notice that, unless these attachments are forthwith withdrawn, rules for writs of prohibition will be applied for, and costs will be asked for against the plaintiffs." Gates shewed cause upon affidavits which in substance stated that the plaintiffs carry on business in co-partnership at No. 41, Lombard Street, in the city of London, under the style or firm of "Jay Cooke, McCulloch, & Co.," and do not carry on business together in the United States, as alleged, nor are all the members of the co-partnership citizens of the United States, but two of them are British subjects resident in this country; that the actions were brought by the plaintiffs as indorsees of several bills of exchange against the defendants as drawers and indorsers; that the bills came into the hands of the plaintiffs at their bank in London about the end of October, 1872, and were presented at The Union Bank of London, within the jurisdiction of the Mayor's Court, for acceptance and payment, but the said bank refused to accept or pay the same; that, by the refusal of the bank to accept, a breach of the defendants' contract as drawers and indorsers of the bills had taken place in this country within the jurisdiction of the Mayor's Court, and a cause of action had accrued in respect thereof; and that the first attachment was withdrawn solely on account of a mistake in the names of the parties in the first action. A material part of the cause of action, viz. the receipt of the bills by the plaintiffs, their presentment to the drawees, and the refusal of acceptance or payment, took place within the city of London. In the notes to Peacock v. Bell in 1 Notes to Saund. Rep. at p. 99, n. (3), it is said that, "in actions in inferior courts, it is necessary that every part of that which is the gist and substance of the action should appear to be within their jurisdiction." It is enough, therefore, if the contract is to be performed within the jurisdiction. "Cause of action" does not necessarily mean the whole cause of action; but the act on the part of the defendant which gives the plaintiff his cause of complaint-Jackson v. Spittal (1),-in this case, the failure to pay the bills on the default of the drawees. The indorsement was not complete until (1) Law Rep. 5 C. P. 542. 1873 COOKE v. GILL 1873 СООКЕ v. GILL. the bills reached the hands of the plaintiffs in London: Chapman v. Cottrell. (1) [BOVILL, C. J. This being a proceeding in an inferior court, it is necessary to shew that every material fact took place within the jurisdiction of the court: 1 Ch. Pl., 7th ed. 287. KEATING, J. In the copy of the Law Reports in this Court, I find in the hand-writing of my late Brother Willes the following addition to the head-note to Mayor of London v. Cox (2) :—“ The cause of action must arise and the garnishee reside within the city, in order to give the Lord Mayor's Court jurisdiction." We have repeatedly held since that that means substantially the whole cause of action. BRETT, J. In Banque de Credit Commercial v. De Gas (3), bills of exchange were drawn and accepted abroad, and indorsed by the defendant abroad, one of them being payable in London, the others in Liverpool. The plaintiffs, foreign bankers, having no residence or place of business in London, as indorsees of the bills sued the defendant (who likewise had no residence or place of business in London) in the Mayor's Court, and attached moneys of his in the hands of the garnishee, a banker in London; and this Court made absolute a rule for a prohibition; holding, upon the authority of Mayor of London v. Cox (2), that the Mayor's Court had no jurisdiction, the cause of action not arising within the city, and the parties to the suit being both resident abroad.] Formerly the declaration in the Mayor's Court was general; but,in deference to the decision of the House of Lords, the modern form contains the words "and within the jurisdiction of this court:" Brandon's Pr. of Mayor's Court, ed. 1871, p. 66. Sect. 15 of the Mayor's Court of London Procedure Act, 1857 (20 & 21 Vict. c. clvii.), enacts that "no defendant shall be permitted to object to the jurisdiction of the court in or by any proceeding whatsoever except by plea:" and s. 12 enacts that, "where the debt or damage claimed in any action shall not exceed the sum of 50%, no plea to the jurisdiction shall be allowed, provided the defendant or one of the defendants shall dwell or carry on business within the city of London or the liberties thereof at the time of the action (1) 3 H. & C. 865; 34 L. J. (Ex.) 186. (2) Law Rep. 2 H. L. 239. brought, or provided the defendant or one of the defendants shall have dwelt or carried on business at some time within six months next before the time of the action brought, or if the cause of action, either wholly or in part, arose therein." If, therefore, the defendants themselves had been here, they would have to plead that the cause of action and every part thereof accrued dehors the jurisdiction. It can hardly be that the Mayor's Court has jurisdiction over the defendants and not as against the garnishee. This particular point was not brought before the Court or the House of Lords in Cox v. Mayor of London. (1) [BOVILL, C.J. It may be that the inferior court may acquire jurisdiction as against a defendant, by his own default. But here there has been no default.] The mere fact that some part of the cause of action arose out of the city of London does not oust the jurisdiction of the court. [BRETT, J. Your contention must be that, if there be a breach in the city of a contract made, say in America, the Mayor's Court has jurisdiction.] The non-payment of these bills by the bank in London upon which they are drawn, is a matter cognizable in the