KD as PT7 goo CORNELL UNIVERSITY LAW LIBRARY The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1803 IN MEMORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS ornell University Libra ‘inna THE PRACTICE oF THE COUNTY COURTS, IN EIGHT PARTS: 1. Proceedings in Plaints ; 5. Jurisdiction under Protection 2. Jurisdiction under Friendly Beis and Industrial and Provi- | 6. Proceedings against Judgment dent Societies Acts ; Debtors ; 3. Jurisdiction under Joint Stock | 7. Arrest of Absconding Companies Winding-up Act; Debtors ; 4, Jurisdiction as to Insolvent | 8. Administration of Charitable Debdtors ; Trusts. WITH THE DECISIONS OF THE SUPERIOR COURTS, AND TABLES OF FEES: ALSO, me) An Appendir, OONTAINING \ ALL THE STATUTES, A LIST OF THE COURT TOWNS, DISTRICTS, AND PARISHES, AND THE RULES 0F PRACTICE AND FORMS. BY CHARLES EDWARD POLLOCK, ESQ,, OF THF INNER TEMPLE, BARRISTER-AT-LAW. SECOND EDITION. LONDON: $. SWEET, 1, CHANCERY LANE, FLEET STREET, Law Bookseller and Publisher. 1853. LONDON SG PRINTED BY RAYNE? AND HODOES, 10), Fetter Lane, Fleet Stree*. PREFACE TO THE SECOND EDITION. Srnce the publication of the first Edition of this Book in July, 1851, the following statutes affecting the County Courts have been passed:—the Absconding Debtors’ Act, 14 & 15 Vict. c. 52,—the Industrial and Provident Societies’ Act, 15 & 16 Vict. c. 81,—the County Courts’ Amendment Act, 15 & 16 Vict. c. 54, and the Charitable Trusts’ Act, 1853, 16 & 17 Vict. c. 187, These, together with the decisions of the Superior Courts relating to the law and practice of the County Courts up to Trinity Term, 1853, will be found in the present Edition. A Chapter on the Law and Practice of Prohibition has also been added. 5, Child’s Place, 1st October, 1853. TABLE OF CONTENTS. Page INTRODUCTION ji : ; = é - i PART I. PROCEEDINGS IN PLAINTS. Cuar. I. Districts, Court Houses, General Fund, and Sittings of the Courts. ‘ name; IL. Judge, Officers, Counsel; and Attorney 3 12 IIL. Court and Officer’s Fees 7 4 26 IV. Jurisdiction . ‘ s 5 .- 8i V. Parties to Action, Plaint and Guaiibna: ‘ 46 VI. Proceedings previous to hearing ‘ : . 61 VII, Evidence i * a - 72 VII. Hearing of Plaint and J vignnent 5 . « 94 IX. Execution , . 106 X. Summons for Coie tnient and, Proceedings heron 123 XI. Actions by and against Executors . 131 XII. Applications in the nature of a Scire Facias 6 revive Proceedings : . . - 135 XIII. Actions to recover possession of small denainete . 137 XIV. Replevin ‘ . . . . . 144 XV. New Trial é . . - 150 XVI. Costs and Fees of Counsel and Adorabye . . 152 XVII. Removal of Plaint by Certiorari and a : . 157 XVIII. Arbitration . . . ‘ . 166 XIX. Prohibition 2 : . . P . 168 vl TABLE OF CONTENTS. PART II. Page JURISDICTION UNDIR FRIENDLY SOCIETIES ACT AND INDUS- TRIAL AND PROVIDENT SOCIETIES ACT s « . (177 PART IIL JURISDICTION UNDER JOINT STOCK COMPANIES WINDING UP ACT ‘ . e 5 - é - 180 PART IV. JURISDICTION AS T@ INSOLVENT DEBTORS. Cuap. I. Jurisdiction of Court, Officers, and Fees é . 181 IL. Proceedings previous to Hearing - : . 186 IIL Hearing and Adjudication $ . ‘ « 206 IV. Proceedings subsequent to, and effect of Adjudication 223 PART V. JURISDICTION UNDER PROTECTION ACTS. Cuar. I. Jurisdiction of Court, Officers, and Fees * » 231 II. Petition and Interim Order. s ; . 238 III. Examination and Final Order 2 ‘ . 247 IV. Vesting and distribution of Estate, and effect of Final Order * . A ‘ ‘ ‘ « 255 PART VI. PROCEEDINGS AGAINST JUDGMENT DEBRTORS - - 265 PART VIL. ARREST OF ABSCONDING DEBTORS 3 , - . 271 PART VIIL ADMINISTRATION OF CHARITABLE TRUSTS . 7 - 276 ~~ tivo Ur VUNIGENLS. APPENDIX TO PART I. Statute 9 & 10 Vict. c. 95 ‘ . : : 12 & 13 Vict. c. 101 . 2 . —— 13 & 14 Vict. c. 61 : . . . 15 & 16 Vict. c. 54 . 6 . : —— 14 & 15 Vict. c. 100 e . . Districts in which Courts are holden, and Parishes within them Rules of Practice 7 . . . . Forms. . Fi é . Scale of Fees nals on Proceedings . . . APPENDIX TO PART IV. Statute 1 & 2 Vict. c. 110 ‘ a ‘ . 2 & 3 Vict. c, 39 ‘ " z 5 10 & 11 Vict. c. 102 r * 5 « Rules of Practice ‘ ‘| Forms . : . B « . i APPENDIX TO PART V. Statute 5 & 6 Vict. c. 116 5 7 7 & 8 Vict c. 96 : ¥ Rules and Orders y ‘ Forms . 7 3 s r APPENDIX TO PART VL Statute 8 & 9 Vict c. 127 . ‘ a 4 Forms . - . x : : ‘ APPENDIX TO PART VIL. Statute 14 & 15 Vict. c. 52 7 ‘ b 2 vil Page I . 45 - 52 . 57 . 58 . 106 . 156 - 165 - 204 » 206 . 210 - 218 « 242 - 247 . 261 - 264 . 289 . 291 - 295 vill TABLE OF CONTENTS. APPENDIX TO PART VIII. Page Statute 16 & 17 Vict. c. 137 . 300 ADDENDA ET CoRRIGENDA " 5 3 ‘ . 309 InpEx . A ‘ fi ‘i : . dll ADDENDUM. By the 16 & 17 Vict. c. 51, s. 50 (the Successions Duty Act), persons aggrieved by the commissioners’ assessment, if the sum in dispute does not exceed 501., may appeal to the county court, and the judge may finally determine the matter. By the 16 & 17 Vict. ¢. 107, s. 263 (the Customs Act), enalties not exceeding the sum of 100/. may be sued for in the county court: and by sect. 318 of the same act, parties aggrieved by an illegal seizure may sue for damages not exceeding the amount to which the juris- diction of the court is limited. TABLE OF CASES CITED. ges s Page Page Abbott v. Bruere . - 228 | Belcher v. Magnay . » 115 Abley v. Dale 39, 125, 229, 269 | Bell, Re . ‘ 239 Adams v. Wordley : 73 | Bennett v. Barton . - 226 Adey v. The Trinity House 35,36 | Berkeley v. Elderkin App. 310 App. 309 | Berry v. Irwin é 226 A. G. v. Hitchcock - 102 | Beswick v. Capper 6 ‘32, 43 v. Le Merchant . 68 Aldred v. Constable * $117 Alexander v. Gardner . 83 Allard v. Kimberley + 201 Allen, Re a 3 220 v. Sharp. « 144 Allison v. Haydon : 85 Amos v. Hughes . 3721:99 Anonymous . 240 Apothecaries Co. v. Burt. 34 Armory v. Delamirie . 89 Arnott v. Dowsett . » (7 Arnsby v. Woodward . 141 Ashby v. Bates. - 100 Ashley, Re ‘ . 217 v. Killick . 229 Ashmole v. Wainwright 86 Asplin v. Blackman : 41 Atkins v. Kilby . » 2% Atkinson v. Bell . ‘ 83 Avards, App. Rhodes, i App. 309 Baddeley v. oe . . 35 ——; . 175 Bailey v. Bidwell 77, 100 Banks v. Rebbeck . - 138 Barlow v. Brown i . 87 Barnes v. Marshall 5 59 Barnett, Re 3 . 240 Bate, Re 5 é 216 Bates v. Townley . - 87 Beaven y. Walker 262 Beck v. Beverley . 225 Becke v. Smith . . 196 Bedford, Re . ‘ 219 Beeston v. Collyer . » 85 Belcher v. Bellamy . 194 Bevan v. Prothesk . s 160 Billv. Bament . ‘ 82 Binns v. Towsey a 196 Bird v. Jones y . gt Bishop v. Hatch : 192 v. Howard . - 139 Blewitt v. Tregoning . 102 Blondell, Re ‘ - 199 Blowers v. Rackham 118, 160 Bodenham v. Ricketts ° 174 Bohn, Re j ‘ 241 Boorman v. Nash . - 88 Booth vy. Clive . . 23 vy. Milns é 99, 100 Borell vy. Dann - 200 Bowdler, Re . ‘ 268 Bowen v. Evans . 149, 158 » Re ‘ . 171, 240 Boyce, Re . App. 310 Boydell v. apes « 225 Boys, Re . 210 Bracey v. Carter . - 84 Bray, Re : . 216 Brazier v. Jones . . 80 Breese v. Owens ‘ 6, 31 Brewster, Re . : 218 Bridges v. Hawksworth . 89 Brind v. Hampshire. 87 Bristowe v. Needham - 86 Britain y. Lloyd . . 86 Brittain vy. Kinnaird - 160 Brooker v. Cooper . 4, 39 Brookman v. Wenham 158, 159 Brooks v. Bockett 5 84 Brown v. Fleetwood. » 227 Brunskill v. Powell ‘ 33 Buck v. Lee % . 194 Xx TABLE OF CASES CITED. Page Page Buckley v. Hann . 42, 58 | Currie v. Child 77 Burn v. Boulton . 83 | Cutter v. Powell 84 Busbey, Re 239 Bussey, Re . 240 Butler v. Hobson ‘ 193 | Daines v. Hartley 101 Byerley v. Windus 171 | Davies v. Acocks 196 Byrne v. Knipe 123 y. Edwards . 226 vy. Mann . 92 Davis v. Lloyd » 225 Cadogan v. Kennett 114 Re . . » 215 Campbell v. Fleming « 217 y. Walton 36; App. 309 ———v. Rickards . 101 | Dean of York, Re , 171 Cannam v. Farmer . . 99 | De Haber vy. Queen of Por- Cannon v. Johnson 161, 165 tugal . 171 Carne v. Brice. + 114 | Dengate v. Gardiner 48 Carpue vy. London and Denne v. Knott 229 Brighton Railway Co. . 100 | De Porquet v. Bury 58 Carter y. Boehm : 101 | Dewdney, Ex parte 210 Cater v. Chignell . 120 | Dews v. Ryley 23, 103 Cates v. Hardacre 102 | Dixon v. Hambrook 269 Catteral v. Kenyon 114 | Doe v. Allen 73 Cattlin v. Hills. 92 v. Andrewes 196 Cawley v. Furnell 161 v. Ball . 196 Caunt v. Thompson 88 v. Barnes 76 Cheesman v. Exall 89 | —— d. Bennett v. Hale 25 Chesterton vy. Farlar 174 | ——v. Bill 139 Chew v. Holroyd App. 309 v. Calvert . 77 v. Lye i » 191 | —~—v. Cooke . 141 Chinn v. Bullen . 152 v. Crick 140 Clabburn, Re ~ B22, e— ws Dae « . 74 Clark v. Woods . - 25 v. Gillett 5 195 Clarke v. Stancliffe . 51,164 | ——d. Hemming v. Willetts 76 Clarke v. Webb 87 | ——v. Horn 139 Clayton, Re 219 | —— v. Hughes ° 141 Clipperton, Re 154 | —— d. Jenkins v. Davis 78 Clive, Re 176 v. Johnson 140 Close v Phipps _ . . 86 | ——v. Keeling 76 Cody, Re 7 . 200 y. Lines 140 Cole v. Coles . 197 | —— v. Somerton 68 —— v. Davis ‘ 111 | ——v. Stanion 140 Coles v. Strick i 239 y. Summerset 140 Colling v. Treweek ” 68, 84 v. Thomas 197 Collins v. Godefroy 70 v. Webster . 78 v. Lightfoot 228 v. Wells. - 140 Const v Hughes 89 v. Whitehead 99 Cook v. Pritchard 196 | Down y. Cooper 146 Cooper, Re : “ 199 | Doyle v. Lawrence 42 vy. Stephenson - 164 | Drakeford, Re . 202 Cope v. Rowlands 85 | Duke de Cadaval v. Collins 86 Cox v. Glue 90 | Dunford, Jn re 71 —-v. Reid . 23 | Dunn v. Loftus + 264 Crake v. Powell : 41 | Durant v. Tomlin . 158 Crockford vy. Winter 86 | Dutton v. Solomonson 57 Croft v. Alison 92 | Dwyer v. Collins 68, 69 Cross v. Smith 160 Crosse v. Seaman 43 Croughton v. Blake 76 | Eagleton v. Gutteridge lli Crowe v. Hunt . 174 | East Anglian Railway Com- Culpeper v. Joy ‘4 « Bel pany v. Lythgoe 161 Cunliffe y. Sefton . 77 +|' Edev. Jackson . 17) ‘ TABLE OF CASES CITED. xi Page Eden v. Blake ‘ - 73 Edis v. Peachey - 142 Edmonds v. Challis - 145 v. Walter . - 101 Edwards v. Hooper ‘ 89 v. Rogers . 158,171 Egler, Re . r - 215 Eld v. Vero ‘ 275 Elkin v. Janson ‘ - 100 Ellis v. Griffiths . » il v. Peachey : v. Watt 80, 184 Elwes v. Mawe . » 112 Ely v. Moule . - 104 Estob v. Wright . - 24 Evans, Ex parte 159, 174 — Re « i v. Rees : « 1E —— v. Roberts - 113 v. Williams . . 229 Everard, Re . . 219 Exall v. Partridge - . 86 Eyton v. Littledale . . 83 Farinav. Home . » 82 Farr v. Newman « 412,114 Farrant v. Thompson. 112 Fawcett v. Cash ‘ 85 Fay v. Prentice . ~ 91 Fazacharly v Baldo - 160 Fearon v. Norval 138, 139, 141, 142 Feistat, Re ‘ 200 Fesenmayer-v. Adcock 86, 87 Fewings v. Tisdall ‘ 85 Field, Re . : 210 Fletcher, Re . 269 Folker v. Chadd ‘i » 61 Ford vy. Dabbs . ‘a 192 Forward v. Pittard . - 91 Foster, Re ‘ 199, 251 Foulkes, Ex parte . 265, 268 Francis v. Dodsworth a 225 Free v. Burgoyne - 170 Freeman v. Burgess - 228 Fry v. Hill . ee, 82 Fulcher v. Howell 191 Gale v. Lewis ‘ ‘ 194 Garbett v. Veale A 114 Garby v. Harris. 2 40 Garlick v. Sangster . 189 Garrard v. Cottrell “ 86 y. Tuck - 175 Garry v. Sharratt , 193 Garside, Re : ‘ 190 Geach v. Ingall . F 99 George v. Chambers. 144 Page Gibbon, Re : 200, 217 Gibson v. Kirk 7 3 79 Giles, Re ‘i e 219 v. Perkins 194 Gillon v. Deare 7 Glasspoole v. Young 114 Glennie y. Delmar 7 42 Goddard, Re ® “ 239 Golding v. Caudwell 159 Goldsmid v. Lewis ‘s 226 Goode v. Burton ; 90 Goodman v. Pocock ‘ 86 Goodright v. Cordwent 141 Gordon v. Ellis _ 48 v. Secretan . 717 Gore v. Gibson ‘ : 88 Gorham v. Bishop of Exeter 171 Gosden v. Elphich ; 2 Goss v. Lord Nugent 73 Gould, Re - ‘ 219 Grafton v. Armitage 5 84 Grange v. Trickett - 198 Grant v. Maddox . 73 Green, Re x Fi 154 y. Bicknell 5 227 v. Wood ‘ 195 Gremaire v. Le Clerc , 84 Grimbly v. Aykroyd 33, 41 Grinham y. Card 7 178 Guy v. Newson 4 227 Gwynne v. Knight Z 36 Halifax v. Lyle 3 é 88 Hallv. Dyson. . 209 ~v. Maule. 5 176 —— v. Norwood ‘ 171 v. Wallace ‘ 115 Hammond, Re ‘ ‘ 240 Hance, Re ‘ 240, 241 Hand v. Daniels ‘ 80 Handey vy. Henson . 85 Hankey vy. Smith 7 83 Harden v. Forsyth . 224 Hardey v. Tingey : 195 Harries v. Lloyd i 196 Harris, Re , ‘ 240 Harrison v. Mathews : 79 ———— v. Painter e 412 Hart v. Sattley é . él Harte v. Byrne é 174 Harvey v. Hudson . 214 y. Mitchell . 68 Hayward v. Haswell 146 Hayes v. Keene : 128 Heath v. Long a 42 Henry v. Leigh F 68 Herbert v. Wilcox 5 195 Heslop v. McGeorge 121 e xii TABLE OF CASES UITED. Page Page Hickie v. Salamo 42; App. 309 | Johncock, Re . 215 Higgs v. Scott 7 3 87 | Johnson v. Evans : 114 Higham v. Ridgway - 74 vy. Jones 146 Hillv. Gray —. . 217 | Jobnstone v. Huddlestone 80 Hindle, Re : ‘ 219 | Jonas vy. Adams 121, 165 Hinton v. Dibbin : 92 | Jones v. Brown 7 37 Hocken v. Browne 228 | ——v. Carter 141 Hodsoll v. Stallebress 91 | ——v. Currey . 32 Honey, Re 7 7 239 | ——v. Dowle . 81 Hooper v. Stephens : 83 | —— v. Harrison 7 40 - v. Trefiry - 86 | —— v. Houldsworth 158 Hopcraft v. Keys : 146 | ——v. James ‘ 174 Hope v. Beadon ‘ 69 | ——v. Jones ‘ » 1,37 Horn v. Thornborough 23 | ——v.Uwen . 138, 157, 172 Horne v. Earl Camden 174 v. Reade . : 85. Hoskins, Re . < 219 | Jordan v. Binckes é 118 Houlden v. Smith 15, 124 | Joseph v. Henry 37, 170 Hounsfield v. Drury 7 75 | Joule v. Taylor . 23 Houseman v. Roberts 69 How v. Hall .. . 68 | Keighley v. Goodman . 154 Howard, Re . 219 | Kelly v. Solari 3 - 86 v. Bartolozzi 225 | ——v. Webster s 162 v. Caulfield 101 | Kemp v. Derrett . 139, 140 v. Smith ‘ 139 v. Finden . 86 Howe, Re a 190 | Kernot v. Pittis ‘ - 198 Hoye v. Bush . 25 | Kilnery. Bailey . i 51 Hoyles v. Blore : 227 | Kimpton v. Willey 34, 171, 172, Hughes v. Buckland 23 173 —v. Budd 69 Kine v. Evershed 3 » 28 Humphreys v. Smith 230 | King v. Hoare - «+ 48 Hunt v. the Great Northern Railway Compan Hunt v. Robins siti Hunt v. Wray Hutchins v. Scott Hutchinson vy. the 36 195 165 73 York, Newcastle, and Berwick Railway Company Hutman v. Bulnois Hutton v. Warren Hyde, Re P Hyde v. Johnson Isaacs v. Wyld. Jackson, Re — v. Burnham vy. Cummins v. Thompson Jacob v. Lee 7 Jacobs v. Hyde v. Tarleton Jaklin, Re Jarmain v. Hooper Jarrett v. Kennedy Jenner v. Clegg Jessop v Crawley Joel v. Morison 92 85 74 200 83 . 34 219 193 . 90 75, 196 69 262 102 202 114 87 146 120 92 Kinoning, Ex parte . 126, 269 Kinning v. Buchanan —_126, 269 Knibbs y. Hall . . 87 Knight v. Benett : 146 v. Fergusson* . 196 Re i . . 174 La Coste v. Gillman - 256 Ladd v. Thomas : - 146 Lambert v. Smith ‘ 225 Langley, Re 2 - 215 Latham v. Spedding =. 35 Lawrance vy. Walker . 227 Lawrence v. Clerk » 69 Laurie v. Bendall % 239 Leame y. Bray 5 » 91 Le Caux v. Eden . 174 Leeds v. Cook ; : 68 Legg v. Evans 7 115 Lenaghan, Re ¥ 37, 157 Leonard v. Baker ‘ 225 Levy v. Moylan 7 31, 96 Lewis v. Campbell . 86 — v. Hance : - 37 — vy. Harris é - 262 v. Samuel . 84 Lickbarrow v. Mason a 90 Liffin vy. Pitcher s 64 Lilley v. Harvey . « 35 Lilly v. Hays ~ . - 87 TABLE OF CASES CITED. ; Page Lindsay v. Lambert 196 Lloyd v. Jones é . 35 —— v. Mostyn . 69 vy. Peele ‘. » 226 Load v. Green 193 Lockwood v. Salter 227 ‘ Longbottom y. Longbottom App. 309 Loving, Re 219 Lucas, Re ‘ » 239 Lucas v. Winton 229 Lyon v. Reed » « 140 Mackally’s case so Major Semple’s case - 216 Mander, Re . Ls 198 Mann v. Buckerfield . . 10 Manton, Re x « 216 Manton v. Moore - 194 March, Re 219 Margareson vy. Saxton . 196 Marks v. Hamilton 192 Marsh, Re % 220 Marsh v. Horne A - 100 Marshall v. York and New- castle Railway Company Masters v. Johnson 92, 274 Master v. Miller 2 . 88 Maugham v. Hubbard 101 May v. Burdett ‘ 92 M'Dougal v. Paterson. 4l MLintock, Re . 200 M‘Manus v. Crickett . 92 M’Naghten’s case 101 Mercer v. Whall 99 Meredith v. Grittins ‘ 41 Meres v. Ansell - 73 Metcalfe v. Scholey 112 Middleditch v. Ellis ; 87 Miller v. Demetz . 193 Mills v. Barber 100 Mills, Re ‘ 239 Milner v. Rhoden ‘ 38 Mizen v. Pick 3 82 Mogg v. Baker 193 — v. Baker 195 Molton v. Camroux . 88 Mondell v. Steele , 82 Money v. Leach . 25 Montgomery v. Blair . 168 Morris v. Bosworth . App, 309 y. Hauser - 69 Morrish v. Murray a 111 Mortimer v M‘Callan Morton v. Tibbett Moss v. Sweet 7 82 Mountnoy v. Collier =. 165 Mnnday v. Stubbs 256 Mungeam v. Wheatly 145, 147, : 148, 159, 160 - 76 82 xiii Page Murray v. Reeves 209 Nelson v. Whittal é 77 Newhall v. Holt ‘ 87 Newton v. Nancarrow . 37 Nias v. Nicholson a 227 Nicolls v. Bastard 5 89 Nickells v. Atherstone . 140 Nohro, Ex parte 158 Norden, Re 239 Norman v. Marchant . 42 v. Phillips . 82, 83 Northam v. Latouche 229 Nott, Re a a 239 Nowlan v. Ablet . 85 Oates vy. Hudson. . 86 Ogston, Re . . 5 216 O’Keefe, Re . i . 200 Omichund v. Barker . 78 O'Neill, Ex parte. . 128 Ormrod v. Huth . ‘ 93 Orr v. Morice . : . 77 Orchard v. Rackstraw . 90 Osborn v. ‘Thompson - 99 Outhwaite v. Hudson 97, 165 Owens v. De Beauvoir . 146 Page v. Newman . ; 87 Palmer, Re. 7 - 219 y. Richards . 40 Parker v. Bristol, and Exe- ter Railway Company, 158, 159 v. G. W. Railway Company . . 86 Parsons, Re . : » 241 Partington, Ex parte . 251, 253 Parton v. Williams ‘ 2 Parry v. Davies . » 42 Pascall v. Brown - 200 Pawly v. Holly . . . 81 Pearce v. Martin 36, 274 Pears v. Williams 386, 172, 173 Penprase v. Crease » 51 Penton v. Brown ui Perry v. Gibson. . 78 Peters v. Fleming . . 83 Philips v. Pickford 262 Phillips v. Shervill 225 Pilmore v. Hood . 217 Pinney v. Pinney. . 77 Pitt v. Purssord . ‘ 86 Platell v. Bevill 262 Plaxton v. Dare . i 17 Plumer v. Briscoe. » 78 Poe, Re ‘ ‘ . 172 Poole’s case @ . 112 Powell v. Ansell . . 79 y. Eason . - 228 y. Horton. . 73 xiv Page Power v. Jones . 00 Pownal v. Ferrand. - 86 Pratt, Re ‘ ‘ 220 Prew y. Squire. . 39 Price v. Lord Torrington 74 — v. Price . . 158 Prichard v. Nelson 7 51 Prince v. Blackburne ‘ a7 v. Samo ‘ - 102 Prior v. Hembrow « 86 Proudleck, Re 252 Pugh v. Hookham 225 Purdy, Ex parte 104, 125, 228 Quick y. Staines . 114 Rackham vy Blowers 118, 161 Rambert v. Cohen . 73 Ramsey v. Eaton - 115 Ramshay, Ex parte . . 13 Rance v. James 2 79 Rawling v. Bell. - 93 Reed y. Gardiner . App. 309 y. Shrubsole 39 R. v. Barnard ¥ 216 R. v. Birch - : 57 R. v. Chilton 6 121 R. v. Clarke ‘ - 174 R. v. Clerk of County Court of ‘Surrey | é : 107 R. v. Douglass . 216 R.v. Dowling . . 222 R. v. Goodall 3 216 R. v, Hallett ‘i - 166 R. v. Harwood ‘ 151 R. v. Haworth . 5 69 R. v. Herstmonceaux 139 R. v. Marner ‘ 200 R. v. Norris : - 226 R. v. Owen . ‘ 17 R. v. Parham * ¥ 14 R. v. Raines , 148 R. v. Richards 87, 121, 122 R. v. Thistlewood - 68 Regnart v. Porter 146 Reid v. Croft é 227 Remmington v. Dolby . 176 Rennie v. Beresford a 51 Reynard v. Robinson 195 Reynolds v. Parker 251 Richardson v, Langridge 139 Right v. Darby » « 140 Rigby v. Hewitt ‘i 92 Roberts v. Humby 171, 173 Robertson v. Womack 158 Robinson v. Geel 105 —-——v. Lawrence 97, 165 —-—— v. Lenaghan 60, 172 Rochfort v. Battersby 192 Roe v. Doe 2 . 140 TABLE OF CASES CITED. Page Roff v. Miller 7 42, 57 Roffey, Ex parte 210 Rolfe v. Learmouth % 42 Roper v. Levi 5 7 166 Rothwell v. Timbrell 115 Rowell v. Breedon 158 Rudder v. Price . . 79 Rush v. Smith . a 101 Sammon v. Miller 227 Samuel v. Duke 116 Sandford v. Aleock 81 Sangster v. Cave ° 42 Saunders v. Topp . + 82 Searfe v. Halifax 109 ——v. Morgan . . 89 Scotson, Re 2 a ‘217 Scott, Re : . 187 —— v. Surman . 194 Semayne’s case 7 «dt Sewell v. Jones ‘ 35,171 Sharp v. Eveleigh . 4l Sheape v. Culpeper . 146 Sheerman v. Thompson . 229 Shepherd, Re < « 220 Simmons v. Edwards . 194 Simpson v. Wood . 258 Sims v. Simpson 3 192 ——v. Thomas . » 193 Sinclair v. Bowles “ . 84 vy. Stephenson 68, 101 Singleton v. Barrett =. 73 Six Carpenters’ Case - 146 Skelton v. Mott ‘ 225 Skey v. Carter . 115 Slade’s case . . 81 Slatterie v. Pooley . » 73 Sloate, Re . - 240 Smith v. Dearlove : - 90 Dimes ‘ . 84 v. Eldridge 3 51 y. Hopper. - 28 ——— v. Jeffreys . . 3 —— v. Marsack . . 88 ———- v. Pritchard . —— v. Surnam 7 . 82 _—— Vv. v. Wetberell - 192 Soward v. Leggatt 6 99 Sparrow v. Reed . 151 Spink, Re . . 239 Spooner v. Payne . e 49 v. Payne 192 Stackwood v. Dunn . 48 Stancliffe vy. Clarke . . 97, Stansfield v. Hellawell Stanton v. Styles. é 64 Staves, Re 5 : Stead v. Gascoigne. Steadman v. Hockley .. 90 TABLE OF CASES CITED. - xv Page Page Steer, Re * - 216 | Tyers v. Stunt oe 355 Stephens v. Badcock . 87 | Tyler v. Shinton . 262 Stevenson v. Stickle =. 174 | Tynman, Re fi 239 Still v. Booth . 170, 175, 229 Stockford, Re ! s 218 | Vallet, Re 7 : 210 Storr v. Lea Oh 227 | Valpy v. Manley 86 Streachan, Re ‘ y 217 | Van Casteel v. Booker 196 Streeter v. Bartlett 77 | Veal, Re 5 é 239 Stuart v. Jones ! < 36 | Veitch v. Russell é 85 Sunbolf y. Alford - « 112 | Viner v. Cadell . 193 Sussex Peerage Case . 74 | Vines v. Arnold ; 34 Swain v. Cox : . 175 | Violett, Ex parte 214 Syers v. Jonas 3 . 73 Symonds vy. Dimsdale - 4158 Wadsworth v. Queen of Spain 169, 171, 175 Tabram v. Freeman . 225 | -Waite v. Bishop ‘ 192 Tamerlane v. Bower 171 | Wakefield v. Newbon 86 Tanner, Ex parte, In re Cul- Wall, Re . 202 lum vy. Ross . 121 | Walsh, Ex parte ‘ 170 v. Smart . 83 | Walstab v. Spottiswoode 87 Taylor, Re ‘ 217 | Warrior, The % 36. —— v. Addyman 80, Add. | Waters v. Handley a 59 v. Buchanan 225 | Watkins v. Wake . 79 v. Zamira 7 146 | Watsonv. The Ambergate, &c. Templer v. M‘Laghlan 84 Railway Company 161, 163 The Bishops v. St. David’s vy. Peache 193 Case ‘ ‘ 176 y. Quilter : 4, 39 Thom v. Simmons 169 | Watt, Re . ‘ 200 Thomas v. Hudson . 262, 264 | Wayman v. Hillyard 87 Thompkins, Re 3 200 | Webb v. Fairmanner 82 Thompson v. Ingham 35 ~v. Plummer 7 74 vy. Jackson 196 | Weeks v. Argent - 78 yv. Whatley 263 | West v. Nibbs 7 146 Thomsett, Re Z 246 | Whalley v. M‘Connell 128 Thorne v. Simmons 173 | Wharton v. Naylor : 117 Thorogood v. Bryan 92 | Wheatly v. Patrick . 91 Thorpe v. Eyre : 196 | Whitcomb v. Whiting 83 Thoytes v. Hobbs 196,259 | White v. Morris : 24 Timmins v. Rawlinson 80 | Whiteheadv. Taylor . 146 Timothy v. Farmer. 35 | Whitfield v. Brand. 194 Tinkler v. Hilder - 120 | Whitmore v. Greene - 115 Tippets v. Heane ‘ 83 y. Robertson 115 Toby, Re . 5 154 | Wickamv. Lee 34, 35, 79, 80 Todd, Re . 240 | Wigglesworth v. Dallison 74 Toft v. Rayner 37, 157,170 | Wigmore v. Jay . 92 Tolfrey, Re ‘ 216 | Willcox, Re. - 230 Tooke v. Hollingworth 194 | Wildev. Sheridan. 57 Toomer v. Gingell 262 | Williams v. Chambers 192 Toovey v. Milne ‘ 194 | ————v. Frith 5 84 Toppin v. Field . 226 vy. James. 88 Tottham, Re % 250 y. Moore j 87 Towne v. Lewis : 89 | Wilmer v. White .~ 226 Treil v. Edwards. 169 | Wilsonv. Tummon. 90 Troup v. Bofi 227 | Winchv. Keeley. 194 Turner v. Barry . 43 | Winn v. Ingilby < 112 Turquand v. Knight 78 | Winsor v. Dunford 75, 79, 170, Twyman, Re * 239 _ 1, 174 Twyne’s case . 116 | Winterbottom v. Winterbottom 87; App. 309 XVl TABLE OF CASES CITED. Page Wolf, Re é A 199 Wood v. Perry 5 ‘ 41 v. Wood < 112 Woodhams v. Newman 32, 43 Woodland v. Fuller 115, 192 Woolley v. Smith ‘ 227 Worster, Re ‘ - 200 Wrigglesworth v. Dallison 262 Wright v. Cattell 168, 169, 170, 175 v. Hutchins ‘ 262 v. Maunder 197 Page Wright v. Willcox ee 402 Yates v. Palmer ‘ 173 v. Pym. ‘i 73 Yorke v. Brown ‘ 192 v, Smith 5 163 Young v. Cole $ 87 Zohrab v. Smith . 37 INTRODUCTION. Tuer ancient county court, or sciremote, was the great Inrrop. court of this country for civil business in the time of the” Saxons, and existed long previous to the ecuria regis, which was first established by William the Conqueror, and from which the three superior courts of Queen’s Bench, Common Pleas, and Exchequer were gradually moulded (a). The county court was held once in every four weeks ; it was presided over by the Earl, or in his absence by the Sheriff ; but the swztors (that is, the freemen or landholders) were the judges, and the sheriff sat only in a ministerial character, to pronounce the judgment of the suitors (6) and execute it, assisted, if need were, by the Bishop. During the Saxon rule, unless justice had first been denied in the county court, no action could be entertained in the superior court or wittenagemote, which followed the king’s person, and the judges of which were the great officers of state. In the reign of Henry II. justices of assize being appointed, who annually visited the different counties, the poorest and most remote inhabitant of England could ensure the trial of his right by the same judges to whom were entrusted the highest questions of law, and the county court, as far as its judicial functions were con- cerned, gradually fell into disuse ; all acts of Parliament and outlawries were, however, still proclaimed there, and by statute 2 Edw. 6, c. 26, no county court could be ad- journed for a longer period than twenty-eight days. It was not a court of record; the process was by summons, attachment, and distress. Pleas were held by plaint in debt, detinue, or other personal actions (not being for injuries done v% et armis) under the value of 40s. By a (a) For an account of the an- | County Court. cient county court, see Reeve’s (b) Jones v. Jones, 5 M. & W. 3. History of English Law, vol. 1, 52 p- 7; Bacon’s Abridgment, tit. RB fe x Introduction. Introp. writ of justicies, which was in the nature of a commission to the ‘sheriff, but which did not alter the nature of the proceedings, he, together with the suitors of the court, might hold plea of certain real and personal actions, although for claims above 40s., or for injuries done vz et armis. The court had also jurisdiction in cases of replevin to any amount (c) ; this action might be commenced either by writ, which was in the nature of a writ of justicies, or by plaint. A plaint in the country court might in all cases be moved into the Court of Queen’s Bench by a writ of recordari facias loquelam. If the action was com- menced by justicies, or where replevin was commenced by writ, the proper writ by which to remove it was a pone. Having briefly pursued the jurisdiction and process of the ancient county courts, it remains only to remark that they may still be holden, and that they retain all jurisdic- tion and duties which have not been transferred to the new district courts (d). The few proceedings which were still carried on in the old courts being found dilatory and expensive, and a great number of courts of requests having from time to time been established, under local acts of Parliament, in dif- ferent parts of the country, for the more easy recovery of small debts, it was thought advisable that one uniform system of local courts, having jurisdiction up to a certain amount, should be established throughout England. The county courts which form the subject of this book were thevetore created by the 9 & 10 Vict. ¢. 95, which has since been extended and amended by the 12 & 13 Vict. c. 101, the 13 & 14 Vict. ¢. 61, and the 15 & 16 Vict. ¢. 54. By the first of these statutes the courts were established as courts of record, and jurisdiction was given to them in all personal actions where the debt or damage claimed does not exceed 20/., excepting actions of ejectment, or actions in which title to corporeal or incorporeal here- ditaments, or the validity of claims under a will or settlement comes in question, and actions for malicious prosecution, for libel or slander, for criminal conversation, for seduction, or for breach of promise of marriage. By the 13 & 14 Vict. c. 61, the jurisdiction is extended to sums not execeding 50/.; and by the same act it is also provided that although the amount sought to be recovered exceed the sum of 50/., or although title come in question, the court may have jurisdiction, upon the litigant parties agreeing thereto. The process of the court is by plaint and summons, (c) 2d. Inst, 139. 312: Gilbert (d) 9 & 10 Vict. c. 95, 3. 4. Distr. 