the act. It matters not by what name or title the court is known, whether" as the Court of B.," or as the "County Court of A. holden at B.;" it is still only a court having a jurisdiction limited to the district of B. This construction seems to be more plainly the true one, when some of the sections of the act are looked at. By the third section it is enacted, that" every court to be holden under the act shall have all the jurisdiction and powers of the County Court for the recovery of debts and demands, as altered by the act, throughout the whole district for which it is holden; and there shall be a judge for each district to be created under the act, and the County Court may be holden simultaneously in all or any of such districts, and every court holden under the act shall be a court of record." The giving to the court constituted by the act expressly a jurisdiction over the district for which it is holden, is tantamount to denying it a jurisdiction beyond such district, on the principle of expressio unius est exclusio alterius; besides, if the court is only a district court of the County Court, and therefore has jurisdicdiction over the whole county, there could be no necessity for giving it jurisdiction over a district of such county. The indiscriminate use of the words "court holden under this act," and "County Court," throughout this third section, rather shows that the one is considered synonymous with the other, and that no distinction is intended between" a court holden under this act," and "the County Court, as altered by this act;" also the 61st section, which provides for the service of process beyond the jurisdiction of the court, clearly treats such jurisdiction as confined to the district of the court, and which must evidently be the district mentioned in the third section; for it says that any process" which, under the act, shall be required to be served out of the district of the court," may be served by the bailiff of any other court, as if the service had been made by the bailiff of the court out of which it issued, " within the jurisdiction of the court for which he acts." There are other sections to the like effect; we might call to our aid those referred to by Mr. Moseley, as limiting, as he says, the general jurisdiction; but enough has been said on this point; we have stated our opinion and reasons, and we must leave it to others to decide.

It was not to be supposed that a measure so extensive as that of the new County Courts could be long in operation before various nice and important questions would arise. These have not been wanting. Amongst the most prominent is the question, what is a splitting of a demand within the meaning of the 63rd section of the act. It is one which has attracted considerable notice ever since the well-known decision of the judge of the Bristol County Court, and therefore the following pas

sages, selected from the observations Mr. Moseley has made on the subject, although evidently written before that decision was reported (as no allusion is made to it) may not be deemed unacceptable.

"Where goods have been supplied at different times on credit, and the credit for part of which has expired, but the other not, there would appear to be no reason why a party might not sue for the value of first-mentioned goods without prejudicing his claim for the value of the other goods, for the cause of action' is not the same, at least if the goods were supplied at different times and not the same bargain, or in pursuance of the same order, though semble otherwise if the contrary. So where divers works and services have been rendered in pursuance of one general retainer, as in the case of an attorney conducting a cause, or of a surgeon attending a patient, the nonpayment for such work and services and goods supplied, and money in aid and assistance thereof, will constitute one cause of action. But if such work and services and professional assistance were rendered on several distinct times, and in pursuance of several distinct retainers, these will be so many distinct causes of actions, and each may be sued for separately."

"And for general rule and for ordinary purposes, the sum claimed by the plaintiff in his writ is the debt for which the action is brought. But this is by no means conclusive on this point. For if the amount as claimed in the writ were to be the only consideration as to whether the inferior court had cognizance or no, the plaintiff, by splitting a large demand into several smaller ones, might avoid the precautions of limiting the inferior jurisdiction in amount, and he would be enabled to vex and harass the defendant with an infinite number of suits, and indirectly to oust the jurisdiction of the superior courts altogether. But this of course he cannot do. (2 Inst. 312.) And the real sum for which the action is brought, or the amount of the cause of action that is sued upon, is the whole sum due or recoverable at the time of the commencement of the action on that contract or tort on which the plaintiff sues. (Vide cases infra.) And therefore, where a larger sum is due to the plaintiff, but he owes the defendant such a sum as will reduce his demand to an amount within the jurisdiction of the inferior court, yet the first sum is the cause of action, and he will not be entitled to make the set-off on entering his plaint, so as to sue there, for, as said by Lord Abinger, in Jenkinson v. Norton (5 Dowl. 76), the statutable right to set-off does not extinguish the debt, but only gives a party power to avail himself of it in that manner. (See Penney v. Squier, 2 B. & Adol. 142.) Besides the set-off admits the existence of the debt, and therefore will not take the case out of the statute. (Per Burrough, J., 4 Bingh. 17.) Care, however, must be taken to distinguish between what, by the terms of the original contract, is to operate as a reduction of the sum to be due on that contract, and what arises by some subsequent contract, and as such is only subject matter of a set-off. Thus, where a plumber brought an action for work and materials found, in the superior court, but it appeared that defendant was entitled to a deduc

tion for old lead by the terms of the original contract, which made the sum recoverable less than five pounds, and so within the Southwark Court of Request Act, Lord Ellenborough held that this was not in the nature of a cross demand, but a condition of the original contract, and that the sum due on that contract was the amount of work and new lead, minus the value of the old lead. (Porter v. Philpot, 14 East, 344.) So where the account contained items to upwards of five pounds, but by part payments that sum was never actually due, it was held that the debt or cause of action was for less than five pounds. (Pope v. Barnard, 3 M. & W. 424.-See Moreau v. Hicks, 1 H. W. 87). As to a balance, see Green v. Bolton (4 Bingh. N. S. 308)."

