the section to exempt the person who delivered the bread from the duty to have a weighing machine with him. The consequence to my mind is that under this section no baker can safely deliver an individual loaf, even although that particular loaf has been bought and weighed in his shop, without carrying his scales to the house where he delivers it. The appellant here has carried out and delivered bread without being provided with beam and scales and proper weights, and, therefore, is liable to conviction under the words of the statute, and I also think in accordance with its intention. The magistrates were right, and the conviction must be affirmed.

MELLOR, J.-I also think this conviction was right. It appears to me that the Act contemplated three kinds of opportunity by which a customer may obtain bread. In the first place, under the 6th section, he may buy bread at a baker's shop and take it away with him; in the second, he may buy it from a baker who hawks bread in a cart; this is dealt with by the early part of the 7th section; and thirdly, he may obtain bread as the customer in the case is stated to have done, by means of its being carried out and delivered by the baker or his servant, either upon a general order as this was, or upon a purchase at the shop. The object throughout is to compel bakers to afford their customers facilities for seeing that their bread is of proper weight, and I do not see why they should not be equally protected, whatever mode of purchase they may adopt. The result in some cases apparently may be ridiculous; but, as far as I know, it may be necessary, and at all events I think it was intended to be the law.

DENMAN, J.-I think this conviction was right, but the ground upon which I base my conclusion differs materially from that of the other members of the court. I think that under the circumstances this course of business comes within the first part of sect. 7, and the appellant here conveyed or carried out bread for sale in and from a cart or other carriage. The interpretation I put upon the words "for sale includes this distribution of bread upon the previous general orders of customers. The application of the penal clause is I apprehend limited to the two cases previously mentioned the shop-keeping baker, and the baker who sells from a cart or carriage. This interpretation does not necessarily carry the inconvenient construction put upon these provisions by my learned brethren. The object, no doubt, was that all breads should be sold for weight, and that all customers should have an opportunity of testing it. This, in my opinion, was bread for sale, and it was conveyed or carried out in a cart. If purchased in a shop and afterwards delivered by the baker or his boy from a basket, I think no weights or scales would be necessary. But as this was bread carried out in a cart for sale, the cart ought to have carried the beam and scales required.

Judgment for respondent.

Solicitors for appellant, Rogerson and Ford. Solicitors for respondent, Hughes, Hooker, Buttanshaw, and Murton.

Friday, May 19, 1876.

[Div. App.

(Before CLEASBY, B., and GROVE, J.)

LANGRIDGE v. LYNCH.

Solicitor and client-Fees for entering appeal at sessions-Liability of solicitor.

The solicitor, and not the client, is liable to the clerk of the peace for fees connected with the entering, &c. of an appeal at the sessions.

THIS was an action brought by the Clerk of the Peace for Sussex to recover the sum of 5l. 198. 5d., alleged to be due for fees, and was tried before the deputy County Court judge without a jury, when the judge gave a verdict for the amount claimed. The following is a copy of the particulars annexed to the plaint note:

The fees are regulated by 11 & 12 Vict. c. 43, and, it was admitted, were properly payable by somebody. Evidence of a custom for the solicitor and not the client to pay was given at the trial. Three letters, also written by the defendant, were tendered, in one of which he acknowledged the receipt of the above memorandum of charges, and in another asked for the copy of a conviction, adding, “I shall be happy to pay your charges."

A rule nisi was afterwards granted, on the gound that there was no evidence of liability on the part of the defendant to pay these charges.

A. L. Smith showed cause.-The solicitor is the person who is liable to pay these fees. In Newton v. Chambers (1 Dowl. & L. Rep. 869; 13 L. J. 141, Q.B.) it was held that a sheriff's officer might maintain an action against the attorney of the plaintiff in the original suit for caption fees and conduct money. So, too, an attorney and not his client is liable to a bailiff for his fees in issuing execution against a defendant: (Maile v. Mann 2 Ex. 608; 6 D. & L. 42; 17 L. J. 336, Ex.; Brewer v. Jones, 10 Ex. 655; and Wallbank v. Quarterman, 3 C. B. 94.) In the latter case Maule, J. observed that "the inconvenience would be prodigious if it were held that the officer must look to the client for his fees." He also referred to Batt v. Price (33 L. T. Rep. N.S. 808; L. Rep. 1 Q. B. 264).

