1851. KILKENNY AND ERN AND WESTERN RAILWAY CO. V. FEILDEN. sufficient to satisfy the costs, because such property is of a fluctuating nature, and might not be available when judgGREAT SOUTH ment was obtained. That is the ground upon which my brother Patteson decided the case of The Edinburgh and Leith Railway Company v. Dawson, where he held, that the fact of a foreign Company having money and Exchequer bills in England was no answer to an application like the present, although the 1 & 2 Vict. c. 110 gives a remedy against that description of property. The only exceptions to the rule are, where one of several plaintiffs resides in this country, or where there is real estate here. The question therefore is, whether, as the Companies Clauses Consolidation Act gives a contingent remedy against some of the shareholders, that is to be considered as equivalent to real estate, within the meaning of this rule. I think it cannot. There would be difficulty in enforcing the remedy, since an application to the Court would be necessary for that purpose; and it must be shewn that all due pains have been taken to obtain satisfaction from the Irish property before the Court would grant execution here. That was decided in Devereux v. The Kilkenny Railway Company. I think, therefore, that we must treat this Company as an Irish individual; and that the fact of some of the shareholders being resident here is no sufficient reason to take the case out of the general rule. ALDERSON, B.—I am of the same opinion. Matters like these, which, in truth, arise out of the discretion of the Court, must be acted on and dealt with in the exercise of a reasonable discretion. A plaintiff is compelled to give security for costs because he cannot be fixed by the direct process of the Court. That can be done when one of several plaintiffs is resident in England, because he may be taken in execution, and so there is a personal responsibility to the defendant; it cannot be done where all the plaintiffs reside abroad; but the case is brought as near as 1851. KILKENNY AND ERN AND WESTERN RAILWAY CO. V. FEILDEN. possible to it by compelling them to find some one here to enter into a bond to pay costs. This is the case of a foreign partnership suing here; but then it is said that, of GREAT SOUTHthis foreign partnership, there are certain persons resident in England, who, by a certain process, may be made responsible for costs. That process is exceedingly complicated and doubtful; and as each shareholder is only responsible to a limited extent, numerous applications to the Court might be necessary before it could be rendered available. Therefore, it seems to me that it would be an unreasonable exercise of the discretion of the Court to substitute for a bond and direct covenant something which is extremely indirect, doubtful, and inconvenient; and that the Court most properly exercises its discretion by compelling the plaintiffs to give security for costs. PLATT, B., This discussion has satisfied me that I was wrong in refusing to make the order at Chambers. The Lord Chief Baron has put the matter on the true ground, namely, that the rules of practice should be clear and uniform. Here a foreign Company is suing, and if it could be made plain that, in the event of judgment against them, the defendants would get their costs, there would be no pretence for this application. But the remedy suggested is of a complicated character, and uncertain in its results; for although a proceeding by scire facias is in fact a continuation of the suit, yet it has all the incidents belonging to a suit itself, besides the contingency of its not being allowed, for the party must satisfy the Court that he is entitled to it before he can take that proceeding, and then he may be called upon to prove the whole case by issues raised by his adversary. Taking all these circumstances into consideration, it seems to me, that in this case security for costs should be given, because the defendants' remedy is not clear and explicit. Rule absolute. 1851. Jan. 18, 25, & 30. A plaint in replevin and for an exces sive distress MUNGEANU. WHEATLEY and SMITH. SAME V. SAME. ON the 4th of October, 1850, a plaint in replevin and for an excessive distress (a) was entered in the county court having been entered in a county court against a landlord and bailiff, the defendants, by leave of a judge, on affidavit that the rent exceeded 201., sued out a writ of certiorari to remove the cause into the Court of Exchequer. The writ was returnable on the day the plaint stood for trial; and the defendants' attorney then presented the writ to the judge, and offered, on the part of one of the defendants, to make the declaration required by the 9 & 10 Viet. c. 95, s. 121, stating that the other defendant, the bailiff, was unable to make it. The defendant, the landlord, was too ill to attend; but he had executed a power of attorney to one W., authorising him to sign and seal the bond required by the above section, and generally to perform all such acts about the conduct of the writ as he should think proper. The defendants' attorney tendered the bond, which was conditioned to prove, in the superior Court, that the rent exceeded 201.; but the clerk of the court did not approve of the sureties, in consequence of not having had notice of them in time to inquire into their sufficiency. The judge refused to allow the certiorari, and tried the cause on the ground of the want of time for the clerk of the court to inquire into the sufficiency of the sureties, but he did not fix the amount for which they were to be responsible :-Held, first, that there was no ground for quashing the writ of certiorari. Secondly, that the judge was liable to an attachment for not receiving and returning the writ, although his disobedience was not wilful, but originated in an erroneous construction of an obscure statute. Thirdly, that the declaration required by the 121st