92. Introduction. and where no jury is required by either party, the duty Inrrop. of deciding questions both of fact and law is vested in the judge alone, no suitors being summoned as in the old court (e). In cases however in which the amolnt claimed exceeds 5/., either party may require a jury to be sum- moned to try the action. The proceedings at the trial do not now substantially vary from those adopted in the courts of Westminster, with one material exception (/), namely, that where there is a judgment for the plaintiff, the county court has the power of ordering that the debt or damages recovered shall be paid by instalments. The policy of this latter provision is obvious, but much dis- cretion is necessary in the exercise of the power which it ives. ‘When the claim is above 5/., a suitor may remove the plaint into one of the superior courts, having first ob- tained leave so to do from a judge of.a superior court, who must be satisfied that the case is fit to be tried by the latter court. A material alteration, with respect to the removal of plaints, was effected by making the county court a court of record; namely, that all plaints which can be removed into a superior court, must now be removed by a writ of certiorart; whereas when there was no record of the proceedings in the inferior court, the proper writ was, as has been mentioned, a re. fa. lo. The other effects produced by this alteration need not be mentioned ; since all proceedings, except this, have been specially provided for by the act. No judgment or order of the county court, nor any matter pending therein, can in any way be removed, ex- cept in the manner just mentioned. But together with the extended jurisdiction created by stat. 138 & 14 Vict. c. 61, a power of appeal was given where plaints are brought for causes of action which, but for that statute, (e) 9 & 10 Vict. c. 95, s. 69. (f) When the first edition of this Book was published (July, 1851.) Two other material dis- tinctions, between the practice of the superior courts and the county courts, existed. In the former the parties to the action could not be examined, and the old forms of action were pre- served. In the county court the parties to any plaint, and their. witnesses, could be examined, and forms of action were in no way recognised. In these two respects the proceedings have now been nearly assimilated by the Act to Amend the Law of Evidence, 14 & 15 Vict. c. 99, (1851), and The Common Law Procedure Act, 15 & 16 Vict. c. 76, (1852). There still, however, remains this distinction as to evidence. In the county courts the wife of a party may in all cases be examined: whereas in the superior courts she can be examined in those cases only in which the action is brought on her behalf. B2 3 f Introduction. Ixtrop. the courts could not have entertained ; section 14 of that act providing that if either party is dissatisfied with the determination, or direction of the court in point of law, or upon the admission or rejection of any evidence, he may appeal to any of the superior courts of common law, two otf the puisne judges of which court may decide the pomt disputed. The appeal is in the form of a case agreed on by the parties, and, if they cannot agree, it is settled by the judge of the county court who heard the plaint. __ With respect to those actions of contract over which the county court has jurisdiction for sums not exceeding 20/., and those of tort not exceeding 5/., the legislature has made it compulsory (that is under the penalty of the loss of costs) to resort to it (g). In actions for claims above those sums respectively, the superior courts and the county courts have a concurrent jurisdiction, and parties may exercise an option and resort to either for the adju- dication of their clams. On this head the 13 & 14 Vict. c. 61, made a material alteration, and carried out the spirit of the first act, if not the very intention of its framers. The original act had provided that if any action should be com- menced in a superior court for a cause for which a plaint might have been entered in the county court, and a ver- dict should be found for the plaintiff for a sum less than 201. in contract, or less than 5/. in tort, the plaintiff should have judgment to recover such sum only and no costs, unless the judge who tried the cause certified that the action was fit to be brought in the superior court (#). As, however, the rule of the courts has always been, that when- ever the statute of Gloucester, which gives a successful plaintiff his costs of suit, is departed from, the reason for that departure must be made to appear by suggestion on the record, in order that the opposite party may have an opportunity of traversing it, a defendant could not avail hunself of this provision without incurring the further ex- pense of several pounds in obtaining an entry of such sug- gestion (¢). The act 13 & 14 Vict. c. 61, has now rendered this proceeding unnecessary, by enacting that the plaintiff in such cases shall be deprived of costs without the entry of a suggestion. In addition to the jurisdiction already mentioned, re- lating to actions brought for the recovery of debts or damages, the county courts may also entertain suits of replevin, and applications by landlords for the recovery of (g) Unless in the case of judg- (h) 9 & 10 Vict. ¢. 95, s. 129, ment by default, or where the (4) Brovker v. Cooper, 3 Exr. judge before whom the cause is 112; S.C. 18 L. J. Exr. 41; tried certifies, or an order for 12 Jurist, 964. Sce also Watson costs is made. See post, C.IV. v, Quilter, 11 M. & W. 700. “ JuRispicrion.” Introduction. 5 tenements of an annual rental, or value of land, not ex- Ivrrop. ceeding 50/. The proceedings in the latter case are similar to those under the statute 1 & 2 Vict. ¢. 74, by which magistrates may exercise a jurisdiction of the same nature where the rent does not exceed 202. A further jurisdiction attached to the county court is that of insolvency, which may be divided into two heads; first, that of petitions by insolvents, who are imprisoned, for their discharge under the statute 1 & 2 Vict. c. 110; and secondly, petitions for protection under the acts 5 &6 Vict. c. 116, and 7 & 8 Vict. c. 96. The hearing and adju- dication of the insolvent under the first of these systems, and the other duties which were formerly performed by a commissioner of the Court for the Relief of Insolvent Debtors, on circuit, and the country jurisdiction of the Court of Bankruptcy under the latter, or protection sta- tutes, are by the 10 & 11 Vict. c. 102, transferred to the county court. Another jurisdiction belonging to the county court, which, although it is seldom brought into operation, must here be noticed, is that which enables creditors who have obtained judgments or orders of any court in respect of a debt not exceeding 20/., to summon their debtor before the court, to be examined; and empowers the judge upon his failing to attend, or refusing to answer, or if it appear that the debt has been contracted by fraud, or without the debtor having had a.reasonable prospect of paying, or that he has made away with his property with the inten- tion of defeating his creditors, or having had the means, has omitted to pay the debt, to order him to be committed for any period not exceeding forty days. This power was originally created by stat. 8 & 9 Vict. c. 127, in consequence of the right to imprison a defendant against whom a judgment for a debt not exceeding 20/. has been obtained, having been taken away by the 7 & 8 Vict. c. 96, s. 57. This jurisdiction was originally given to the Com- missioners of the Court of Bankruptcy, and to the judges of certain inferior courts; it is now, however, by an act which has been already alluded to, (10 & 11 Vict. c. 102,) vested in the county court. As nearly all the judgments for sums under 20/. aré now, since the creation of the present county courts, recovered in them, and as they have power to commit defendants under similar circum- stances, it, but seldom occurs that any application is made by a plaintiff under the provisions of the 8 & 9 Vict. ce. 127. The county courts are also empowered to perform all such duties relating to suits depending in the Court of Chancery, as the Lordf@hancellor may by general order i 6 Introduction. Ivtrop. direct (%). And by the Friendly Societies’ Act (J), where disputes arise between members of or claimants under such societies, for settlement of which recourse must be had to a court of equity, the matter may be referred at the option of either party to the judge of a county court. By the more recent act 15 & 16 Vict. c. 31, a power is also given to the county courts to enforce the performance of the awards of arbitrators appointed under the provisions of that act, to settle disputes between the members and trustees or other officers of such societies, in all cases in which the amount in dispute does not exceed the limits of the jurisdiction of the county court. The judges of the county court are also commissioners under the Joint Stock Companies’ Winding-up Acts (11 & 12 Vict. c. 45, and 13 & 14 Vict. c. 108), and may, upon being required to do so by the master, summon and examine witnesses, and require the production of, and in- spect documents, as may be necessary for the purposes of those acts (a). The county courts have been made auxiliary to the pro- cess of the superior courts by the 14 £15 Vict. c. 52, which enables the judges of the county courts to issue warrants for the arrest of absconding debtors. These are obtained in the same mode as a writ of capias is obtained from a judge of a superior court, and the plaintiff must in all cases follow up the arrest by issuing a capias, the only object of the act being to enable a creditor to arrest his debtor without the delay which is necessarily incurred by the application to a judge at Chambers in London. It was at one time doubted whether a writ of trial under the 3 & 4 Wm. 4, c. 42, 8.17, could be directed to the judge of a county court. In a case which came before the Court of Exchequer the question was argued, and the court differed in their opmion; but as it was unnecessary to decide the point, they left the parties to a writ of error (7). The Court of Exchequer Chamber afterwards held that a writ of trial could not be directed to the judge of a county court ; inasmuch as, although the county court is a court of record, still being one which does not proceed accord- ing to the rules and practice of the common law, it does not come within the provisions of that act (0). (Rk) 9 & 10 Vict. c. 95, s. 22. (n) Breese v. Owens, 6 Exr. No such general order has as yet 413. S. C. 2L., M. & P. 380; been made. 15 Jur. 431. () 13 & 14 Vict. c. 115, s. (0) Breese v. Owens, 6 Exr. 2 916. 8.C.2L. M. & P. 346; 22, x) 12 & 13 Vict. c. 104,s. 20 L. J. Exr, 339, PART I. —~—- PROCEEDINGS IN PLAINTS., CHAPTER I. DISTRICTS, COURT HOUSES, GENERAL FUND AND SITTINGS OF THE COURT. Districts, 7. GENERAL Founp, 8, Covnr HousEs, 8: How regulated. Existing Courts. Srrrinas OF THE CovRTS, Treasurers to provide. 9: Town Halls and Public Appointment of. Buildings. Districts.|—By the statute which first created the new Districts, county courts (9 & 10 Vict. c. 95), a power was given to the Queen, with the advice of her Privy Council, from time to time to order that the act should be put in force in such counties as to her Majesty might seem fit (a); and also to divide the whole or part of any county, &c. into districts, and to order that the county court should be holden for the recovery of debts and demands under that act in each of such districts, and from time to time to alter them as might seem fit, and to order that the num- ber of districts in and for which the court shall be holden shall be increased, until the whole of the county is within the provisions of the act, and to alter the place of holding the court, or to order that the holding of it be discon- tinued, or to consolidate any two or more districts, and to declare by what name and in what towns and places the county courts shall be holden in each district; and if it appear that any part of any county, &c. may conve- (4) 9 & 10 Vict. c. 95, 5, 2. Court- houses. Existing courts. Treasurers to provide. Court Houses—General Fund. niently be declared within the jurisdiction of the county court of an adjoining county, to order that such part shall be taken to be within the jurisdiction of the county court for such adjoining county in and for such district, in like manner as if it were part of such adjoining county (0). If the council of any city or borough, or a majority of the ratepayers of any parish within the limits of which a court of local jurisdiction other than a county court is established under the 9 & 10 Vict. c. 95, or into the limits of which the jurisdiction of such court extends, petitions the Queen in council that the jurisdiction of such court may be excluded in causes whereof the county court has cognizance, and the requisite notice of the petition is pub- lished, the Queen may by order in council declare the exclusion of the jurisdiction of the local court throughout the whole or any part of the district of the county court ; unless a petition against declaring such exclusion is pre- sented, or a caveat is entered at the council office. If a counter petition is presented, or any caveat is entered, then the Queen may refer the petitions to the judicial committee of the Privy Council, and on their report make such order in council as she is advised (c). Court-houses.|— By stat. 9 & 10 Vict. c. 95, s. 53, as soon as a court was established in any district under that act, all messuages, lands, and tenements, and all real estates and effects vested in or belonging to the commis- sioners, clerks, or other officers of any of the existing courts for the recovery of small debts, mentioned in Schedules (A.) and B.) of the act, which were holden in trust for the purposes of the court, vested in the treasurer of the county court for the time being, in trust for the purposes of the act. In districts where a court-house and offices, with necessary appurtenances, have not been already provided, or are inconvenient or insufficient, the treasurer, with the approval of one of the principal secre- taries of state, may build, purchase, hire, or otherwise provide messuages and lands, with all necessary appur- tenances, fit for holding the court, and for the offices necessary for carrying on the business of the court; or, instead of providing separate buildings, may contract for the use and occupation of any county or town hall or other building, or so much thereof as is needed, subject to such rent and conditions as may be agreed upon; and all lands, messuages, and other real and personal estates and effects belonging to the court vest in the treasurer for the time being, and in his successors, in trust for the purposes (6) 9 & 10 Vict. v. 95, s. 2. (c) 15 & 16 Vict. c. 54, s. 7. Court Houses—General Fund. of the act(d). The provisions of the Lands Clauses Con- Cnap. 1. solidation Act, 1845 (e), apply to such purchase, except such as relate to the purchase and taking of lands other- wise than by agreement; and the treasurer, acting with the approval of one of the principal Secretaries of State, is deemed the promoter of the undertaking for which such lands are required (/'). The treasurer, for the purpose of defraying the expenses of building, purchasing, or providing messuages and lands for court-houses, may borrow money at the rate of interest allowed by the Commissioners of the Treasury, and enter into necessary securities for that purpose which are binding on him and his successors in office for repayment out of the general fund; he must enter in a book belonging to the court and kept by him for the purpose, the names of the persons by whom money is advanced, in the order in which it is advanced, and the debts must be paid in this order (9). By the same act which extended the jurisdiction of the Town- county court (13 & 14 Vict. c. 61), a greater facility in halls and obtaining court-houses is afforded by a provision, that in every town or place where a county court it holden, and no court has been already erected or hired, the town-hall, ‘court-house, or other public building belonging to the county, city, borough, or town may be used for the pur- poses of holding the courts, without any charge except for lighting, warming, and cleaning, and other expenses necessarily incidental to the use of the said building for the purposes of the courts; an arrangement must, how- ever, be made, so that the sittings of the courts shall not interfere with the business of the county, &c. usually transacted in the building used, or with any purposes for which it may be used by virtue of any local act (/). buildings. General Fund.|—For raising a fund for providing a General court-house and offices, and for paying off any monies 4. which may be borrowed by the treasurer (7), and the in- terest due in respect thereof, the clerk was empowered by the 9 & 10 Vict. c.95, to demand and receive from the plaintiff the sum of 6d. when the debt or damage claimed was above 20s. and under 40s., and for every claim above 40s. one-twentieth part thereof, not estimating any sum less than 6d.; or such other sum not exceeding those rates, as one of the principal Secretaries of State, with the consent of the Commissioners of the Treasury, (d) 9 & 10 Vict. c. 95, ys. 48. See General Fund, post. (e) 8&9 Vict. c. 18. (A) 13 & 14 Vict. c 61, 5 24. (f) 9 & 10 Vict. ¢. 95, ». 50. (i) Ante, (g) Ib.s. 51. B3 9 10 Parti How re- gulated. Sittings of the Court. General Fund—Sittings of the Court. should order. The sum, if not paid in the first instance by the plaintiff, may be deducted from the sum recovered, and considered as costs in the cause (A). The above amounts were by an order made by the Secretary of State and Commissioners of the Treasury dated 15th Nov. 1850, considerably reduced (2). The clerk must keep an account and pay over the amount received to the treasurer, to accumulate and form a fund called “The General Fund,” to be applied im the following manner: first, to the payment of the interest of sums borrowed; secondly, to the payment of the rent and other expenses necessarily incurred in holding the court ; thirdly, to the payment of the principal sums borrowed, in the order in which the debts were incurred; and, fourthly, to the payment of the other expenses charged by the act, in such manner as the judge, with the approval of one of the principal Secretaries of State, may direct ; the surplus to be paid to the consolidated fund, subject to any charge which may arise from any future deficiency of the fund (m). The amounts of the fees which may be collected toward the general fund as above stated, are authorized by the act which established the courts; they may, however, be regulated or varied, lessened or increased, as one of the principal Secretaries of State, with the consent of the Commissioners of the Treasury, may from time to time direct (n). See further as to these tees, post, p.26. By the same authority, where the fees received by the officers of the court exceed their salaries, the residue may be ac- counted for to the treasurer, to form part of the general fund (0). In addition to the above fees, all sums of money which have been paid into court to the use of the suitors and remain unclaimed for six years (the time during which the person entitled is an infant, feme covert, of unsound mind, or beyond the seas, not being taken into account), are applicable to and must be carried to the account of the general fund (p). So also the moneys arising from penalties, forfeitures, and fines, when paid and levied, if not otherwise appropriated by the act, are to be applied in aid of the general fund (¢). Sittings of the Courts.]—The stat. 9 & 10 Vict. ¢. 95, s. 56, provides that the court shall be holden within each (k) 9 & 10 Vict. ¢. 95, s, 52. this authority the clerks are en- (J) See post, p. 26. titled to take. Appendix, p. 156. (m) 9 & 10 Viet. o. 95, 8. 37. (0) 9 & 10 Viet. «. 95, s, 37. (x) 13 & 14 Viet. ¢. 61, 8.5. (p) Ib. s. 110, See the table of fees which by (q) Ib. s. 133. Sittings of the Court. il district at such times as the judge appoints, provided it is CaP. +. holden once at least in every calendar month, or at such other interval as the Secretary of State may appoint; and that notice of the days appointed for holding courts, or of any change in such days, shall be put up in some con- Spicuous place in the court-house, and in the office of the clerk of the court. In addition to this, in order that the suitors may know when the courts will be holden a con- venient time beforehand, the rules of practice require that the judges, on or before the 1st of January, 1852, shall appoint the days and hours for holding each of their Appoint- courts during the January, February, and March in that ment of. year; and on or before the first day of every month after January 1852 make appointments for the month next following the three months previously appointed. A notice of such appointments must also be forthwith put up in some conspicuous place in the court-house and in the office of the clerk. Whenever any day so appointed is altered, notice of the alteration and of the time when it will take effect must be put up in the same way. The judge may, however, from time to time, hold additional courts besides such as are so required to be appointed (7). No two courts may be held before the same judge on the same day (s). (r) Rule 2. (s) Rule 3. Judge. Appoiut- ment and removal. 12 CHAPTER II. JUDGE, OFFICERS, COUNSEL, AND ATTORNEYS. Jupae, 12: Hien Barzirr, 20: Appointment and Re- Appointment and Re- moval, For what Districts. phi Dut Bailiffs. uties. : Deputy. Duties. Salary and Pension. ms a es Liability. nea TREASURER, 15: GENERAL REGULATIONS, Appointment and Re- 21: moval. Offices not to be con- Duties. Joined. Salary. Officers not to act as At- CiErK, 16: torneys Appointment and Re- Security moval. Extortion or Misconduct. Residence and Office. Protection of Officers. Duties. Actions against. Books. Deputy. CouUNSEL AND ATTORNEYS, Salary. 25. Judge, Appointment and Removal.|—By stat. 9 & 10 Vict. c. 95, ss. 9 to 18, and s. 17, and Sched. (.A.), (B.), & (C.), the rights of certain existing judges and other officers are protected. Any future judge must be a bar- rister-at-law of seven years’ standing, or must have prac- tised as a barrister and special pleader for at least seven years, or have been the county clerk of the same county at the same time of the passing of the act. The appoint- ment is made by the Lord Chancellor, or, where the whole district is within the Duchy of Lancaster, by the Chan- cellor of that Duchy (@). During his continuance as judge, he may not practise at the bar or as a special pleader, or equity draftsman, or be directly or indirectly (a) 9 & 10 Vict. c, 95, s. 16. Judge. concerned as a conveyancer, ‘notary public, attorney, or proctor (4), nor may he be elected or sit as a member of the House of Commons (c). For “inability or misbe- haviour’’ the Lord Chancellor or Chancellor of the Duchy, as the case may be, may remove him (d). He may also be removed, by the same authority, from any district to which he has been appointed to any other district in which his salary will not be less than in the former (e). In a recent case, in which a judge whose district was within the Duchy of Lancaster, had been removed from his office by the Chancellor of that Duchy on the ground of inability, a motion was made in the Court of Queen’s Bench for a guo warranto to his successor, and affidavits were read to show that the Chancellor had come to an erroneous conclusion, but upon it appearing that the Chancellor, before removing the judge, had held an inquiry as to certain charges against him, and had heard counsel and witnesses, both in support of such charges and also for the judge, the Court held that they would not inquire into the amount or balance of the evidence adduced before the Chancellor, he having acted legally, and given the party accused a fair opportunity of being heard; nor would they grant a guo warranto for the purpose of allowing the question of fact to be submitted to a jury. The Court intimated, however, that if the Chancellor had removed the judge without a proper inquiry, or upon grounds other than “ inability or misbehaviour,’ they would have controlled his decision (/). For what Districts.\—A judge is appointed for each district (g). After a county has been divided into districts by order in council, for the purposes of the act (h), the Lord Chancellor may either appoint several judges of the same county court, and by limiting the jurisdiction of each to one district prevent them from having any joint or co-ordinate jurisdiction ; or he may appoint one person to be judge to hold the court in as many districts as by the appointments he is directed. This construction has been held not to be inconsistent with the words of 9 & 10 Vict. c. 95, 8. 8, which are, “There shall be a judge for each district, to be created under this act, and the county court may be holden simultaneously in all or any of such districts.” It has also been held that the same person (b) 15 & 16 Vict. c. 54,8. 16. LL. J., Q. B. 238. S.C. 16 Jur. (c) 10 & 11 Vict. ¢. 102, 8.18. 684. (d) 9 & 10 Vict. c. 95, s. 18. (g) 9 & 10 Vict. ve, 95, s. 3. (e) Ib. s. 19, (h) See ante, p. 7. (f) Ex parte Ramshay, 21 13 Cuap. «. For what districts. 14 Fudge— Deputy. Panrr. may, at the discretion of the Lord Chancellor, be a judge Duties. Deputy. of two different county courts (2). Duties.|—The judge must hold the court at each ap- pointed place within his district, once at least m every calendar month, or at such other interval as one of the Secretaries of State may order (%). He is sole judge in the court, and must determine all questions both of fact and law, unless a jury is summoned (/). In addition to this, and to his duty of hearing insolvent, protection, judgment debtor, and friendly society cases, if his name is inserted in any commission of the peace for the county, riding, or division of the county for which he is ap- pointed judge, he may act as justice of the peace for such county, riding, or division, without the qualification by estate required by law in the case of others, if he is not disqualified from any other cause (m). He must also perform any duties which may be deputed to him by the Lord Chancellor, in or relating to any causes, or matters, depending in the Court of Chancery (7), and he is a com- missioner under the Joint Stock Company Winding-up Acts (0). Deputy.|—In case of the illness or unavoidable absence of the judge, (the cause whereof must be entered on the minutes of the court,) he, or in case of his inability, the Lord Chancellor, or the Chancellor of the Duchy, as the case may be, may appoint a deputy, who is himself a judge of a county court, or who has practised as a barrister for at least three years, or as an attorney of one of the superior courts of common law for ten years, but who is not then residing or practising as an attorney in the district for which the court is holden, to act during such illness or absence. The judge may also, with approval of the Lord Chancellor, or Chancellor of the Duchy, appoint a deputy, who is a judge of a county court, or who bea ractised as a barrister for at least three years, to act for him for any time or times, not exceeding in the whole two calendar months in any consecutive period of twelve calendar months; and the deputy so appointed during the time for which he is appointed has all the powers and privileges of the judge whose duty he athe (p). No deputy ee (except it be in the judge, while he is acting as estminster County Court of Middlesex), may practise (2) R.v. Parham, 18 L. J., Q. (n) Ib. s. 22. B. 281; 8.C. 13 Jurist, 981, (0) 12 & 18 Vict. c. 108, s. (hk) 9 & 10 Vict. c. 95, 8. 56. 20. (2) Ib. s. 69. (p) 9 & 10 Vict. c. 95, s, 20. (m) Ib. 8. 21, Treasurer. 15 as a barrister in any court within the district for which Cuap. u. he acts, or is entitled to act as deputy (q). Salary.|—The judges when first appointed were paid Salary. by fees (r) ; a power was, however, given by the act 9 & 10 Vict. c. 95, to the Queen, with the advice of the Privy Council, to order that they should be paid by salary instead of fees (s), such salary not to be above 1,200/., exclusive of expenses (f). In accordance with this pro- vision, by an order in council, dated the 11th August, 1848, the annual salaries of the judges were fixed at 10002. in lieu of all fees. By the 13 & 14 Vict. c.61,s. 7, the power of directing how the judges shall be paid was transferred to the Commissioners of the Treasury, with the consent of one of the principal Secretaries of State. By the 15 &16 Vict. c. 54, s. 14, the salaries are now raised to 1200/., but may not be more than 15002., except in the case of judges who were appointed before the 9 & 10 Vict. c. 95, to a court mentioned in Schedule A. of that act. Pension.|—The Lord Chancellor may, on petition, Pension. recommend to the Commissioners of the Treasury that a pension, not exceeding two-thirds of the yearly salary, shall be paid to any judge who is afflicted with a per- manent infirmity disabling him from the due execution of his office, and who is desirous of resigning (w). Liability.|—A judge is not answerable in an action for Liability. an erroneous judgment, unless he directs an act to be done when he has no jurisdiction ; in which case he would be liable in trespass (v). Nor will the Court of Queen’s Bench grant a criminal information against the judge of a county court who acts with irregularity, unless a corrupt motive is attributable to him (w). Treasurer.|—The treasurer is appointed by the Com- Treasurer. missioners of the Treasury, who may remove him if they Appoint- see occasion so to do, and appoint another in his room (a), ment and His duty is to receive from the clerk the balances "emoval. which he pays over (y): and quarterly or oftener, if Duties. directed by order of the Court, to audit and settle the accounts of the clerk and other officers of the Court, and (q) 18 & 14 Vict. ¢. 61, s. 3. Judge is entitled to notice of (r) 9 & 10 Vict. ¢. 95, s. 37. action, see post, p. 22. (s) Ib. s. 39. (w) Inre 16 Jur. 995. (¢) Ib.s. 40. (x) 9 & 10 Vict. ¢. 