Harmsworth in support of the rule.-Primâ facie the solicitor is not the party liable: (Hart v. White, Holt N. P. C. 376.) The solicitor is known to be an agent only, and to act for others, and by a personal undertaking he makes himself liable or derives some benefit, he cannot be sued. There is here neither a personal undertaking, nor does

the solicitor derive any benefit. Brewer v. Jones (ubi sup.), and the others cited by the other side, are distinguishable, inasmuch as there was a service to the attorney issuing the writ. In Merriman v. Newman (20 W. R. 369) it was held that an attorney who issues a writ of fi. fa. is not bound to pay the costs incurred by a sheriff's officer who makes an unsuccessful levy under the writ, on the ground that the latter had not done anything which proved beneficial to the attorney. He also cited:

Maybery v. Mansfield, 9 Q. B. 754.

CLEASBY, B.-It appears to me that the decision arrived at by the County Court judge in this case is correct; and, therefore, this rule must be discharged. This is a case of fees payable to a particular officer, and which he is entitled to exact at the time they become due. There is both reason and authority for holding here that the plaintiff may recover these fees from the defendant, for be could not bind the client. In the case of Maile v. Mann (ubi sup.), which has been referred to, Alderson, B., distinctly stated during the argument that the question was, "whether the attorney had any authority to pledge his clients credit in a matter where it is the custom for the attorney to pay the fees out of his pocket, when, in fact, it is a ready money transaction." In Robins v. Bridge (3 M. & W. 114; 6 Dowl. 140; M. & H. 357), the question arose as to the liability of an attorney to pay the expenses of attendance of a witness whom he had subpoenaed on behalf of his client to give evidence at a trial; and Lord Abinger, in the course of a considered judgment, says, "If, therefore, an attorney employs a stationer to do anything for which he makes a charge, he is liable, as he is for the fees of the officers of the court; for these are ready money transactions, for which the person engaged in the business of the court is liable; for it cannot be presumed that the client would authorise him to pledge his credit when no credit is given." That is the very case here, and this being a transaction in which the respondent had a right to be paid at the time, it is clear the solicitor is responsible. We have here evidence as to the usage, and admission of facts in the correspondence in which the debt is recognised by the defendant. In Batt v. Price (ubi sup.), it was recently decided by the Court of Queen's Bench that the solicitor is the party liable. This rule must, therefore, be discharged.

GROVE, J.-I agree with what has fallen from my brother Cleasby. There is ample evidence to fix the solicitor here independently of there being a prima facie liability. There is distinct evidence of the custom of the office, and knowledge of such custom by the defendant. The decision o the County Court judge was quite correct. Rule discharged. Solicitor for plaintiffs, Langridge. Solicitor for defendant, Foulkes Lynch.

Thursday, June 1, 1876.

(Before BRAMWELL, B. and GROVE, J.)

WREN (app.) v. Pocock (resp). Dogs Act 1871 (34 & 35 Vict. e. 56), s. 3—Dog “under control"-Evidence of ownership. An order was made in pursuance of 34 & 35 Vict. c. 56, s. 3, on owners to keep their dogs under the control of some person for a fixed period. A dog

was seen in the road with the appellant's gover ness and children, rushing backwards and forwords to them, sometimes being as much as twenty yards away. A constable swore the dog belonged to the appellant, and that he had seen it in the appellant's yard within the previous fortnight The appellant, however, called evidence to contradict this. The justices convicted, but stated a case for the opinion of the court as to whether there was sufficient evidence of ownership, and whether the dog was under control.

Held, that there was reasonable evidence that the dog belonged to the appellant, and was not under control, to support the conclusion arrived at by the justices.

Per Bramwell, B.--The question whether or not a dog is under control within sect. 3 is one of fact and not of law.

CASE stated under 20 & 21 Vict. c. 43.

The following is a copy of an order made by the justices under 34 & 35 Vict. c. 56, s. 3:

To Adam Blandy, Chief Constable of the County of Berks.

Berks, Whereas, you the said Adam Blandy, as such to wit. chief constable as aforesaid, have complained to us, the undersigned, two of her Majesty's justices of the peace of the said county, acting for the petty sessional division of Reading, in petty sessions this day assembled, that a mad dog has been found within our jurisdiction.

We do therefore in pursuance of sect. 3 of 34 & 35 Vict. c. 56, order that all dogs throughout the whole of the jurisdiction be confined and kept under the control of such person or persons for the space of three calendar months now next ensuing.

Given under our hands and seals this 15th day of April, 1876. J. B. MONCK. A. W. COBHAM.

The following is a copy of a notice published by the said Adam Blandy, in pursuance of the same Act:

Mad Dogs.-Notice.

