1903 overruled in this Court and a new trial ordered, and that point ISAACSON finally disappeared. At the second trial the county court judge NEW GRAND held that the defendants had been guilty of no negligence, and (CLAPHAM against that ruling the present appeal is brought. I am clearly LIMITED. of opinion that there was evidence of negligence which ought Lord Alverstone to have been submitted to the jury, and that the county court judge was wrong in withdrawing the case from them. JUNCTION), C.J. If the case stood there, we should of course be bound to order a new trial. But it is said on behalf of the defendants that there should be no new trial, because after the first trial the plaintiffs exercised an option by making an application to the learned deputy judge to assess compensation under s. 1, sub-s. 4, of the Workmen's Compensation Act. It seems to me that the rule laid down by the Court of Appeal in Edwards v. Godfrey (1) places a plaintiff to a certain extent in a difficulty. Under that decision a plaintiff who fails in an action under the Employers' Liability Act must then and there make an application to the county court judge if he desires compensation to be assessed under s. 1, sub-s. 4, of the Workmen's Compensation Act; but in order that it may be open to him to do so he must proceed upon the basis that it has been "determined in the action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act." Whatever may be the real meaning of the second provision, the condition which allows the plaintiff to exercise the option is that the defendant is not liable in the action under the Employers' Liability Act. The plaintiff is then in the position that he must preserve his rights: if he does not appeal, he desires to get compensation under s. 1, sub-s. 4; if he appeals, and appeals successfully, the action will not have really been decided at that stage, that is, by the county court judge. The proper view is, in my opinion, that if the plaintiff intends to appeal he may at that stage have to make an application pro formâ to the county court judge to assess the compensation under the Workmen's Compensation Act, and ask that the application may stand over until the appeal has been heard. (1) [1899] 2 Q. B. 333. 1903 V. NEW GRAND (CLAPHAM JUNCTION), LIMITED. It cannot be that because the county court judge has wrongly determined the action in favour of the defendants the plaintiffs ISAACSON are debarred from taking any further proceedings, and we ought not to decide that we are powerless because the plaintiffs took this step before the county court judge with a view to the protection of their rights. Unless the view which I Lord Alverstone have expressed is correct, we ought not to have ordered a new trial on the first occasion, if all the facts had been brought before us. WILLS J. I am entirely of the same opinion. There was clearly evidence of negligence, and the case ought not to have been withdrawn from the jury. As to the other point, it becomes perfectly clear when the facts are once understood. The sole condition under which the jurisdiction to assess compensation under s. 1, sub-s. 4, of the Workmen's Compensation Act arises is that the action brought independently of that Act must have been dismissed; if the decision of the county court judge dismissing the action is held on appeal to be wrong, the action has not in any proper sense of the word been dismissed. It does not matter, to my mind, to what extent the proceedings are carried, if the final result of them is that the original action is not dismissed. It cannot be that by reason of the erroneous decision of the judge in the county court a plaintiff is to be compelled to accept a smaller sum by way of compensation or damages than he would have been entitled to if the judge had given a correct decision at the trial. CHANNELL J. concurred. C.J. Appeal allowed. New trial ordered. Solicitors for plaintiffs: C. T. Nicholls. Solicitors for defendants: Wynne-Baxter & Keeble. W. J. B. 1903 Jan. 28. STILES v. ECCLESTONE. County Court-Jurisdiction—Claim for Injunction only-County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 56—Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 89. An action, in which an injunction only is claimed, is within the jurisdiction of a county court, provided that the case is one in which, if there had been a claim for damages, the claim must have been for an amount within the jurisdiction of a county court. APPEAL of the defendant from the county court of Suffolk holden at Mildenhall. The plaintiff claimed a perpetual injunction to restrain the defendant, a married woman, from committing a breach of an agreement contained in the following document, signed by the defendant before marriage and addressed to the plaintiff: "In consideration of your having taken me into your employment as dressmaker I, the undersigned Annie Frear, hereby undertake and agree with you and your successors in business that after quitting