of the benefit of the statute of limitations, this ejectment cannot be maintained. What, then, was done upon that occasion? Pritchard went with his steward to the cottage, the defendant not being there, and, removing a stone from the wall, and displacing a portion of the fence, stated that he took possession. The defendant's wife and family were not removed from the premises, or desired to remove. Unfortunately for the lord, he did not do enough to secure his rights. The defendant is not to be prejudiced by what was thus done in his absence. I left it to the jury to say whether the lord had done enough to acquire possession. They found that he had not; and in truth there was nothing to leave to them. The acts done by Pritchard clearly amounted to no more than an entry, which since the late statute is not enough to bar the tenant's right unless accompanied by circumstances which would restore the possession of the land to the lord. The tenant was *not [*718 removed, nor was anything done to disturb him in his possession. He might have brought trespass. His possession having commenced adversely more than twenty years ago, and nothing having occurred to interrupt or put an end to it, this ejectment is clearly too late.

CRESSWELL, J.-I am of the same opinion. It seems to me that Pritchard, the lord, when he intended to resume possession of the land in question in 1835, from a feeling of kindness to the encroacher, abstained from doing enough to secure his rights. It is clear that he was out of possession, and that there was no tenancy at will before the year 1835. The defendant was there as a trespasser. The 10th and 11th sections of the 3 & 4 W. 4, c. 27, must be looked at together. The latter throws light upon the former: it enacts that "no continual or other claim upon or near any land, shall preserve any right of making an entry or distress, or of bringing an action." That section treats the making an entry as something more than merely being on the land, and claiming it. The 10th section seems to require something more than the merely formally going upon the land. The making an entry amounts to nothing unless something is done to divest the possession out of the tenant and revest it in fact in the lord. We are bound by the plain words of the statute.

WILLIAMS, J.—I am of the same opinion. It is quite clear that the lord was not in possession of the land and the hut in question in the year 1835, and that no tenancy at will ever existed.

TALFOURD, J.-It is with great regret that I feel myself compelled to come to the same conclusion. The kindness and forbearance of the lord have unfortunately *furnished the tenant with the weapons to resist his right. Rule refused.

[*719

KIMPTON v. WILLEY. April 30.

A., having a cause of action against B. for 197. 08. 8d. for money lent between the years 1846 and 1849; and also a cause of action against him on a separate account, for goods sold and delivered, work and labour, and money paid, between the years 1845 and 1849, amounting to 197. 198., after deducting a payment on account of 8l. 58. 3d., levied two plaints in respect of them in the county court:-Held, that this was not a splitting or dividing of "a cause of action," within the meaning of the 63d section of the 9 & 10 Vict. c. 95.

Held, also, that the judge of the county court had jurisdiction to inquire whether B. had consented to A.'s claim being so reduced, and that that fact need not be stated in the particulars of demand.

Semble, that prohibition lies to the county court even after execution levied.

LUSH, on a former day in this term, obtained a rule nisi for a prohibition to the judge of the Herefordshire County Court, prohibiting him from proceeding further on the judgments obtained by the plaintiff in two plaints in that court.

The particulars of demand in the first of these cases, plaint C. 142, was as follows:

The particulars in plaint C. 143 were as follows:

The affidavit of the defendant and his attorney, upon which the rule was moved, stated, that both plaints came on to be heard before the judge of the county court on the 20th of March, 1850, plaint C. 143, being first called on; that the defendant's attorney objected that the judge had no jurisdiction, because (as disclosed by the particulars) the demand exceeded 201., though reduced below that sum by a credit for 81. 58. 3d. given without the defendant's consent; and that the judge overruled the objection, heard the case, and gave judgment for the plaintiff for 177. 98., and costs 5l. 18.; that plaint C. 142 was then called on, when the defendant's attorney objected that the judge had no jurisdiction, because the subject-matter of that and the preceding plaint together constituted but one cause of action, exceeding 207., and that it was not competent to the plaintiff to split them; and that this objection also was overruled by the judge, who, after hearing the case, gave judgment for the plaintiff for 177. costs 47. 88. 6d.

*Hawkins now showed cause.-Execution having been exe[*721 cuted in this case, the application for a prohibition is too late; there remains nothing upon which it could operate: Hall v. Norwood, 1 Sid. 166, Re Poe, 5 B. & Ad. 681 (E. C. L. R. vol. 27), Robinson v. Lenaghan, 2 Exch. 333.† [WILLIAMS, J.-In the Articuli Cleri, 2 Inst. 602, in the answer to Art. 3, it is said that "the king's courts that may award prohibitions, being informed, either by the parties themselves, or by any stranger, that any court, temporal or ecclesiastical, doth hold plea of that whereof they have not jurisdiction, may lawfully prohibit the same, as well after judgment and execution as before." WILDE, C. J., referred to Com. Dig. Prohibition (D), and to Roberts v. Humby, 3 M. & W. 120.†]