Berks, Whereas a mad dog has been roaming about in to wit. and about certain parishes in the petty ses. sional division of Reading, and has bitten several dogs, I hereby give notice that, by virtue of an order made and signed this 15th day of April, 1876, by two of her Majesty's justices of the peace of the said county, acting for the petty sessional division of Reading, all dogs within their jurisdiction are to be confined and kept under the control of some person or persons, and not to be allowed to be at large for the space of three calendar months from this date.

Anybody who disobeys the above mentioned order is liable to a fine of 20s.

Dated this 15th day of April, 1876.

A. BLANDY, Chief Constable. Police constables have power, by virtue of this order to take and detain any dog not under the control of some person, and after five days, if not previously claimed, the chief of the police may order such dog to be destroyed.

The information was preferred under 34 & 35 Vict. c. 56, s. 3 (a), charging the appellant with unlawfully suffering a dog to be at large.

It was proved at the hearing, by Hedges, policeconstable, that at about one in the afternoon of Monday, 1st May 1876, he saw the appellant's

(a) By the Dogs Act 1871, s. 3, "the local authority may, if a mad dog, or a dog suspected to be mad, is found within their jurisdiction, make, and when made vary or revoke, an order placing such restrictions as they think expedient on all dogs not being under the control of any person, during such period as may be prescribed in such order, throughout the whole of their jurisdiction, or such part thereof as may be printed in their order. Any person who acts in contravention of any order made in pursuance of this section shall be liable to a penalty not exceeding 20s.

governess and children in the road, and a dog with them. The dog was running backwards and forwards to them, and was at times 20yds. away from them. The constable knew the dog to be the appellant's, and he had seen the same dog in the appellant's yard within the previous fourteen days.

The appellant called his servant to prove that he had not seen the dog about the place from the 15th April last to the 1st May instant, and that he knew the dog had gone away, and that the appellant had not taken any trouble about it, and that the appellant had exercised no right of ownership over the dog since the 1st Jan. last. It was stated by the appellant that he was paralytic and unable to walk about, and had not seen a copy of the above notice, and that the only occasions on which he went out were to drive direct from his house to the railway, and he contended

(1.) That the dog was not his dog, but a stray dog. (2.) That due notice had not been given of the order. (3.) That if the magistrates were against the appellant on the first two points, then that the dog was under control.

The magistrates, however, thought the case proved, and convicted the appellant.

The questions for the opinion of the court areFirst, whether on the above evidence the dog belonged to the appellant; secondly, whether due notice was given of the order; thirdly, whether the dog was under control.

If the court should be of opinion that the said conviction was legally and properly made, and the appellant is liable as aforesaid, then the said conviction is to stand, otherwise the said information is to be dismissed.

Henry, for the appellant.-There was here no sufficient evidence of ownership. At all events the dog was under control, within the meaning of the section. When a dog is out with a person it is under the control of that person. He cited Ex parte Markham (21 L. T. Rep. N. S. 748).

H. D. Greene, for the respondents, was not called upon to argue.

BRAMWELL, B.-This conviction must be affirmed. The order of the magistrates is good, and within the Act. I doubt whether the notice is good. The notice differs from the order. The notice says that "all dogs are to be confined and kept under the control of some person." However, this point was not taken before the magistrates. I am inclined also to think that there was a defect in the information, which was for " unlawfully suffering" a dog to be at large, which was not strictly in accordance with the terms of the notice; but with that we cannot deal now. The question is, did this dog belong to the appellant? I think there was some evidence of it, and that the finding of the justices was reasonable. Lastly, was the dog under control? I rather doubt whether the magistrates have not been labouring under a mistake in thinking that the sole question was whether the dog was at large, and if I was certain that this was so, the conviction would not be proper. However, they have put the right question to us, namely, whether the dog was under control. Now it may or may not have been; either view is consistent with the evidence; and as the question is, in my judgment, one of fact and not of law, and has been decided against the appellant, we shall not interfere.

[Div. APP.

GROVE, J.-The only part I feel doubt about is as to the meaning of the words "under control.” However, I think there was evidence here to show that this dog was not under control.

Judgment for respondent with costs. Solicitor for the appellant, Ralph Thomas. Solicitor for the respondent, Slocombe, Reading.

