At the trial at Bury St. Edmund's at the last Spring Assizes, before Williams, J., a verdict was entered for the plaintiff, leave being reserved to the defendants to move to enter a nonsuit. A rule nisi having been obtained, Phear (O'Malley with him), showed cause. William Ford, by adverse possession for twenty years and upwards, acquired a good title to the property as against his father, Robert Ford, and those claiming under him. But there is a preliminary objection to there being any defence to this action at all. The vendors of the defendants, at the time they paid the 57. to William Ford to get him out of possession, knew that he was tenant of the plaintiff, and they, and those claiming under them, are therefore estopped from disputing the landlord's title: Doe d. Bullen v. Mills, 2 Ad. & Ell. 17; and Doe d. Johnson v. Baytup, 3 Ad. & Ell. 188. As to the merits of the case, I must admit that the case of Doe d. Palmer v. Eyre, 17 Q. B. 366, is somewhat against me; but that case is distinguishable from the present. There, it did not appear but that the mortgagee in some way took possession. Here, the mortgagee did not take possession, unless William Ford became his tenant, which it is clear he did not; and the mortgagor did not remain in possession, for William Ford was tenant at will to him, and this tenancy was severed by the act of the mortgage. All, therefore, that the mortgagee obtained was a mere interesse termini, which is not within the protection of 7 Will. 4 & 1 Vict. c. 28. Hence there is no title to be considered but that of the mortgagor, and those claiming under him, who are clearly barred by the twenty years' adverse possession of William Ford. D. D. Keane supported the rule. At the time the 57. was paid the first action of ejectment was actually pending, and a copy of the writ had been served upon William Ford, and an appearance entered on behalf of the present plaintiff. Interest was paid under the mortgage down to 1848, and so within twenty years from the time of action. recover land mortgaged, in respect of which interest has been paid within twenty years. The plaintiff also relies upon some kind of tenancy having existed, before the mortgage from the son to the father, of the land in question, and upon the fact that no rent was ever paid in respect thereof; but there is no authority wanted to show that the mortgagee has a right to assert his title against any one claiming under the mortgagor, although the latter, as in the present case, has neglected to demand rent from his tenant. CHANNELL, B.-I am of the same opinion, and in arriving at my decision I do not mean to cast any doubt upon the cases of Doe d. Bullen v. Mills, and Doe d. Johnson v. Baytup (ubi suprà), which were cited in support of the plaintiff's case. These cases tally with the present one up to a certain point, but differ as to the circumstances under which the parties held to be estopped were let into possession. The two cases cited by Mr. Keane are decisive in the matter. Rule absolute. Ex. NOBLE V. THE GOVERNOR AND COM12 JUNE, 1863. PANY OF THE BANK OF ENGLAND. Lost Bank-note-Indemnity-Right to CostsSheriff's Court. A plaintiff who recovers in a Superior Court the amount of a lost bank-note, under 201., against the Governor and Company of the Bank of England, whom he indemnifies, is deprived of his costs under sect. 120 of "The City Small Debts Act;" although he has no remedy in the Inferior Court, if the Bank set up the loss. This was an action brought by the plaintiff, Mary Ann Noble, to recover from the defendants, the Governor and Company of the Bank of England, the amount of a 107. note, which had been burnt by mistake. The declaration alleged "that the defendants on the 7th day of September, A.D. 1861, by their promissory note, numbered 28,789, promised to pay to the bearer on demand 107., and the plaintiff became and was the lawful bearer of the said promissory note, and duly demanded payment thereof, yet the defendants refused to pay the same, and the plaintiff claims 107.” Doe d. Palmer v. Eyre, ubi suprà, and Doe d. Baddeley v. Massey, 17 Q. B. 373, are conclusive in the defendants' favour, since they show that the twenty years' limitation, under 3 & 4 Will. 4, c. 27, s. 2, ran from the last payment of PLEAS.-1st. "That the said note is a Bank of interest under the mortgage. Those cases, upon being narrowly looked at, will be found to decide the ques-transferable by delivery; and after the making of the England note, payable to bearer on demand, and tion. POLLOCK, C.B.-I think the defendants are entitled to have their rule made absolute. The case of Doe d. Palmer v. Eyre, cited by Mr. Keane, is really precisely in point. The preliminary objection, as to the payment of the 57. to William Ford having amounted to an estoppel, cannot be sustained upon the merits of the case. The claim is made by the plaintiff to said note, and whilst the plaintiff was the bearer thereof, and before she demanded payment thereof, the plaintiff lost the same out of her possession and control, and the same thence hitherto has remained, and still is, so lost. 2nd. 66 That the plaintiff did not duly demand payment of the said note as alleged. 