The question, with all the recent decisions thereon, was so fully entered into and discussed in an article on the County Courts in our last Number, that it is unnecessary for us now to add to it anything more; but upon another point, which has of late been frequently mooted, viz. the landlord's right of priority in respect of rent over an execution creditor, it may be useful to make a remark. The question turns on the construction to be put on the 107th section of the Act. The following are the words of that section :—

"Be it enacted, that so much of an act passed in the eighth year of the reign of Queen Anne, intituled "An Act for the better Security of Rents, and to prevent Frauds committed by Tenants,' as relates to the liability of goods taken by virtue of any execution, shall not be deemed to apply to goods taken in execution under the process of any court holden under this act; but the landlord of any tenement in which any such goods shall be so taken shall be entitled, by any writing under his hand or under the hand of his agent, to be delivered to the bailiff or officer making the levy, which writing shall state the terms of holding, and the rent payable for the same, to claim any rent in arrear then due to him, not exceeding the rent of four weeks where the tenement is let by the week, and not exceeding the rent accruing due in two terms of payment, where the tenement is let for any other term less than a year, and not exceeding in any case the rent accruing due in one year; and in case of any such claim being so made, the bailiff or officer making the levy shall distrain as well for the amount of the rent so claimed, and the costs of such additional distress, as for the amount of money and costs for which the warrant of execution issued under this act, and shall not proceed to sell the same or any part thereof within five days next after such distress taken; and if any replevin be made of the goods so taken, such of the goods shall be sold under the execution as shall satisfy the money and costs for which the warrant of execution issued, and the costs of the sale; and the overplus of such sale (if any), and also the residue of the goods, shall be returned as in other cases of distress for rent, and replevin thereof; and for every such additional distress for rent in arrear the high bailiff of the court shall be entitled to have as the costs of the distress, instead of the fees allowed by this

act for making such distress, and keeping possession thereof, the fees allowed by an act passed in the fifty-seventh year of the reign of King George the Third, intituled An Act to regulate the Costs of Distresses levied for Payment of small Rents.'

In Barr v. Reid (see "County Courts Chronicle," p. 41,) Mr. Moylan, the judge of the Westminster County Court, held that the statute of 8 Anne, c. 14, was not in substance repealed by the above section, but that the landlord still was entitled to precedence over the execution creditor. After remarking on "the old inviolability of the tenant's goods," Mr. Moylan says, "under the new law this precedence or superior right of the landlord is merely modified, and in cases of small tenancy still further restricted in amount. He must go through certain forms to assert his right. The onus of inquiry is no longer on the high bailiff as it was formerly on the sheriff; the principle of precedence remains quite untouched. If it were not so, why impose upon the landlord the trouble and expense of serving on the high bailiff any notice of his claim for rent? Could it be to secure to him what is already, and must continue to be his as long as the rights of property are respected? This would be tantamount to a declaration that the landlord's right to his rent is not to be altogether forfeited; on the contrary, this section is a clear and equitable one and as plainly expressed as the English language can express it." Mr. Moylan then refers to the 118th section, by which, in case of any claim by the landlord, power is given to the court to adjudicate thereon, and contends that such provision would be useless if a contrary construction were put upon the 107th section. Mr. Udall, in his edition of the act, is also of opinion that if the landlord claims for rent, he is to be paid before the execution creditor, and the same view is supported in an article in the "County Courts Chronicle." On the other hand, Mr. Francillon, in Clissold v. Jefferies (see "County Courts Chronicle," p. 63,) has holden that the landlord has not such priority, but that after claim of rent it is the duty of the bailiff to make a further levy or distress, and that the execution is to be satisfied out of the proceeds of the first and the rent out of those of the second. This de-. cision has since been followed by one pronounced by Mr. Ingham, the judge of the County Court at Carlisle, in the case of Duke of Devonshire v. M'Cutcheon (see "County Courts Chronicle," p. 82,) and which equally determines that the land lord is not entitled to precedence. Also Mr. Collyer, the judge of the County Court at Biggleswade, is reported to have said, upon being referred to the case of Clissold v. Jefferies, "that he entirely agreed with Mr. Francillon in his construction of the Act." (See 10 Law Times, p. 25.)

The weight of judicial authority decidedly preponderates against the landlord's right to precedence. We incline to think that the decision of the majority is right. At common law the landlord had no such priority. The 8 Anne, c. 14, s. 1, gave him such right by obliging the execution creditor to pay him, before sale and removal, the rent, not exceeding one year's rent, which might be due. This was the only statute law by which the landlord was entitled to precedence prior to the County Courts Act. The 107th section begins by repealing this very statute of Anne as to goods taken in execution under process from the County Courts. The landlord is thereby placed, as to such goods, in the same situation as any other creditor; so that his claim to priority must rest solely on the County Courts Act having afterwards conferred this right on him. Is there then anything in the 107th section which confers it? Expressly it clearly does not; does it impliedly? Surely it would be strange to expect that the very section which begins by expressly taking away this right should afterwards impliedly concede it. We certainly see nothing that warrants such a construction, but think that there is much truth and reason in the following expressions which are reported to have fallen from Mr. Ingham: "The fact of a provision having been made in case of replevin, whereby it is expressly enacted that the execution creditor shall, notwithstanding such replevin, proceed to sell, I think shows distinctly that the legislature intended that the landlord should no longer have this priority. Nor can I see on what principle of equity or justice that priority should exist, or why the man who finds a shelter should be paid before the man who provides the daily bread."

Our space will not allow us to say more on this question nor to comment on the other points which have arisen. Mr. Moseley has treated on some and anticipated others, but cases have arisen and will necessarily occur which he could not possibly have contemplated when he was writing. The law and practice of these courts cannot be well understood until they have been for some time in operation. The practice cannot be created at once, nor can the law (though it be only the common law engrafted on the statute law) be quickly fashioned. Time must do the work. Out of the difficulties and questions which must. continually arise whilst the courts are as it were feeling their way, both the law and the practice will grow. In the meantime it is very difficult to write a good and impossible to write a perfect treatise on the subject. As a foundation for the superstructure Mr. Moseley's work is entitled to praise and will be of considerable service.