(Before BRAMWELL, B. and GROVE, J.) OVENDEN (app.) v. RAYMOND (resp.). Gaming-Public billiard room belonging to licensed victualler-Lodgers playing after closing hours—Statutes 8 & 9 Vict. c. 109, and 37 & 38 Vict. c.. 49, s. 10

By 8 & 9 Vict. c. 109, s. 13, the holder of a victual. ler's licence who keeps a public billiard table,. and allows persons to play thereon when the premises are not allowed to be open for the sale· of wine, &c., is liable to a certain penalty. By 37 & 38 Vict. c. 49, s. 10, a person licensed to sell any intoxicating liquor, to be consumed on the premises, may sell such liquor at any time to persons lodging in his house. The appellant held a victualler's licence for a certain house at H. The closing hour at H. on week days is 11 p.m., and after that time two gentlemen, lodgers in the house, were found playing billiards. The justices thought that 8 & 9 Vict. c. 109, s. 13 absolutely prohibited all persons without exception from playing at a public billiard table during closing hours, and that such prohibition was not affected by 37 & 38 Vict. c. 49, 8. 10. Accordingly the appel lant was convicted, but the justices stated a case. Held, that the conviction was right. CASE stated by justices under 20 & & 21 Vict. c. 43.

At a petty sessions holden at the Town Hall, Hythe, on the 23rd March last, an information was preferred by George Raymond, superintendent of police for the said borough (hereinafter called the respondent), against George Henry Ovenden, licensed victualler (hereinafter called. the appellant), under sect. 13 of the Act 8 & 9 Vict.. c. 109, charging him for "that he on the 1st. March last, at the parish of St. Leonard, Hythe,. then holding a victualler's licence for a certain house and premises there situate, called The Swan, in which he then kept a public billiard table, unlawfully did allow certain persons to play at the said table on the said premises at a certain time when the said premises were not by law allowed to be open for the sale of wine, spirits, or beer, or other fermented or distilled liquor, to wit, at ten minutes past 12 a.m.," was heard and determined by us, the said parties respectively being then present, and upon such hearing the appellant was duly convicted before us of the said offence, and we adjudged him to pay the sum of 1s., and also to pay to the respondent the sum of 98. for his costs in that behalf. Upon the hearing of the information it was proved on the part of the respondent, and found as a fact, that the hour of closing victualling houses in the borough of Hythe was eleven o'clock on week days. At ten minutes past 12 a.m. on the 1st March last respondent went to the appellant's house, the Swan Hotel, which was closed. Respondent knocked, and appellant opened the door, and on respondent going into the house he said to the appellant, "You have billiard playing." He said, "Yes; they have not finished their game." Respondent

then went into the billiard room and there found two gentlemen, who were lodging in the house, playing billiards. It was contended on the part of the appellant that the gentlemen referred to were lodgers within the meaning of sect. 10 of the Licensing Act 1874, and as that Act permitted a licensed person to sell intoxicating liquor to lodgers after the prohibited hours of closing, the appellant was justified in allowing them to play at billiards after such hours. We, the said justices, were of opinion that sect 13 of the 8 & 9 Vict. c. 109, absolutely prohibited all persons without exemption from playing at a public billiard table in a house of a person holding a victualler's licence, when the premises are not allowed to be open for the sale of intoxicating liquors; and that the exception in sect. 10 of the Licensing Act 1874, allowing liquors to be supplied to bonâ fide lodgers, does not affect such prohibition. We, therefore, convicted the appellant, as above stated, and granted a case for the opinion of this court. The question for the opinion of this court is whether the appellant, under the above circumstances, was rightly convicted. If the court should be of opinion that the appellant was rightly convicted, and the appellant is liable as aforesaid, then the conviction is to stand; but if the court should be of opinion otherwise, then the said information is to be dismissed, or such order to be made as the court shall think fit.

The 8 & 9 Vict. c. 109, s. 13, enacts as follows: "Every person keeping any public billiard table, or bagatelle board, or instrument used in any game of the like kind, whether he be the holder of a victualler's licence, or licensed under this Act, who shall allow any person to play at such table, board or instrument, after one and before eight o'clock of the morning in any day, or at any time on Sunday, Christmas Day, or Good Friday, or any day appointed to be kept as a public fast or thanksgiving, and every person holding a victualler's licence, who shall allow any person to play at such table, board, or instrument, kept on the premises specified in such victualler's licence, at any time when such premises are not by law allowed to be open for the sale of wine, spirits, or beer, or other fermented or distilled liquor, shall be liable to the penalties herein provided in the case of persons keeping such public billiard table, bagatelle board, or instrument as aforesaid, for public use without licence; and during those times when play at such table, board, or instrument is not allowed by this Act, any house licensed under this Act, and any billiard room in any house specified in any victualler's licence, shall be closed, and the keeping of the same open, or allowing any person to play therein or thereat, at any of the times, or on any of the days during which such play is not allowed by this Act, shall be deemed in each case an offence against the tenor of the licence of the person so offending."