95, s. 23. (u) 15 & 16 Vict.c. 54, s. 15. (y) See Duties of Clerk, posé, (v) Houlden v. Smith, 10 L. p, 18. J., Q. B. 170. As to when a 16 The Clerk. after deducting any payments made under the provisions = —— of the act, to pay the balance in hand, or so much thereof as he is directéd to pay, into a bank or otherwise, as directed by the Commissioners of the Treasury (z). Once in the year, and oftener if required, on such day as the Commissioners of the Treasury appoint, he is to render tothe audit office a true account in writing of all moneys received or disbursed by him’on account of the Court of of which he is treasurer, with such particulars as the Commissioners of audit may require (a), which account must be audited under the 25 Geo. 3, c. 52 (6). The accounts, when audited, are to be sent to the Treasury (c). The mode and form in which the treasurer is to audit the clerk’s accounts and render his own accounts to the Com- missioners of audit, is prescribed by instructions given by the Lords of the Treasury in December 1851, which were issued in lieu of those first given in June, 1847 (d). When any money is paid or received by the treasurer as proceeds of fees or executions, or in respect of process, issuing into a foreign district, he must keep an account of it, and transmit a copy to the Commissioners of the Treasury at such times and in such manner as they may direct (e). Salary. Salary.|—The treasurer is paid by salary, out of the consolidated fund, in such manner and to such amount asthe Commissioners of the Treasury from time to time may order (/). Clerk. Clerk.|—There is a clerk for each court, who must be an attorney of one of the superior courts of common law. The judge appoints him, subject to the approval of the Lord Chancellor (g). The right to remove him, in case of inability or misbehaviour, was formerly vested in the judge, subject to the approval of the Lord Chancellor (9), such right, however, can now be exercised only by the Lord Chancellor or Chancellor of the Duchy of Lancaster, as the case may be (#). It has been held that mere pecu- niary embarrassment and want of money to pay his debts, Appoint- ment. (z) 9 & 10 Viet. ¢. 95, 8. 42, as to the audit of the clerk’s ac- counts relating to the estate of an insolvent, see 14 & 15 Vict. c. 54, s. 8. (a) Ib. s. 43, (b) Ib. s. 45. (c) Ib. ». 47. (d) These directions and forms being of considerable length, and relating only to the mode of keep- ing accounts between the clerk, treasurer, and the Treasury, are omitted. (e) Rule 140. (f) 9 & 10 Vict. . 95, s. 23. (g) Th. s, 24, (A) 138 & 14 Vict. c. 61,8. 4. This does not, however, affect the tenure of office of those clerks appointed before this act, and named in Schedule (A) of 9 & lu Vict. c. 95. The Clerk.— Duties. 17 in the absence of any physical inability, imprisonment, or Cua. n. fraudulent conduct, does not constitute such an inability as to enable the judge to dismiss the clerk, nor in such a case is the dismissal made lawful by the approval of the ~ Lord Chancellor, but the right to remove may be tried by information in the nature of a quo warranto against his successor (7). A clerk may not be appointed for more than one dis- trict in which a court is holden, unless from there being no attorney resident within the district of the Court’in which the office of clerk is vacant, or from any other reason, the Lord Chancellor, or Chancellor of the Duchy, as the case may be, deems it expedient to order other- wise (k). In populous districts the Lord Chancellor may direct that two clerks shall be appointed to execute the office jointly (2). Residence and Office.|—The clerk of the court and every Residence. assistant clerk must reside within the district of the court and office. or courts for which he has been appointed (m); he must keep an office at each place where the court of which he is clerk is held (7), which office must be open every day, except Sundays, Christmas-day, Good Friday, or days ap- pointed for public fasts or thanksgiving, from ten o’clock in the morning until four in the afternoon (0). Duties.|—The clerk has the care of the court-house and Duties. offices, and may appoint and dismiss the servants to take charge thereof, at such salaries as are authorized by the judge, with the consent of the Commissioners of the Treasury (p). All duties required to be done by the clerk may be done by him, or by the assistant clerk or clerks provided by him, except that of acting in court as clerk, or signing the minute book (g). The Lord Chancellor, or Chancellor of the Duchy of Lancaster, as the case may be, may from time to time make orders for the attendance of the clerk, his assistants, or deputies, during the sitting of the court, or otherwise (7). The clerk must keep books for entries and accounts Books. in the forms prescribed by the schedule to the rules (s). (i) R.v. Owen, 15 Q. B. 476. 8.C. 14 Jur. 953. (k) 15 & 16 Vict. c. 54, s, 17, (1) 9 & 10 Vict. c. 95, s. 25. (m) 13 & 14 Viet. ¢. 61,8. 3. This applies only to clerks ap- pointed after 14th August, 1850, when that act was passed. (n) Rule 6, (0) Ibid. (p) 9 & 10 Vict. ¢. 95, s. 55. The latter portion of this section, which enables the clerk to con- tract for incidental charges, is re- pealed by 12 & 13 Vict. c. 101, s. I. : (q) Rule 10. = (r) 13 & 14 Vict. c. 61, s. 4. (s) Rule 7. By Rule 13 all the books of the court, as well as 18 The Clerk. a Parti. Every entry in these books must have a number prefixed corresponding with the number of the plaint to which it refers (#). In addition to this he is required by the in- structions issued by the Lords of the Treasury to the treasurers, December 1851, to keep and render to the treasurer of the court further accounts (w). He must also deliver quarterly to the treasurer, in such form as the treasurer, by the direction of the Commissioners of the Treasury, may require a full account of all fees received by him ‘under the 9 & 10 Vict. c. 95 (v). He must also pay over to the treasurer quarterly, or oftener, in every year, as he is desired by the Commissioners of the Treasury, the monies remaining in his hands over and above his own fees, and such balance as he is allowed by order of such Commissioners to retain for the current expenditure of the court (w); and must send to the Commissioners of audit once a-year, or oftener if re- quired, an account of all sums so paid by him to the treasurer (2). The clerk must also pay all money due to suitors, upon demand in cash, if required, at any time when his office is open (y). In all cases where money is paid into or depo- sited in court, whether before or after judgment, he must give an acknowledgment of such payment or deposit to the person by whom it is paid (z). He must also, in all cases, make out an account of the receipts and disburse- ments (down to such time as the treasurer may require), and of cash still in hand, and must produce the same to the treasurer at his audit, and must pay over the balance to the treasurer. If this account is correct, the treasurer certifies that he has received such balance, and signs the account (a). The method in which the clerk is required to transmit and account for fees and proceeds of executions to and from foreign districts (6), will be found in Rules 37, 38, and 39 of the Rules of Practice. the banker’s book and the cash- book, are at all times to be open to the inspection of the trea- surer. (¢) Rule 7. (u) Ante, p. 16, note (d). (v) 15 & 16 Vict. ¢. 54,5, 9. (w) 12 & 13 Vict. c. 101, 5.75 repealing 9 & 10 Vict. c. 95,s. 41. (2) 9 & 10 Vict. c. 35, s. 46. (y) Rule 11. (z) Rule 12. (a) Rule 14. (b) By Rule 4, the words “home court” when used in the Rules, mean the court from which process originally issued; and the words “ foreign court,” mean the court of the district into which process is issued from another court. The words “home dis- trict,” mean the district of the home court: and the words “ fo- reign district,” mean the district of the foreign court. The word “district,” whether occurring in the rules or in the stat. 9 & 10 Vict. c. 95, is to be understood to mean the locality over which a court has jurisdiction, The Clerk.— Deputy. 19 The clerk must issue all summonses, warrants, precepts, Crap.-u. and writs of execution, and register all orders and judg- ments, and keep an account of all proceedings, and take charge and keep an account of all fees and fines payable or paid into Court, and all monies paid into and out of Court, and enter an account of them in a book belonging to the Court, and kept by him, and must at stich times as are directed by the Court submit his accounts to be audited and settled by the treasurer (c); he must also enter the plaints (d), and cause a note of all plaints, summonses, and orders, judgments, and executions, and returns thereto, fines, and other proceedings of the Court, to be entered in a book belonging to the Court, which must be kept at the office. These entries, or copies thereof, bearing the seal of the Court, and purporting to be signed and certified as a true copy by the clerk, are evidence else- where without further proof (e). Deputy.|—The clerk when he is prevented by illness, or unavoidable absence from acting, may with the approval of the judge, or in case of his inability, the judge may appoint a deputy who is qualified to be appointed clerk (/). When a deputy is so appointed the reason of his appoimt- ment must be entered on the minutes of each Court for which he acts (g). In all cases where the clerk is absent from the Court, and has not appointed a deputy, the judge must appoint a deputy to act on his behalf, and an entry of such appointment and of the cause of such absence (if known) must be made on the minutes of the Court (4). Salary.|—The clerks were originally all paid by fees (2), but a power being given by stat. 9 & 10 Vict. c. 95, s. 39, to her Majesty, with the advice of her Privy Council, to order that they should be paid by salaries instead of fees, by an Order in Council, bearing date the 30th July 1849, the salaries of the clerks of the Westminster, and some few other Courts in the larger districts, were fixed at 5007. yer annum. The power of regulating the salaries is trans- erred by 13 & 14 Vict. c. 61, s. 7, to the Commissioners of the Treasury, with the consent of one of the principal Secretaries of State. The highest salary which a clerk can now receive is 700/. (4). (c) 9 & 10 Vict. c. 95, s. 27. (k) 15 & 16 Vict. c. 54, 8. 14. (d) Ib. s. 59. There is, however, an exception (e) 8. 111. in favour of those clerks the emo- (f) s. 26. luments of whose office during (g) Rule 9. the seven years before the 9 & 10 (h) Rule 8. Vict. c. 95, amounted to more (2) 9 & 10 Viet. c. 95, s. 24, than 7002, and Schedule (D). Deputy. Salary. 20 Parris. High bai- liff and bailiffs, Appoint- ment and removal. Duties. High Bailiff and Bailif’s.— Duties. High Bailiff and Bailiffs.|—For every court there must be one or more high bailiffs; they are apne by the judge (7). In case of inability or misbehaviour they were, previously to the passing of the 13 & 14 Vict. c. 61, removable by the judge (2); now however they can be removed only by the Lord Chancellor or Chancellor of the Duchy, as the case may be (m). They may, by writing, appoint so many bailiffs to assist them as the judge may allow. These may be suspended or dismissed by the judge (2). Duties.|—The high bailiff must attend every sitting of the Court for such time as the judge requires. If absent, the cause of his absence must fhe entered on the minutes of the next Court (0). He or his bailiffs must serve’ all summonses and orders, and execute all orders, warrants, precepts, and writs; he must conform to all general rules, and, subject thereto, to the order of the judge (p). He must enter in a book, to be kept by him for that purpose, the particulars of all orders for the payment of money or costs, or both, which he has received, and of the mode in which he has served them; and once in every calendar month at least he must lay it before the judge of the Court, who must sign and attest its having een duly laid before him (g). He or a bailiff must also attend, for the purpose of receiving summonses or per- forming other duties, at the clerk’s office once every day, during the time that it is required to be kept open (). Once in every calendar month, or oftener, if the judge so orders, the bailiff must deliver to the clerk a statement, pursuant to the form given in the schedule to the rules, of what has been done since his last return under every process of execution or commitment which he has been required to execute, whether originally issued from his own Court or from any other ; and at the Court held next after the receipt of every such statement, the clerk must lay it before the judge, who must sign it in testimony of its having been duly laid before him (s). Hight days before the day of the holding of the Court the high bailiff must deliver to the clerk a statement of all summonses on plaints before judgment, which have been issued to him ten days before the holding of such Court, return- able at such Court, which statement must show how such summonses have been served, and deliver the copy of (1) 9 & 10 Vict. ¢. 95, s. 31. _ (pV 9 & 10 Vict. c. 95, s. 33. (m) 13 & 14 Vict. c 61, s. 4. (q) Rule 21, (n) 9 & 10 Vict. c. 95, 8. 31. (r) Rule 19, (0) Rule 18, (s) Rule 22. High Bailiff and Bailiffs.-- General Regulations. 21 every surnmons to the clerk duly endorsed (w). Every Cuap. u. bailiff levying or receiving any money by virtue of any ——-_—— process issuing out of the Court of which he is bailiff, must, within twenty-four hours from the receipt thereof, pay over the same to the clerk of such Court (v). Where a warrant of execution required to be served in a foreign district (w) cannot be executed in due time according to the rules, by the bailiff of the foreign Court, he must return it to the clerk of the home Court within twenty- four hours from the expiration of such time, and indorse on the back of it the reason why it could not be executed, and sign such indorsement (2). He must also deliver quarterly to the treasurer, in such form as the treasurer, by the direction of the Commis- sioners of the Treasury may require, a full account of all fees received by him under the 9 & 10 Vict. ¢. 95 (y). Fees or Salary.|—The high bailiff is paid by fees (z), Fees or out of which he must provide for the execution of the salary. duties for which they are allowed, and for the payment of bailiffs and officers according to such scale as the judge approves (2). By 9 & 10 Vict. c. 95, s. 39, he might be paid by salary if the Queen in Council so ordered (6). This power, however, is now transferred to the Commissioners of the Treasury. Tnability.|—He is liable for his own and his bailiff’s Liability. acts and defaults, in like manner as a sheriff of a county (c); he may also be ordered by the judge to pay damages to the party aggrieved, if he neglect to levy exe- cution (4). General Regulations.|\—No treasurer, clerk, or bailiff, General their partner, or clerk, may fill more than one of those regula- offices, or be engaged directly er indirectly as attorney or tions agent for any party in any proceeding in the court, under Offices not a penalty of 507. (e). to be con- joined, and fi Security.|—The treasurer, clerk, and bailiff who may 2 ne. receive any moneys in the execution of their duties, must attorneys. give security to the Commissioners of the Treasury, for Security. such sum and in such manner as is ordered, for the per- (uw) Rule 20. Vict. c. 61, s. 5. (v) Rule 23. (4) 9 & 10 Vict. ¢. 95,3. 33, (w) See note (b), ante, p. 18. (6) 13 & 14 Vict. ¢. 61, s. 7. (x) Rule 24. (e) Post, C.1X. “ Execution.” (y) 15 & 16 Vict. v. 54, s. 9, (d) 9& 10 Vict. c, 95, ss, 28, (z) 9& 10 Vict. c. 95, s. 33, 29, 30. and Schedule (D); 13 & 14 (e) Ibid. 22 Parti. Extortion or miscon- duct. Protection of officers. Actions against. ‘ General Regulations. formance of their offices, and for the accounting for and payment of moneys received by them (e). No clerk, deputy clerk, assistant clerk, or bailiff or other officer of the Court, may sign the ledger as an agent re- ceiving money on account of suitors (/). Nor may any clerk, deputy clerk, assistant clerk, bailiff, or other officer of the Court become surety in any case where, by the practice of the Court, security is required (4). Extortion or Misconduct.|—If any clerk, bailiff, or officer, acting under colour or pretence of the process of the Court, is charged with extortion or misconduct, or with not pay- ing or accounting for money levied by him, the judge may inquire into the matter in a summary way, summon wit- nesses, and make an order for the repayment of money extorted, or for the payment of money levied, with damages and costs, and may also impose a fine on the officer, not exceeding 102. for each offence, the payment of which may be enforced in the same way as a judgment of the Court (/). Any officer wilfully and corruptly exacting or taking any fee or reward, other than such fees as are appointed and allowed, is, upon proof thereof before the court, or in the case of a clerk, treasurer, or high bailiff, on allow- ance of the finding of the court by the Lord Chancellor, for ever incapable of serving under the act (7). Protection of Officers.|—If any officer or bailiff is as- saulted while in the execution of his duty, the offender is liable to a fine not exceeding 51., to be recovered by order of the court, or before a justice, and the bailiff or any peace officer may take the offender into custody and bring him before the court or a justice (4). Actions against.|—Any action or prosecution against any person for anything done in pursuance of the act, must be laid and tried in the county where, and be com- menced within three calendar months after, the fact was committed, and notice in writing of such action and the cause thereof must be given to the defendant one calendar month before its commencement; and no plaintiff can recover if tender of sufficient amends is made before action brought, or if after action brought a sufficient sum is paid into court, with costs, by the defendant (J) ; and if in any action brought in a superior court in respect of any (e) 9 & 10 Vict. . 95, s. 36. (i) Ib. s. 117. (f) Rule 16. (k) Tb. ss. 114 & 134, (g) Rule 17. (1) Ib. s, 138. (hk) 9& 10 Vict. c. 95, s. 116, General Regulations. 23 grievance committed by an officer under colour or pretence Cuar. m. of the process of the court, the jury do not find greater damages than 20/., no costs can be awarded unless the judge who tries the cause certifies in court on the back of the record that the action was fit to be brought in the superior court (m). Also, if any action is brought against any person for anything done in pursuance of the County Court Acts, he may plead the general issue, and give the special matter in evidence ; and the warrant under the seal of the county court, being produced is to be deemed sufficient proof of the authority of the county court previous to the issu- ing of the warrant; and if the plaintiff has a verdict ‘ainst him, is nonsuited, or discontinues the action, the defendant is entitled to full costs as between attorney and client (7). With respect to the meaning of the words “done in pursuance of this act”’ in the above protection, it has been held upon similar clauses contained in other acts, that persons are within the protection of the clause, although their act be not legally justifiable under the statute, pro- vided they act in a bond fide belief that they are executing some particular provision of the statute, such belief not being altogether unreasonable (0). Thus, if a bailiff acting under a warrant commanding him to take the goods of A. were to take the goods of B., bond fide believing them to belong to A., he would be entitled to protection (p). Where an action was brought against the judge of a county court, for making an order for the commitment of a defendant after having been served with a writ of prohi- bition, it was held that if the judge acted under a bond fide belief that his duty required him to make the order, not- withstanding the prohibition, it was an act “ done in pur- suance of the act,’’ and therefore that he was entitled to notice of action (g). So it has been held that the bailiffs of a county court are within this provision, if in executing process they act under the bond jide belief that they are (m) & & 10 Vict. c. 95,s. 139. (0) Smith v. Hopper, 9 Q. B. See post, C. IX.“Execution’— 1004. Hughes v. Buckland, 15 “ Trespass.” (n) 15 & 16 Vict. ec. 54, s. 6. In Dews v. Ryley, 2 L.M. & P. 544, which was decided before this act passed, it was held that the clerk of a county court being a mere ministerial officer to carry into effect the order of the Judge, was not liable for issuing a war- rant of commitment, to enforce an invalid order of committal. M. & W. 346; Kine v. Evershed, 10 Q. B. 143; Horn v. Thorn- borough, 3 Exr. 846; Gosden v. Elphich, 4 Exr. 445; Cox v. Reid, 18 Q. B. 558; Joule v. Taylor, 7 Eexr. 58. (p) Parton v. Williams, 3 B. & A. 330. (q) Booth v. Clive, 10 C. B. 827; S. C.2L. M.& P. 283; 20 L.J.,C.P.151; 15 Jur, 563. 24 Part t. ‘hen clerk must be made defendant, General Regulations. acting in pursuance of the statute; nor is their right affected by the fact that they are indemnified in so doing by the party interested (r), The notice must be “of such action.” It has been decided, therefore, at nisi prius that a notice stating that the action will be brought in a particular court will not suffice if it be brought, in fact, in another court (s). In the same case it was held that a notice which described the cause of action to be for breaking and entering plain- tiff’s house and taking furniture therein, but not expressly claiming the furniture as the plaintiff’s, was bad. It was suggested also that the notice should state the special damage, if any is claimed in the declaration (£). For the further protection of bailiffs and others, acting under the authority of the court, it has been provided that no action may be brought against the high bailiff, bailiff, or any other person acting by order and in aid of the high bailiff, for anything done in obedience to any warrant under the hand of the clerk or clerks of the court and under the seal of the court, until a demand has been made, or left at the office of the high bailiff, by the party intending to bring the action, or by his attorney, signed by the party demanding the same, of the perusal and copy of such war- rant, and the same has been refused or neglected for the space of six days after such demand ; and in case after such demand and compliance therewith, by showing the warrant to, and permitting a copy of it to be taken by the party demanding it, any action is brought against the high bailiff, bailiff, or other person acting in his aid for any such cause, without making the clerk of the court who signed or sealed the warrant, defendant, on producing or proving the war- rant at the trial of the action, the jury must give their verdict for the defendant, notwithstanding any defect of jurisdiction or other irregularity in the warrant ; and if the action is brought jointly against the clerk, and also against the high bailiff or bailiff, or person acting in his or their aid, on proof of the warrant the jury must find for the high bailiff or bailiff, and others acting in aid, notwithstanding the defect or irregularity. If the verdict is given against the clerk, the plaintiff is to recover his costs against him, to be taxed in such manner by the proper officer as to in- clude such costs as the plaintiff is liable to pay the defend- ant or defendants for whom the verdict is found. In all such actions the defendant or defendants may plead the general issue, and give the special matter in evidence at the trial (w). This protection to the bailiffs is similar to (r) White v. Morris, 21 L.J., 260. C. P. 185. (#) Ib. (s) Estob v. Wright, 17 L. T. (w) 13 & 14 Vict, ¢. 61, 5. 19. Counsel and Attorneys. 2 5 that given by the 24 Geo. 2, ¢. 44, 8. 6, to constables acting Cuar. 1. under the warrant of a magistrate. .Under this statute it has been held, that in order to bring the officer within it, he must have acted strictly in obedience to the warrant ; and that where he arrests a different person from him men- tioned in the warrant (v), although hele the person against whom it ought to have issued (w), he is not protected. ‘Want of jurisdiction in the justice does not, however, de- prive the officer of the benefit of the act (7). A demand signed by the plaintiff’s attorney, and left by his clerk, has been held to be sufficient (y) ; and where on demand by the plaintiff’s agent the defendant gave a copy of the warrant, saying that the original was in the hands of the gaoler, the agent having made no objection, it was held a sufficient compliance with the statute (z). Counsel and Attorneys.|—The persons who may appear Counsel before the county court to conduct proceedings are now 2nd at- as follows :—The party to the suit or other proceeding.— An attorney of one of the superior courts, being an at- torney acting generally in the action for the party, but not an attorney retained as an advocate by such first-mentioned attorney.—A barrister retained by or on behalf of the party, on either side, but without any right of exclusive or pre- audience—or, by leave of the judge, any other person allowed by the judge to appear instead of the party, to address the court, but subject to such regulations as the judge may from time to time prescribe for the orderly transaction of the business of the court (a). The same rule applies to attorneys or their clerks be- coming security, in any case where security is required by the practice of the court, as to the clerk of the court or bailiff (6). An attorney may not appear for a party unless he has signed the roll kept by the clerk (c). The fees which counsel may receive, and the fees and costs to which attorneys are entitled, will be found, post, Part I., Chap. XVI. The clerk under this provision may plead the general issue, al- though the action is brought against him alone. Dews v. Riley, 2L.M. & P. 544. 8.C. 20 L. J., C. P. 264, (v) Money v. Leach, 3 Burr. 1742, (w) Hoye v. Bush, 28. N.R. 86 (2) Atkins v. Kilby, 11 A. & E.777 (y) Clark v. Woods, 2 Exr. 395. (z) Atkins v. Kilby, ante. (a) 15 & 16 Vict. c. 54, s. 10, which repeals the 9 & 10 Vict. c. 95,s.91. See also Doe d. Ben- nett v. Hale, 15 Q. B. 171. 8. C. 19 L. J. Q. B. 353, where it was held that in a superior court a barrister might appear for a client without the intervention of an at- torney. (b) See ante, p. 21. (c) Rule 89. torneys. How regu- lated. General fund fee. 26 CHAPTER III. COURT AND OFFICERS’ FEES (a). How REGuriateD, 26, Hien Batiirrs (ONLY), 28. GENERAL Founp Fer, 26. Mileage. Fezs of Jup@Es anp OF- Postage. FICERS, 27. Warrants of Execution. How regulated.\—By the 9 & 10 Vict. c. 95, the fees to be received in all the Courts were prescribed; the general fund fees by s. 52, and the judges and officers by Schedule (D). But by the 12 & 18 Vict. e. 101, s. 6, and the 18 & 14 Vict. ¢. 61, 8.5, a power is given to the Secre- tary of State, with the consent of the Commissioners of the Treasury, to regulate, vary, lessen, or increase the fees from time to time payable. In accordance with this power, by two orders made by the Secretary of State and the Com- missioners of the Treasury, dated November 15th, 1850, the former table of fees was repealed, and it was directed that fees according to the following table should be taken on and after the 25th November, 1850. General Fund. Fees to be paid by Plaintiff to the Clerk of the Court. Where the debt or damage claimed is above 20s. but under 40s., 6d. Above 40s. but under 202., one-thirtieth of claim. Where the claim is above 20/., the same fee is to be taken as for 202. N.B.—In estimating the sum to be taken, every fraction of a pound in the amount claimed is to be treated and considered as an entire pound. This fee may in no case be taken more than once in (a) A tabular scale of these between attorney and client, and fees will be found in the Appendix, also as between party and party, p. 156. The fees and costs payable —_will be found post, Chap, XVI. to barristers and attorneys, both as Fees of Judges and Officers. 27 respect of the same demand in the same court, except in Cuap. m. the case of a fresh action after a nonsuit; and for this purpose proceedings in seire facias are considered as pro- ceedings in respect of an original demand (6). On appli- cation to recover possession of tenements under s. 122 of 9 & 10 Vict. c. 95, it is to be taken on the yearly rent or value of the premises sought to be poner (c). Judges’ and Officers’ Fees. These fees (excepting the high bailiffs’) are divided as Judges’ follows :—Nineteen-fortieth parts thereof are judges’ and offi. fees, and applied as the judges’ fees are applicable ; °e’ fees- nineteen-fortieth parts are clerks’ fees; and two-fortieth parts are high bailiffs’ fees. The fees called “ High Bailiffs’ Fees” are taken by the high bailiffs for their own use. N.B.