Then, as to the merits, there was no splitting of a cause of action here, within the case of Grimbly v. Aykroyd, 1 Exch. 479.† When the first plaint was heard, it did not appear that the plaintiff had any further claim against the defendant. In Neale v. Ellis, 1 D. & L. 163, the Brighton Court of Requests Act (3 Vict. c. x., s. 24) provided that it should not be lawful for any plaintiff to divide any cause of action into two or more suits for the purpose of bringing the same within the jurisdiction of the court, but that any plaintiff having a cause of action above the value of 157., might sue for 157., and abandon the excess: and it was held, that a plaintiff having demands for the price of a horse, for goods sold and delivered, and for rent, against the defendant, was entitled, after having sued for and recovered 157. in respect of the horse by plaint in the county court, to maintain his action in the superior court for the residue of his claim; for that the three causes of action were distinct, and there had been no division of *them for the [*722 purpose of bringing them within the jurisdiction of the inferior court, or any abandonment of the excess over the 157. recovered in that court. Here, the items in the two plaints are in no way connected with

each other. In The King v. The Sheriff of Herefordshire, 1 B. & Ad. 672 (E. C. L. R. vol. 20), A. became indebted to B. in a sum not exceeding 408. for the carriage of a parcel of goods, and a month afterwards incurred another debt to B. not exceeding 40s. for the carriage of a second parcel. For these respective debts, A. brought two actions in the county court; and it was held that the causes of action were distinct, and that A. was entitled to sue separately for each demand; and an application for a prohibition was refused, Lord TENTERDEN saying,-" I am of opinion that this case does not come within the rule of law which prohibits the splitting of a cause of action into several portions for the purpose of commencing suits for each in an inferior court; to be so, the cause of action must be one and entire. But, in this case, the two items of 11. 48. each are perfectly distinct debts, the one having no connexion with the other. When the defendant incurred the debt stated in the first item, the plaintiff might have sued him for it in the county court; and his having incurred another and distinct debt with the plaintiff afterwards, should not, I think, have the effect of depriving the plaintiff of his remedy in the county court for the first debt. And if he may still have that remedy for the first debt, he has it of course for the second also." [WILLIAMS, J.-As applied to this act, that is hardly reconcileable with Grimbly v. Aykroyd.] It may be, that, where the items are continuous and of the same description, the demand cannot be split: but this is not a case of that sort; the demands here are separate and distinct. In Wickham v. *Lee, 12 Q. B. 521 (E. C. L. R. vol. 64), it was held that it is *723] not a dividing of the cause of action, within the 9 & 10 Vict. c. 95, s. 63, to levy one plaint for rent of premises, and another (under the 4 G. 2, c. 28, s. 1) to recover double value for holding the same premises after the expiration of a notice to quit. [MAULE, J.-In Jagoe's County Court Practice, 52, I find an Irish case upon this subject, which is thus stated," Splitting demands, prohibited by the Irish statutes (a) in nearly the same words as in this section, has been a subject of judicial consideration in a case on appeal before BUSHE, C. J., at the Dundalk Summer Assizes, 1833:-The plaintiff below brought a civil bill for use and occupation, to recover one gale of rent. There were two gales due at the time, which together amounted to a sum exceeding the jurisdiction, but separately were within it. The plaintiff below obtained a decree, against which the defendant appealed. For the appellant it was contended that the case came within the prohibitory words of the statute, as the two gales might clearly have been included in one declaration, and that it was vexatious to divide the claim. For the respondent it was argued, that the true test was, not whether the claim might be joined in the same declaration; and that a debt might by mutual arrangement be divided into several aliquot parts, and a promissory note taken for each part, which was frequently done for the purpose of making the summary remedy by civil bill

(a) Courts of Conscience Acts.

attach, to recover each separately, which could not be the case while the demand was entire and undivided. BUSHE, C. J., referred to the case of Cairns v. Whelan, Hudson & Brooke, 552, as bearing upon the question, and was at first inclined to consider the decree erroneous: but Mr. Hannan, Amicus Curiæ, having referred *him to the [*724 case of The King v. The Sheriff of Herefordshire, 1 B. & Ad. 672 (E. C. L. R. vol. 20), the chief justice on the next day stated that that case was so much in point as to put an end to any further difficulty, and affirmed the decree."] The mere statement of the defendant that the subject-matters of the two plaints form but one cause of action, is not enough to oust the jurisdiction of the county court. There must be some evidence to which the judge may apply his discretion. Vines v. Arnold, 8 C. B. 632 (E. C. L. R. vol. 65), Woodhams v. Newman, 7 C. B. 654 (E. C. L. R. vol. 62), and Beswick v. Capper, 7 C. B. 669, were also cited.

Lush, in support of his rule. The particulars of demand show that the plaintiff's claim in respect of plaint C. 143 was for 271. 16s., and that there was a set-off reducing it to 197. 198. [MAULE, J.-Consistently with what appears on the affidavit, the 197. 198. might have been ascertained as a liquidated balance.] The matter being prima facie beyond the jurisdiction of the county court, it is for the plaintiff to show facts to bring the case within it. In Cole v. Kright, New County Court Cases, where the plaintiff, having an original claim against the defendant for more than 207., gave credit for certain sums as payments on account, some of which were in fact moneys lent to him by the defendant, others, moneys received by him to the defendant's use, and others, moneys the produce of goods of the defendant which the plaintiff had sold, and the proceeds of which he had appropriated; and the plaintiff by this, and by abandoning the remainder, reduced his claim below 201., and brought a plaint in the county court, -this court awarded a prohibition. Although the judge must exercise his discretion at the time as to whether or not the case is within his jurisdiction, his *decision is not conclusive, but may be reviewed [*725 on a motion for a prohibition: Thompson v. Ingham, 14 Q. B. 710 (E. C. L. R. vol. 78). The subject-matter of the two plaints here constituted one "cause of action," as that is explained in the judgment of the Court of Exchequer in Grimbly v. Aykroyd. If the whole formed one cause of action in that sense, the jurisdiction clearly is exceeded. The case of The King v. The Sheriff of Herefordshire is distinctly overruled by Grimbly v. Aykroyd, and by the test suggested by ERLE, J., in Wickham v. Lee. It is clear that all these demands might have been included in one count.

WILDE, C. J.-This case has undergone some considerable discussion, the court being anxious not to run counter to any of the authorities. In the result, however, it does not occur to me that it presents any very serious difficulty. This is an application for a prohibition, on the ground