clause (s. 222) does not apply to this form of action. [BYLES, J.-The words of that section are certainly most general,-"in any proceeding in civil causes."] It has been observed that no forms of proceedings in real actions are given either in the act or by the rules made in pursuance of the act. The same, however, might be said of replevin and account, which are clearly within the statute.

[*731

Cur. adv. vult.

WILLES, J., now delivered the opinion of the court:This was a rule obtained by the plaintiff in quare impedit, calling upon the defendant to show cause why the plaintiff should not be at liberty to reply to several matters and demur.

The question is whether the 80th and 81st sections of the Common Law Procedure Act, 1852, apply to pleadings in quare impedit. It was argued before my Brother Byles and myself last term; and we took time to consider.

On the part of the defendant, upon the argument, it was pointed out that the act of parliament, as to the greater part, if not all, of its provisions, is expressly confined in its operation to actions over which the courts have a common jurisdiction; that, by the interpretation clause, the word "action" is to be understood to mean "any personal action brought by writ of summons in any of the courts:" that the word "action" in s. 81, so interpreted, would not include quare impedit; and that previous statutes for the amendment of the proceedings of the common law courts (2 W. 4, c. 39, and 3 & 4 W. 4, c. 42), and the rules founded upon them, did not apply to real actions: Barnes v. Jackson, 3 Dowl. P. C. 404.

On the other side, it was argued that the words used are general, and therefore, according to the ordinary rules of construction, are to be generally applied, there being no absurdity, and nothing repugnant to any other part of the statute, in so doing; that, with respect to the argument founded upon the general scope of the act, it proves too much, because the provisions as to juries at least are applicable to all actions, whether real or personal; and that the interpretation clause is inapplicable to restrain the language in question, because it could [*732 only do so by restraining the application of the word "action" to actions brought by "writ of summons," which would exclude replevin, and that would be inconsistent with the express mention of pleadings in replevin in the 86th section; and so, that there is "something in the subject or context repugnant to such limited construction."

With respect to decisions upon previous statutes and rules, they were distinguished, by reason of the different object in view and language employed. To this may be added, that the enactments in question are in pari materiâ with, and are introduced by way of extension of the provisions of Lord Somers's Act (4 Ann. c. 16, s. 4), which applies to all actions: see the argument in Davies, dem., Lowndes, ten., 7 M. & G. 762 (E. C. L. R. vol. 49), 7 Scott N. R. 539, and the pleas in the case now under discussion.

Upon full consideration of the statute and the arguments, we have come to the conclusion that the sections in question do apply. No sufficient reason has, in our opinion, been shown for refusing to give the words in question their ordinary meaning and construction. It may, indeed, be conjectured that this question did not suggest tself to the

minds of the framers of the act, and even that they had no formed intention of dealing with actions other than personal: but the words which they have used are capable of, and, not being restrained by the context, ought to receive, the wider application.

The rule must therefore be absolute: but, as the form of the proposed pleadings was not discussed before us, we are not to be understood as expressing any opinion upon their propriety.

Rule absolute.(a)

(a) See the case on demurrer reported post, Vol. VII.

*733]

*TOMLINE and Another v. CADMAN. June 16.

A protecting order under the 211th section of the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, is not void for want of notice to each creditor.

Neither is it any objection to its validity, in a proceeding in this court, that it professes to give protection until a certain day und until further order.

A WRIT of summons issued at the suit of the plaintiffs against the defendant on the 16th of June, 1858, endorsed for 331. 28. 3d. This writ was served on the 18th of June. On the 24th, the defendant presented his petition to the Court of Bankruptcy under the arrangement clauses of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, and a protection granted both as to the person and property of the defendant, until the 22d of July or until further order." On the 25th, an appearance was entered in the action. On the 28th, a declaration was delivered. On the 4th of July the plaintiffs received notice of the filing of the petition. On the 8th, the defendant pleaded nunquam indebitatus. The trial took place on the 22d of July, when a verdict was given for the plaintiffs, with immediate execution. On the same day, the defendant's proposal was accepted by the proper proportion of his creditors, and his protection renewed "until the 9th of August and until further order;" and on the 24th notice of the renewal of the protection was given to one of the plaintiffs. On the 27th judgment was signed in the action, and the costs taxed. On the 14th of August the plaintiffs issued a fi. fa., under which the sheriff's officer entered on the 16th. He was informed of the protection; but the officer, being indemnified by the plaintiffs, sold the goods seized to them for the sum necessary to cover the amount of the execution and the costs. Shortly afterwards, the sheriff's officer having advertised the goods for public sale, the defendant, supposing that to be a proceeding under the execution, tendered a sum of money, and afterwards brought an action against the sheriff to *recover it back. In that action he was nonsuited, *734] -his proper remedy being (the sheriff having only obeyed the writ) by application calling on the sheriff to refund the money. An application was afterwards made to Crowder, J., at Chambers; but that learned judge referred the parties to the court.