—In cases within the ordinary jurisdiction of the courts, the under-mentioned poundage and fees are taken; but where the sum demanded is above 20/., the poundage is taken on 202. only. All frac- tions of a pound, for the purpose of calculating the poundage, are treated as an entire pound. For every summons, 7d. in the pound on the amount of the demand. For every application for a summons out of the district, 3d. in the pound. (This sum includes every fee for such application). No other fee whatever may be taken on the entry of a plaint, except for service by the high bailiff, and for affidavit of service out of the district. For every hearing without a jury, 2s. 2d. in the pound. For every hearing with a jury, 3s. 2d. in the pound. Judgments by consent under the 13 & 14 Vict. c. 61, ss. 8 and 9, and judgments upon applications in the nature of sci. fa., are charged the same fee as on the hearing of a cause without a jury. No other fee whatever may be taken for the hearing or trial of a cause, except for the service of the order by the high bailiff. For every subpoena (each witness), 2s., without reference to the amount of the demand. For entering and giving notice of a special defence, 1s. 6d., without reference to the amount of the demand. (b) Rule 30. (ce) Rule 31. c 2 28 High Bailif’’s Fees. Parri. For any adjournment of a cause or other matter to another court, at the request of either party, 3d. in the pound on the amount of the demand. For paying money into or out of court, whether before or after judgment, on each payment not exceeding 10s. 1d. ; and on each payment above 10s., 2d. in the pound on the amount of payment. ee For notice to be given, by pre-paid post letter, to plaintiff, of every payment whatever made into court, 2d. (Out of this fee, the postage of such letter is to be paid by the clerk). : For issuing any warrant, attachment, or execution, 2d. in the pound on the amount for which such warrant, at- tachment, or execution issues. For taking recognizance, bond, or security for costs, 4d. in the pound on the amount of the demand. For inquiring into sufficiency of sureties, 6d.in the pound on the amount of the demand. For application for new trial, or to set aside proceedings, 6d. in the pound on the amount of the demand. For every summons for commitment, under the 9 & 10 Vict. c. 95, 8. 98, 6d. in the pound on the amount of the original demand then remaining due. For every hearing of the matters mentioned in such sum- mons for commitment, 1s. in the pound on the amount last aforesaid. No other fees than the above may be taken, on any account whatever, except the high bailiff’s fees for service. No application to the Court may be charged with a fee except those above mentioned. No in- crease of fees may be made by reason of there being more than one plaintiff or defendant. High Bailif’s Fees. High bai. For serving every summons, order, or subpena, within lif’s only. two miles of the court house, 1d. in the pound on the amount of the demand, except for the service of a sum- mons under 9 & 10 Vict. c. 95, s. 98, when the poun- dage is calculated on the amount of the original demand then remaining due. For such service, if beyond two miles, then extra for every additional mile, 6d., without reference to the amount of the demand. For affidavit of service of summons out of the jurisdiction, 1s., without reference to the amount of the demand. For execution of every warrant or attachment against the goods or body within two miles of the court house, 1s. High Bailiff’s Fees. 29 in the pound on the amount for which such warrant or Cuap. ur attachment issues. For such execution, if beyond two miles, then extra for every additional mile, 6d., without reference to the amount for which such warrant or attachment issues. For keeping possession of goods till sale, per day (includ- ing expenses of removal, storeage of goods, and all other expenses whatever), not exceeding five days, 6d. in the pound on the amount for which the execution issues. [ This, however, does not apply to cases of interpleader in which the costs and expenses of possession are in the discretion of the judge. ] For carrying every delinquent to prison, including all ex- peuses and assistants, 1s. per mile, without reference to the amount mentioned in the warrant. For issuing warrant to clerk of another court, 2s. 6d. without reference to the amount mentioned in the war- rant. N.B.— Where the plaintiff recovers less than the amount of his claim, so as to reduce the scale of costs, the plain- tiff must pay the difference. The several fees payable on proceedings in replevin are regulated on the above scale, by the amount distrained for, and on proceedings for the recovery of tenements, by the yearly rent or value of the tenement sought to be re- covered; but in neither case may they exceed the fees payable on a demand of 20/. In eases of extraordinary jurisdiction, given to the court by the consent of parties to the trial of questions under the 13 & 14 Viet. c. 61,8. 17, the poundage is taken on 501. In cases of interpleader, the summons is issued to the high bailiff gratis, and the poundage for the hearing is es- timated on the value of the goods claimed, which, in case of dispute, must be assessed by the judge. The costs, however, of the summons, estimated on the above-men- tioned value, are included in the general costs, which may, in the discretion of the judge, be awarded at the hearing. Mileage.|—The mileage mentioned in the above table Mileage. of fees must, if the service be in the home district, be com- puted on the actual distance. It may be ascertained by the clerk by such means as he thinks proper, and his de- termination is final (d). If the service be in a foreign district (e), it must be determined according to the table of distances annexed to the rules of practice, but must be (2) Rule 32. (e) See note (b), ante, p. 18. 30 Paati. Postage. Warrants of execu- tion. Postage.— Warrants of Execution. calculated on a distance less by two miles than the dis- —— tances there stated (f°). The Commissioners of the Trea- sury may, however, from time to time make such alterations in the table of distances as to them seemed fit, and such alterations, when communicated to the clerks of the county courts respectively, are to have the same force and effect, and be applicable in the same manner as the present table. Postage.|—Postage necessary for the transmission of any process, order, notice, or other matter by the clerk or high bailiff must be paid in the first instance by the party on whose behalf the proceeding required to be notified is taken, and is costs in the cause. All letters sent by the parties or the officers of the court concerning the business of the court must be prepaid. This rule, however, except as to the prepayment of letters does not apply to notices of payment into court (9). Warrants of Execution.|—The calculation of fees pay- able for the issuing and execution of warrants is governed by the direction given in the table of fees, that where the sum demanded is above 20/., the poundage is to be taken on 207. only (4). This does not, however, apply to cases in which jurisdiction is given by consent, under s. 87 of 13 & 14 Vict. c. 61 (i). Costs of unexecuted warrants against the goods, and costs of warrants of commitment on which the defendant has not been taken, are not allowed against the defendant, unless the judge shall otherwise direct (£). Costs of executed warrants, whether of com- mitment or against the goods, may be allowed, unless the judge otherwise directs (7). (f) Rule 32, This table is too (A) Ante, p. 27, bulky to be inserted in the Ap- (4) Rule 110. pendix. (A) Rules 111, 112. (g) Rule 33. (1) Rule 113. 31 CHAPTER IV. JURISDICTION. In wHat Actions, 31: Amount of Claim. LExtensionofby Agreement. Cause of Action not to be divided. Abandonment by Plaintiff of Excess. When title ts in Dispute. Balance of Accounts be- tween Partners. Legacies. PRIVILEGE, 37: Universities. Stannary Courts. JUDGMENT, HOW FaR Fi- NAL, 87. ConcuURRENT JURISDIC- TION, 38. PLAINTIFF SUING IN SUPE- RIoR CoURT DEPRIVED oF Costs, 38: Unless Judgment goes by Default. Or Judge certifies. Or an Order is made for Costs. Where Plaintiff dwells more than Twenty Miles Srom Defendant. Where Claim reduced by Set-off—by Payment— Tender. Ruzs oF Practice, 43. Tx county court, established by the 9 & 10 Vict. c. 95, is a court of record, and has all the jurisdiction and powers of the old coun court for the recovery of debts and demands, as altered by that act, throughout the district for which it is holden (a). The contents of the present Chapter are confined to proceedings in ordinary plaints for the recovery of debts or damages. The jurisdiction with respect to proceedings in replevin and for recovering the possession of small tenements, will be found in sepa- rate Chapters (0). In what actions,|—The court has jurisdiction in all per- In what sonal actions, where the debt or damage claimed is not actions. (a) 9 & 10 Vict. ¢. 95, s. 3. The county court although it is a court of record, is still an in- ferior court. See Levy v. Moylan, lu, B, 189; 8. C.1L.M. & P. 307. 19L. J.,C. P. 308; 14 Jur. 983. See also Breese v. Owens, ante, p. 6. ; (b) Post, Part I, Chapters XIII. and XTV. 32 ParTI. Amount of claim. Extension of juris- diction by reement. Jurisdiction.—In what Actions. more than 50/., whether on balance of account or other- wise ; but not (except by agreement of the parties; as to which, see post), in any action of ejectment, or in an action in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair, market, or franchise, is in question; nor in any case in which the validity of any devise, bequest, or limitation under any will or set- tlement may be disputed; nor in any action for malicious prosecution, libel, or slander, criminal conversation, seduc- tion, or breach of promise of marriage(c). Where a summons required the defendant to appear to answer the plaintiff for assaulting his wife, and causing her to be charged with felony and taken into custody, it was held, that notwithstanding the assault was included, the cause of action was in substance for a malicious prosecution, and consequently that the county court had no jurisdiction (d). With respect to the amount of the debt or damage, it has been decided that a demand exceeding 501., and reduced by set-off to a sum not exceeding 501., is not within the jurisdiction. In a case which occurred before the 13 & 14 Vict. c. 61, where the plaintiff claimed in his particulars 2271., but gave the defendant credit for a set- off in cash and goods to the amount of 186I., and con- sented to abandon the excess of the balance above 201., the judge of the county court having heard the case and given judgment for the plaintiff for the amount claimed, notwithstanding that the defendant objected to his jurisdiction, a prohibition was granted, on the ground that inasmuch as the plaintiff to establish his right to recover to the extent of 201. would be bound to prove a demand exceeding the defendant’s set-off, the court had no jurisdiction (e). Extension of Jurisdiction by Agreement.|—By the first act (9 & 10 Vict. c. 95), creating the new county courts, their jurisdiction was limited, as above stated, with regard to actions in which any question of title came in issue; but by the more recent act (13 & 14 Vict. ¢. 61), a far more extended jurisdiction is given, both’as to the amount and nature of the claim which may be adjudicated upon, if the litigant parties agree thereto; and now, if both ae and defendant agree, by a memorandum signed y them, or their attorneys, that the court shall have power to try any actions (other than actions for malicious prosecution, libel or slander, criminal conversation, seduc- (c) 9 &10 Vict. c. 95, s. 58, (e) Beswick v. Capper, 7 C. B. and 13 & 14 Vict. c. 61, 8. 1. 669. See also Woodhams v. New~ (d) Jones v. Currey,2L. M. & man, post, p. 43, P. 474; 8. C. 20 L. J, Q. B. 438, JSurisdiction.— Cause of Action not to be divided. 33 tion, or breach of promise of marriage) in which the sum Cnap. w. sought to be recovered exceeds the sum of 50/., or in which the title to land, whether of freehold, copyhold, leasehoid, or other tenure, or to any tithe, toll, market, fair, or other franchise, is in question, the court has juris- diction to try theaction. The parties must state in their memorandum of agreement that they know the cause of action to be above 50/., or that they know that such title comes in question. This memorandum must be filed with the clerk of the court at the time of filing the plaintiff's demand. If the action in such case be local, it can be tried in that jurisdiction only within which the lands, tenements, or hereditaments in respect of which the action is brought, or some parts thereof, are situate (f). Cause of Action not to be divided.]—A plaintiff may not Cause of divide a cause of action, for the purpose of bringing two action not or more suits; but any plaintiff having cause of action for t° ta di. more than 50/., for which a plaint might be entered if it "°°* were for not more than that sum, may abandon the excess, and, on proving his case, may recover an amount not exceeding 50/, The judgment of the court upon such a plaint is in full discharge of all demands in respect of such cause of action, and entry of the judgment must be made accordingly (9). “ Cause of action’”’ in this section, means “ one cause of action,” and is not limited to an action on one separate contract; therefore in the case of tradesmen’s bills, in which one item is connected with another, and the dealing is not intended to terminate with one contract, but to be continuous, so that one item if not paid shall be united with another, and form one entire demand, the demand, if it exceeds 50/., ceases to be within the jurisdiction of the county court. So, where the sub-contractor of a railway company gave his workman tickets or orders for goods, which were supplied by the plaintiff, and the latter brought 228 actions in the county court against the defendant in respect thereof, for sums amounting in the aggregate to 3081. 19s., the Court of Exchequer granted a prohibition, although one claim only amounted to 5/., and many to less than 20s. (2). Where, however, the cause of action con- sists of items of a different character, as a claim for goods sold and money lent, itis otherwise (¢). So rent in arrear (f) 13 & 14 Vict. c. 61, s. 17, (A) Grimbly v. Aykroyd, 1 Exr. (9) 9 & 10 Vict. c. 95, s, 63, 479;8 C.5 D. & L. 701; 12 and 13 & 14 Vict. c. 61,s.1. The Jur. 357, provisions of the latter act affect (i) Brunskill v. Powell, 1 L, those of the former although they M. & P.550; S.C. 19 L. J. are not expressly mentioned. See Enxr. 362. 13 & 14 Vict. c. 61, s. 2. c3 34 Parti. Abandon- ment by plaintiff of excess. hen title n dis- e. Abandonment of Hucess. and a claim for double value for holding over, under the 4 Geo. 2, c. 28, or indeed any two demands which would require to be stated in distinct counts, may be sued for by separate plaints (“). A plaintiff entered two plaints in the county court, one for 197. 19s. for goods sold and delivered, work and labour, and money paid; the other for 197. for money lent. The particulars annexed to the first consisted of items from November 1845 to the 12th of July 1849, amounting together to 271., which sum was reduced to the amount above mentioned by a set-off. The particulars of the second plaint consisted of three items, from April 1846 to the 14th of July 1849. The plaintiff recovered judgment in the first cause for 172,; in the second for 197. Upon a motion for a prohibition it was held, that the items in the two plaints were not so con- nected as to form one cause of action, although they might have been recovered under one count (2). Abandonment by Plaintiff of Excess.}—In cases in which a plaintiff, in order to bring his claim within the jurisdiction of the county court, abandons the excess over 50/., the abandonment should be entered on the judgment; since by the statute, “entry of the judg- ment’? must “be made accordingly.’ Where a debt of 502. is due, the fact of commencing an action in the county court for a sum less than 502. is not, of itself, an abandonment of the excess, and unless it appears by the judgment, or some previous proceedings, that the plain- tiff has done some act of abandonment in court, it will be no bar to a future action (m). It has been held, however, to be sufficient if the abandonment be entered on the particulars and judgment at the hearing; but the proper course is to enter the abandonment on the summons before service, so that the defendant, if he desires so to do, may settle the action instead of being at the trouble of attending the court in order to compel the plaintiff to abandon the excess above 20/. (n). When Title is in Dispute.|—The question often arises, whether the title to any corporeal or incorporeal heredita- (k) Wickham v. Lee, 12 Q.B. — ground for prohibition. See post, 521; S.C. ls L.J., QB. 21; 12 Jur. 628. (1) Kimpton v, Willey, 1 L. M. & P.280; S.C.19L. J.,C.P. 269; 14 Jur. 762. It did not appear that the set-off had been resorted to in the course of the trial to reduce the plaintiff’s demand, otherwise this would have been a p. 43. tm) Vines v. Arnold, 8 C. B. 682; S.C. 19 L. J., C. P. 98; Apothecaries’ Company v. Burt, 5 Exr. 363; S.C. 1 L. M. & P. 405; 19 L. J., Exr. 334, (n) Isaacs vy. Wyld, 7 Exr. 163; 8.C.2L. M. & P.676; 21 LJ. Exr. 46; 15 Jur, 1135. When Title is in Dispute. 3 5 ment is in dispute, so as to oust the jurisdiction of the Cuar. 1. county court. The title set up must be more than a mere assertion of right; it must be a bond fide claim, and one that can exist in law (0). The judge should ascertain whe- ther the title is truly in question ; if, however, he is wrong and assumes jurisdiction where the title is in question, a superior court will grant a prohibition (py). Where it does not appear upon the face of the proceedings that title is in question, the judge of the county court has jurisdic- tion to inquire whether it is so or not; but his decision on the point is open to revision in one of the superior courts, on motion for a prohibition on affidavit; and if that court direct that the party shall declare, the question becomes one of evidence (g). Where in an action of trespass to land, the defendant pleaded not possessed, it was held, on a motion to deprive the plaintiff of costs, that the plea having put in issue title, the county court could not have adjudicated on the case (7). But, in order to entitle a plaintiff in trespass to realty to the costs ofan action in a superior court, he must shew not only that the defendant pleaded not possessed, but that at the trial the title was really and bond fide in dispute (s). Where a defendant who was sued in a county court for double value for holding over premises, under the 4 Geo. 2, c. 28, admitted that he was tenant to the plaintiff at the time when the rent accrued, from which the holding over commenced, it was held, on a motion for a prohibition, that he could not avail himself of the objection that title was in dispute (£). The title to an incorporeal hereditament comes in ques- tion whenever either its existence or the right to it is disputed (w). A paving rate imposed by act of Parliament is not an incorporeal hereditament, and may be sued for in the county court (v). Nor is the jurisdiction of the county court ousted by the fact that the local act, which imposes (0) Lloydv. Jones,6 C. B. 81; S.C. 12 Jur. 657; Lilley v. Har- vey, 5 D.& L. 648; 8. C. 17 L. J., Q. B. 357; 12 Jur. 1026. (p) Lilley v. Harvey, ante. (q) Thompson v. Ingham, 1 L. M. & P. 216;8 C, 19 L. J. Q. B. 189; 14 Jur. 429; Sewell vy. Jones, 19 L. J., Q. B. 372. See also the observations as to the extent to which an inferior court should inquire into the reality of an objection made to its jurisdic- tion, per Sir W. Scott in The Warrior, 2 Dods. Adm. Rep. 289. (7) Timothy v. Farmer,7C. B. 814, (s) Latham v. Spedding, 20 L. J., @. B. 302. (t) Wickham v. Lee, 12 Q. B. 521. (a) Adey v. The Trinity House, 22 L. J., Q. B. 3. (v) Baddeley v. Denton, 4 Exr, 508; S.C. 18 L, J., Exr. 44. ~~ 86 Part. Balance of accounts between partners. Legacies. Balance of Accounts. it, gives a power to sue only “in any of her Majesty’s courts of record at Westminster,” if that act were passed before the county court act (v). An action by a tenant against his landlord to recover half the amount of a rate which by statute was to be paid by the tenant and deducted from the rent, is not one in which title comes in question (w). Where a railway company by their special act were en- titled to charge a certain toll on carriages passing on their line, it was held that the county court had jurisdiction to decide whether the company could make a particular charge, and also to say whether coal-trucks come within the denomination of “carriages” in respect of which toll was by the act payable (x). But “rates and duties” pay- able by vessels under a local harbour act, have been held not to be within the jurisdiction of the county court (#2). The above exceptions do not prevent a county court from trying a disputed custom. Where the question at issue was the customary right upon a public navigable river for the owner of a wharf so to moor his vessels that they extended to an adjoining wharf belonging to another person, it. was held that a county court might try the right (y). Balance of Accounts between Partners.|—The juris- diction also extends to the recovery of any demand not exceeding 50/., which is the whole or part of the unli- quidated balance of a partnership account, or the amount of a distributive share under an intestacy, or of any legacy under a will (2). Where real and personal property was left to executors upon trust to sell, and, after paying parti- cular legacies, to divide the residue among certain persons, it was held that the county court had jurisdiction under the above section to adjudicate on a claim made by one of such persons for a share of the residue, in a plaint against the executors; for in that case no trust came in question, except such as is included in every legacy which is to be paid by an executor (a2). But where real and personal property was left to a person who was not executor, on condition that he paid to a third person an annuity, it was held that the annuitant could not maintain an action in (v) Stuart v. Jones, 1 Ellis & (vx) Adey v. The Trinity House, Blackburn, 22; S.C 22LJ3, 2LJI,Q.B.3. Q. B. 3; 16 Jur. 1020, (y) Davis vy. Walton, 16 Jur. (w) Gwynne v. Knight, 1 Exr. 954. 802. (z) 9 & 10 Vict. c. 95, s. 65. (x) Hunt v. Great Northern (a) Pears vy. Williams, 6 Exr. Railwuy Company, 10 C. B. 900; 833; S.C. 21. M. & P. 515; 8.C.2L. M.& P.260; 20LJ, 20L. J., Exr. 381; 15 Jur. 932. Q. B. 349; 18 Jur. 400, Privilege.—Judgment, how far Final. 37 the county court against the legatee, since the annuity Cyap. rv. was not a legacy within the meaning of the act (8). arn Privilege.|—No privilege except that of the Chancellor, privilege. Masters, and scholars of the universities of Oxford or Cam- [yiversi- bridge, is allowed to any person to exempt him from the ties. jurisdiction of the court (c) ; nor can an attorney or other person, by reason of any privilege, claim to sue in a supe- rior court (d). The jurisdictions of the courts of the Chancellors or Vice-chancellors of Oxford or Cambridge, or of the lord or vice-wardens of the Stannaries of Cornwall, Stannary are not affected by the county courts (e). The effect of courts. the statute, as regards these latter courts, is to take away the personal privilege of a tinner as to the jurisdiction of the county court ; but it preserves to the court of the vice- warden of the Stannaries concurrent jurisdiction in cases cognizable by him under the charter (/). Tudgment, how far final.|—No writ of error lies from Judgment, the judgment of a county court (g); nor are there any how far means of reviewing a decision (except in cases in which the mal. jurisdiction is given by 18 & 14 Vict. c. 61, which will be mentioned hereafter) ; (4) and a superior court will not grant a prohibition though the judge has acted erroneously, if the matter be within the jurisdiction of the court (2). ‘Where the judge of a county court adjudicates erro- neously upon any preliminary matter and improperly refuses to enter upon a plaint, the court of Queen’s Bench will issue a mandamus to compel him to hear it ; as where upon an interpleader summons a judge erroneously decided that the notice of claim was insufficient (4). If, however, the judge enters upon the hearing of the plaint and, upon the evidence adduced before him, decides that he has no (b) Winterbottom v. Winterbot- tom, Exr., M. T. 1852. (c) 9& 10 Vict. c. 95, ss. 67. 0 140. (d) 12 & 13 Vict. c. 101, s. 18, which was passed in consequence of the cases of Lewis v. Hance, 11 Q. B. 921, and Jones v. Brown, 2 Exr. 329; S.C. 12 Jur. 380, which decided, that the words in the former act being “ exempt from the jurisdiction,” an attorney plaintiff was not deprived of his privilege. (e) 9 & 10 Vict. c. 95, ss. 140, 14] Cf ) Newton v. Nancarrow, 15 Q. B. 144; S.C. 19 L. J.,Q. B. 314; 14 Jur.911. (g) 13 & 14 Vict. c. 61, s. 16. (h) Post, Part 1, Chap. XVII. (i) Re Lenaghan, 2 Exr. 333 ; Toft v. Rayner, 5 C. B. 162; Zohrab v. Smith, 5 D. & L. 635; Joseph v. Henry, 19 L. J., Q. B. 869; S.C. 15 Jur. 104. See Jones v. Jones, 17 L. J., Q. B. 170; S.C. 12 Jur. 397, where « pro- hibition was granted, on the ground that the judge had reversed his own decision after one of the par- ties had left the court. (k) R. v. Richards, 2 L. M. & P. 263; 8. C. 20L. J., Q. B. 351; 15 Jur. 358, 38 Concurrent Jurisdiction. Parry, jurisdiction, a mandamus commanding him to hear and — determine it will not lie, although he be wrong in point Concurrent jurisdic- tion. Plaintiff suing in superior court de- prived of costs. of law (1). Concurrent Jurisdiction. ]—ANl actions and proceedings which, before the creation of the new county courts, might have been brought in any of the superior courts of record, where the plaintiff dwells more than twenty miles from the defendant, or where the cause of action did not arise wholly or in some material point within the jurisdiction of the court within which the defendant dwells, or carries on his business at the time of the action brought, or where any officer of the county court is a party (except im respect of any claim to any goods and chattels taken in execution, of the process of the court, or the proceeds or value thereof), may be brought and determined in any superior court, at the election of the party suing, and are not affected, as regards costs or otherwise, by the provisions of the county courts act (m). Plaintiff swing im superior Court deprived of Costs.]— The jurisdiction of the county courts is not only open per- missively to plaintiffs suing, but as to those over which they have jurisdiction, except actions of tort, where the plaintiff recovers more than 5/., and those in which juris- diction is given by the 13 & 14 Vict. c. 61, itis compulsory; that is, under the penalty of the loss of all costs to a suc- cessful plaintiff who has chosen to sue in a superior court, when he might have brought his action in the county court. Therefore, if in any action commenced in any of the superior courts, in covenant, debt, detinue, or assumpsit, not being for breach of promise of marriage, the plaintiff recovers a sum not exceeding 20/.; or if an action of tres- pass, trover, or case, not being an action for malicious pro- secution, or for libel, slander, criminal conversation or seduction, so commenced in a superior court, the plaintiff recovers a sum not exceeding 5/.; he can have judgment to recover such sum only, and no costs, except in cases of _@ judgment by default, and those in which a judge certifies, as will be presently mentioned (m). Where a plaintiff, suing in a superior court, obtains judgment on a demurrer, (1) Milner v. Rhoden, 15 Jur. suing in a superior court, in cases 037. in which a concurrent jurisdiction (m) 9 & 10 Vict. c. 95,s. 128. is given by s. 128, was not de- (u) 13 & 14 Vict. c. 61, 8.11. — prived of costs; by the last act On comparing this section with he is deprived of costs, unless he s. 129 of 9 & 10 Vict. c. 95, a makes an application and obtains material distinction will be no- arrule or order under s. 13, ticed. By the first act a plaintiff 1 Plaintiff swing im superior Court deprived of Costs. 