3rd. "That the said note is a Bank of England note payable to bearer on demand, and transferable by delivery, and that the plaintiff did not present the said note for payment. Hill, by them on the same day paid to Messrs. Lane, by them on the same day paid to Mrs. Noble, who lost the note with others. They were found and distri4th. "That the plaintiff was not at the commence-buted to various persons, and the note in question to our ment of this suit the lawful bearer of the said client, by whom it was destroyed, under the impression promissory note." Wilde, B., on the application of the plaintiff by summons under section 87 of the Common Law Procedure Act, 1854, made the order following, dated the 1st of May, 1863 :-"I do order that the loss of the note upon which this action is brought shall not be set up, provided an indemnity is given, to the satisfaction of the Master, against the claims of any other person upon the said note. The first plea to be struck out, and the loss of the instrument not to be set up under the other pleas." The defendants then took out a summons to strike out all their pleas, and substitute a plea of payment of the 107. into Court. This was consented to, and an order to that effect made by Bramwell, B. The plaintiff replied satisfaction, and then took out the ordinary summons to recover her costs, upon the return of which summons, Wilde, B., intimated that he was desirous of giving the plaintiff her costs, but that, having regard to the sections of the various Acts in reference thereto, he doubted his power to do so. He accordingly indorsed the summons-" No order; but fit case for the Court." A rule having been obtained by Robinson on the 9th of June, 1863, calling on the defendants to show cause why the plaintiff should not recover her costs by virtue of section 122 of "The London Small Debts Act" (15 Vict. c. lxxvii.), and why the Master should not tax the same, Hannen now showed cause. The affidavits disclose the following state of facts: On the 16th of February, 1863, Mr. Butler, the plaintiff's attorney, who had applied to the defendants twelve months previously, now wrote them to the effect that a Mr. Chipperfield having destroyed the note in question, and the plaintiff having waited twelve months from the time of the loss before making that application, he (Mr. Butler) desired to know what steps the Bank required him to take to entitle him to payment of the amount of the said note. To this letter the defendants replied that they would give full instructions to any one who would call upon them on the subject. It appeared that some one did call, who gave them information about the number of the note, and said that it had been destroyed, with certain other notes by Mr. Chipperfield, under the idea that it was a 'flash note." On the 24th of February, 1863, Mr. Butler, the plaintiff's attorney, attended at the office of the Secretary to the Bank, and was told that the account was incredible. The same day Mr. Butler wrote: "We have traced that note as having been paid on the 21st of February, 1862, to Messrs. Simms and that it was a 'flash note.' The others were traced and recovered." On the 2nd of March the defendants wrote:-"It is necessary in the case of a stolen note that the party claiming it should be able to prove that he received it in the course of business, and gave value for it without notice. The facts, as stated by you, don't appear to establish this position, but the contrary, and we don't, therefore, understand upon what principle you ask for payment." Upon the same day, without any other explanation, the plaintiff's attorney sent a writ in the name of Mrs. Noble, and not of Mr. Chipperfield, whom he had hitherto represented as his client. On the 4th of March the defendants wrote again, requiring evidence of the title and an indemnity before the amount of the bill could be paid, in answer to which the plaintiff's attorney wrote, "Mr. Chipperfield will give any indemnity to the Bank they may require." To the plaintiff's declaration the defendants pleaded four pleas. The only regular course for the plaintiff was to go to a Judge for an order, under sect. 87 of the Common Law Procedure Act, 1854, to restrain the defendants from setting up the loss, upon the plaintiff giving an indemnity; and accordingly that was done. But the effect of the proceedings, if left as they are, is this, that the order of Wilde, B., renders them liable to pay the costs. But they ought not to be burdened with the costs, as these pleas were to answer the purpose of protecting the real owner of the note. [WILDE, B.