Burr. 589. A landlord of course cannot sue for the rent of any arbitrary period of tenancy; but if two quarters' rent, or half-year's rent, payable quarterly or half-yearly, be due, each amounting to 14., he can sue in the county court for each separately, although the whole sum due to him amount to 281.

A great deal of useless discussion has turned on the term cause of action" in the statute; and some commentators have said that the use of the word "demand" would have had a different effect. It would have had so only in cases where several separate causes of action or contracts had been consolidated into one demand: then it could not have been split: now it may, because a demand is not a cause of action. But the common case is that of a tradesman, who has sent in several bills, or who has run up an account, without making one demand of the whole, and has an option of demanding the whole or a part, in such case separate demands might be made of separate portions, without dividing any demand. In order to carry out the view probably entertained by the legislature, it would be necessary to word the clause to this effect:-" No creditor, having any demand or demands against a debtor, shall be allowed to divide the debt or debts due at the time of entering the plaint from the said debtor to the said creditor, for the purpose of bringing two or more suits in any of the said county courts." According to the accustomed negligence with which statutes are drawn, the intent of its framers has been certainly frustrated, and the jurisdiction of these courts has been in this particular unduly extended. It is not improbable that, to avoid any of the doubts raised by Mr. Moylan, tradesmen will send in a bill to persons they think it probable they may have to sue, for goods delivered down to a particular period, limiting the demand in the first instance to the earlier credits. There is nothing to prevent a man claiming and suing for goods sold down to Christmas, 1845, only, although debts for goods since then supplied may have accrued.

It is certainly a serious consideration, how far it is wise to extend the powers of the new system; but apart from this we see no objection on the score of injustice to the debtor in being sued twice or thrice in the county court for his debt instead of once at nisi prius. In most cases the expense will be infinitely

less by the former than by the latter procedure, attended, moreover, by far less personal trouble and delay.

A case with regard to the committal of defaulters in the payment of instalments has occurred under the Small Debts Act, which will govern the procedure under the County Court Act in that respect.

The Small Debts Act (8 & 9 Vict. c. 127) gave power to the judges of all the inferior courts of record, and to commissioners of bankruptcy, to summon before them any person against whom a judgment had been obtained for a sum not exceeding 201., and, on a hearing of the parties, to order payment thereof by instalments or otherwise; and it was provided by section 1, that

"in case such debtor shall not attend, &c., or if he appears to have the means of paying the same by instalments or otherwise, and shall not pay the same at such times as the commissioner or court shall order, or as the court shall have ordered, in which the original judgment shall have been obtained or order made, then, in any of the said cases, it shall be lawful for such commissioner or the judge of such court to order such debtor to be committed for any time not exceeding forty days to the common gaol wherein the debtors under judgment and in execution of the superior courts of justice may be confined, within the county, city, borough, or place, in which such debtor shall be resident, &c."

The judges of the Court of Queen's Bench differed whether, under this section, it was necessary or not for the judge or commissioner to summon the defaulter to show cause why he did not pay before committal. A habeas was accordingly moved in the Court of Common Pleas, and the judges agreed that such summons was necessary for the reasons thus stated by the Lord Chief Justice, which are pertinent to the same proceeding in the county courts. The principle, moreover, is laid down with great clearness and power.

"It appears by the section in question that, if a party wishes to recover or enforce payment of his debt, he is to apply to some one of these courts for an order on his debtor, and he is to be summoned, and an inquiry is to take place in the matter. One material part of this inquiry is his means of payment; and the act infers a discretionary power, for the judge is to exercise his discretion with regard to the time to be given for payment of the debt; that discretion depending principally on the means of the individual to pay. He has power to commit in certain cases pointed out by the act of parliament, such as the concealment of property, or misconduct in the mode of contracting the debt: but that imprisonment is not in satisfaction of a debt; it is punishment for misconduct in the original contraction of the debt. But, among other things, a power is given

to inquire: he is to inquire into the means of the party to pay, and if he has means and does not pay immediately, it is to be adjudged when he is to pay. If he can presently pay, he is to be ordered presently to pay; and if he does not do so, he may be committed. But it is obvious it must be clearly known, as material to that act, whether, at the time he makes default, he had the means of payment; for it is to be observed that this statute only deals with the person of the debtor, and leaves all the modes of acting with regard to property under the old acts untouched. By the present act an additional remedy is provided against the person under certain circumstances, apparently with the view of punishing him; but this remedy is only in force on the judge being satisfied that he wilfully withholds payment, and has the means of making it. The act is founded, apparently, on the inhumanity of sending a man to prison when he has not the means of paying, reserving a power to punish him if there is fraud found connected with the debt. The course of proceeding is this: it appears the party is to be summoned, and an inquiry is to be made as to his means of payment; and if it appears that he has the means of payment, by instalments or otherwise, he shall be ordered to pay accordingly. It is necessary, in the outset, that the commissioner shall exercise a discretion as to the periods to be named for payment. It is necessary, that he should inquire into the then circumstances of the party, and as to his future means of payment; because his not being ordered to pay at once, presupposes that he has not the means of paying then, and therefore there must be an inquiry as to his future means of paying: for if he have the present means of paying, he is to pay; and it is only on the presumption that he has not the present means of paying, that the judge, under this act of parliament, would be authorized, acting in the spirit of the legislature, to grant time for the payment. Well, then, if time is granted, with reference to what object is it granted? With reference to the subject of the means-the probable means, and the period when the payment is directed to be made; it appears, as to that point, that after the judge shall have made an order specifying the certain periods of payment-there is to be no other inquiry upon the subject -if the debtor do not pay, but has the means of paying the amount, according to the order of the judge, there is a power to commit for a term not exceeding forty days. What is to regulate the judge in prescribing the period of time for which the party is to be committed? You find that the original order is to be framed with reference to the means of payment; what is to be the foundation of the judgment to be formed with regard to the time for which the party is to be committed? Can it be doubted but that the debtor's means of paying must be at least one of the essential points of the inquiry? And if that is to be one of the essential points of that inquiry, the judge cannot by possibility make an effectual inquiry into the means of paying, or at least with any certainty of his conclusion being well founded, unless he has heard the party who must best know with certainty the means he has of payment, and who is the only person