By the Licensing Act 1874 (37 & 38 Vict. e. 49), s. 10: "Nothing in this Act, or in the principal Act contained shall preclude a person licensed to sell any intoxicating liquor to be consumed on the premises, from selling such liquor at any time to bonâ fide travellers, and to persons lodging in his house, provided that no person holding a six day licence shall sell any intoxicating liquor or Sunday to any person whatever not lodging in his house."

Dering, for the appellant.-This conviction is wrong. The prohibition contained in 8 & 9 Vict. c. 109, s. 13, only applies when the premises are not allowed to be open for the sale of wine, &c. But by the Licensing Act 1874, intoxicating liquors may be sold at any time to lodgers, so that the prohibition does not attach at all.

The respondent did not appear.

Per CURIAM.-The appellant is clearly wrong. It is manifestly absurd that lodgers in the house may be supplied with drink after closing hours, and yet

[Ex. Div.

that they are not allowed to play an innocent game of billiards. The words of the section are, however, too plain to admit of any other interpretation. This was evidently a casus omissus on the part of the Legislature. Conviction affirmed. Solicitor for the appellant, Steele, agent for Minter, Folkstone.

EXCHEQUER DIVISION. Reported by H. LEIGH and A. PAWSON, Esqrs., Barristers. at-Law.

Wednesday, Feb. 9, 1876.

DOVER v. CHILD.

Res judicata-Trover of goods-Previous refusal of magistrate to order delivery of the goods under 2 & 3 Vict. c. 71, s. 40-Estoppel-Title to the goods.

To a declaration in trover for the recovery of some harness, the defendant pleaded that the plaintiff had previously applied to a police magistrate within the metropolitan district under 2 § 3 Vict. c. 71, s. 40, to order the delivery up to him by the defendant of the harness alleged to be unlaw fully detained. That the magistrate, after due inquiry made into the title to such harness, refused to make such order, and that thereupon the plaintiff brought this action to recover the har

ness.

Held, upon demurrer, that the proceedings before the magistrate did not estop the plaintiff from bringing the present action and that the plea was bad.

THE declaration was in trover for that the defendant converted to his own use, and wrongfully deprived the plaintiff of the use and possession of his goods, to wit, a set of patent joiner's cramps, a set of harness, and a goat.

To this the defendant pleaded, amongst others, the following plea:

As to so much of the declaration as relates to the set of harness therein mentioned, that the plaintiff ought not to be permitted to say that the defendant converted the same to his own use, or that the same was the plaintiff's, because the defendant says that the alleged conversion took place after the 25th Aug. 1839 (the date of the commencement of the 2 & 3 Vict. c. 71, s. 40), and consisted of the detention by the defendant within the limits of the metropolitan police district of the said goods, the value of which was not then greater than 157., whereupon, afterwards, and before this suit, the plaintiff duly made his complaint before George Chance, Esq., one of the magistrates of the police courts of the metropolis, sitting at the Lambeth police court, in the county of Surrey, for that the defendant unlawfully and without just cause detained within the said district the said goods which the plaintiff then alleged to be his property, and to the property and possession of which goods the plaintiff then claimed to be entitled, whereupon the said George Chance duly summoned the defendant to appear at a certain day and hour at the police court before him, or such other magistrate of the said police court as might then be there, to answer the said complaint, and to show cause why an order should not then and there be made upon him to deliver the said goods to the plaintiff. And the defendant, in

obedience to the said summons, duly appeared at the time and place therein mentioned, before the said George Chance, and the said George Chance then and there heard the said case and the subject matter of the said complaint, and then and there inquired into the title to the said goods and the defendant's possession thereof. And it then appeared to the said George Chance, and he then decided and adjudged that the defendant then had title to the said goods, and to the possession thereof, and the plaintiff had then no title thereto, or to the possession thereof, and he then dismissed the said summons, and thereby adjudicated the subject matter of the said complaint in favour of the defendant, and the defendant has ever since held possession of the said goods on the said title, and the plaintiff has never since acquired any title or right to the possession of the said goods other than he had at the time of the said decision, and this the defendant is ready to verify, whereupon he prays judgment if the plaintiff ought to be permitted against the decision of the said magistrate to say that the said goods at the time of the alleged conversion were his goods.