--The argument of the other side was, that the plaintiff could recover the costs, because she could get the Judge to certify. To that it was answered, that "the City Small Debts Act" did not confer that power. It did contain, however, a clause that the plaintiff should be entitled to his costs when the cause could not be tried in the Sheriff's Court: and it was argued that this could not be tried there, because it would immediately be met with the fact that no indemnity could be secured there.] But the circumstance that no indemnity could be secured there does not entitle the plaintiff to costs when she sues in a Superior Court. By sect. 120 of "The City Small Debts Act," plaintiffs recovering in the Superior Court less than 207. in contract, shall have no costs, except in the cases thereinafter provided. Then, by sect. 122, power is given to the Court, or a Judge, to give costs where the cause was one in which concurrent jurisdiction is given to the Superior Courts, or for which no plaint could have been entered in the Sheriff's Court, &c. It is clear that this cause might have been entered in the Sheriff's Court; and, therefore, the plaintiff is disentitled to the costs. Robinson, in support of the rule. The real question is, what is the meaning of the words, "or in which no plaint could have been entered in the Court?" That can only mean cases where, from their nature, no plaint could have been successfully tried there. In the present case the plaintiff has a right of action, but she can only pursue it in the Superior Courts. Is she, then, to lose her costs by going to the Superior Court, when she has no remedy in the County Court? The policy of the County Court Acts is to send suitors to the County Courts where the cause is proper to be tried there, but to leave them to the Superior Courts where it cannot be tried in the County Courts. To bring this action in a County Court, would be to rush upon inevitable failure; and, therefore, the Act, which was intended to supply a remedy, would be to a great extent inoperative, if the plaintiff in this case were deprived of her costs. POLLOCK, C.B.-We are of opinion that the rule must be discharged. In my judgment the case is one in which we have no power; there is clearly a casus omissus. The action might have been brought in the Small Debts Court, as in the Superior Court: but in the former a Judge has not the power to strike out the defence of loss as he has in the latter Court. We are asked by the plaintiff's counsel to stretch the language of this Act, so as to meet the present case. I think it is clearly a casus omissus. The rule must be discharged. MARTIN, B.-I do not mean to express a strong opinion to the contrary. I think the question is not likely to occur again. I don't believe that any person would have told the plaintiff that she could maintain an action in the Sheriff's Court. The difficulty here is, whether the clause of the City Small Debts Act is properly applicable to a case of this kind? For where the plaintiff could only recover by bringing her action in the Superior Courts, I for one would give her the costs. CHANNELL, B.-I agree with the opinion of the Lord Chief Baron. Sect. 120 merely deprives the plaintiff of his costs, unless he can bring himself under sect. 122. I am of opinion that the plaintiff in this action must fail of obtaining costs, because I think the words of sect. 122 do not admit of the interpretation it has been sought to give them. There are certain cases where the County Courts have no juris diction, as in slander, &c. But here the cause might have been entered in the County Court, although it might not have been successful there. to do. The Bank, nevertheless, pleaded four pleas, which she had to apply to have struck out. Clearly, as a matter of justice, it appears to me that the plaintiff ought to have her costs. But then there are the words of the Act. Although I think to a great extent with my Brother Martin, yet I think that the words of this Act leave us no power to give the plaintiff her costs. The words, "or in which no plaint could have been entered in the Court," mean "for which no plaint could have been entered according to law." The plaint might have been entered in the Court below as well as in the Court above. If the defendants had been disposed not to dispute the loss, it might have been decided in the inferior Court, as well as in this. Therefore our judgment must be for the defendants. Rule discharged. Ex. 12 JUNE, 1863. Į LA BANCA NAZIONALE, SEDE Pleading - Amendment—Substitution of Parties To an action brought by a foreign banking firm, under the corporate name used by them in Italy, viz., "La Banca Nazionale, sede di Torino," the defendants pleaded that the plaintiffs were not a body corporate, nor entitled to sue in this country by the said name and style; and thereupon the plaintiffs applied to the Court to amend the proceedings by inserting the name of A M, the director of the said Turin branch, as the nominal plaintiff, on behalf of the said Turin branch, or by describing the plaintiffs as represented by the said ▲ M, the