39 and then upon a writ of inquiry recovers damages under Cuap. iv. 202., he is entitled to no costs; for the word “recover” in the statute is not confined to cases in which the plaintiff recovers by verdict (0); and in a recent case which was decided upon sect. 129 of the 9 & 10 Vict. c. 95, it was held that a plaintiff who recovered less than 5/. in an action of tort in a superior court was deprived of the costs of a demurrer on which he had succeeded, as well as the costs of the issues of fact (p). In cases in which the plaintiff is so deprived of costs it was, previous to the passing of the stat. 13 & 14 Vict. c. 61, necessary for the defendant to apply to the superior court for a rule to shew cause why the plaintiff should not bring the record into court for the purpose of having a suggestion entered thereon to deprive the plaintiff of costs (7), which suggestion might, if untrue in fact, be traversed by the plaintiff, and so brought to issue (7). This proceeding is, however, no longer necessary, and the plain- tiff now in all such cases loses his costs, although no sug- gestion be entered (s). Unless Judgment goes by Default.|—It was held under pnless 9 &10 Vict. c. 95, that where a defendant suffered judg- judgment ment by default, and the damages were assessed under a goes by writ of Inquiry, the provisions of the statute did not apply, default and accordingly that in an action of tort, where the plain- tiff obtained a verdict for less than 57. under a writ of in- quiry, he was entitled to costs, although the sheriff had no power to certify under the act, and although the action might have been brought in a county court (2). By the later act, 13 & 14 Vict. c. 61, this exception is established by express words (w). Or Judge certifies. |—If, however, in the above cases the Or judge judge or other presiding officer of the superior court before certifies ; whom the verdict is obtained certifies, on the back of the record, that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered in the county court, or that there was a sufficient reason for bringing the action in the court in which it was (0) Prew v. Squire, 10 C. B. (r) Watson v. Quilter, 11 M. & 912; S.C. 2L. M.& P. 346; W.760. 20 L. J., C. P. 175 (s) 13 & 14 Vict. c. 61,5, 11. (p) Abley vy. Dale, 21 L. J., (t) Reed v. Shrubsole, 7 C. B. C. P. 104. 630; S.C. 6 D. & L. 707; 12 (q) Brooker v. Cooper. 3 Exr. Jur. 497; dissentiente, Cress- 112; 8 C. 18 L. J., Exr. 41; well, J. 12 Jur. 964. (u) 13 & 14 Viet, c. 61, s. 11. 40 Plaintiff swing in Superior Court deprived of Costs. Parrs, brought, the plaintiff has the same judgment to recover bis costs as in ordinary cases (v). The section (w) which deprives the plaintiff of costs in the cases before mentioned provides, that he shall have no costs if he recovers in the superior court a sum “mot exceeding” 201. in actions of contract, and “not exceeding”’ 51. in actions of tort, unless the judge certifies, and the section which empowers the judge to certify enables him to do so, if the plaintiffrecovers “a less sum than the sum in that behalf hereinbefore men- tioned.” It has been held, however, that the judge may certify when the verdict returned for the plaintiff is exactly 201. in an action of contract, or exactly 57. in an action of tort (#). If the judge at the trial refuses to certify under the above section, a superior court will not, upon application to it, review his discretion (y). Oranorder In any action in which the plaintiff is not entitled to is made for recover his costs by reason of the provisions of the 13 & 14 costs: Vict. c. 61, s. 11 (z), whether there be a verdict in such action or not, if the plaintiff makes it appear to the satis- faction of the court in which the action was brought, or to the satisfaction of a judge at chambers, upon summons, that the action was brought for a cause in which concur- rent jurisdiction is given to the superior courts by the 9 & 10 Vict. c. 95,8. 128, or for which no plaint could have been entered in any such county courts, or that the action was removed from a county court by certiorari, or that there was sufficient reason for bringing it in the court in which it was brought, then the court in which the action is brought, or the judge at chambers, “ shall thereupon,” by rule or order, direct that the plaintiff shall recover his costs, and he may have the same judgment as in ordinary cases (@). (v) 13 & 14 Vict. c. 61, s. 12. (w) Ib. 5. 11. (2) Garby v. Harris, 7 Exr. 591; S.C. 21 L. J,, Exr. 96; 16 Jur. 456. wt y) Palmer v. Richards, 6 Exr. 5. (z) Ante, p. 38. (a) 15 & 16 Vict. c. 54, 8. 4. This section repeals s. 13 of the 13 & 14 Vict. c. 61, which enu- merated the same cases in which costs might be ordered by the judge of a superior court as those mentioned in the above section, with the exception of one, namely, that in which the plaintiff applying for an order for costs may shew that “there was sufficient reason for bringing such action in the court in which such action was brought.” It was necessary in this case to apply to the judge who presided at the trial, under s. 12 of the same act. Sect. 13 of that act also enacted, that “in any of such cases the court in which the said action is brought, or the said judge at chambers, “‘ may” thereupon, by rule or order, direct that the plaintiff shall re- cover his costs.” See as to the construction put on this word by the courts. Jones v. Harrison, 6 Exr, 3828; 8.C.2 L. M.& P. 257; 201. J., Exr. 166; 15 Jur. Where Plaintiff dwells, Se. The certificate which may be given under the above Cuar. ww. power is different, as will be seen, from that which a Judge at nisi prius may make under the 18 & 14 Vict. c. 61, s. 12 (6), and consequently an order for costs may be made by the court or a judge at chambers, although a power to certify under the 13 & 14 Vict. c. 61, s. 12, has by an order of reference been given to an arbitrator and he has failed to do so (ce). And although an order for costs is refused by a judge at chambers, a subsequent application may be made to the court by way of appeal, but it must be within a reasonable time, and should not be made later than the following term (d). Where Plaintiff dwells more than Twenty Miles from Where Defendant.|—By the Act 9 & 10 Vict. c. 95, 8. 128, a plaintiff plaintiff suing in a superior court is not deprived of his costs in cases where the superior courts have a concurrent 41 more than 20 miles jurisdiction, as where the plaintiff. dwells more than from de- twenty miles from the defendant, and the cause of fendant. action did not arise wholly, or in some material point, within the jurisdiction of the court within which the defendant dwelt or carried on his business at the time of action brought. Where the plaintiff has a permanent dwelling more than twenty miles from the defendant, the superior courts have concurrent jurisdiction, although the plaintiff has also lodgings for a temporary purpose, at the time when the action is brought, within twenty miles of. the defendant (e). It has been decided upon the above section that where the items of a bill were so connected as to form one cause of action (f), if any one item had arisen within the juris- diction of a county court, within which the defendant dwelt or carried on his business at the time of action brought, and the parties did not dwell more than twenty miles apart, the cause of action “in some material point” arose within the jurisdiction, and that the superior court had no concurrent jurisdiction under sect. 128, but the case was within sect. 129 (7). Where the defendant had entered into a written contract to take a number of bricks of the plaintiff at a given price, and, after some had been 337; McDougal v. Paterson, 2 L. (d) Meredith v. Grittins, 21 L. M. & P. 681; S.C. 21L. Jd, J.,Q.B. 545. C. P. 27; 15 Jur. 1108; Crake (e) Macdougal v. Paterson, 2 v. Powell, 21 L. J..Q. B. 183; L.M.& P. 681; S.C.21L.J., 8. C. 16 Jur. 365; Asplin v. CC. P. 27; 15 Jur. 1108. Blackman, 21 L. J., Exr. 78. (f) As in Grimbly v. Aykroyd, (6) See ante, p 39. ante, p. 33. (ce) Sharpv. Eveleigh, 20 L. J., (9g) Wood vy. Perry, 3 Exr. 442 ; Exr, 282. S.C. 12 Jur. 129. 42 Where Plaintiff dwells, Sc. Parti. delivered, he declined to accept the rest ; and it appeared that, although the bricks were delivered at the plaintiff’s residence, the contract was signed at the defendant’s resi- dence, and the parties did not dwell more than twenty miles apart; it was held that the plaintiff was not entitled to sue in a superior court, since the cause of action in a material point arose within the jurisdiction where the plaintiff dwelt (4). Tn an action by an indorsee against the drawer of a bill of exchange, the notice of dishonour is a “ material point” of the cause of action, so as to compel a plaintiff to sue in the county court (2). Where some only of several defendants resided within the district of the county court within which the cause of action arose, it was held that the superior courts had con- current jurisdiction with the county court (£): so where aright of action existed against a husband and his wife, and the husband alone resided within the jurisdiction, it was held, that as the plaintiff was entitled to a judgment against both husband and wife, he was not .bound to sue in the county court (2). The same rule has been laid down with respect to plaintiffs, and it has been held, that where one of two plaintiffs dwells beyond twenty miles from the defendant, the superior courts have concurrent jurisdiction with the county court, and that the plaintiffs are entitled to costs although the sum received is under 201. (m). ‘Where the cause of action is shown to have arisen in a material point within the jurisdiction of a court within which the defendant dwells, it is immaterial whether the plaintiff knows the fact or not (7). “ Carrying on his business”? means more than a mere employment; therefore a clerk in a public office does not carry on his business at the office where he performs his duties (0) ; nor could a foreman or shopman be said to carry on fis business at his master’s shop. The cases as to suing a debtor who resides out of the (h) Norman v. Marchant, 7 Exr. 723; S.C. 21 L. J., Exr. 256. The marginal note of this case, in the LL. J. as first printed, ae incorrectly that the par- ties lived more than twenty miles apart. (i) Heath v. Long, 1L. M. & P. 333. See Roff v. Miller, post, p- 57, note (s). (k) Doyle v. Lawrence, 2 L. M. & P. 368. () Parry v. Davies, 1 L. M. & P. 379. (m) Hickie v. Salamo, 21 L. J., Exr. 271; 8. C. 16 Jur. 728. (n) Buckley v. Hann, 5 Exr. 43; S.C. 19 L. J., Exr. 151; S.C. 14 Jur. 226; Rolfev. Lear. mouth, 14 Q. B. 196; S.C. 19 L. J., Q. B.10; Glennie v. Del. mar, 1 L. M. & P. 402; 8S. Cy nomine Sangster v. Cave, 19 L. J., Exr. 314, (o) See per Rolfe, B., in Glen- nie v. Delmar. Where Claim reduced by Net-off. 43 jurisdiction for a cause of action which arose within it, Cuap. rv. will be found post, p. 56. as Where Claim reduced by Set-off.|—In considering inwhat Where cases a plaintiff suing in a superior court is deprived of claim re- costs, it has been held that where the debt or demand duced by originally claimed exceeds the amount over which the county court has jurisdiction, but is reduced below that amount by a claim of set-off, the statute does not apply ; accordingly in a case which occurred before the extension of the jurisdiction by the 13 & 14 Vict. c. 61, the original claim being beyond 20/., but the jury having, by allowing to the defendant a set-off which he had pleaded, reduced it by their verdict to a sum under 201.,the court held, that inasmuch as the plaintiff could not have sued for his whole claim in the county court, he was entitled to his costs in a superior court; and further, that such a claim could not be considered as one “on balance of account,” within the meaning of the 9 & 10 Vict. c. 95, s. 158, which would only apply where a debt above 207. had been reduced below that sum by payment or otherwise before action brought (p). Where, however, the claim is reduced by By pay- payment it is otherwise, and the words, “balance of ment. account,’’ in sect. 58, must be read as “ balance of account on investigation.” If, therefore, a plaintiff sues in the county court for a sum under 50/., and the defendant proves that he has paid the plaintiff 1,000/., the court has still jurisdiction, and the plaintiff in answer may shew that that sum was paid on an old account (9). . In a case which was decided upon the City Small Debt By tender. Act, 10 & 11 Vict. c. lxxi, but which applies equally to the County Court Act, the plaintiff having claimed in an action more than 201., the defendant pleaded a tender before action as to part (the residue being under 20/.), and the plaintiff took the sum out of court, and at the trial recovered a sum under 201. It was held that the defendant was not entitled to enter a suggestion to de- prive the plaintiff of costs since the action was well brought for a sum above 202. (r). Rules of Practice.|—By the 9 & 10 Vict. ¢. 91, s. 78, Rules of power was given to five of the judges of the superior practice. (p) Woodhamsyv. Newman,7C. 858; S.C. 1 L. M. & P. 744; B. 654; S.C. 13 Jur. 456. See 14Jur. 1099. See also per Maule, cases there cited, which were de- J., in Woodhums v. Newman, ante. cided on a similar principle upon (r) Crosse v. Seaman, 10 C. B. various local court acts. Seealso 884; §.C.2 L. M. & P. 274. Beswick v. Capper, ante, p. 32. See also the note to that case. (q) Turner v. Barry, 5 Exr: 44, Rules of Practice. Part, courts to issue general rules to regulate the practice and proceedings, and to frame necessary forms, and also to make rules as to the manner of keeping books, entries, and accounts to be kept by the clerks, and from time to time to alter such rules. It was directed that these rules and forms should be observed in all the courts, and that in cases not expressly provided for thereby, or by the act, the general principles of practice in the superior courts might be adopted and applied, at the discretion of the judges of the county courts, to actions and proceedings in those courts. In pursuance of the power thus given, rules of practice and forms were made by five of the judges of the superior courts, and ordered to be observed in the county courts. These, however, proving insufficient, and experience in the developement of the system and practical working of courts having shown that further and more minute regulations were required in order to obtain uni- formity of practice in the various courts, it was enacted by the 12th section of 18 & 14 Vict. c. 101, that the Lord Chan- cellor might appoint and authorize five of the judges of the county courts to frame such general rules and orders as to them should seem expedient, for and concerning the practice and proceedings of the courts, and for the execu- tion of their process, and in relation to any of the provi- sions of the act which established them as to which doubts might have arisen, or there might have been conflicting decisions in the courts. It was also directed that such orders -should be certified to the Lord Chancellor, - under the hands of such judges, or any three of them, and should be submitted by the Lord Chancellor to three or more of the judges of the superior courts of common law, of whom a chief judge of one of the courts should be one, which last-mentioned judges might approve, disallow, alter, or amend such rules or orders, or any ofthem. The rules so approved were to be laid before both Houses of Parliament ; and it was declared that all rules or orders 80 approved, after having been for six weeks laid before Parliament, should be of the same force and effect as if they had been enacted by authority of Parliament. In accordance with the above provision a commission, bearing date the Ist February, 1850, was issued by the Lord Chancellor, directed to five of the judges of the county courts, “to frame such general rules and orders as to them should seem expedient, for and concerning the practice and proceedings of the courts, and for the execu- tion of their process, and in relation to any of the pro- visions of the act as to which there might have arisen doubts, or might have been conflicting decisions in the county courts.” Rules were accordingly framed; and, Rules of Practice. 45 having been laid before the Houses of Parliament on the Cuar..w. 22nd May 1851, they came into operation on the 3rd_of July in that year(s). The first of the rules made under this power directs that “the rules of practice, and the forms made in pursuance of sect. 78 of the 9 & 10 Vict. c. 95, shall, from and after the rules and forms hereinafter set forth come into operation, cease to be adopted in the said courts ;” and by rule 207 it is directed, that in case of proceedings not provided for by the forms in the sche- dule, the clerk of the court shall issue the necessary pro- cess, using, where practicable, the forms prescribed in the schedule as guides in framing the same. By Rule 4 an interpretation is put on some of the words most fre- quently used; and it is provided that sect. 142 of the 9 & 10 Vict. c. 95 (the interpretation clause of that act), shall apply to the rules, unless there is something in the context inconsistent therewith. A schedule of forms is given, to which reference is made by the rules (¢) ; it is provided, however, that where a notice is required by the rules to be given by a party, it shall be sufficient if it substantially complies with the form (w). (s) See these, App. p. 80. (z) Rule 188. (t) Ib. p. 106. 46 CHAPTER V. PARTIES TO ACTIONS, PLAINT, AND SUMMONS. Panrrizs to Aorrons, 46: Infant, Plaintiff, or De- Sendant. Husband and Wife. Executors. Joint Defendants. AMENDMENT aT HEARING, A8 : Where Wife joimed or omitted. Lxecutors. Where too many Plaintiffs joined. Where too few Plaintiffs. Where too many Defend- ants. Where Defendants not all served. Szat oF Covrt, 50. Pratnt, 50: Entry of. Where Plaintiff Infant. Where Jurisdiction ex- tended by agreement. Parricotars or DEMAND, 50. Pratnt Nore, 52. SUMMONS WITHIN THE D1s- TRIOT, 52: Misnomer. AMENDMENT oF aT HzEAR- Ind, 52: Character of Party. Plaintiffs Name or De- scription. Defendants Name or De- scription. Issuing Summons Particuars, 53. ConctRRENt SUMMONSES, 53. SuccEsstvE SvUMMONSEs, 53. SUMMONSES TO SAVE StTa- TUTE OF Limitations, 54. SERVIcE oF Summons, 54: By whom. In what manner. When. Adjournment whereService too late. Indorsement of Service. Return of Service in Fo- reign Districts. Fee. Summons OUT oF THE D1s- Trict, 56: When it may Issue. How Issued and Served, and transmission ‘of Fees. Form of. Proor or Service, 59: Within District. Out of District. AND Ir would be beyond the scope of the present work to enter upon the question of parties to actions; the points which are here noticed are therefore only those in which the practice of the county court differs from that of the Infant. 47 Superior courts. Where no such difference has been Cuar. v. created, either by the statute or the rules of practice, the general rules of law, so far as they are substantial and do not arise from the forms of pleading, apply. Infant. \—First with regard to parties plaintiffs. Infants Infant when suing for wages, remuneration for piece work, or for plaintiff. work done as a servant, are not compelled, as in the supe- rior courts, to sue by prochein amy or guardian, but may prosecute such actions in the same manner as if they were of full age (a). When they are suing for causes of action, other than the above, the same advantage is not given them; but at the time of entering the plaint, the infant must attend with his next friend at the office of the clerk; and no plaint may be entered until the next friend has undertaken, in the form given in the schedule to the rule (6), to be responsible for costs. On entering into such undertaking, he is liable in the same manner and to the same extent as if he were a party in an ordinar suit, and the cause proceeds in the name of the infant by such next friend, the undertaking being filed by the clerk. No order of court is necessary for the appointment of such next friend. If the plaintiff fail in, or discontinue his suit and does not pay the amount of costs awarded by the court to be paid by him to the defendant, such amount may be recovered from the next friend, in the same way as any debt or damage ordered to be paid by the same court can be recovered (c). ‘Where an infant is defendant, he must, as in the supe- Defendant. rior courts appear by guardian. The 94th rule of practice has provided on this head, that where an infant defendant appears at the hearing,and names a person willing to act as guardian, and who then assents so to act, such person may be appointed guardian accordingly ; but if the defendant neglects to appear, or if appearing he does not name a guardian, the judge may appoint any person in court willing to become guardian, or in default of such person, the judge may appoint the clerk of the court to be guar- dian, and the cause may proceed thereupon as if another person had been appointed guardian, and the name of the guardian appointed must be entered in the form in the schedule : no responsibility however attaches to the person so appointed guardian (d). Claims by husbands in their own right, may be joined Husband with claims in respect of which the wife must be joined as and wife. a party (¢). (a) 9 & 10 Vict. c. 95, s. 64. (d) Rule 92. See forms, App. (b) Rule 5. See form, App. p. 113. p. 106. (e) Rule 26. This avoids the (c) Rule 5. extreme inconvenience which arose 48 Parti. Executors. Joint de- fendants. Amend- ment at hearing. Amendment at Hearing. Executors or administrators may sue and be sued in like manner as if they were parties in their own right (/). Joint Defendants].—Where there is a demand against two or more defendants who are jointly liable, it is suf- ficient to serve one with process, leaving out the others, and judgment and execution may go against the defendant or defendants served, who, when the judgment has been satisfied, may recover contribution from any persons jointly liable (g). ‘Where a plaintiff avails himself of this provi- sion, and proceeds only against one or more of several joint contractors, the defendant or defendants sued may avail himself or themselves of any set-off or other defence to which he or they would be entitled if all the jomt con- tractors were made defendants (). It should be remem- bered, that as by law a judgment against one of several joint contractors extinguishes the obligation of the others, such a judgment may be made available to the defendant or defendants, or any other of the joint contractors, in the same or in any other county court or county courts, if sued jointly or severally on such joint contract (7). Amendment at hearing.|—In actions by or against a husband, if the wife is improperly joined or omitted as a party, the summons may be amended at the hearing, at the instance of either party, by order of the judge, on such terms as he thinks fit, and the cause may proceed as to set-off and other matters, as if the proper person had been made party to the suit (/). from the rule which prevented a husband, in an action brought by him and his wife, from including any cause of action which accrued to himself alone. Hence if a wife were injured, two actions were necessary, one by the husband and wife, to recover damage for the injury done to her; the other by the husband only, to recover the amount of the surgeon’s bill for curing her. See Dengate v. Gar- diner, 4M. & W. 5. This incon- venience has been recently reme- died in the superior courts by 15 & 16 Vict. c. 76, s. 40. (f) 9 & 10 Vict. c. 95, s. 66. See as to actions by and against executors, post, Chap. XI. See also as to where the proceedings may be amended when an error has been made; rule 96. (g) 9 & 10 Vict. c. 95, s. 68. (A) Rule 93. This is in accord- ance with the holding of the su- perior courts, that in an action against one of two joint contract- ors, a plea by the defendant that the promises were made by him jointly with another, and a set-off of a debt due from plaintiff to defendant and such other person jointly, is a good answer to the action. Stackwood v. Dunn, 3 Q. B. 822. See also in the case of a partner allowed by the firm to appear as the sole owner of part- nership property. See Gordon v. Ellis, 2 C. B. 821. It must be shown, however, in such a case that the other partners were in some default, or assented to their partner so holding himself out. Ib. (i) King v. Hoare, 13 M.& W. 494 (2) Rule 99. Amendment at \Bleabiig. : 49 ‘\ } Bn ‘ In the same manner, wheb's! party sues, or is sued, in Cuar. v. his own right, and it appears at the hearing that he should - have sued or been sued in a representative character, the Executors. judge may, at the instance of either party, and on such terms as he may think fit, amend the proceedings accord- ingly, and the case may then proceed in all respects, as to set-off and other matters, as if the proper description of the parties had been given in the summons (J). here a greater number of persons have been made Where too plaintigs than by law required, the name of the person manyplain- improperly joined may, at the instance of either party, be tiffs joined. struck out, by order of the judge, on such terms as he may think fit, and the cause may proceed as to set-off and other matters, as if none but the proper parties had been made plaintiffs (7). Where a Jess number of persons have been made plain- Where too tiffs than by law required, the name of the omitted person few plain- may at the instance of either party, be added by order of ae the judge, on such terms as he may think fit, and the cause may proceed as to set-off and other matters, and judgment may be pronounced as if the proper persons had been originally made parties, and unless the person whose name is so added assents thereto, either at the hearing or some adjournment thereof, personally or by writing signed by him or his attorney, proceedings on the judgment will be stayed, until the court next-after five clear days from the day of hearing; and if the person whose name is added at the hearing or adjournment thereof, consents to become a plaintiff (such consent being in writing, signed by him or his attorney,) execution may issue as the judge thinks fit; but if such party does not consent to become a plain- tiff, judgment of nonsuit may be entered (7). Where a greater number of persons have been made Where too defendants than by law required, the name of the party many de- improperly joined may, at the instance of either party, be fendants. struck out by order of the judge, on such terms as he may think fit, and the cause may proceed as to set-off and other matters, as if only the parties liable had been sued, and judgment may be given for such person as has been improperly joined (0). Where several persons are made defendants, and all of Where de- them have not been served, the name or names of the de- fendants fendant or defendants who have not been served, may at not all the instance of either party be struck out by order of the **’¢4- judge, on such terms as he thinks fit; and the cause may (Z) Rule 96, (n) Rule 101. (m) Rule 100. (0) Rule 102. 50 Parti, Seal of court. Plaint. Entry. Where plaintiff infant. Where ju- risdiction extended by agree- ment. Particulars of demand. Plaint. then proceed in all respects as to set-off and other matters, as if all the defendants had been served (p). Seal of Court.|—Every summons and process issuing out of the court is sealed with the seal of the court (q). Plaint.|—All actions are commenced by plaint. On the application of any person desirous to bring an action, the clerk enters the plaint in a book a in his office, stating the names and last known places of abode of the parties, and the substance of the action, every plaint being num- bered according to the order in which it is entered (r). Every plaint must, upon application at the office of the clerk, be entered in the plaint-book in the form given in the schedule in the rules of practice, and the particulars thereby required must be entered by the clerk before issuing the summons. If, however, the plaintiff is unac- quainted with the defendant’s Christian name, he may be described by his surname, or by his surname and the initial of his Christian name, or by the name by which he is generally known, and the defendant may be so described in the summons; and in the event of the plaintiff or defendant not appearing, the proceedings under ss. 79 and 80 of the 9 & 10 Vict. c. 95 (which provide for pro- ceedings in the absence of the plaintiff or defendant), may be taken as if the true Christian name and surname had been stated in the summons, and all subsequent pro- ceedings thereon may be taken in conformity with such description (s). The mode of proceeding where an infant enters a plaint, other than for wages (¢), will be found ante, p. 47. In cases in which the parties have agreed that the court shall have power to try actions in respect of which it has not otherwise jurisdiction, the memorandum of agreement required by the act (w) must be filed with the clerk at the time of filing the plaintiff's demand (x). The plaint in these cases is entered and the summons issues thereon, as in other cases; and all the rules of practice applicable to other proceedings within the jurisdiction are adopted in these (y). Particulars of Demand.]