which parties are allowed to be their own witnesses, the destruction of trial by jury, points of law determined and nice legal distinctions leapt over, as it were, by judges from whose decision there is no appeal, without much argument or consideration. The Act certainly is not without blemish, nor is the manner in which it has been carried out unexceptionable, but making allowance for the difficulties which had to be encountered (and these were not a few) much has been done for the benefit of the public. The superseding written pleadings and the substituting notice for certain defences, and the easy and speedy mode in which a cause is brought to trial, are judicious and necessary, since reduction of expense is essential. But though the trial and the means of bringing the parties to trial have properly been made as summary and simple as possible, every means should be used to preserve regularity in conducting the business of the court and of keeping, if possible, uniformity of decisions. The forms and orders prescribed, especially as they are few and by no means complex, should not be utterly disregarded, however praiseworthy the endeavour on the part of the judge to prevent captious objections to technical informality. The law may be administered in a summary manner, but it should still be the law, that is, the decisions should be as much founded on and as close to the principles of the law and the established authorities as the circumstances under which they are pronounced and the ability of the judge will allow. This is necessary to preserve respect for the courts and to satisfy suitors. On the first starting of a system so vast as that proposed by the legislature under the County Court Act, many difficulties must arise and faults be discovered by a public whose expectation can seldom perhaps be fully realized. Complaints are sure to be made, but they have not been so numerous as might have been imagined, and on the whole the system has worked well; still complaints have been made and some of a serious nature, and not without reason. The very hasty manner and want of decorum in which cases have been disposed of in some of the courts and the numerous conflicting decisions call for reform. The former cannot be too much deprecated, and should at once be discontinued; the latter, perhaps, is at present unavoidable, and can only be effectually remedied by a court of appeal. Enough, however, has here been said to show the importance of the new measure, the vast quantity of litigation which must come under the jurisdiction of these courts, and the necessity for regulating their practice and the law they may administer by known rules and established principles.

A treatise on the law applicable to these courts must be a sub

ject not only of interest but of use to all practising therein or who may be brought within the sphere of their jurisdiction— and who indeed are not those?

Mr. Moseley's work, the title of which stands at the head of this article, is therefore one well chosen, and we will at once bring it before our readers. The plan of it we cannot give better than in Mr. Moseley's own words. He says, "in order to obtain as scientific as well as practical a view as possible of a subject which is likely to become of so much interest and importance, and yet one which from its very nature is at present, and for some years likely to remain, in an unsettled and uncertain state, it is proposed in the following treatise, under such titles as may be deemed the best guide to the subject-matter they contain, first to set out in full all the statutory enactments, then to give such comments thereon as may be deemed advisable, and lastly to set out all the common law collateral to or bearing upon the matters treated of under those titles, hoping by these means to anticipate and solve as far as possible the doubts and difficulties which are sure to arise in a scheme so extensive as the present."

The plan and arrangement are excellent, and Mr. Moseley cannot be too much commended for the immense labour and research he has shown in collecting legal learning, as well as for the pains he has taken to make the work useful. We think, indeed, that this labour and research have been carried even to a fault, and have led the author to occupy his pages with a large quantity of matter more curious and learned than practically useful, and which therefore might have been with advantage omitted; for instance, the dissertation on the creation of courts by common law, is interesting but unnecessary. So few persons, we apprehend, will trouble themselves about the appointment of the officers except the officers themselves, and these will generally be contented that they are appointed; and no one will often, if ever, be tempted to look beyond the requisites prescribed by the statute, and to inquire into the right of appointing, and the means and form of appointment declared by the common law; yet Mr. Moseley has at considerable length pursued this inquiry, extending it to a consideration of the oaths to be taken, and the statute law on oaths from the 3 Jac. I. c. 5, to the 3 & 4 Will. IV. c. 82, the whole comprising twenty-one pages. The description of the authority and powers of the judges at common law, and of the ways by which offices are determined at common law, though excellent of the kind, might, we think, for the purposes of the present work, be either dispensed with or at least considerably curtailed. Also, under the

VOL. VII. NO. XIII.

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head "Jurisdiction," after two or three pages have been devoted to pointing out how a party is to take objection to the want of jurisdiction of the courts under the statute, no less than seven pages are occupied with a learned essay on pleas in abatement at common law; a subject which, since the new rules, does not frequently engage the attention of the superior courts, and must still less often, if ever, come before the county courts. Again, the county court rules have required the bailiff to make a return to the court of process delivered to him to execute, and we have between four and five pages given of the common law relating to returns of process, which, though very useful in the superior courts, are not likely to be applicable to the practice in the new county courts. And as juries are seldom impanelled to try causes in these courts, there seemed little occasion to fill seven pages with the manner of summoning and the qualification of jurors at common law, especially after the regulations for trying actions by jury in the county courts, as directed by the statute, with the rules framed by the judges, are set out fully, with comments explaining the same. Without numbering other instances, it may generally be remarked that the work, although containing an immense mass of legal information, well fitted for the student, is loaded more than necessary for practical purposes, and would receive improvement from pruning. It is to be also regretted that there is a constant reference to other parts of the work under such general directions as the following: post, JURISDICTION, as to place, By common law." A reference to the page would be useful, and make the search (which, when continually called for, is always annoying to the reader,) less troublesome. These are what appear to us to be some of the defects. They do not seriously detract from the merits of the work, which we are far from wishing to depreciate, and they are rather pointed out in the hope that their removal, on a future revision, may, if adopted, improve its utility. We will now take a more regular notice of Mr. Moseley's treatise, and the manner in which he has executed his task. The first part of the work consists of the creation and holding of the courts, and of the appointment and duties of the judges and other officers. Upon the nature of the new courts Mr. Moseley says

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"It were difficult to give any legal definition of the new county courts, such as they appear to be from the above enactments. They are not, indeed, entitled to the name of county courts in its strict sense, for the facts of their being courts of record, and of some of their proceedings being so utterly at variance with the common law, as the trial by five jurymen, and in some cases by none at all, would disqualify them from such appellation. And yet by the third section they are declared to be county courts, except as altered by the act.