director of the said branch, &c. The Court allowed the amendment, on payment of the defendant's costs. This case turned on the substitution of another name in place of the plaintiffs, in the writ, declaration, and subsequent proceedings, in an action upon certain bills of exchange, the plaintiffs having first sued under the name and style of "La Banca Nazionale, sede di Torino ;" and the question was, whether they were entitled to sue under that name in this country, as well as in Italy. The declaration alleged in effect that the defendant made the several bills of exchange in writing therein mentioned directed to one Leonardo Sacerdote as the acceptor; that the defendant then indorsed the same to one Ludovico Laurent, who indorsed them to the Central Administration of La Banca Nazionale, by whom they were indorsed to the plaintiffs; and that they were dishonoured by the said Leonardo Sacerdote, &c. Sixth Plea." That the plaintiffs at the commencement of this suit were not a body corporate, nor entitled to sue in this country by the said name and style." 11 JUNE, 1863. Lucius Kelly obtained a rule calling on the defendant to show cause peremptorily on the following day, the 12th of June instant, "why the plaintiffs should not be at liberty to amend the writ, declaration, and subsequent proceedings in this action by inserting the name of Augustin Mottura, the director of the Turin branch, as the nominal plaintiff on behalf of the Turin "sede," or branch, of the said bank; or by describing the plaintiffs as represented by the said Augustin Mottura, the director of the said branch, and by making the necessary alterations accordingly upon notice of this rule to be given to the defendant, his attorney, or agent." 12 JUNE, 1863. Watkin Williams now showed cause. [POLLOCK, C.B., referring to a case of La Banca Nazionale, sede di Torino v. Sichel and Another, in which cause had been shown that morning by Temple, Q.C., the facts of which were identical with the present case, remarked that the Court had in that case advised the defendants to undertake to try the question in the cause, without objecting to the form in which it was brought, on the plaintiffs giving a bond to pay the costs of the transaction, which they had consented to do.] There is an objection to that course here, as our costs have not been paid. This amendment comes within section 36 of the Common Law Procedure Act, 1852, which section is to be taken in connection with section 35 of the same Act, and which makes the payment of costs a condition precedent. It was decided in a case in the Common Pleas that section 222, which gives the general power of amendment, was not intended to apply to the joinder of parties already provided for by sections 35 and 39: Garrard v. Giubilei, 11 C. B. (N. s.) 616; 31 As a matter of practice, these securities for costs are never worth anything. In one case, that of La Société Générale de Clippers Français, the costs were nearly 20007. more than the amount of the indemnity. The present case is likely to be very complicated, being about a foreign railway. [CHANNELL, B.-But what objection have you to it, if the security is increased?] If they are to give a bond for our taxed costs, I agree to it. amending by allowing the names of two trustees to be substituted, in an action of ejectment, for the name of a person only beneficially entitled.] That case was discussed in Garrard v. Giubilei, where it was, nevertheless, decided that the Courts had no power to introduce a new party; viz., a wife dum sola. The Bank of Italy wishes to substitute an entirely new party, i. e., a new plaintiff. If the amendment be allowed, the plaintiffs should In an action for fraudulently misrepresenting to plaintiff that a certain tradesman (who soon after became bankrupt) was trustworthy—primâ facie evide 100 was given that defendant, at the very time of making the representation, had bought goods below their value from the tradesman in question,—the inferencs being, that defendant was fully acquainted with the tradesman's insolvent circumstances: Held, that defendant, in answer to such evidence, might call a witness who had been privy to all the said transactions between defendant and the tradesman, to say that, in his belief, the tradesman was trustworthy when the representation to plaintiff was made:— Held, also, that defendant might go on to call filler[Kelly. I don't see why the bond should be in-townsmen of the tradesman, as witnesses, to say that creased; at the time the case was gone into, the the tradesman's reputation for trustworthiness at the whole matter was considered.] time in question was good. If that is to be the practice, I would rather have my plea. The plaintiff's ought to be compelled to come forward in a name in which we can touch them. The Court has no power to amend by substituting a new plaintiff. [CHANNELL, B.