—The plaintiff on entering the plaint, must in all cases, where the sum sought to be (p) Rule 103. manner as if he were of full age.” (q) 9 & 10 Vict. ¢. 95, s. 57. See ante, p. 47. (7) Ib. s. 59, (u} See of this ante, p. 32. (s) Rule 25. (v) 13 & 14 Vict. c. 61, 8, 17. (t) For wages he is entitled by (y) Rule 204. the statute to sue “in the same Particulars of Demand. 51 recovered exceeds 40s., deliver at the office of the clerk, Cuar. v. as many copies of a statement of the particulars of his demand or cause of action as there are defendants, and an additional copy to be filed, and all such copies must be sealed with the seal of the court. These particulars are taken to be and treated as part of the summons (2). The nature and extent of the particulars and the amount of information which they convey to the defendant, must of necessity vary according to the circumstances of each particular case. The rule in the superior courts is that a defendant is entitled to such particulars of the plaintiff's demand as will give him that mformation which a reason- able man would require, respecting the matters against which he has to defend himself (a). And it has been said, with respect to the county courts, that in order that sub- stantial Justice may be done, particulars of demand must be dealt with in the county courts in the same way as they are in the superior courts; and that the question in each case is, not whether every statement contaimed in such particulars is accurate in all respects, but whether any imaccuracy in them is such that the defendant could have been misled by it (6). In an action by an engineer who had employed other persons, the court held that the par- ticulars of demand must be as specific as it was possible for the plaintiffs to make them, and that a mere statement of aggregate sums claimed in respect of tavern bills, assistant surveyors, &c., finding surveyors, meeting and managing with solicitors, &c.; would not suffice(c). A laintiff, who is suing for a balance of account, need not furnish in his particulars a statement of monies received by him from the defendant (d). He may, however, do so in order to save the expense of proof by the defendant ; but even in that case, he isnot bound to state the items of reduction which he admits; it is sufficient if he states the items of his own demand, and the amount admitted as going in reduction (e). A plaintiff cannot give credit for a set-off, so as to prevent the defendant proving it, for it is impossible for the plaintiff to know whether the defendant will plead one or not (/). In actions on instruments to secure the performance of Ofbreaches covenants within the meaning of the 8 & 9 Wm. 3, c. 11, - paead (z) Rule 27. & W. 772. (a) Per Alderson, B.; Rennie (d) Penprase vy. Crease, 1 M. & v. Beresford, 15 M. & W. 83. W. 36. (b) See per Parke, B., in Clarke (e) Per Patteson, J.; Smith v. v. Stancliffe, 7 Exr. 439; 8. C. Eldridge, 6 A. & E, 64. 16 Jur. 432. (f) Per Alderson, B.; Kilner (c) Prichard v. Nelson, 16M. v. Bailey, 5 M. & W. 385. D2 52 Part I. Plaint note. Summons within the district. Misnomer. Amend- ment of at hearing. Character of parties Plaintiff's name or description. Summons within the District. the plaintiff must deliver particulars of the breaches on which he relies (9). Plaint Note.|—At the time of entering the plaint, the clerk of the court must give to the plaintiff, or his agent, a note under the seal of the court, according to the form in the schedule (4). No money may be paid out of court to the plaintiff or his agent, unless on production of such note, or by order of the judge (7). Summons within the District.|—Upon the entry of the plaint, a summons stating the nature of the action, and with the number of the plaint in the margin, is issued under the seal of the court (4). It must be in the form given in the schedule to the rules, and must be dated as of the day on which the plaint was entered, and must correspond with the plaint note as to the names of the parties. The date of it is treated for all purposes as the commence- ment of the suit (J). It may be made returnable either at the next court after the entry of the plaint, or any subsequent court within three months (m). Neither plaint nor summons is vitiated by misnomer or inaccurate description of person or place, so that the per- son or place is described so as to be commonly known (7). As to the description of the defendant by initials, see ante, p. 50. Amendment of at Hearing.|\—Where a party sues or is sued in a representative character, but at the hearing it appears that he ought to have sued or been sued in his own right, the judge may, at the instance of either party, and on such terms as he thinks fit, amend the proceedings accordingly, and the case may then proceed in all respects as to set-off and other matters, as if the proper description of the parties had been given in the summons (0). Where the name or description of the plaintiff in the summons is insufficient or incorrect, it may be amended at the instance of either party by order of the judge, on such terms as he thinks fit, and the cause may then pro- ceed as to set-off and other matters as if the name or (g) Rule 28. That is, in all (2) Rule 29. actions upon any bond or bonds, (k) 9 & 10 Vict. c. 95, s, 59. or on any penal sum, for non- (1) Rule 34, See form, App. performance of any covenants or p. 107. agreements in any indenture, deed, (m) Rule 35. or writing contained, Sce 8& 9 (nv) 9 & 10 Vict. c. 95,5 49. Wm. 3, J1,5. 8 (0) Rule 95, See also rule 96, (h) See form, App. p. 106. and post, Chap. XI. Successive Summonses. 53 description had been originally such as it appears after the Cuav. v. amendment has been made (p). ce Where the name or description of a defendant in the Defend- summons is insufficient or incorrect, and the defendant ants. appears and objects to the description, it may be amended in the same way; but if no such objection is taken the cause may proceed, and the judgment, and all subsequent proceedings founded on such summons, must describe the defendant in the same manner (q). Issuing of Summons and Particulars.|—The clerk of the Issuing of court must issue the summons to the high bailiff forth- summons, with, after the plaint is entered (r). He must also, where Fife particulars are required, annex to the summons a copy 0 : the plaintiff’s particulars, sealed with the seal of the court, and make and deliver to the bailiff a true copy of the summons for indorsement ; but it is the duty of the bailiff to ascertain, by examination and comparison with the summons, the correctness of such copy (s). Concurrent Summonses.|—Concurrentsummonsesfound- Concurrent ed on the same plaint, may, by leave of the court, be issued summon. into different districts on payment of the additional fees ss- on the increased number of summonses; and where the former summonses have not been served, successive con- current summonses may issue in like manner, and on the same terms as successive summonses. The costs of more than one summons will not however be allowed against the other party, unless by order of the judge (#). Successive Summonses.|—Where the summons has not Successive been served, successive summonses may be issued by the summon- clerk on the application of the plaintiff, under the circum- °° stances and on the conditions. following, unless the judge otherwise order, If the non-service has been caused by the defective description given by the plaintiff of the de- fendant, or of his place of business or residence, or by any other act or neglect of the plaintiff, successive summonses may be issued only on payment of the poundage for a summons and the bailiff’s fee for serving it; but if the non-service has not been so caused, and has not been caused by the neglect of the bailiff, successive summonses may be issued only on payment by the plaintiff of the bailiff’s fee for serving it. Ifthe non-service has been caused by the neglect of the bailiff, the poundage must be paid by the bailiff, and the successive summons must be (p) Rule 97. (s) Rule 37, 3 Le a (é) Bule 40. (r) Rule 36. 54 Part 1. Summons to save Statute of Limita- tions. Service of. By whom. In what manner. Service of Summons. served by him without fee. The successive summonses bear the same date and number as the summons first issued, and are a continuation of the first summons; the costs, however, of such successive summons or summonses are not allowed against the defendant, unless the judge otherwise orders (w). Summons to save Statute of Limitations.|—Successive summonses may be issued without leave of the court for the purpose a preventing the operation of any statute whereby the time for the commencement of any action is or may be limited. Such summonses are in force for four calendar months from the time of issuing them, including the day of issuing; the successive summonses must be issued and entered in the plaint book of the court. On entering the plaint in the first instance, the usual fees must be paid, as if the defendant resided within two miles of the court; but for every successive summons no further fee need be paid, nor is it necessary that any attempt should be made to serve such summons, unless the plaintiff requires it, when the proper bailiff’s fees for service must be paid, in addition to those already received. These summonses when so entered, operate as a con- tinuance of the action from and inclusive of the day on which the first summons was issued (v). Service of.|—The summons, if within the district, must be served by one of the bailiffs of the court from which it issues; but out of the district it may be served by the bailiff of any other district (w). The summons when re- quired to be served in a foreign district, must be served by the bailiff of that district, unless by special order of the judge of the home court, the bailiff of the home court is directed to serve it. In the latter case, however, in taxing costs between party and party, the costs of such service are not allowed to an amount greater than if it had been effected by.the bailiff of the foreign court, unless the judge otherwise orders (). The service of the summons, except in the cases presently mentioned, must be either personal, or by delivering it to some person apparently of sixteen years of age at least, at the house or place of dwelling, or the place of business of the defendant, but no place of business is deemed the place of business of the defendant unless he is the master, or one of the masters thereof (vy). Where a defendant («) Rule 41. (y) Rule 43. This and the (v) Rule 190. other rules as to the mode, but not (w) 9 & 10 Vict. c. 95, s. 61. as to the time, of service of sum- (x) Rule 55. monses to appear to a plaint apply Service of Summons. 55 purposely keeps his house or place of abode or business Cuap. v. closed, in order to prevent the bailiff from serving the summons, and the summons has been affixed on the door of such house, &c., such affixing is deemed good service (z). So where the bailiff is prevented by the violence or threats of the defendant, or of any other person or persons in concert with him, from personally serving such summons, and he leaves it as near to the defendant as practicable, it _ is deemed good service (a). Where a defendant is living or serving on board a ship or vessel, it is sufficient service to deliver the summons to the person on board who has, at the time of the service, charge of the ship (6). If the defendant is residing or quartered in barracks, and serving her Majesty as a soldier or marine, the summons may be delivered at such barracks to the adjutant of the corps, or any officer or serjeant of the company to which the defendant belongs (c). If the defendant is a prisoner in a gaol, the summons may be delivered at the gaol to the governor or head officer (d). Where a defendant is working in a mine or other works carried on under ground, it is sufficient service to deliver thesummons at such mine orworks to the engineman, banks- man, or other person in charge of the mine or works (e). Service of the summons may be effected on a railway company or other corporation, by delivering it at any station or office of the defendant within the district, to a secretary or clerk of the defendant (/). When.|—The summons must be served ten clear days When, before the holding of the court at which it is returnable: service however of such summons at any time before the return day may be deemed good service, if it is proved on oath to the satisfaction of the judge, that the party to be served was about to remove out of the jurisdiction of the court, and in every such case the judge may, in his dis- cretion, and on such terms as he thinks fit, adjourn the hearing (7). No summons, notice, order, or other process, may be served on Sunday, Christmas-day, or Good-Friday, or any day appointed by royal proclamation for a public fast or thanksgiving; but such days are counted in the computation of the time required by the rules relating to service (h). to the service of all notices and (c) Rule 45. processes, except where otherwise (d) Rule 46. directed by statute or the rules, (e) Rule 47. See rule 60. (f) Rule 48. (z) Rule 49. (g) Rule 42. (a) Rule 50. (Ah) Rule 61. (b) Rule 44, 56 Parr i. Adjourn- ment where service too late. Tndorse- ment of service. Return of service in foreign dis- trict. Summons out of the district. Service of Summons. Where a summons has been served in one of the modes before mentioned, but it appears that it has come to the knowledge of the defendant in less than ten clear days before the day of hearing, the cause may, at the discretion of the judge, proceed or be adjourned, whether the de- fendant appears or not (2). If the service of the summons has been personal, the bailiff who served it, must indorse on the copy of it deli- vered to him by the clerk, the fact of such service, and if the service has not been personal, he must indorse on the copy of it the statement which has been made by the person to whom it was delivered, or other circumstance from which it may be inferred that the service of it has come to the knowledge of defendant, and if it has not been served, the reason of such non-service must be indorsed on the copy, and the bailiff must deliver it to the clerk at the time of making the return required by rule 20, and it must be produced at the trial by the clerk, and shall be filed by him (£). Where the summons is served in a foreign district by the bailiff of the district, he must, forthwith after serving it, transmit the copy of it with a similar affidavit of such service to the clerk of the home court. If the affidavit is defective, it must be amended by the bailiff at his own expense, in conformity with the direction of the home court, and if he fails so to do, the judge of the home court may direct the treasurer of the foreign court to withhold from him his fees in respect of such summons, in which case the treasurer is not to pay the same without the authority in writing of the judge for that purpose (J). Where a summons cannot be served in a foreign district in due time by the bailiff of that district, he must forth- with transmit it to the clerk of the home court, with the reason endorsed thereon why it could not be served (m). Where the summons is required to be served in a foreign district, the clerk of the home court must demand and receive from the plaintiff the fee to be paid to the person before whom the affidavit is sworn, as well as the fee to the bailiff for swearing it, and in case the summons is not served, such fee is to be returned to the plaintiff if de- manded, or if not demanded within one calendar month, is to be paid over to the treasurer for the general fund of the home court (7). Summons out of the District.|—The summons may, in ordinary cases, issue in any district in which the defen nt, (i) Rule 53. (m) Rule 57, (&) Rule 52, (n) Rule 58, (1) Bule 56. Suminons out of the District. or one of the defendants dwells, or carries on his business at the time of action brought; but by leave of the court, it may issue for the district in which the defendant or one of the defendants has dwelt, or carried on his business at some time within six calendar months next before action brought, or in which the cause of action arose. In the two last cases the summons may issue from the court of either district (0). Leave to issue such a summons out of the district will be granted only if the judge is satisfied by evidence, on oath (p), that the party applying has a cause of action. It is not, however, necessary to enter a plaint before making such application (gq). As the statute directs, that the summons may issue out of the district in which the “cause of action’”’ arose; it often becomes material to decide what are the facts which constitute the cause of action in each case. The words being “cause of action,’ and not “material evidence of the cause of action,” as in the undertaking which a plain- tiff who sought in an action in the superior courts to bring back the venue when it had been changed (7), was compelled to give, the cases which decided whether or not there had been a compliance with such an undertaking, afford no analogy to this question. The acceptance of a bill of exchange although revoc- able at any time before delivery is, if unrevoked, complete as soon as written on the bill, and the contract is made in that place where the bill is accepted, not where it is issued ; therefore where a defendant accepted a bill at, his resi- dence within the juridiction of a county court, and deli- vered it to the plaintiff, the drawer, out of the jurisdiction, it was held that the cause of action arose within the juris- diction (s). Upon the same ground where a plaintiff resid- ing at N., drew a bill of exchange upon the defendant, who resided at L., which was without the jurisdiction of the county court of N., and the defendant accepted the bill at L., and returned it by post to the plaintiff at N., who afterwards sued on it in the county court of N., it was held that the judge had no jurisdiction, the cause of action not having arisen in his jurisdiction (¢). Where an indorsee is suing, although the bill is drawn and (0) 9 & 10 Vict. c. 95, s. 60. (r) Reg. Gen., H. T., 2 Wm. 4° See the construction put on “‘car- s. 103. Repealed by Reg. Gen. ries on his business,” ante, p. 42. H. T., 1853, (p) By rule 4 the words “on (8) Roff'v. Miller, 19 L. J., C. oath” shall be understood to mean P_ 278; S.C. 14 Jur. 746. “on vind voce or by affidavit.” (¢) Reg. ¥ Birch. \ Bail C. C. (q) Rule 38. By rule 115, 656; S.C. nomine Wilde v. Sheri. where the court gives leave totake dan, 21 L. J.,Q. B. 269; 16 Jur any proceeding, no order need be 426. drawa up. D3 57 Cuap. v. ees, When it may issue. 58 Summons out of the District. Parts. accepted and the indorser puts his name to it within the jurisdiction, if it is delivered to the indorsee out of the jurisdiction, as he has no title until delivery, the cause of action does not arise within the jurisdiction (1). As each case must depend upon the special circumstances which are relied upon as evidence of a cause of action, it is impossible to lay down any rule upon this subject; one of the cases which most frequently arises may, however, be mentioned with advantage, namely, where goods are sold and delivered, not to the vendee himself, who resides out of the district, but to a carrier, at some place within the district, to take to him, in which case, if the carrier is, either by special appointment, or by the previous course of business, adopted by the parties as the agent of the defendant, a delivery to him is equivalent to a delivery to the vendee, and the cause of action is complete within the jurisdiction in which the delivery takes place. The cases which have been decided upon the question, whether or not there has been a delivery to an agent or carrier, so as to satisfy the statute of frauds, have followed the above rule (v). Ina case which came before the Court of Queen’s Bench, upon a suggestion to deprive the plaintiff of costs, which alleged that the cause of action arose within the jurisdiction of the Waltham County Court, it appeared that ‘the defendant who resided at Nasing, within the jurisdiction of that court, ordered a ploughshare and plough to be sent by the plaintiff to Nasing by the Eastern Counties Railway, he, (the defendant) paying the carriage. The manufactory of the plaintiff was in Essex, and the ploughshare and plough were made in that manufactory, and delivered according to order at the Stratford Station, not within the jurisdiction of the Wal- tham Court. They were forwarded by the carrier from Stratford to the defendant, who received them at Nasing. The court upon these facts held, that the cause of action was complete out of the jurisdiction, and therefore that no part of it could have arisen within the jurisdiction, and that when the goods were delivered at Stratford they were delivered to the defendant, and he was liable to an action for goods sold and delivered (w). Where, however, the plaintiff, who was a carrier and wharfinger, agreed by a written contract to carry defendant’s timber by canal from 8. to L. at 16s. per ton, to include all charges except wharfage, and in order to load the timber on the plaintif’s barge it was necessary to haul it from one side of the (u) Buckley v. Hann, 5 Exr. 14M, & W. 277.: 43. (w) De Porquet v. Bury, 16 (v) Dutton v. Solomonson,3 B. Law I, 435, & P. 582; Norman v. Phillips, - How Issued and Served. 5 9 canal to the other, and the defendant’s horses not being Cuar. v. on the epee, the plaintiff provided a team for hauling it. ———— Tt was held, that the action and the hauling of the timber and the carriage constituted but one cause, and that as the cause of action for carrying the timber did not arise until the delivery of it in L., the case was not within the jurisdiction of the 8. county court («). How issued and served.|—The summons when required How issued to be served in a foreign district, must be transmitted by and served. the clerk to the bailiff of the foreign court, who is autho- rized and required to serve it. The clerk of the home court Trans- must transmit it to the high bailiff of the foreign court in mission of a letter, according to the form given in the schedule to e* the rules (y), stating therein the amount of fees due to the high bailiff of the foreign court. The clerk must also account for and pay to the treasurer of his court, at the time of making his monthly return of fees, &c. to the treasurer, the high bailiff’s fees received by him for the service in the foreign district, and the high bailiff of the foreign court must serve the summons, and produce to the treasurer of his court, at the time of audit, the letter from the clerk of the home court transmitting it, and thereupon the treasurer is to pay to him the amount of the fees therein stated, unless the judge of the foreign court or the judge of the home court has signified in writ- ing to the treasurer that such fees shall not be paid, and in such case the amount of such fees must be placed to the credit of the general fund of the foreign court (2). Previous to the present rules of practice, the same form Form of, of summons was used, whether it issued within the dis- trict or out of it; and it was held that a writ of summons. issuing by leave of the court was good, although it did not appear on the face of it that it so issued (a); now, how- ever, where a summons issues by leave of the court, it must be in the form given in the schedule to the rules (8); but no order for such leave need be drawn up (ce). Proof of Service.|— Where a summons has been served Proof of by a bailiff of the court, within the district, if the defend- service. ant does not appear, the bailiff must prove on oath the service (d). If it has not been served personally, and the Within defendant does not appear, in person or by his attorney or district. agent, at the return day, it must be proved on oath to the (x) Barnesv. Marshall,21U.J. L. 88 Q. B. 388; 8. C. 16 Jur. 1086. (b) Rule 39. See form, App. (y) See form, App. p. 124. p- 107. (z) Rule 137. (c) Rule 39. (a) Waters v. Handley, 6 D. & (d) 9 & 10 Vict. v. 95, s. 80. 60 Partie Out of dis- trict. Proof of Service. , satisfaction of the judge, that the service has come to the knowledge of the defendant before the return day, except in the cases already mentioned of service on a compen or where the defendant by keeping his house closed or threatening the bailiff prevents service (e). Whether or not the proof of the service of the summons is sufficient is a matter entirely in the discretion of the judge, and if he is satisfied with the proof he has jurisdiction to hear the plaint. In a case where a prohibition was moved for on the ground that the defendant in the county court had not been duly served, upon it being shewn that the judge of that court had been satisfied as to the service, the Court of Exchequer refused to interfere (/'). Where a summons has been served out of the district, service of it. may be proved by an affidavit, sworn before a judge of the county court, a Master extraordinary in Chancery, or other authorized persons (g). The fee for this affidavit may not be more than one shilling, and forms a portion of the costs in the cause; also in the case of the unavoidable absence of the bailiff, by whom a summons has been served within the district, if the judge thinks fit, service may be proved in the same way, but without addi- tional charge to the parties (4). (e) Rule 51. See form, App. p.108. See also be- (f) Robinson v. Lenaghan, 2 fore whom affidavits may be sworn, Exr. 333. 13 & 14 Vict. ¢. 61,5. 23, post, p. 70. (9) 9 & 10 Vict. uv. 95, s, 62. (A) 9 & 10 Vict. ¢. 95, s, 62. 61 CHAPTER VI. PROCEEDINGS PREVIOUS TO HEARING. JUDGMENT BY CONFESSION, 61. JUDGMENT BY AGREEMENT, 62. Payment or Money Into Court, 63: Notice to Plaintiff. Where Plaintiffaccepts it. Where he proceeds. Norice or Srzcrat Ds- FENCE, 64: To Clerk. Notice of Set-off, and Par- ticulars. Infancy. Coverture. Statute of Limitations. Dischargeunder Bankrupt or Insolvent Act. Notice to Plaintiff Tender. Jury, 66. Notice of demand of. Deposit. Notice of to other Party. Jurors, how Summoned. Fee on Summons. Procurine Evipencs, 67. Documents, 67: Notice to Admit. Notice to Produce. When unnecessary. Form of. Service. Inspection of Documents. Affidavits, how sworn. Wirnesszs, 70: Summons to. Books and Papers in their possession. Service of Summons. Expenses. WITHDRAWAL OF CAUSE, 71: 4 Sudgment by Confession.|—Previous to the passing of Judgment the statute 138 & 14 Vict. c. 61, no means existed by by con- which a judgment by confession or consent could be fession. entered; so that although a defendant was satisfied with the correctness of the claim made against him, and was ready to give to the plaintiff suing the security of a judg- ment, no such judgment could be obtained without the plaintiff continuing his action, summoning his witnesses, and appearing before the judge on the day appointed for the hearing, when judgment was given in the ordinary course; by which the defendant was compelled to pay the costs of the hearing of the plaintiff's witnesses. By sec- tions 8 & 9, however, of that act this is remedied; and now, 62 Judgment by Agreement. Panry. any person against whom a plaint has been entered may, whether he is summoned upon it or not, in the presence of the clerk or assistant clerk of the court in which the plaint is entered, or one of their clerks, or in the presence of an attorney of one of the superior courts, sign a state- ment, confessing and admitting the amount of the debt or demand for which the plaint wasentered, or part thereof(a). This confession must, by the rules of practice, be delivered to the clerk five clear days before the return of the sum- mons (2). A confession, however, may be made and deli- vered to the clerk at any time after the five days, but will then be subject to an order to be made by the judge in his discretion on the defendant, to pay the costs which the plain- tiff may have incurred in consequence of the defendant not having complied with this rule. The clerk, or assist- ant clerk, must, as soon as conveniently may be after re- ceiving the defendant’s statement, send notice (c) thereof to the plaintiff by the post, or by causing it to be delivered at his usual place of abode or business; whereupon the plaintiff need not prove the debt or demand so confessed ; but the judge at the next sitting of the court, whether the parties or either of them attend or not (upon proof by affidavit (d) of the signature of the defendant, if such statement was not made in the presence of the clerk or assistant clerk), may proceed to give judgment for the debt or demand in the same manner and subject to the same conditions as if he had tried the cause, and given judgment in the ordinary way (e). Judgment Judgment by Agreement.]