Mayor's Court. Douglas Walker, in support of the rule. No part of the cause of action in this case arose in London. The bills were drawn and accepted in Philadelphia, and delivered to the plaintiffs' agents in Philadelphia, and they were never accepted. [BRETT, J. The argument on the other side is that, if any one material fact arises within the city, it is enough to give the Mayor's Court jurisdiction; and that the presentment and refusal to accept were material to charge the drawers and indorsers.] The contract of the drawer is, not that the drawee shall accept or pay the bill, but that he (the drawer) will pay it if the drawee makes default; and no part of that contract in the present case arose in London. The whole of the opinion of Willes, J., in Mayor of London v. Cox (2) is based upon the assumption that the Mayor's Court is an inferior court. [BRETT, J. In that case Willes, J., says (3): "In Reg. v. Mayor of (1) 1 H. & C. 338; 32 L. J. (Ex.) 64; 2 H. & C. 401; 32 L. J. (Ex.) 282; Law Rep. 2 H, L. 239. (2) Law Rep. 2 H. L. at p. 252. 1873 COOKE v. GILL. 1873 COOKE v. GILL. London (1), upon a mandamus to admit an attorney to the Mayor's Court, as being an 'inferior court' within the Attorneys' Act; it was, after some hesitation in the Queen's Bench (2), fully admitted in the Exchequer Chamber (3) by the counsel for the city (the present distinguished Recorder) that the court was an inferior court. It was so decided to be by the Court of Queen's Bench, Lord Denman (who had been Common Sergeant) stating, in delivering the judgment of the Court,- A great many authorities have been cited shewing peculiar practice and peculiar jurisdiction in the Mayor's Court, but none shewing that it did not come within that class of courts called inferior. Its jurisdiction is limited; the cause of action must be alleged to have accrued within it."" In the course of the argument of Mr. Gurney in that case, Wightman, J., asks (2), “ What constitutes an inferior court?” Getting no reply, he further asks: "In pleadings in the Lord Mayor's Court, are facts averred to have taken place within the jurisdiction?" To this the counsel replies, "It has never been laid down that that conclusively shews a court to be inferior." In proceedings in the Passage Court of Liverpool, before 16 & 17 Vict. c. xxi, it was necessary to aver that every material fact arose within the jurisdiction.] At p. 259 of the judgment, the learned judge, commenting upon the case of Manning v. Farquharson (4), observes that s. 15 of the Mayor's Court Act does not affect the garnishee. BOVILL, C.J. No doubt it had long been the practice down to the passing of the Mayor's Court of London Procedure Act, 1857, to frame the proceedings in the Lord Mayor's Court, whether affidavits of debt, declarations, or other pleadings, without alleging that the facts giving rise to the action occurred within the jurisdiction of the court. The point came under the consideration of this Court more than fifty years ago, in a case of Banks v. Self (5), when it was held not to be necessary to aver that the defendant was indebted to the plaintiff within the jurisdiction; the Court observing "that the uniform course of pleading had been so ever (1) 13 Q. B. 1. 3) 13 Q. B. at p. 40. (5) 5 Taunt. 234, n. since the time of the Year Books, Edw. 4; and it was too much to ask them to overthrow so uniform a practice, without citing so much as a single applicable case in favour of that request." So far, therefore, as the form of the pleadings is concerned, it was not usual or necessary to aver that the cause of action arose within the jurisdiction. From that and from certain expressions to be found in the books, an argument has been raised as to whether or not it was necessary to prove that every material fact arose within the jurisdiction. The matter was very much discussed in De Haber v. The Queen of Portugal (1), where Lord Campbell delivered an elaborate judgment, in the course of which he says (2): “The circumstance that the cause of action, if there were any, arose out of the jurisdiction of the Lord Mayor's Court, need not be relied on. Nevertheless, after the strong assertions at the Bar that this is material where the defendant does not appear, we think it right to say that, having examined the authorities, we entertain no doubt that the process of foreign attachment can only be duly resorted to where the cause of action arose within the jurisdiction of the court from which it issues." I was counsel in that case, and in several others of the same kind which occurred about that time. The matter was subsequently considered in Westoby v. Day (3), where Lord Campbell, delivering the judgment of the Court, said: "In the recent case of De Haber v. The Queen of Portugal (1), we expressed an opinion that 'the process of foreign attachment can only be resorted to when the cause of action arose within the jurisdiction of the court from which it issues.' But we said, 'The garnishee is safe by paying under the judgment of the court;' adding, 'The objection that the cause of action did not arise within the jurisdiction of the court, if properly taken, must prevail.'" That judgment is explained by Montague Smith, J., in Matthey v. Wiseman. (4) Here, the objection is properly taken, viz. by a rule for a prohibition, and by the garnishee. The Lord Mayor's Court is clearly a court of inferior jurisdiction, and is subject to the general rules applicable to courts of that description, except in so far as it is exempted therefrom by usage or by (1) 17 Q. B. 171; 20 L. J. (Q.B.) 488. (2) 17 Q. B. at p. 213. (3) 2 E. & B. 605, at p. 620; 22 L. J. (Q.B.) 418. (4) 18 C. B. (N.S.) 657, at p. 673; 34 L. J. (C.P.) 216. 1873 COOKE v. GILL. |