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particular way: "Where the parties do not choose to separate the law from the facts at all, but leave the judge to "determine both together, it may be very much doubted whe"ther the parties do not exempt themselves from the words and "spirit of this enactment. It is often very desirable that a "decision should be without appeal. In the ordinary case of an arbitrator, who is to put an end to all controversies between "the parties, it has long been settled that his decision on the "facts or law cannot be impugned; and it may be that when "the parties leave the facts and law to the judge, they may be "considered as intending to put him in the situation of an arbi"trator. It is objected that on such a construction the statute "really gives no appeal. But the objection may be answered by using the words of the section in their reasonable import, "and putting upon them the limited meaning, that the Court of "Appeal should have before them a case in which the law and "facts are separated." Then the judgment goes on to point out a rule for ascertaining whether the decision of a County Court judge upon law and facts mixed up together was wrong in point of law, and therefore open to an appeal, or mistaken in its view of facts, and consequently irreversible. "It may be, if it appears upon the case sent up to the Court of Appeal by the judge of "the County Court, or agreed upon by the parties, that the "decision of the judge can be sustained by a particular view of "the facts which does not render it necessary to conclude that " he has decided the particular point of the law in the way com"plained of as erroneous, that the Court of Appeal will have no power of reviewing the judgment; yet when it is manifest from "the facts of the case that the judge, in order to arrive at his "judgment, must have decided a certain matter of law in a certain way, that that will be a determination in point of law, with respect to which an appeal will lie; so that suppose there be judgment that can be sustained consistently with the law by any view that may be taken of the facts stated, such a judg"ment can probably not be reversed; yet still, where the judge "states the facts that were before him, and those facts can sus"tain his judgment upon one view of the law only, and that "view be incorrect, the Court of Appeal may have jurisdiction "to entertain an appeal against it."

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Not only does this decision seem a right and sensible one, but, as remarked by the learned counsel for the appellants, the contrary view of the effect of the statute would render the benefit it purposes to confer nearly illusory.

COUNTY COURT ACTS-COSTS IN CASES OF CONCURRENT

JURISDICTION.

Cross v. Seaman, 20 Law Jour. C. P. 177.

Sharp v. Eveleigh, 20 Law Jour. Exch. 282.

WHEN a plaintiff' sues in one of the superior courts for an amount as to which they have concurrent or exclusive jurisdiction, but at the trial his claim is cut down to less than the lowest amount which would have given him his costs, had he sued for it alone, his right to costs may vary with the way in which his original demand has been reduced; if it be by payment, he loses his costs (Turner v. Berry, 20 Law Jour. Exch. 89); if by set-off, he is entitled to get them (Woodhams v. Newman, 7 Com. B. 654). So the first of the now cited cases decides that a reduction by tender does not affect a plaintiff's right to get his costs; moreover, as it very clearly shows the reason and principle of this difference, it is deserving of a short notice. After it had been observed by the court that it was in effect an action to recover the balance plus the sum tendered, Jervis, C. J., in his judgment, observes:

"If the plaintiff had abandoned all his claim but 201. (the cause was not within the Extension Act), the defendant might have applied his tender to a portion of that amount." So he might a set-off, if he had one; but if the plaintiff was only going for a balance, and had expressed in his particulars the payments by which some larger sum had been reduced to such balance, then that balance would be in no risk of being a second time reduced by the same payments, and herein is the distinction.

In the other case the distinction is pointed out between the power of certifying for costs, which is given to the judge at nisi prius by the 12th section of the County Courts Extension Act, and that which is by the 13th section given to the court or a judge at chambers. A cause for which concurrent jurisdiction existed in the superior courts under the 9 & 10 Vict. c. 95, s. 128, was referred from nisi prius to an arbitrator, who was to have the same power of certifying as the judge at nisi prius, and who gave no certificate. Subsequently Parke, B., at chambers, certified that it was a case of concurrent jurisdiction, and this was a summons taken out before the same learned judge to review the former decision, on the ground that he had no jurisdiction to grant such certificate; and it was urged that the arbitrator had all the power of certifying transferred to him, and that as he had not exercised his power, the court, or a judge at chambers, ought not to interfere. Parke, B., however, thought

VOL. XV. NO. XXIX. .

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his decision clearly right, inasmuch as the powers of a judge at nisi prius, under the 12th section, which alone were given to the arbitrator, did not extend to certifying that the cause was one in which the superior courts had a concurrent jurisdiction, and that consequently the jurisdiction of the court, or a judge at chambers, so to do was not ousted.