your employment I will not at any time carry on, manage or conduct, or be in any manner either directly or indirectly concerned in the carrying on, management, or conduct of the business or occupation of a dressmaker or any similar business or occupation within ten miles of the town of Mildenhall aforesaid under a penalty of forty pounds, to be recoverable by you or your successors in business as and for liquidated damages." The plaintiff did not claim damages. For the defence it was contended, inter alia, that the county court judge had no jurisdiction to hear the case, an injunction only being claimed. The judge held that he had jurisdiction, and, having found as a fact that a breach of the agreement had been committed, granted an injunction as claimed. The defendant appealed. M. Macnaghten, for the defendant. The county court judge wrongly held that he had jurisdiction to try this action. The 1903 STILES V. ordinary jurisdiction of county courts is by s. 56 of the County Courts Act, 1888, confined to "personal actions where the debt, demand, or damage claimed is not more than fifty ECCLESTONE. pounds." The Act of 1888 does not in terms confer upon county court judges power to grant injunctions. That power is derived from s. 89 of the Judicature Act, 1873; but that section only gives jurisdiction to a county court to grant relief by means of an injunction "in all causes of action within its jurisdiction." The present case is not within the county court jurisdiction, because, no damages at all being claimed, it is clearly not a personal action in which the damage claimed does not exceed 501. Even if a claim for damages had been added, the action must have failed, because a plaintiff is not entitled in a case like this to claim both an injunction and damages: General Accident Assurance Corporation v. Noel (1); Carnes v. Nesbitt. (2) The result of upholding the decision appealed from will be to confer an unlimited jurisdiction upon county court judges in cases where an injunction only is claimed. This question was referred to, but not decided, in Martin v. Bannister. (3) A. M. Talbot (A. H. Poyser with him), for the plaintiff, was not called upon. LORD ALVERSTONE C.J. If it had been shewn in this case that there was no jurisdiction in the county court to entertain any claim for a breach of this agreement, the point made on behalf of the defendant, that there was no jurisdiction to grant an injunction, would have been good. If parties have so bound themselves by a contract that in the event of a breach the remedy by way of damages must of necessity be by a claim for an amount in excess of the county court jurisdiction, then the case cannot be brought within the jurisdiction of the county court merely because an injunction only is claimed. But if the terms of an agreement are such that a claim for (1) [1902] 1 K. B. 377. (2) (1862) 7 H. & N. 778. (3) (1879) 4 Q. B. D. 212, 491. 1903 STILES v. Lord Alverstone damages for a breach is one which could be brought in the county court, then the case of Martin v. Bannister (1) is clear ECCLESTONE. authority that an injunction also may be granted in the county court. In the present case the sum which might be claimed as liquidated damages for a breach of this agreement has been fixed by the parties themselves at an amount within the limit of the county court jurisdiction; and the county court had therefore, in my opinion, jurisdiction to entertain a claim for an injunction, the remedy by injunction being alternative to the remedy by way of liquidated damages. It was contended that an injunction and damages cannot both be claimed in these cases. That is not so. The authorities to which we have been referred only decide that a plaintiff cannot claim both an injunction and the sum fixed upon as liquidated damages; but there is no reason why a plaintiff should not claim the actual damages suffered through a breach of the agreement in the past, and also an injunction to restrain future breaches. In my opinion the decision of the county court judge was right, and the appeal will therefore be dismissed. WILLS J. I am of the same opinion. When one considers that the County Courts Act, 1888, was passed long after the Act which first gave to county courts all the remedies within its jurisdiction that the High Court has, it is impossible to say that it was intended to exclude cases where an injunction only is asked for. In cases in which, if damages had been claimed, the amount must be less than 501., I think a county court has jurisdiction to entertain a claim for an injunction only. CHANNELL J. I agree. This is obviously a personal action, and it is also one in which there is no claim for a debt, demand, or damage exceeding 50l. I do not mean to say that all personal actions in which there is no claim for damages can be brought in the county court; but where the case is one in which the parties have by the terms of the contract assessed the amount (1) 4 Q. B. D. 212, 491. |