to know his means of payment. And with regard to the payment, many circumstances might exist of bodily misfortune, disappointment, and loss, which the creditor might have no means of knowing, or any other person likely to be brought before the judge by the creditor. As the period for commitment, therefore, is discretionary, it would seem that the inquiry is to regulate the discretion; and whereas inquiry is necessary to regulate the discretion, common justice and general principles of right will require that the party most interested in the result of the inquiry-the party most fully possessed of the means of best answering satisfactorily the object of pursuing the inquiry, should be heard."

The clause in the County Courts Act leaves still less doubt on the subject, for sect. 99 empowers the judge to examine a defendant personally summoned for any unsatisfied judgment, and upon inquiry into his means of payment, and the origin of the debt, if satisfied

"That the party so summoned has then, or has had since the judgment obtained against him, sufficient means to pay the debt, &c. so recovered against him, either altogether or by any instalment or instalments which the court in which the judgment was obtained shall have ordered, and if he shall refuse or neglect to pay the same as shall have been so ordered, or as shall be ordered pursuant to the power hereinafter provided (sect. 101), it shall be lawful for such judge, if he shall think fit, to order that any such party may be committed, &c. for any period not exceeding forty days."

There can be no doubt therefore that no committal can be legally made after the hearing, for subsequent default of payment, unless the judge summons the debtor before him, inquires into the facts of the case, and ascertains the propriety of imprison

ment.

Several complaints have reached us that this decision will have the effect of warning debtors of the impending danger, and of enabling them to evade justice and make their escape. This may indeed sometimes happen. There are few great principles which are not liable to some defect in their application; and it can hardly be maintained, as Mr. Justice Maule most properly remarked, that "the preventing fraudulent persons from flying the country is an object of sufficient weight to justify a departure, to the extent to which there is a departure from the general principle that a man's liberty shall not be taken away without a power of being heard."

A very grave question was mooted with respect to the entire jurisdiction of the new judges on the last day of term, which is still undecided by the courts. The argument is briefly this: section 3 of the act expressly declares that "there shall be a judge Instead of obfor each district to be created under this act."

VOL. VII. NO. XII.

C

serving this, one judge has been appointed for a group of districts. The act says nothing about circuits. They are a pure excrescence, without legislative sanction. If there be a doubt as to the meaning of the words, "there shall be a judge for each district," it is cleared up by the words immediately following, "the County Court may be holden simultaneously in all or any of such districts;" seeming to show that a distinct judge was contemplated for each district, inasmuch as judges are not ubiquitous. It is moreover contended, but with less force, that if the words "there shall be a judge for each district," be not read in their plain sense, and it be competent to unite the 450 districts into 60, it would be equally competent to reduce them to half-a-dozen, or even to one!

This view was supported, it appears, by Sir F. Thesiger, who is reported to have held that the act does not establish a new court, but only enlarges the jurisdiction and regulates the practice of the ancient County Courts, as is indeed sufficiently plain from the preamble; that counties may be divided into districts, in each of which a County Court shall be held; that parts of adjoining counties may be brought within the jurisdiction of any County Court for such district as her Majesty shall order; that there must be a judge for each district; that each district shall have the jurisdiction and powers of the County Court, and that the court may be held simultaneously in all or any of such districts; that there is no power of grouping districts into circuits. But moreover there is every reason to think that it was not intended. The wording of sect. 9 bears out the meaning given to the words " each district" in sect. 3. Sect. 16 refers to the change of districts by the judges, and is as follows: "And be it enacted, that from time to time, when any judge appointed under this act shall die, resign or be removed, and the district for which he was appointed," &c. &c.; sect. 17 is alike significant of the same intent: "And be it enacted, that no judge appointed under this act shall, during his continuance as such judge, practise as a barrister within the district for which his court is holden under this act," &c. &c. Sect. 19 provides "that the Lord Chancellor may remove any judge from any district to which he shall have been appointed, for the purpose of appointing him to any other district, in which the salary of such judge shall not be less than in the district in which he shall be so removed."

Now it is quite impossible to suppose that, had the act contemplated the junction of districts, all these clauses would have confined the mention of the sphere of jurisdiction to the singular number: the words would have been, "the district or districts