—It is not necessary in all by agree- cases, where a defendant is willing to consent to a judg- = ment being entered against him that the matter should come before the court at all, since in cases where the defendant can agree with the plaintiff, not only upon the amount of the debt or demand in respect of which the plaint has been entered, but also upon the terms and con- ditions upon which it shall be paid, it is provided that the parties in the presence of the clerk or assistant clerk of the court in aieh the plaint was entered, or one of their clerks, or in the presence of an attorney of one of the superior courts, may sign a statement of the amount of the debt or demand as agreed between them, and of the terms or conditions upon which it shall be paid or satis- fied (f). In these cases the defendant may confess the (a) 13 & 14 Vict. . 61,8. 8 (a) Ib. p. 131. See form of confession, App. p. (e) 13 & 14 Vict. ¢. 61, s. 8 130. (f) Ib s. 9. See form, App. (b), Rule 202, p. 132. (¢) See form, App. p. 131. Payment of Money into Court. 63 amount of the plaintifi’s costs, besides the court fees, and Cuap. v1. the judgment may be entered accordingly (g). The clerk, when the parties have signed the statement, must receive it, and (upon proof by affidavit (h) of the signature of the party, if the statement has not been made in his or his clerk’s presence), must enter up judgment for the plaintiff for the amount of the debt or demand agreed upon, and upon the terms and conditions mentioned in the state- ment (7). The amount of the plaintiff’s costs confessed as above must be stated separately (£). A judgment so obtained is of the same effect, aud is enforceable in the same manner as an ordinary judgment of the court (/). Payment of Money into Court.|—The defendant may, payment in any action brought against him, if he is desirous so to of money do, pay into court such sum of money as he thinks a full into Court. satisfaction for the demand of the plaintiff, together with the costs incurred by the plaintiff up to the time of such payment (m). The money must be paid into court, toge- ther with the costs proportionate and fees for paying in, and notice must be given to the plaintiff five clear days before the return of the summons (n), and notice of the Notice to payment must be communicated by the clerk of the court Plaintiff. to the plaintiff(o). This notice must be sent by the clerk, within twenty-four hours after the payment by the de- fendant, by prepaid post letter (p), The defendant may, however, at any time, afterwards, and before the hearing of the cause, pay money into court, with such costs, subject to an order to be made by the judge on the defendant, to pay such expenses as the plaintiff may have incurred in preparing for trial, or attending the court, before the notice of such payment was received by him, and the clerk must give notice thereof to the plaintiff in the same manner (9). The fee, on paying money into court, is to be paid by Fee on. the defendant; and the fee on paying out money is paid by the party receiving it (r). (g) Rule 203. (h) See post, p. 70, and form of affidavit, App. p. 132. (i) 13 & 14 Vict. c. 61, 8. 9. (2) Rule 203. See form of judgment, App. p. 133. (D) 13 & 14 Vict. c. 61,8. 9. (m) 9 & 10 Vict. vu. 95, s, 82. (n) Rule 62. (o) 9 & 10 Viet. c. 95, s, 82. See forms of notice of payment of whole and of part, App. pp. 108, 109. (p) Ibid. Rule 180 provides that “in all cases where any no- tice or thing is required by these tules of practice to be given or done within a period of twenty- four hours, such period shall be understood to mean forty-eight hours, if any part of Sunday, Good Friday, or Christmas-day, or any day appointed by royal proclama- tion for a public fast or thanks. giving, is included in such twenty- four hours.” (q) Rule 62. (7) Rule 64. 64 Part t Where plaintiff accepts it. Where plaintiff proceeds. Notice of special de- fence ; To clerk. Notice of Special Defence. If the plaintiff elects to accept in full satisfaction of his claim, such part thereof as the defendant has paid into court, and sends to the defendant by prepaid post letter, or leaves at the defendant’s place of abode or busi- ness, a written notice, stating such acceptance, two clear days before the return day of the summons, or within such reasonable time as the time of payment by the de- fendant has permitted before the return day of the sum- mons, the action will abate, and the plaintiff will not be liable to any further costs. But in default of such notice the cause will proceed (s). If, however, the plaintiff elects to proceed, and he re- covers no further sum in the action than was paid into court, he must pay to the defendant the costs incurred by him after the payment into court. The costs must be settled by the court, and an order thereupon will be made by the court for the payment of them by the plaintiff(¢). Notice of Special Defence.]—A defendant cannot at the trial rely on, as a defence—set-off, infancy, coverture, statute of limitations, or discharge under the bankrupt or insolvent acts, without the plaintiff’s consent; unless he has given notice in writing of his intention to rely on such special defence, to the clerk of the court, five clear days before the summons is returnable (w). Clear days are reckoned by excluding both the first and last (x). By rule 67, of the rules of practice, where a defendant intends to rely on one of the above defences, his notice must contain the fol- lowing particulars respectively. In case, however, the defendant omits to comply with that, or any other rule applying to those grounds of defence, and the plaintiff will not consent at the hearing to permit the defendant to avail himself of such defence, the judge may, on such terms as he thinks proper, adjourn the hearing of the cause to enable the defendant to give such notice (y). In all cases, where it is not otherwise expressly ordered by the rules of practice, when notice is required to be given to any party, such party must at least five days before the day of hearing, deliver to the clerk as many copies thereof as there are opposite parties, and an additional copy to be filed ; all which copies must be signed by the party, his (s) Rule 63. (¢) 9 & 10 Vict. c. 95, s. 82. («) Ib. s. 76. See forms of special defence to be given by clerk, which may be altered to suit this. Where a defendant omitted to give notice of a set- off, and so was precluded from going into it at the hearing, it was held he was not estopped from bringing an action for the amount. Stantonv. Styles, 5 Exr. 678: 8. C. 1 L. M.& P. 575; 19 L. J., Exr. 336. (2) Liffin v. Pitcher, 1 Dowl. N. S. 767. (y) Rule 67. Notice of Special Defence. 65 attorney or agent, giving the notice; and the clerk must Cuap. vr. within twenty-four hours from receiving the same, transmit, by prepaid post letter, one copy of such notice to each of the parties (z). Where a defendant intends to set-off any debt or de- Set-of. mand alleged to be due to him by the plaintiff, he must give notice thereof in writing to the clerk of the court, and deliver to such clerk a statement of the particulars of such Particulars set-off, at least five clear days before the return day of the of. summons (a). ‘Where the intended defence is infancy, the defendant Infancy. must give notice thereof in writing to the clerk of the court, at least five clear days before the return day of the summons, setting forth in such notice the supposed place and date of his birth (0). Where a defendant intends to rely on the defence of Coverture. coverture, whether at the time of the contract or of bring- ing the action, she must give notice thereof in writing to the clerk, at least five clear days before the return day of the summons, setting forth in such notice the place and date of marriage, together with the Christian name and surname of her husband (c). If the intended defence be any statute of limitations, Statute of the defendant must give notice thereof in writing to the Limita- clerk of the court, at least five clear days before the return 4S. day of the summons (¢@). ‘Where a defendant intends to rely on the defence of a Discharge discharge under any statute relating to bankrupts, or any under act for the relief of insolvent debtors, he must give notice ee . ope or insol- in writing to the clerk of the court, at least five clear days jont Acts. before the return day of the summons, setting forth in such notice the date of his certificate, discharge, or final order, and the court by which such certificate, discharge, or final order was granted or made (e). In every case in which the practice of the court requires Notice to notice of the special defence to be given, the clerk of the plaintiff. court must as soon as conveniently may be after receiving the notice, communicate it to the plaintiff by post, or by causing it to be delivered at his usual place of abode or . business; the defendant need not however prove on the trial that the notice was communicated to the plaintiff by the clerk (f). Where the defence is a tender, it will not be available Tender (z) Rule 73. (c) Rule 70. (a) Rule 68. See as to what (d) Rule 71. particulars are sufficient, ante, p. (e) Rule 72. 59, And generally as to this de- (f)9 & 10 Vict. c. 95, s. 76. fence, post, p. 83. See forms of notice, App. pp. 109, (b) Rule 69, 110. 66 Fury. Parr... unless before or at the hearing of the cause, the defendant pays into court (which payment may be made without costs) the amount alleged to have been tendered (4). Jury. Jury.]—In any action where the amount claimed ex- ceeds 51. (h), the plaintiff or defendant may require a jury to be summoned, and in actions under 5/. the judge may -in his discretion, on application of either of the parties, order that the action be tried by a jury (). The number of jurymen impannelled and sworn at the trial is five (4). Notice of Notice of demand of.|—Every notice of a demand of a demand of. jury, must be made in writing to the clerk of the court two clear days before the day of the hearing, and the summons to the jurors must be delivered to the bailiff forthwith (2). Where notice of a demand of a jury has not been given in due time, or if at the hearing both parties desire to try by a jury, the judge may, on such terms as he thinks fit, adjourn the cause in order that the necessary steps for _ such trial may take place accordingly (2). Deposit. The party requiring a jury to be summoned, must at the time of giving the notice to the clerk, pay to him five shil- lings for payment of the jury; this sum forms part of the costs in the cause, unless it is otherwise ordered by the : judge (7). eas of The clerk must cause notice of the demand of a jury by ae °F either party, to be communicated to the other party, either i by post, or by causing it to be delivered at his usual place of abode or business. It is not, however, necessary for either party to prove on the trial that such notice was communicated to the other party by the clerk (0). Jurors,how Jurors, how Swmmoned.|—The sheriff of every county, summoned. and the high bailiffs of Westminster and Southwark, must cause to be delivered to the clerk of the court, a list of persons qualified and liable to serve as jurors in the court of assize and nisi prius for their county, city, and borough respectively within fourteen days from the receipt of the jury book, from the clerk of the peace of the county or other officer, each list containing only the names of per- sons residing within the jurisdiction of the court; for which list those officers are entitled to receive out of the general fund of the court, a fee after the rate of 2d. for (g) Rule 74, (m) Rule 80. (A) 9 & 10 Vict. c. 95, s, 70. (n) 9 & 10 Vict. c. 95, s. 70. (2) Ibid. (0) Ib. s. 70. Sce form of (k) Ib. 8.73, notice, App. p. 112. (2) Rule 79. Procuring Documentary Evidence. every folio of oe words; and whenever a jury is CHar. vi. required, the clerk of the court must cause so many of the persons named in the list as are needed in the opinion of the judge, to be summoned (p) to attend the court at a time and place to be mentioned in the summons (g). The persons so summoned must attend at the court at the time mentioned in the summons; in default of attendance, they forfeit such sum of money as the judge may direct, not being more than 5/. for each default. The delivery of the summons to the person whose attendance is required, or to his wife or servant, or any inmate at his usual place of abode, trading, or dealing is good service. No person can, however, be summoned or compelled to serve on a jury more than twice in one year, or who has been summoned and has attended any jury at the assizes, or any court of nisi prius, or at the central criminal court for the same county, within six calendar months next before the deli- very of the summons (r). The poundage fee upon a sum- Fee on 67 mons is not payable upon any summons to a jury or jury- summons. man, but the bailiff’s fees for service on each juryman are payable as upon the service of a summons to appear to a plaint (s). Itwill be seen by sect. 73 ofthe 9 & 10 Vict. ¢.95 (¢), that if there are several successive jury cases, it is not necessary to empannel a fresh jury in each case nor need the jurymen be even resworn. If, therefore, there are many jury cases appointed for one day, after summoning a jury in the first two or three cases, it is unnecessary to summon more; the deposit of 5s. must, however, still be taken in each case from the party requiring the jury, for their payment. Procuring documentary Evidence.|—Documents in 4 procuring party’s own possession may be produced at the trial by evidence. him. If, however, by such production any expense would be incurred, either party proposing to give in evidence a judgment of a superior court, or any other document whe- ther printed or written, may, by a demand in writing Docu- made a reasonable time before the hearing, require the other ments. party to admit (saving all just exceptions to the admis- Notice to sibility of such document in evidence) the document to be admit. read in evidence without proof; and if such demand be not made, no costs of proving such document will be allowed, unless the judge otherwise orders. Ifthe demand is not complied with, and the judge thinks it reasonable that the admission should have been made, the party refusing will (p) By rule 83, the number of pp. 112. jurymen summoned shall be ten, (r) 9 & 10 Vict. c, 95, s. 72. unless the judge otherwise orders. (s) Rule 82, (q) See form of summons, App. (4) App. p. 19. 68 Past. Notice to produce. When un- necessary. Notice to Produce. have to bear the expense of proving such document, what- ever may be the event of the cause (#). Notice to Produce.|—When any written instruments are in the hands of the adversary, he should be served with a notice to produce them at the trial (v); if not then produced, ‘and they are shewn to be in his possession or control, secondary evidence may be given of their con- tents (w). The object of a notice to produce is only to give the opposite party sufficient opportunity to produce it if he pleases, and not that he may be enabled to las evidence to explain, nullify or confirm it, and, therefore, where the document is in court at the time of the trial, a notice to produce it immediately is sufficient to render secondary evidence of its contents admissible if it be not produced (r). Whether there is sufficient proof that the opposite party has the required document is a question for the judge, who may hear evidence to disprove his possession (y). Where the document belongs to the party, slight evidence is suffi- cient to prove possession (z) ; and if the instrument was in the possession of the party at the time of the service of the notice, he cannot afterwards voluntarily part with it, so as to get rid of the effect of the notice (a). If last seen in his possession, he must trace it out of his pos- session (6). Where a document is in the hands of an agent of the party, a notice to produce it should be served on the party, and not a summons on the agent (c). There are six cases in which a notice to produce is un- necessary; 1, Where the instrument which is in the adversary’s possession and that tendered, are counter- parts, or duplicate originals (¢d). 2, Where the document required is itself a notice, as a notice to quit, of dishonour of a bill, &c, (e), 3. Where from the nature of the action, the defendant must know that he is charged with the possession of it, as in trover fora bond (7). 4. Where the adverse party has obtained the document by force or fraud (gy). 5. Where the adverse party, or his attorney, («) Rule 77. 104. (v) Roscoe on Evid. 7th edit. (0) RB. v. Thistlewood, 33 St. p. 6. Tr. 757. (w) A. G. v. Le Merchant, 2 (c) Sinclair y. Stephenson, 1 C. T. R. 201, n, & P. 582. (x) Dwyer v. Collins, 21 L. J. (d) Per Bayley, J., Colling v. Exr, 225, Treweek, 6 B. & & 398. (y) Harvey v. Mitchell, 2 M. & (e) Ib. Doe v. Somerton, 7 Q. R. 366. B. 58. (z) Henry v. Leigh, 3 Camp, 602 - Ff) How v. Hall, 14 East, : 4 (a) Per Dallas, C. J., Gow. 274. (g) Leeds v. Cook, 4 Esp. 256, Inspection of Document. 69 has admitted that the document is lost (%). Lastly, by Cuap. vi. the 7 & 8 Vict. c. 112, s. 5, and the 13 & 14 Vict. e. 98, ——-— merchant seamen need not produce or give notice to produce their agreement with the master of the ship. The notice may be verbal, but it is safer to give it in Form of. writing. It must specify the documents sufficiently to inform the adversary what he is called on to produce, but need not specify them individually. Thus, a notice to produce “all letters written by the plaintiff to the defendant, relating to the matters in dispute,” is suf- ficient (7). The notice should be served on the attorney of the opposite party (£), or on the party himself (7), a reason- able time before the trial (m). Hach case must depend upon its particular circumstances,,and the judge must decide whether the notice was given in reasonable time to enable the party to produce the document (7). In the case of a new trial, a notice to produce served upon the opposite party or his agent, before the first trial, may be used against such party without re-service (0). Service. Inspection of Docwments.|—Where the defendant is de- Inspection sirous of inspecting any deed, bond, or other instruments of docu- under seal, or any written contract or other instrument in ™"** which he has an interest, and which is in the possession or control of the plaintiff, the defendant may within five days from the service of the summons to appear, give uotice by prepaid post letter, or otherwise, that he desires to inspect such instrument, at any place to be appointed by the plaintiff, and the plaintiff shall appoint a place accordingly ; if the holder neglects or refuses to appoint such place, or to allow plaintiff or his attorney to inspect it within three days after receiving such notice, the judge may, in his discretion, on the day of hearing, adjourn the cause for the purpose of such inspection, and make such order as to costs, as he shall think fit (p). (h) BR. v. Haworth, 4 C. & P. 254. (i) Jacob v. Lee, 2 M.& R. 33; Morris v. Hauser, ib. 392. _(k) Houseman v. Roberts, 5 C. & P. 394. (l) Hughes v. Budd, 8 Dowl. 315. (m) Lloyd y. Mostyn, 10 M. & W. 478. (n) Lawrence v. Clerk, 14 M. & W. 250. See also Dwyer v. Collins, 21 VL, J., Exr. 225. (0) Hope v. Beadon, 21 L. J. Q B. 25; S.C. 16 Jur. 80. (p) Rule 64. Stat. 14 & 15 Vict. c. 99, which, by sect. 6, enables the superior courts of common law to compel the pro- duction of documents for inspec- tion in all cases in which a court of equity would grant a discovery, does not extend to the county courts. 70 Parti. Affidavits, how sworn. Witnesses. Summons, Books and papers in their pos- session. Service of. Expenses, Witnesses. Affidavits how Sworn.|—Affidavits to be used’ in the county courts may be sworn before any judge of the courts, or any master extraordinary in Chancery, or commissioners for taking affidavits in any of the superior courts of West- minster, or before a magistrate of a county, city, town, or place where the affidavit is sworn (g). Witnesses. |— Witnesses may be summoned without leave of the court, either in the home or foreign district (r). In order to procure their attendance, summonses may be obtained at the office of the court (s), with or without a clause requiring the production of books, deeds, papers, and writings in their possession or control. Any number of names may be inserted in one summons. They are served by one of the bailiffs of the court (¢). It is suf- ficient if the summons is served within a reasonable time before the actual hearing (~). Either party may call the other or the wife of the other party, and the appearance of either may be enforced by summons as in case of any other witness (v). When the summons is served, the reasonable expenses of coming to, staying at and returning from the place of trial, should be tendered, but the witness cannot of right claim anything for loss of time, nor could he maintain an action were an express promise made to pay him (w). The scale of allowance to witnesses on taxing costs will be found post, Chap, XVI. If a witness is present in court, he cannot refuse to give evidence, although he has not been summoned (z). Ifa witness be duly summoned, and to whom at the same time payment, or a tender of payment of bis expenses has been made according to the prescribed scale (y), re- fuses or neglects, without sufficient cause, to appear, or to produce any books and papers, or writings, required by the summons to be produced, or if a person in court, who is required to give evidence, refuses to be sworn and give evidence, he is liable to forfeit and pay such fine, not ex- ceeding 10/., as the judge may set on him. The whole or a of this fine, in the discretion of the judge after de- ucting the costs, is applicable towards indemnifying the party injured by the refusal or neglect of the witness; the (q) 13 & 14 Vict. c. 61, s. 23, (v) Rule 78. (r) Rule 75, (w) Collins v. Godefroy, 1 B, & (s) See form, App. p. 110. Ad, 950. (t) 9 & 10 Vict. c 95, s. 85. (x) 9 & 10 Vict. ¢. 95, s. 86. See also rule 75, (y) Post, Chap. XVI (u) Rule 76, Withdrawal of Cause. 7 71 remainder goes to form part of the general fund of the Cyap vy, court in which the fine is imposed (2). Withdrawal of Cause.|—If the plaintiff wishes to with- with. draw his cause, he must give notice thereof to the clerk drawal of and to the defendant, by prepaid post letter, and after cause. the receipt of such notice the defendant will not be enti- tled to any costs other than those incurred by him upon receiving such notice, unless the judge otherwise orders (a). (z) 9 & 10 Vict. c. 95,s.86. penalty, App. p. 110. See form of order for payment of (2) Rule 66. 72 CHAPTER VII. EVIDENCE. ConFINED To CaUsE OF Action In Summons, 73. GENERAL Russ, 73: Best Evidence. Admissions. Parol Explanation of written Instruments. Hearsay not Evidence. Exceptions. Res geste. Documentary EvipEnce, 75: Acts of Parliament. Records and Proceedings of Courts. Public Entries and Docu- ments. Ancient Records. Wills and Probate. Affidavits. Deeds. Attesting Witness. Wirnesses, 78: Who competent. Oaths and Affirmations. Privilege of Counsel and Attorney. EVIDENCE IN ParTICcuLAR Aortons, 79. Dest, 79: When tt lies. On Bond. Award. Double Value and Double "Rent. Derinve, 80. Covenant, 81. AssuMPsIT, 81: Goods Sold and Delivered. Goods Bargainedand Sold. Work, Labour, and Ma- terials. Attorneys. Physicians. Surgeons. Apothecaries. Servants. Money lent. Money paid. Money had and received. Interest. Account stated. Bills and Promissory Notes. For not accepting Goods. On Warranties. TRovER, 89. Trespass, 90: To Land. To Goods. Assault. Cass, 91: Injuries to Incorporeal Hereditaments. Injuries to Person or Property. By Executors. Other Cases. Ir will be useful here to consider some general rules. of evidence applicable to the trial of causes, first premising Parol Explanations of Written Instruments. 73 that the plaintiff can give no evidence of any demand (yap. yi. or cause of action except such as is stated in the sum- ————- mons (a). Confined to cause of , Action in General Rules. Best Evidence.|—The first great rule of summons. evidence is, that the best (in degree, not in amount), must General be adduced of which the case will admit; that is, no evi- rules. dence must be brought which of itself shews the existence Pest evi- of greater evidence in the party’s own possession or power, dence. which is kept back (6). So that a copy of any instrument is never evidence if the original can be produced; but if the absence of the primary evidence is sufficiently ac- counted for, secondary or parol evidence of its contents is admitted, and when once the rule is broken through there are no degrees of secondary evidence; therefore. parol evidence of the contents of a document is not excluded by & copy, nor is a second copy by a first. One branch of this rule is, that where a contract has been reduced into writing by the parties it must be pro- duced, and to this there is no exception; but it is other- wise where the writing is a mere memorandum of an event, as a receipt (¢) or a promise to pay (d), which may be proved by parol, although reduced into writing. A further exception is, that parol admissions are evidence Admis- against the party making them, although they relate to sions. the contents of a written instrument (e). Parol Explanations of Written Instruments.|—A fur- p,.o) ex- ther branch of this rule is, that parol evidence is not ad- planations mitted to vary or contradict the terms of a written instru- of written ment (f) ; but such evidence is admitted to shew that the instru. parties have by parol waived or annulled a previous written ™°™ts agreement (q), or that the instrument, whether a deed or simple contract, is void by reason of fraud, illegality, or error (h), or to construe words of art, or to explain (2), but not to contradict (£), mercantile contracts (2). So, to (a) 9 & 10 Vict. ¢. 95, 3. 75. (6) Taylor on Evid. ss. 288 to 311; Best on Evid. s. 82. (ce) Rambert v. Cohen, 4 Esp. 213. (d) Singleton v. Barrett, 2 C. & J.369, (e) Slatterie v. Pooley, 6 M. & W. 664. (f) Meres v. Ansell, 3 Wils. 275; Adams v. Wordley, 1M. & W. 374. : (g) Goss y. Lord Nugent, 5 B. & Ad. 58; Eden v. Blake, 13 M. & W. 614. (h) Doe y. Allen, 8 'T. R. 147, per Lord Abinger; Hutchins v. Scott,2M & W. 816. (i) Powell y. Horton, 2 N. C. 668; Yutes v. Pym, 6 Taunt. 446; Grant v. Maddox, 15 M. & W. 737; Syers v. Jonas, 2 Exr. JI. (ky Swith vy. Jeffreys, ib, 561. (1) Vates v. Pym, 6 Taunt. 446. Hearsay not evi- dence. Excep- tions. Ries geste. Hearsay not Hvidence. add to or explain agricultural agreements (m), if not in- consistent with their expressed terms (). Parol evidence may also be given to explain a latent ambiguity ; which means that where a doubt is raised by extrinsic parol evi- dence the same is admitted to solve it. Where, however, the ambiguity is patent or apparent on the face of the . instrument, no evidence is admissible to explain it. Hearsay not Evidence.|—As all judicial evidence should be given on oath, hearsay is not evidence; that is, a witness may not relate a fact which he has heard from another, but of which he has no personal knowledge ; since the oath of the first relator, and the opportunity of cross-examining the witness, are wanting (0). To this rule there are, however, exceptions, the most important of which are—first, in proving matters of public or general interest, as boundaries of parishes, rights of common, or customs (p) ; secondly, in questions of pedigree and rela- tionship, statements made by members of the family (q) ; thirdly, on the second trial of a cause between the same parties, the evidence of a witness examined at the former trial and since deceased, may be proved by any one who heard it (r) ; fourthly, declarations made by persons since deceased against their pecuniary or proprietary interest (s), such as admissions by a person that he has no title to an estate or easement, or accounts by which a man charges himself with the receipt of money (4), but the interest must be proprietary or pecuniary, and the relation of an act which would make the relator liable to prosecution, is no exception (w). Lastly, declarations in the ordinary course of office, business, or employment, by deceased persons who had no interest in stating an untruth, and which are made contemporaneously with the acts to which they relate (x). Res geste.