-In Blake v. Done (7 H. & N. 465; 31 L. J. Ex. 100), this Court went a long way in The plaintiff in this case had been led to trust Watson-a tradesman-with goods, on the strength of a letter of the defendant's, which stated that, to the best of defendant's knowledge, Watson was trustworthy. Evidence to establish the scienter had been given at the trial, to the effect that, at the date of the letter (24th of October, 1860), defendant had bought goods of Watson (who subsequently was made a The defendant next called three of Watson's townsmen in succession, and asked them each, "What was the reputation of Watson in October, 1860, as to his trustworthiness as a tradesman?" The question in each case was objected to, but admitted. The answer in each case was to the effect that Watson's reputation for trustworthiness at the time was good. A new trial having been moved for on the ground of improper reception of evidence, the Court of Exchequer discharged the rule, holding* (Bramwell, B., dissentiente), that the questions were admissible, and that the evidence was rightly received. The plaintiff now appealed. D. Keane, for plaintiff. to all his fellow-townsmen. On the other hand, when a prima facie case has been established against defendant, he, I think, may call all the persons from the neighhourhood who have had dealings with the tradesman to say that the tradesman's credit was good at the time and that is moral evidence that there was no fraud. Here, indeed, all the persons from the neighbourhood were not called; but that goes only to the weight of the evidence, and not to its admissibility. The rest of the COURT concurred. Quarter Sessions-Appeal-Order for Costs12 & 13 Vict. c. 45, s. 5-11 & 12 Vict. c. 43, s. 27. An order for costs made by the Court of Quarter Sessions, under 12 & 13 Vict. c. 45, s. 5 [which enacts, that upon any appeal to Quarter Sessions, the Court may order and direct the party against whom the same shall be decided, to pay costs to the other party, such costs to be recoverable in the manner provided by 11 & 12 Bulwer (Cherry with him), for defendant, was not Vict. c. 43, s. 27], is rightly made, directing the unsuccalled on. COCKBURN, C.J.-I think the evidence was admissible. cessful party to pay the costs to the Clerk of the Peace to be by him paid over to the successful party. Chamber. This case was originally before the Court below, There are two points. 1st. Was the evidence of the shop-upon some demurrers which arose in the course of man who was asked whether Watson, in October, 1860, the pleadings in an action of replevin. A single to his belief, was trustworthy, admissible? 2nd. point only came before the Court of Exchequer Was the evidence of the townsmen admissible, who were asked as to Watson's general reputation in October, 1860, for solvency? The question as to the shopman's belief might be exceptionable, were it not that, having relation to the previous evidence and the case put forward by plaintiff, it became relevant. Certain circumstances were shown, from which the jury were asked to infer, not only that Watson was untrustworthy, but that the defendant must have known it. The defendant's shopman is then asked, in reply, how far he, knowing all those circumstances as well as the defendant, still believed Watson to have been trustworthy. I think the question is legitimate. As to the second question, touching Watson's general reputation of solvency, we must remember the issue was, what was defendant's state of mind at the time he wrote the letter? You cannot see into his mind. All you can do is to establish a state of facts from which you may infer that he believed Watson to be solvent, or the reverse. Surely the plaintiff might, in such case, call all the, inhabitants of the neighbourhood to say, that not only was Watson insolvent, but that his insolvency was notorious. The probability is, that a townsman shares in a belief that is common * 1 H. & C. 358; 32 L. J. (N.s.) Ex. 124. The plaintiff had appealed to Quarter Sessions against a poor-rate, and, the appeal having been dismissed, an order was drawn up under 12 & 13 Vict. c. 45, s. 5, directing him to pay the costs "to the clerk of the peace of this Court to be by him paid over to the parties entitled to the same." The plaintiff now contended that the order was badly drawn, and that, in conformity with the Act, it should have directed him to pay costs "to the other party," and not "to the clerk of the peace." The Court below* (WIGHTMAN, J., dubitante) having decided that the order was rightly made, the plaintiff now appealed. H. James, for the appellant.-12 & 13 Vict. c. 45, s. 5, enacts that the Court shall order costs to be paid, not to the clerk of the peace, but to the other party: doing away with the intervention of the clerk of the peace. True, it says the costs are to be recoverable, as pointed out in 11 & 12 Vict. c. 43. But even supposing that, if they are not paid, a certificate may be necessary from the clerk of the peace before a warrant of distress issues (which is itself 32 L. J. M. C. 62. |