To this the plaintiff demurred.

Prentice, Q.C., for the plaintiff, in support of the demurrer. The dismissal of a summons is no bar to an action; it may be looked on in the nature of a nonsuit. These proceedings before the magistrate were taken under 2 & 3 Vict. c. 71, s. 40, which says: "Upon complaint made to any of the said magistrates by any person claiming to be entitled to the property or possession of any goods which are detained by any person within the limits of the metropolitan police districts, the value of which shall not be greater than 15l., and not being deeds, muniments, or papers relating to any property of greater value than 15l., it shall be lawful for such magistrate to summon the person complained of, and to inquire into the title thereto or to the possession thereof, and if it shall appear to the magistrate that such goods have been detained without just cause after due notice of the claim made by the person complaining, or that the person detaining such goods has a lien or right to detain the same by way of security for the payment of money, or the performance of any act by the owner thereof, it shall be lawful for such magistrate to order the goods to be delivered to the owner thereof, either absolutely or upon tender of the amount appearing to be due by such owner (which amount the magistrate is hereby authorised to determine), or upon performance, or upon tender and refusal of the performance of the act for the performance whereof such goods are detained as security; or if such act cannot be performed, then upon tender of amends for non-performance thereof (the nature and amount of which amends the magistrate is hereby authorised to determine); and any person who shall neglect or refuse to deliver up the goods according to such order, shall forfeit to the party aggrieved the full value of such goods not greater than the sum of 151., such value to be determined by the magistrate. Provided always, that no such order shall bar any person from recovering possession of the goods or money so delivered or forfeited by suit or action at law from the person to whose possession such goods or money shall come by virtue of such order, so that such action shall be commenced within six calendar months after such order shall be made." MAG. CAS.-Vor X

[Ex. DIV.

[CLEASBY, B.-The proceedings before the magistrate were merely auxiliary, and not in substitution of any proceedings the plaintiff might take in a Superior Court to recover his property; it is like the common case of a person going before a magistrate to get possession of tenements, and whether the magistrate does or does not order it to be given up, he may still bring an action of trespass.] The proviso of sect. 40 expressly declares that no order such as may be made under the section shall bar any person from recovering possession of the goods, and here the magistrate made no order. The decision of the magistrate refusing the order no more bars the plaintiff than a refusal by justices to grant an order in bastardy proceedings bars the mother from taking subsequent proceedings; it is not a final order of discharge:

Rex v. Jenkin, Ca. Temp. Hard 301;

Reg. v. Machen, 14 Q. B. 74; 18 L. J. 213, M. C. [He was then stopped.]

That

A. B. Kempe, for the defendant, in support of the plea. The question in this action is res judicata, for it is the same as that which was entertained and decided by the magistrate, though the form of proceeding is different, and the defendant ought not to be put to defend his title twice. There is nothing to take the case out of the general rule laid down in the Duchess of Kingston's Case (2 Smith's Lead. Cas. 7th edit. 761), "that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court." Here the magistrate, by the Act, has express jurisdiction to inquire into the question of title, and the plea states that he did so inquire. His decision that he would make no order is in effect an adjudication that the plaintiff had, as against the defendant, no title to the goods, and that point was the point directly in issue between the parties there, and is so now. the form of proceeding is not the same in both cases is quite immaterial. In Routledge v. Hislop (2 E. & E. 549; 2 L. T. Rep. 53; 29 L. J. 90, M. C.) a servant sued her master in the County Court for discharging her, and the verdict was in favour of the defendant. She afterwards took out a summons before the magistrates against the defendant to recover her wages, and the Court of Queen's Bench held that the question to be decided was essentially the same, viz., whether the discharge was wrongful, and that the decision in the County Court was conclusive as between the parties. No distinction can be drawn between the case where the magistrate refuses to make an order and where he makes one. The plaintiff has no right to try an experiment in one court and when he has failed to repeat it in another. He has chosen his tribunal, and must abide by its decision. In Flitters v. Allfrey (31 L. T. Rep. 878; L. Rep. 10 C. P. 29), Grove, J. said, "It would be against principle and authority if a party, having tried an experiment in one tribunal, could, if judgment was against him, proceed again in another court, not by way of appeal, but by merely varying the form of procedure, or by forcing the opposite party to proceed for redress in respect of the same question as had been previously litigated, again harass his antagonist for the same cause and take his chance of success in another court, where he has previously failed in a court of competent juris

2 E