XXVI. whereas, the acceptor of an accommodation bill, properly CHAPTER so called, who is compelled by an action to pay it, may have a claim upon the drawer for all the expenses of the action (ƒ). But an accommodation acceptor has no right to charge the party accommodated with the costs of an action, to which the accommodation acceptor had evidently no defence (g). If the case is tried before a judge without a jury the costs. costs are in the discretion of the judge (h). Before judge. But if the action is tried with a jury, the costs will follow With jury. the event, unless the judge or the Court for good cause otherwise order (i). when neces sary, to entitle But the Judicature Acts (k) expressly preserved the opera- Certificate or tion of sect. 5 of the County Court Act of 1867 (1), which order for, makes a certificate of the judge necessary to entitle a plaintiff to his costs "who recovers" (m), not more than 207. successful in contract, or 107. in tort. And that section applied where plaintiff to the plaintiff's whole claim was within the County Court costs. jurisdiction, and the amount was further reduced to the 201. or 107. limit by an established set-off, but not if the claim was so reduced by a counterclaim, for this is in the nature of a cross action, whereas set-off is a defence (n). The corresponding provisions now in force are those of the County Courts Act, 1888, 51 & 52 Vict. c. 43, s. 116, which is expressly limited to actions which could have been commenced in the County Court (0). (f) Ex parte Marshall, 1 Atk. 262; Jones v. Brooke, 4 Taunt. 464; Stratton v. Matthews, 18 L. J., Exch. 5; 3 Exch. 48; Garrard v. Cottrell, 10 Q. B. 679. (g) Roach v. Thompson, M. & M. 487; Beech v. Jones, 5 C. B. 696. (h) Ord. LXV. r. 1. But this discretion is judicial. Cooper v. Whittingham, 15 Ch. D. 501. Though for sufficient reason the party who succeeds may be ordered to pay the costs of his opponent. Harris v. Petherick, 48 L. J., Q. B. 521; 4 Q. B. D. 611. (i) Ord. LXV. r. 1. The application to the Judge who tries the action to "otherwise order need no longer be made "at the (k) 36 & 37 Vict. c. 66, s. 67. (m) An amount paid into Court (n) Stooke v. Taylor, 49 L. J., Q. B. 857; 5 Q. B. D. 569. (0) In case of any such action being brought in the High Court, then, if the plaintiff recovers less than 207. in contract or 10l. in tort, he is entitled to no costs. And if he recovers 201. but less than 50%. in contract, or 107. but CHAPTER JUDGMENT, EXECUTION. Abuse of process will be restrained. Abolition of arrest on mesne process and imprison By R.S.C., 1883, a further discouragement to proceeding in the superior Court is provided in the rule that in actions on contract in which the plaintiff recovers by judgment or otherwise, a sum, exclusive of costs, not exceeding 501, he shall be entitled to no more costs than he would have been entitled to had he brought his action in the County Court, unless the Court or a judge otherwise orders (p). Judgment may be entered by order of the judge at or after the trial (q), or he may leave either party to move for judgment (r). The subject of execution is now provided for by the Rules of 1883 (s), and the recent Sheriff's Act, 1887. After a party has levied the amount of the debt upon the goods of one of the parties liable on the bill, the Court will restrain him from levying it over again on the goods of another, and have intimated that they would punish a plaintiff who should take out execution on both judgments (t). A defendant cannot now be arrested in England in an action in a superior Court, unless the plaintiff prove by evidence on oath to the satisfaction of a judge, that he ment for debt. has a good cause of action to the amount of 501.(x) or less than 207. in tort, he is not to Bazett v. Morgan, 24 Q. B. D. than he would have been allowed in a County Court. As to costs in actions brought in the County Court, see C. C. Act, 1888, ss. 113, 118, 119. C. C. Rules, 1889 (Ord. L.), and scales appended thereto. (p) Ord. LXV. r. 12. See also Id. r. 27 (46). These rules only apply where the action could have been brought in a County Court. Saywood v. Cross, 14 Q. B. D. 53, 54 L. J., Q. B. 17. And as to costs in actions on Bill of Exchange under 501., see Central Office Practice Rules, 1880-88 (18), Fixed Costs. (q) Ord. XXXVI. r. 39. (7) Id. See as to motion for judgment, Ord. XL. (8) Ord. XLII; see also Bankruptcy Act, 1890, ss. 11, 12. (t) Windham v. Wither, 1 Stra. 515; Ex parte Wildman, 2 Ves. 115, n. (x) Formerly 20%. 1 & 2 Vict. c. 110. s. 3. upwards, and that there is probable cause for believing CHAPTER that the defendant is about to quit England, and that XXVI. his absence will materially prejudice the plaintiff in the prosecution of his action (y), and all imprisonment for nonpayment of money, except as contempt of Court, is now abolished. (y) 32 & 33 Viet. c. 62, s. 6. This section does not extend beyond final judgment. Hume v. Druiff, L R., 8 Ex. 214; 41 & B.B.E. G G CHAPTER To discuss at length the subject of bankruptcy would far exceed our limits. It is proposed, therefore, to give an outline of the law so far as it relates to bills of exchange and promissory notes, and when necessary from time to time to refer to the statute law as it existed before the present Acts (a). The acts of bankruptcy upon which a petition may now ACTS OF be founded are:-(a) Assignment by the debtor of his BANK (a) 46 & 47 Vict. c. 52 (1883); amended by 53 & 54 Vict. c. 71 (1890). The power of petitioning against himself given by the Act of 1849, s. 3, and the Act of 1861, 8. 86, but not renewed under the Act of 1869, is now restored by the Act of 1883. See ss. 4 (1) (f), 5 and 8. The ancient distinction between traders and non-traders, in determining what constitutes an act of bankruptcy, is abolished, RUPTCY: generally. |