Manisty, Q. C., accordingly moved for a rule calling upon the sheriff (of Lancashire) or the plaintiffs to show cause why the proceeds of the goods seized under the fi. fa. should not be paid over to the defendant. The application was founded upon the 211th section of the 12 & 13°

Vict. c. 106, which enacts "that any such trader unable to meet his engagements with his creditors, and desirous of laying the state of his affairs before them, under the superintendence and control of the court of bankruptcy, and of submitting himself to the jurisdiction of the court in manner thereinafter mentioned, may present a petition to the court, setting forth the true cause of such inability, and praying that his person and property may be protected from all process until further order; and the court, on such petition, shall have power to grant such protection, and may renew the same from time to time as it shall think fit, and, if the petitioner be in prison or in custody for debt, may,-except in the cases next thereinafter mentioned,-order his immediate release, either absolutely or on condition, and may take bail for his attendance at the several sittings of the court thereinafter mentioned: Provided always that the court shall not order such release where it shall appear by any judgment, order, commitment, or sentence under which such petitioner is in prison or in custody, or by the record or entry of any such judgment, order, commitment, or sentence, and the *pleadings or proceedings previously thereto, that he is in prison or in custody [*735 for any debt contracted by fraud or breach of trust, or by reason of any prosecution against him whereby he had been convicted of any offence, or for any debt contracted by reason of any judgment in any proceeding for breach of the revenue laws, or in any action for breach of promise of marriage, seduction, criminal conversation, libel, slander, assault, battery, malicious arrest, malicious trespass, maliciously suing out a fiat in bankruptcy, or maliciously filing or prosecuting a petition for adjudication of bankruptcy: Provided also, that such release shall in nowise affect any rights of the creditor at whose suit such petitioner may be in prison or in custody against such petitioner, except the right of detaining him in prison or in custody, whilst protected from imprisonment by order of the court."

No

Welsby and M'Intyre (a) showed cause in the first instance.-The first answer to this application is, that it is made too late. The fi. fa. issued on the 14th of August, 1858, and was executed on the 16th; and the defendant obtained his certificate under the 221st section. application was made to the court or a judge; but the defendant erroneously brought an action against the sheriff (see the case Rideal v. Fort, 11 Exch. 849†), and now, when the plaintiffs' position is materially altered, and they are precluded from obtaining a dividend from the estate, he makes this application to the equitable jurisdiction of the

court.

The next objection is, that the protecting order of the 22d of July was bad for want of due notice to the creditors. Here, the notice was served upon one only of the two plaintiffs, which is clearly insufficient: *The Queen v. Gordon, Dearsley, C. C. 586. [WILLES, J.— [*736

You

That was inter apices. The court were not unanimous. have first to establish that there must be notice. The statute requires notice to be given: but the operation of the order of protection is not made conditional on the giving of the notice.] In Levy v. Horne, 5 Exch. 257,† it was expressly held that the certificate given to a petitioning trader under the 216th section only protects him from arrest at (a) As to the right of a second counsel to be heard on showing cause in the first instance,— Quære?

the suit of persons being creditors at the date of the petition, and who have received the notices required by the act. [BYLES, J.-We are not now on the effect of the certificate, but of the protecting order. The 215th section requires notice of sittings to be personally served on every creditor who was not present at a former sitting: but there is no such provision as to the protecting order. COCKBURN, C. J.-It may be that the Court of Bankruptcy will rescind its order, if it appear that notice has not been given.] It is a benefit given to the party, conditional on his complying with certain provisions. [BYLES, J.-Do you say that the miscarriage of a notice to one of a thousand creditors nullifies all that is done at the meeting?] As to the creditor who has not received notice. [BYLES, J.-This is only an interim order. Levy v. Horne was the case of a final certificate. COCKBURN, C. J.-Upon what provisions of the statute do you found your distinction as to the inefficacy of the protecting order quoad the creditor who has not been served?] The 211th. The protecting order is in general terms. [WILLIAMS, J.-The notice is made a condition precedent to the validity of the certificate under s. 216, but not of the protecting order.] The protecting order of the 22d of July is bad upon the face of it. It professes to give the trader protection till the 19th of August and till further order. The proper form of order is, "from the date hereof until the *. day of next, or until further order;" see Arch.