In submissions and orders of reference, it will therefore in future be proper, where every thing is meant to be left to the arbitrator, to be careful to give him both powers of certifying.

Short Notes of New Books.

A History of the Law of Gavelkind and other remarkable Customs in the County of Kent. By Charles Sandys, F. S. A. Russell Smith, London.

This very elegantly got up book is perhaps even more interesting to the antiquarian than the lawyer, though both will find a fund of curious matter throwing light on the early manners, as well as usages and laws, of our Anglo-Saxon forefathers. We demur to some of the conclusions of the learned author, such as his doubt of the reputed origin of the division of England into counties and hundreds. But the facts related are derived from obviously careful research, and collated with infinite care, and a thorough knowledge of the subject. We wish Mr. Sandys would extend his inquiries and publication to other parts of the kingdom, in many of which he would find usages and customs, if not local laws, of Roman, Danish and early British origin, coupled, we suspect, with popular habits and idiosyncrasies of similar origin. A book of this title, combining ethnology with peculiar laws and local usages, would be a valuable addition to our present meagre information on the history of our early English times.

A Letter to Sir James Graham on Chancery Reform. By Edward Morton, Esq. Butterworths, London.

Having dwelt and dilated through nine pages on the evils arising from the imperfect manner in which evidence is now taken on issues on fact in the Courts of Chancery, Mr. Morton propounds this remedy :

"I should say at once, TRANSFER THIS PART OF THE CHANCERY JURISDICTION, -TAKING THE EVIDENCE, AND DECIDING UPON THE ISSUES OF FACT, TO THE

COMMON LAW COURTS, which are peculiarly competent to perform such functions, where the bench and bar are conversant with the rules of evidence, and the practical application of them, and where alone the oral examination of witnesses can be conducted in such a way as to make it either convenient or conducive to the ends of justice.

"So soon as the cause is at issue, let the record be made up by a judge or officer of the court, and sent to a common law court appointed for the purpose; the issue would then be tried in the ordinary way before a jury, but with this important

difference, no preliminary expense would be incurred in taking the evidence in writing, the witnesses would be called at once into open court, put into the box, examined and cross-examined, and the truth extracted from them, by the most certain of all processes; and after the trial let the findings of the jury upon the issues, and the evidence itself, be returned to the Court of Chancery, that court having then to perform its peculiar functions, i. e. to apply the principles of equity to the facts so found.

"Is there anything very startling, or even very novel in principle, in this proposition?"

Nothing novel certainly, or startling either, but simply needless. The County Courts Bill, to be re-introduced by Lord Brougham, provides the easiest and least costly way of doing this. Suitors, who agree with Mr. Morton in his estimate of the value of juries, can then have them at their option,-an option they avail themselves of in about one case in 5000.

Mr. Morton objects to giving the County Courts equity jurisdiction; but he overlooks the fact that his own scheme keeps the equity jurisdiction in the Equity Courts, who are, he says, "to apply the principles of equity to the facts so found." He forgets, in his low estimate of the powers of County Court judges, that, inasmuch as they are taking evidence of facts nearly every day in their lives, they become very much better judges of it than any other judges in the land, having twenty times the same practice. A much less considerate plan we have seldom seen broached. Mr. Morton seems

wholly ignorant of what the County Courts are, which he persists in calling Small Debt Courts, unaware that they try causes without limitation of damages where the parties consent, and, where they do not, up to 50l. The immense amount of heavy business and important causes now voluntarily brought into them stands in somewhat amusing contrast with Mr. Morton's ipse dixit :—

"I say that in cases involving any higher questions than-Do you owe this? How do you mean to pay it?-the County Courts are not such satisfactory tribunals as the Courts of Westminster Hall!!!"

Where questions arise then of consideration for a promise or contract, of actual delivery or acceptance of goods, of requisite stamp on written instruments, &c. &c., and in all the myriad of issues raised by the facts in commercial transactions,-where sums, say, of ten, twenty or thirty or fifty shillings are at stake, it is Mr. Morton's deliberate conviction that an action at law, decided in six months, in which the costs would be moderate perhaps at 50l., would be more satisfactory" than the prompt decision of the County Court judge, with costs little more than nominal; and this Mr. Morton propounds, in a letter addressed to one of the acutest minds and most able statesmen of the day, as one of the main arguments (?) whereby he seeks to recommend his suggestions!