section of the 9 & 10 Vict. c. 95, may be verbally made, either by the attorney in the cause or the party; and that it is sufficient if made by one of several defendants; and that, in this case, the person named in the power of attorney was authorised not only to sign and seal the bond, but also to make the declaration. Fourthly, that the act of the judge in receiving the declaration is ministerial; that, after receiving it, he ought to fix the amount of the security; and that, until he has done so, the question as to the sufficiency of the sureties does not arise. Fifthly, that the provisions of the 13 & 14 Vict. c. 61, ss. 1, 2, do not apply to plaints in replevin; and therefore the bond was properly conditioned for proving that there was ground for believing that the rent exceeded 201. and not 50%. Sixthly, that a certiorari, under the 121st section of 9 & 10 Vict. c. 95, ought to be made returnable so as to allow sufficient time for the preliminary inquiries which the section directs. Seventhly, that replevin cannot be joined with any other form of action in the county court. Semble, that the 90th section of the 9 & 10 Vict. c. 95, which enables a defendant in a county court to obtain a certiorari by leave of a judge of the superior Courts, does not apply to plaints in replevin; but that the removal of such plaints is regulated by the 121st section. (a) The summons and particulars of the plaintiff's claim were as follows: "W. Mungean v. L. Wheatley and R. Smith. "You are hereby summoned to appear at the county court to be holden at the Town Hall, Gravesend, on &c., to answer the abovenamed plaintiff in an action of tort; for that you took 15 quarters of corn, 20 geese &c., of the plaintiff, the particulars whereof are hereby annexed, and unjustly for Kent, at Gravesend, by the plaintiff against the defendants. On the 4th of November, the defendants obtained a writ of certiorari to remove the action into this Court, by leave of a Judge at Chambers, upon affidavit that the rent, in respect of which the distress was made, exceeded the sum of 201. The writ was returnable on the 8th, on which day the plaint stood for trial; and at the sitting of the court on that day, the defendants' attorney presented to the judge the writ of certiorari, and offered, on the part of one of the defendants, to make the declaration required by the 121st section of the 9 & 10 Vict. c. 95 (a), stating that the other defendant, the bailiff, was unable to make it. The declaration was, that the rent, in respect of which the distress was made, exceeded 201., and in fact amounted to 60l., or, after deducting the land tax, to 50l. 58. 3d. He also produced and tendered a bond, as required by the above section, stating that the sureties were in attendance and ready to execute it. The condition of the bond was, that the defendants should prove, before the Court of Exchequer, that there was ground for believing that the rent exceeded 201. The clerk of the Court had no notice of the sureties until the 6th of November, when he received a letter from the defendants' attorney, mentioning three persons as sureties, two of whom lived in London, and the other eight miles from Gravesend. There was not sufficient time before the day of trial for the clerk to inquire as to the responsibility of the proposed sureties, or to communicate with the Judge respecting the amount of the bond, and therefore the clerk stated, that he did not approve of them. The defendant Wheatley, who was incapacitated by illness from detained the same against sureties plaintiff at Gordon Farm, &c., and pledges. "This action is brought to recover 507. damages for an illegal distress made by R. Smith for and on behalf of L. Wheatley, on the following goods and chattels of the [enumerating the goods]. The 1851. MUNGEAN v. WHEATLEY. 1851. MUNGEAN v. WHEATLEY. attending in Court to make the required declaration, had executed to one Watkins a power of attorney to act in his stead. That instrument, after reciting the action, and the desire of the defendant Wheatley to have it removed by certiorari, proceeded thus:-"The said L. Wheatley doth by these presents nominate, constitute, and appoint A. Watkins, of &c., his true and lawful attorney, and in his name and as his act to sign, seal, and deliver any bond which the judge of the said county court may require to be given by him the said L. Wheatley to prosecute the said suit, when removed before the Barons of the Court of Exchequer as aforesaid, with effect and without delay, and to prove before the said Court of Exchequer, that there was ground for believing that the damage sought to be recovered by the said action is more than 20., or otherwise and generally to take and adopt all and every such proceedings and proceeding, and do and perform all and every such act and acts, deed and deeds, in and about the management, prosecution, suspension, or determination of the said suit, or otherwise in relation thereunto, as he the said A. Watkins shall think proper, as fully and effectually to all intents and purposes as the said L. Wheatley might or could do if personally present." On the part of the plaintiff it was objected, that the judge was bound to disallow the writ on several grounds: first, that the declaration ought to have been made by the defendants in person, or at least by a written instrument; secondly, that it ought to be made by both defendants; thirdly, that the power of attorney did not authorise Watkins to make a declaration, but merely to execute a bond; fourthly, that the bond ought to be conditioned, that the defendants should prove that there was ground for believing that the rent exceeded 50l.; and lastly, that the clerk of the court had not received notice in time to inquire about and approve of the sureties, and that he had not in fact approved of them. The judge refused to allow the writ, assigning as his reasons, that the declaration ought |