*737] B. L. Book II., p. 183 (11th edit.) [BYLES, J.-"And" and "or" are precisely synonymous there.] The validity of an order for protection not expressly in accordance with the prescribed form, was discussed in Ex parte Bowers, 1 De Gex, M'N. & G. 460, and in Bellhouse v. Mellor, 4 Hurlst. & N. 116.† There, the order was for protection until a certain time. Here, it is indefinite. [COCKBURN, C. J.— It seems to be surplusage to say that the party shall have protection until a certain day and until further order.] The form is part of the code. [COCKBURN, C. J.-It is not to bind parties to a slavish adherence to the words. BYLES, J.-Or to contradict the express terms of the act.]

Then, the order is not operative as to the costs, which do not constitute a debt until judgment signed, and consequently the sheriff was justified in levying them, no judgment having been signed until after the date of the protecting order. [WILLIAMS, J.-The costs are merely accessory. The certificate in bankruptcy and the final order in insolvency bar actions that are pending. In Southgate v. Saunders, 5 Exch. 565,† it was held that the costs are accessory to the principal debt, and the claim for costs would be barred by a certificate under s. 221, as it would by a certificate in bankruptcy, although it could not be proved under the fiat.] Reliance is mainly placed upon the lapse of time. [COCKBURN, C. J.-It may under the circumstances be reasonable that the creditors should retain so much as the amount of the dividend which they might have received. Manisty. That would be offering a premium to a creditor holding out. WILLIAMS, J.-If the defendant had taken the right course and gone before a judge at Chambers, instead of bringing an action against the sheriff, the plaintiffs would have been in time to prove. Their position was prejudiced by the defendant's *738] *erroneous proceeding. It would be better for the plaintiffs to adopt the suggestion of the court. M'Intyre submitted that the

plaintiffs should have half their costs also. [WILLES, J.-They are not entitled to costs. The judgment was not obtained until after the making of the order. The petition is the dividing line. You could not have proved for the costs.]

Manisty, in support of his rule, was stopped by the court.

COCKBURN, C. J.-Bellhouse v. Mellor, 4 Hurlst. & N. 116,† is expressly in point to show that this order is not void for defect of form: and all that the Lords Justices say in Ex parte Bowers, 1 De Gex, M'N., & G. 460, is that such an order as that was may be irregular, and may be rescinded by the Court of Bankruptcy. This order does not seem to me to be open even to the complaint of irregularity. The only ground not disposed of on the argument, is, the delay. I think there was good ground to apply to the court, but not to the full extent. The course pursued by the defendant in the first instance was an erroneous one, and operated to the prejudice of the plaintiffs, by diverting them from the course they might otherwise have taken, viz., by proving for their debt. Therefore, if Mr. M'Intyre would have acceded to the suggestion thrown out we should have been glad to be relieved from pronouncing a decision. He has, however, elected to stand upon his strict rights. I see no reason why the rule should not be made absolute; but I think it should be without costs.

WILLIAMS, J.-I am of the same opinion. I must confess I have felt somewhat embarrassed by the case of Ex parte Bowers. But the Court of Exchequer in *Bellhouse v. Mellor dealt with it in a way to bring it to the very words of this order. I do not think we can do better than follow the Court of Exchequer.

[*739

WILLES, J.-The objection in Ex parte Bowers was one of mere irregularity. I do not see how it can be necessary to renew an order made for protection until further order. I should have thought that the order in Ex parte Bowers could only be questioned in the court out of which the process issued. At all events, the case of Bellhouse v. Mellor is an authority that this is a valid order. With regard to the costs, they are merely accessory. The rule will be absolute as against the plaintiffs. BYLES, J.-I am of the same opinion. As to the lapse of time,—it is to be observed that the sheriff has been guilty of a continuing breach of duty from the seizure to the present time.

Rule absolute, without costs.

*BUTLER v. ABLEWHITE.

June 14.

[*740

The plaintiff had two permanent places of residence,-one, in London, where the defendant dwelt, and where the cause of action accrued,—the other more than twenty miles from London. At the time of bringing the action, the plaintiff was living with his family at his country residence-Held, a case of concurrent jurisdiction, and that the plaintiff was entitled to costs under the 15 & 16 Vict. c. 54, 8. 4.

THIS was an action brought to recover a debt of 177. 10s. for rent. After declaration, and before plea pleaded, an application was made to Byles, J., at Chambers, to stay the proceedings upon payment of the debt without costs, on the ground that this was not a case in which the superior courts had a concurrent jurisdiction, under the 128th section