On the whole, however, the new county courts may be said to be inferior courts of record, the law and practice of which is regulated partly by common law and partly by statute. For, as it is declared that they are to have the powers and jurisdiction of the county court for the recovery of debts and demands, as altered by this act,' it is presumed that they will be the same in those respects as the old county court, except as so altered." "The importance of the third section, which assimilates the new county courts to the old ones, is extreme, as it has the effect of letting in the whole common law, which was peculiarly that of the old county court, (as to the statute law relative thereto, vide supra,) as applicable to the new county courts, subject to the express alterations of the act, and thereby has the effect of elucidating and filling up, as it were, those imperfections and oversights which must ever exist in so extensive a scheme as that contained in the present measure for local jurisdiction. And although the practice and framework of the new county courts bears but little resemblance to that of the old county courts at common law, yet, as all the general principles of common law are not merely applicable to common law practice, but to most legal proceedings, they will be found more extensive in the application to the new courts than it would at first appear. And these express provisions of the statute are the more necessary, as there is some doubt whether the general principles of common law could be applied in aiding and assisting in the carrying out of jurisdictions which, in some points of view, were diametrically opposed to it, like courts of conscience and courts of equity, to the former of which these new courts in some points, and indeed entirely in matters below forty shillings, resemble."

In the second, and more important part of the work, the jurisdiction of the courts, and the mode of proceeding therein down to the trial and execution, are detailed at length; and throughout the whole the plan laid down in the introduction of setting out the statute with comments, and of applying such of the common law as might bear on the subject, is fully and carefully carried

out.

In considering the enactments which declare the jurisdiction of the new courts, it becomes important to determine what is the meaning intended by the legislature of the words "a dwelling and carrying on a business," and what is the place where the cause of action arose, for on these will often depend the district in which the summons is to issue, as well as the right of the plaintiff to sue in the Superior Courts as he might have done if the County Court Act had not been passed. Mr. Moseley has very properly entered on these points, and with his wonted industry and research collected a great deal of useful law upon the same. It would occupy too much space here to quote in extenso what he has so written, and we can hardly

do him justice by abridging it. The following passages on this subject, abstracted from different parts, may, however, convey some idea of the manner in which it is treated, and be found interesting.

"In investigating the meaning of the word dwell, which is so important a word with respect to the new County Courts, we shall premise by observing, that, from common use and from the frequent dicta if not decisions of the judges, it would appear to be the same as that of inhabit and reside, and that the three words are synonymous. Thus in the case of the King v. Thomson, 2 Leach, 77, the court said that as no one had inhabited the house, i. e. slept there (for the goods had been removed into it), it could not be considered a dwelling-house. So in Rex v. Lyons, 2 East, P. C. 497, the court said that the house was no mansion in which burglary could be committed, because no one had inhabited it. So, as observed by Mr. Baron Alderson in Crease v. Sawle, 2 Q. B. Rep. 882, the court held in Sir Antony Earby's case, 2 Bulstr. 354, that the word inhabiting, as used in 43 Eliz. c. 2, as to poor-rates, meant dwelling. So Lord Ellenborough, in Rex v. Nicholson, said that there was no case in which the word inhabitant in the same statute had been held to mean other than a resident within the parish. (Vide per Holroyd, J. in Rex v. North Curry, 4 B. & C. 953.) And it was evidently considered by the court in that case, that the word inhabitant, irrespective of the subject-matter as to which it was used, or the context by which of course its meaning might be altered, was the same as resident. By the old law it is said, that a man after living in a place for three days was looked on as an inhabitant. The first day he was a stranger, the second a guest, the third an inhabitant. (Per Lee, C. J. in Rex v. Sowton Burr, S. C. 128.) But no authority is given for this, which appears more like a common saying than a legal maxim." *

"From the authorities it appears, that a party, in order to constitute a dwelling by him in any particular place, should not, only be staying or sleeping there by his own free-will, but he must also be living there with an intention of continuing to do so, or at least without any intention of departing forthwith, or to which, in case he departs for a time, he has an intention of returning. Thus the word domicile is defined by Vattel to be a fixed residence in any place, with an intention of always staying there, on which a learned Commentor, Dr. Story, remarks, It would be more correct to say, that that place is the domicile of a person in which his habitation is fixed without any intention of removing therefrom.' (Stor. Confl. of Laws, sect. 43.) And this word domicile would appear, in its common sense, to be equivalent to our word home, or the place in which a man dwells. For it was said by Erle, J. in Whitehorn, App. Thomas, Respond. (7 M. & Gr. 1,) that the word residence as used in the 2 Will. IV. c. 45, s. 29, as to a party being entitled to vote for a Member of Parliament, meant the same as his home,' although it had been contended on the authority of Stor. Confl. of Laws, sect. 41, that there was a distinction."