|—There are other statements made by par- ties which are admissible in evidence as part of the res geste, namely, where a statement is made by a person accompanying an act, and which tends to explain or shew (m) Wigglesworth v. Dallson, 1 Dougl. 201; 1 Smith’s L. C. 299. (x) Webb v. Plummer, 2 B. & A. 746; but see Hutton v. War- ren, 1 M. & W. 466. (o) Taylor on Evid. ss. 383 to 414, (p) Th. e 18. (q) Ib. ce. 9; Doe v. Davis, 10 Q. B. 314. (r) Roscoe on Evid 7th edit. p- 36. (s) Taylor on Evid. ss.-464 to 488. (4) Higham v. Ridgway, 10 109; 2 Smith's L. C 183. (u) Sussex Peerage Cuse, 11 Cl. & Fin. 103, (x) Price v. Torrington, Salk. 285; 1 Smith’s L. C. 139. Records and Proceedings of Courts. 75 the intention of'such act; as what a person says on en- Cuap. vi. tering on land, on forfeiture, &., UT pasting from his — dwelling, secreting himself, or when he does any act the character of which it is material to understand (y). Of Documentary Evidence.—Acts of Parliament.\— Of docu- Public acts of Parliament require no proof, as of these the mentary court takes judicial cognizance. eure Copies .of private or local and personal acts are evi- one dence, if purporting to be printed by the Queen’s printer; ment. so also are copies of parliamentary or royal proclamations, purporting to be printed by the printers of the Crown, or of either House (z). fecords and Proceedings of Courts.|—Records of the Records superior courts, if the issue be upon their existence, can and pro- only be proved by production of the original, or exempli- ne fication under the great seal. The proper course is to get * °°" the record removed by certiorari into Chancery, and that, court will send it by mittimus to the county court (a). In other cases, if complete, they may be proved by ex- amined copies of the original (6). In order to make a verdict evidence, not only the postea but the judgment should be proved (c). Proceedings in Chancery, rules of court, and judges’ orders, may be proved in the same way; the latter may be proved by production, the court being bound to take judicial cognizance of the signature (d). Judgments of inferior courts must be proved by their production from their proper custody, or by examined copies. All proceedings in county courts may be proved. by a copy bearing the seal of the court, and purporting to be signed and certified as a true copy by the clerk (e). Copies of proceedings in the bankrupt court purportmg to be sealed with the seal of the court are evidence, and the judge will take judicial cognizance of the signature of the commissioners and registrars (f). ; Proceedings in the insolvent court may be proved by certified copies purporting to be signed by the officer in whose custody they are, or by his deputy, and purporting to be sealed with the seal of the court (g). In proceed- (y) Taylor on Evid. s. 395. (e) 9 & 10 Vict. ¢. 95, s, 111. (z) 8 & 9 Vict. c. 113, 8. 3. (f)12 & 13 Vict. c. 106, ss, (a) Winsor v. Dunford, 12 Q. 236, 237. B. 603; S.C. 18 L. J.,Q. B. (g) 1 & 2 Vict. ¢. 110, s, 105, 14; 12 Jur. 629. post, Part IV., and Appendix ; (6) Taylor on Evid, s. 1137. Hounsfield vy. Drury, 11 A. & E, (c) Ib. s. 1146, 98; Jackson v. Thompson, 2 Q. B. (d) 8 & 9 Vict. c, 113, s. 2. 887. EQ 76 Part I. Public entries and documents. Ancient records. Publie Entries and Documents. ings under the protection acts, a copy purporting to be signed by the commissioner is evidence (4). Public Entries and Docwments.|—Entries in books and documents of a public nature, which it would be incon- venient on public grounds to remove, as the parish re- gisters (7), the bank books (x), &c., may be proved by copies; so may inscriptions on tombstones, writings affixed to walls. and the like, which it would be impossible or extremely difficult to produce in court; and whenever by an act of Parliament any certificate, official or public document, or document or peeeecame of any corpora- tion or company, or certified copy of a document, bye- law, entry in a register or other book, or of any other proceeding, shall be receivable “ in evidence of any parti- cular ;’’ the same shall be admitted, provided they purport to be sealed, stamped, or signed as required or directed, without any proof of the seal, stamp, or signature, or official character of the person signing, and without any further proof thereof, in every case in which the original could have been received (2). Certified copies of entries purporting to be sealed or stamped with the seal of the registrar-general’s office, are received as evidence of birth, death, or marriage (7). Also whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence, provided it be proved to be an examined cop or extract, or provided it purport to be signed and certi- fied as a true copy or extract by the officer to whose custody the original is intrusted (7). Ancient Records.|—Ancient records and writings, as ecclesiastical tenures, manor books, and the like, are proved by being produced from the proper custody. It need not be from the most proper custody (0), provided it is where it would reasonably be expected that they should be found (p), as a terrier from the parish chest, or an expired (h) 7 & 8 Vict. c. 96, s. 37. See post, Part V. (i) Doe v. Burnes, 1 M. & R. 386. (hk) Mortimer v. M'Callan, 6 M. & W. 58. (2) 8 & 9 Vict. cv. 118, s. 1. See Doe d. Hemming v. Willetts, 7 C, B. 709. (m) 6 & 7 Wm. 4, c. 86, s, 38. There are numerous other sta- tutes allowing certain public docu- ments to be proved by certified copies, which will be found in Taylor on Evid. ss. 1177 to 1196. 1) A & 15 Vict. c. 99, 8. 14, 0) Doe v. Keeling, 11 Q. B. 884, apes (p) Croughton v. Blake, 12 M. 205. Deeds. 77 lease from the possession of the lessor (g). It is not Cuar. vu. enough merely to produce them, but a witness must be called to speak to their custody (7). Wills and Probate.]—In order to prove a devise of lands Wills and the will must be produced (s), unless it be lost, in which probate. case an examined copy is evidence. Where personal pro- perty is in question, it can only be proved by producing the probate (f). The seal of the ecclesiastical court needs se proof. Administration is proved by production of the etters. A ffidavits.|—Affidavits to be used in the county courts Affidavits. may be sworn before any judge of the courts, or any master extraordinary in chancery, or commissioner for taking affidavits in any of the superior courts of Westminster, or before a magistrate of the county, city, town, or place where the affidavit is sworn (w). Deeds.|—In order to prove a deed, or other written Deeds, instrument of any kind to which there is an attesting Attesting witness, he must be called, unless he is dead, insane (v) witness. or is absent in a foreign country («), or cannot be found | on diligent inquiry (y); in which cases evidence of the witness's handwriting is admissible, and the handwriting of the party who executed the instrument need not be proved except for the purpose of establishing his iden- ae attorney who has attested an insolvent’s petition for protection under the 5 & 6 Vict. c. 116, need not be called if the court has acted upon it (a) ; but it is otherwise if it has not (8). ' ‘When a deed is produced under a notice to produce, the party calling for it must still prove its execution (c), unless the party who produces it claims a beneficial interest under it (d); and where a sheriff takes and assigns a replevin bond, it has been held unnecessary as against him, (q) Plazton v. Dare, 10 B. & (y) Cunliffe v. Sefton, 2 East, Cc. 17. 183; Spooner v. Payne, 4 C. B. (r) Evans v. Rees, 10 A. &E. 328. 151. (z) Nelson v. Whittal, 1 B. & (s) Doe v. Calvert, 2 Camp. A. 19. 389. (a) Bailey v. Bidwell, 18 M. & (t) Pinney v. Pinney, 8 B. & W. 73. . O35. (b) Streeter v. Bartlett, 5 C. B. (uz) 13 & 14 Vict. c. 61,8. 23. 562. (v) Currie v. Child, 3 Camp. (ce) Gordon vy. Secretan, 8 East, 382, 548. , (x) Prince v. Blackburne, 2 a Orr v. Morice, 3 B. & B. East, 250. 139, 78 Parti. Witnesses ; who com- petent. Oaths and affirma- tions, Privilege of counsel and at- torneys. Privileges of Counsel and Attorneys. in an action for taking insufficient sureties, to prove its execution (¢). Witnesses.|— Whether a witness is competent or not is a question for the judge; and if it depend on a disputed fact, he must decide it (/); and this is so although the question be identical with the issue which the jury have ultimately to decide (9). The parties themselves, their wives, and all other persons may be examined either for the plaintiff or defendant, on solemn oath, or, where allowed by law, on affirmation (/); and no person is excluded by reason of crime (2). Oaths and Affirmations. |— All evidence must be given on oath or affirmation: but a party who is called merely to produce a document need not be sworn (4). Persons are incompetent to be witnesses who are insensible to the obligation of an oath; therefore idiots and lunatics cannot be witnesses. Children are also not admitted if they are unable to understand the moral obligation of an oath; at the age of fourteen understanding is presumed by law; under that age, inquiry should be made of the child (2). Atheists, and such as profess no religion that can bind their consciences to speak the truth, are excluded; but those who believe in a God as an avenger of falsehood are not (m); the proper question in all such cases to ask the witness is, whether he believes in a God, the obligation of an oath, and a state of rewards and punishments. Quakers and Moravians may, by 3 & 4 Wm. 4, c. 49, and1 & 2 Vict. c. 77, and Separatists by 3 & 4 Wm. 4, c. 82, affirm instead of swearing. Privileges of Counsel and Attorneys.|— Counsel and attorneys are not permitted to disclose communications made to them by their client relating to matters in which they are professionally employed (x), but the defendant’s attorney may be called by the plaintiff to speak to admis- sions made by his chent to the plaintiff in his presence (0). The proper method of obtaining the attendance of wit- nesses has been already shewn(p). The order in which (e) Plumer v. Briscoe,10 Q.B. 48. 46; S.C. 12 Jur. 351. (D) Taylor on Evid. t. 1016. (f) Doe v. Webster, 12 A. & (m) Omichund v. Barker, Willes, E. 442, 549 ; 1 Smith’s L. C. 195. (g) Doe d, Jenkins y. Davis, 10 (n) Turquand v. Knight, 2M. Q. B. 314. & W. 98. (h) 9 & 10 Vict. c. 95, s. 83; (0) Weeks v. Argent, 16 M. & and rule 78. W. 817. (i) 6&7 Vict. c. 85. (p) Ante, p. 70. (k) Perry v. Gibson, 1 A. & E. Evidence in Particular Actions. 79 witnesses for either party may be called, and the mode of Cuap. vn. their examination, will be found in the Chapter on the -——— Hearing of the Plaint (q). Evidence in Debt.|—Debt lies to recover money due Evidence in upon a legal liability, whether by statute or by records, particular as judgments of courts, whether superior (7) or inferior ; 2°t10"s- on awards to pay money; on specialties, as bonds, mort- Debt, when gages, policies, or other contracts under seal; or upon * ue simple contracts express or implied. It lies for use and occupation, and is not defeated by the proof of demise (not under seal) for a rent certain (s). Debt is the remedy given by statute (¢) to the executor of a tenant in fee or for life to recover rent which accrued due to the testator ; also to landlords to recover double value from tenants holding over after determination of their term (w), or double rent where tenants continue in possession after they have given notice to quit (v). Wherever statutes givé penalties, debt is the proper action to recover them. Debt is in some respects a more extensive remedy than assumpsit, inasmuch as it lies upon specialties as well as simple contracts, but it is not sustainable unless the sum demanded is a sum certain or capable of being so rendered by calculation; nor can it be supported for a debt payable by instalments, until all are due (x); and it cannot be maintained upon a collateral contract, as a guarantee of the debt of a third person; therefore where a covenant is col- lateral, covenant and not debt is the proper remedy (y). For the same reason it will only lie between the immediate parties to a bill of exchange, and is not maintainable by indorsee against acceptor (z), or against any but his imme- diate indorser (a). The plaintiff in debt recovers the debt itself, and also any damages which may be awarded for its detention. (q) Chap. VIIL., post, p. 94. (r) Winsor v. Dunford, 12 Q. B. 603; S.C. 18 L. J. Q. B. 14; 12 Jur. 629; which case de- cided that the county court has jurisdiction in actions of debt on judgments of the superior courts. One gf the principal grounds of objeation urged against it was, that if the action were brought in a superior court, it could not in- spect its own record; or if it were the judgment of another court, obtain it by mittimus: but that it would be inconvenient to send the records of the superior courts to the various county courts. See Rance v. James, 12 Jur. 62. For the proper mode of proof, see ante, p. 75. (s) Gibson v. Kirk, 1 Q. B. 850. (t) 32 Hen. 8, c. 37. (u) 4 Geo. 2,¢ 28, 5. 15; Wick- ham v. Lee, 18 L. J., Q. B. 21; S. C. 12 Jur. 628; which decided that the county court has jurisdic- tion in this action. (v) 11 Geo. 2, ¢. 19,8, 18. (x) Rudder v. Price, 1 H. Bl. 547, (y) Harrison v. Matthews, 10 M. & W. 768, (z) Powell v. Ansell, 3 S. N. R. 444. (a) Watkins v. Wake, 7 M. & W. 488, 80 Parti. Bond. Award. Double value and double rent, Detinue. Evidence in Particular Actions. The necessary evidence both for plaintiff and defendant in those cases in which assumpsit is a concurrent remedy, will be found under that head. In debt on a simple money bond, execution of the bond is all that need be proved. Interest may be recovered from the day of payment (2) ; where conditions are annexed, in addition to this a breach must be proved. The defendant may prove that he did not execute the bond; and in the case of a money bond, payment before or at the day appointed; or where there is a condition, performance ; and in either case, satisfaction and discharge by deed after breach; that the bond was obtained by fraud, or is void by reason of illegality, or has been altered in a maternal point since execution. He may (having given the proper notice) rely on infancy, coverture, the statute of limitations (c), or discharge under the Bankrupt or Insolvent Acts. In debt on an award the execution of the award and also the submission of the parties, must be proved (d). In debt for double value, under the 4 Geo. 2, c. 28 (e), the plaintiff must prove the demise or tenancy, the deter- mination of the term, the holding over, the demand and notice in writing, and the amount claimed. The defendant may disprove any of these facts, or shew that the plaintiff has waived the demand and notice. Nearly the same remarks apply to debt for double rent, under the 11 Geo. 2, c. 19, s. 18; there however the notice need not be in writing (f). The statute only applies where the tenant may determine his tenancy by notice, and has properly done so (9). Detinue.|—Detinue (h) lies to recover possession of a chattel wrongfully detained, together with damages for its detention; whereas in trover, the plaintiff can recover (b) 3 & 4 Wm. 4, c. 42, s, 28, (e) Ib. 3. 3, (d) Brazier vy. Jones, 8 B. & C. 124 (e) That this action lies in the county court, see Wickham v. Lee, 12 Q. B. 521. (f) Timmins v. Rawlinson, 3 Burr. 1603. (g) Johnstone v. Huddlestone, 4 B. & C, 922, (h) In Hand y. Daniels, 1 Lu. M. & P. 420, it was suggested that the action of detinue would not lie in the county court, as the judg- ment is that the chattel shall be restored, or its value paid; and the court have no means of enforcing the specific delivery of the chattel, as the superior courts have, by distringas. In an- swer, it was said that the court might, under sect. 78 of 9 & 10 Vict. c. 95, adopt the practice of the superior court; and Ellis v. Watt, 8 C. B. 614, was cited. The court expressed no opinion on the question. In the recent case of Taylor vy. Addyman (decided January 21, 1853) the Court of Common Pleas held, that detinue would lie in the county court for a chattel within the value of 50/. Assumpsit. 81 damages only for the conversion. Detinue may be joined Cuap. vi. with debt; trover cannot. Detinue lies against a person who wrongfully detained the goods, although he has since improperly parted with their possession (2). ‘With respect to the evidence, as what is said with respect to the action of trover is equally applicable, it is sufficient to refer to that action (4). The judgment in detinue is, however, materially different from that in trover ; in the latter it being merely for damages for the injury sustained by the conversion, whereas in the former it is in the alternative that the chattel shall be restored or the value paid; therefore, where there are separate parcels of goods, evidence should be adduced as to the value of each, and the judgment should declare the same accordingly ; since the defendant may elect to give up some in specie, and pay damages for the rest (7). Covenant.|—Covenant lies for the breach of a contract Covenant. under seal. The execution of the deed upon which the action is brought (m), and the breach of the covenant by the defendant, must be proved. If the covenant be for payment of money, the measure of damage is the sum agreed to be paid to the plaintiff; if for the doing or per- forming some other act, the damage will be, as in as- sumpsit, the amount of loss sustained by the plaintiff in consequence of the breach, which may vary according to the circumstances of each individual case. Asswmpsit.|—Assumpsit lies to recover damages for the Assumpsit. non-performance of a simple contract, ae or im- lied (); it lies for use and occupation of land (0); on birecipn judgments; bills of exchange and promissory notes; and, generally, on all contracts not under seal, it is the proper remedy. The necessary evidence will be found under the different heads; many of the defences which are mentioned under goods sold and delivered, will be found applicable to other actions. Goods Sold and Delivered.|—In an action for goods sold Goods sold and delivered, the contract of sale, either express or implied, "00g. must be proved; also the delivery of the goods to the de- ; fendant or his authorized agent ; a delivery to a carrier named by the defendant is sufficient (p). If goods which (i) Jones v. Dowle, 9 M. & W. (m\ Ante, p. 77. 19, (m) Slade’s case, 4 Rep. 91. (k) Post, p. 89. (0) 11 Geo. 2, c. 19, (1) Pawly v. Holly, 2 W. Bl. (p) Hart vy. Suitley, 3 Campb. 853; Sandford v. Alcock,10 M. 528. & W. 689. B3 82 Parr i. Defence. Evidence in Particular Actions. are delivered “ on sale or return” are not returned within a reasonable time, the sale of the goods becomes absolute, and the price may be recovered in a claim for goods sold and delivered (q). Where a wife is living with her hus- band an order by and delivery to her is sufficient; if, however, she live separate from him, and he allows her a sufficient maintenance, he is not bound by her contracts, though the persons supplying her with goods had no notice of the allowance (7). Where the goods are above the value of 107. there must be a note or memorandum in writing, payment of earnest, or delivery and acceptance, to satisfy the statute of frauds (s). The mere marking of goods by the buyer, where the seller does not part with their possession, is sufficient (¢). It has been said that there must have been such an acceptance as deprives the buyer of the right of objecting to the quantity or quality of the goods (w); a late case, however, decided that there may be an acceptance within the meaning of the act, without the buyer having examined the goods or done anything to preclude him from contending that they do not correspond with the contract (v). Ifthe goods are in the hands of a third party, as an agent or wharfinger, in order to complete the acceptance he must have agreed to hold them for the vendee (x). If the goods were to be paid for by bill or on credit, it must be shewn that the defendant has refused to give the bill, or that the credit has expired (y), or that the bill has been dishonoured (z). The plaintiff is entitled to recover as damages the value of the goods, which should be proved either by the agreement, if there was one, or if not, by general evidence. The defendant may deny the sale or delivery, or may shew that the credit has not expired. Having given the proper notice, he may rely on infancy, coverture, the statute of limitations, or his discharge under the Bankrupt or Insolvent Acts. He may shew that the goods were sold under an illegal contract, or prove payment, a tender, or (having given the proper notice) a set off, which equals the plaintiff’s claim, or may pay money into court. He may likewise prove that the goods were inferior in quality to those bargained for, which will afford a defence pro tanto (a). t a? Moss v. Sweet, 16 Q. B. B. 421; S.C. 19 L. J., QB. 382. See also Saunders v. Topp, a” Mizen vy. Pick, 3 M.&.W. 4 Exr. 399, 1. (2) Farina vy. Home,16 M, & (s) 29 Car. 2, v. 3,8, 17. W. 119. (t) Billy. Bament, 9 M. & W. (y) Webb v. Fairmanner, 3 M. 36, & W. 473. (u) Smith v. Surman, 9 B. & (z) Fryv. Hill, 7 Taunt. 397. C. 561 ; Norman v. Phillips, 14 (a) Mondel vy. Sceele, 8 M. & M. & W. 277, W. 858. © (v) Morton v. Tibbett, 15 Q. Assumpsit. $3 Where infancy is proved the plaintiff may shew in Cmavp. vit. answer that the goods were necessaries (6). In answer to ———— the statute of limitations, he may prove part payment, or an acknowledgment by the defendant within six years (c) ; but it must be unconditional (d). If part payment is relied on it must be shewn that the payment was on ac- count of the debt for which the action is brought, and that it was made as part payment of a greater debt (e). The payment may be by goods (f°). Payment by one of two jointly liable takes the case out of the statute against both (g) ; one who is jointly liable cannot, however, bind his co-contractor by an acknowledgment (4); nor will an acknowledgment by an agent suffice (i). Where the de- fendant relies on a set-off, as, in order for him to succeed, his debt must continue due up to the time of the trial, the plaintiff may shew that he has paid the amount claimed by the defendant, and that the set-off was thereby extinguished (/). Where a plaintiff avails himself of the provisions of sect. 68 of the 9 & 10 Vict. c. 95, and proceeds against only one or more of several persons jointly answerable, the defendant or defendants sued may avail himself or themselves of any set-off or other defence to which he or they would be entitled, if all the persons liable were made defendants (7). Goods Bargained and Sold.|—An action for goods bar- Goods bar- gained and sold lies, where the property in the goods has gained and passed by sale to the defendant, although there has been °°!d+ no delivery to him (m). If they are within the statute of frauds there must have been a part acceptance (7), part payment, or written memorandum. The plaintiff is entitled to recover as damage the whole value of the goods (0). The evidence will be found under Goods sold and delivered. (b) Peters v. Fleming, 6 M. & (A) 9 Geo. 4, c. 14,8. 1. W. 42. (i) Hyde v. Johnson, 2 B. N. (c) 9 Geo. 4, c. 14. C. 776. (d) Tanner v. Smart, 6 B. & (A) Eyton v. Littledale, 4 Exr. - 603 159. (D Rule 93. Cc 3 (e) Tippetts v. Heane, 1 C. M. (m) Atkinson v. Bell, 8 B. & C. & R. 252; Burny. Boulton, 2 C. B. 476. 277; Alexander v. Gardner, 1 B. (Cf) Hooper v. Stephens, 4 A. N.C. 671, &JE. 71. (n) Norman v. Phillips, 14 M. (g) Whitcomb v. Whiting, Doug. 652; 1 Smith’s L. C. 318; see notes. & W, 277. (0) Hankey v. Smith, Peake, 57. 84 Parti. Work, la- bour, and materials. Defence. Attorneys. Defence. Evidence im Particular Actions. Work, Labour, and Materials.|—The action for work and labour lies when work, either bodily or mental (p), has been done by the plaintiff for the defendant under a contract, express or implied. If materials have been provided they may be joined. The plaintiff must prove, first, the contract express, if there be one; if not, the circumstances from which it arises. Secondly, the per- formance on the plaintiff’s part; and lastly, the value of the works either by the terms of the agreement, if it was settled; if not, generally. The defendant may shew in defence that he did not order the work; that credit was not given to him; that the work was not done; that the work was not done accord- ing to contract (g); or that the work was done under a contract not yet executed (r). Though the plaintiff has derived some benefit from the work, he may still shew, in reduction of damages, that it was improperly done. This form of action being that usually adopted by attorneys, surgeons, apothecaries, servants, &c., some remarks are added as to the proof of their cases. Attorneys.|—Attorneys must prove the retainer by the defendant, that the business was done, and must be prepared to prove that a signed bill was duly delivered to the defend- ant one month before action (s). An agency bill is taxable, and must therefore be delivered (¢). Where the plaintiff has added an account stated, if he has delivered no bill he cannot succeed, although he proves that the defendant assented to the items (wu). The bill may be proved by a copy, or duplicate original, without notice to produce (v). The defendant may shew that the plaintiff is uncertifi- cated, or that no signed bill has been delivered (x). - The bill having been delivered the unreasonableness of the charges cannot be objected to, since the defendant might have had it taxed (y); nor can the plaintiffs negligence be shewn as a defence (z), except it has been such as to deprive the defendant of all benefit (a). If such is the case, even the disbursements cannot be recovered (3). (p) Grafton v. Armitage, 2 C. (v) Colling v. Treweek, 6 B. & B. 336. C. 394, (q) Sinclair y. Bowles, 9 B. & (x) 6 & 7 Vict. c. 73, s, 26, C. 92, (y) Williams v. Frith, 1 Doug. (r) Notes to Cutler v. Powell,2 198. Smith’s L. C. 1. (z) Templer v. M*Laghlan, 2 , i 6&7 Vict. c. 73,8, 37. N. R. 136. (4) Smith v. Dimes, 4 Exr. 32; (a) Bracey v. Carter, 12 A. & $C. 19 L, J., Exr. 60; 13Jur. E373, : (b) Lewis v. Samuel, 8 Q. B. i (u) Brooks v. Bockett,9 Q, B. 685. ER 47, Assumpsit. 85 The defendant may prove a special agreement, whereby Cyap. vi. the plaintiff undertook to charge only costs out of pocket, or the like (c). Physicians.|—A physician can maintain no action for Physicians. fees or travelling expenses, unless he can prove that the defendant has made a special contract (d). Surgeons.]—A surgeon must be prepared to prove that Surgeons. he has been examined and licensed by the Bullese of Surgeons (e). If he has not an apothecary’s certificate he cannot charge for medicines, except those ancillary to surgical cases (f). If a surgeon is also an apothecary, he may recover for both attendances and medicine (4). Apothecaries.|—Apothecaries must first prove their Apothe- right to sue by having practised previous to the Ist caries. August 1815, or having obtained a certificate from the Apothecaries’ Company (z). The certificate proves itself, when produced (7). The defendant may shew in defence that the plaintiff, if @ surgeon, was unlicensed, or if an apothecdry, uncertifi- cated; that from the plaintiff’s negligence or want of skill he has received no benefit, or that the charges are unreasonable. Servants.|—Servants suing for wages must prove the Servants. retainer or service, and the amount of wages. Ifa servant quits the service before the period has expired he can recover nothing (#). A general hiring depends on the custom ; it is usually for a year (2), though the wages are paid monthly (m). In the case of menial servants the contract may be determined by a month’s warning on either side (x). Ifa master turn away a domestic servant without good cause, he must pay a month’s wages in advance. This cannot be recovered under a claim for work and labour, but the plaintiff must specially state his cause of action (0). (hk) 55 Geo. 3, c. 194, s, 21. (c) Jones v. Reade, 5 A. & E. 529 (d) Veitch v. Russell, 3 Q. B. 928. (e) 3 Hen. 8, c. 11,8. 15 Cope v. Rowlands, 2 M. & W. 159, overruling Gremuire v. Le Clerc, 2 Camp. 144. (f ) Allison v. Haydon, 4 Bing. 619. (9) Handey v. Henson, 4 C. & P. 110. (i) 14 & 15 Vict. c. 99, s. 8. (4) Hutman v. Bulnois, 2 C. & P. 510. (1) Beeston v. Collyer, 4 Bing. 309 (m) Fawcett v. Cash, 5 B. & Ad. 904. (n) Nowlan v. Ablett,2 C. M. & R. 54, (0) Fewings v. Tisdal, 1 Exr. 295; S. C. 11 Jur. 97, 86 Panti. Money lent. Money paid, Money had and re- ceived, Evidence in Particular Actions. A servant who is wrongfully discharged may treat the contract as rescinded, and sue for his actyal service, or he may sue on the contract for his wrongful dismissal, but having once sued on the contract he cannot afterwards sue for his work and labour (7). Money lent.|—The action for money lent lies where money has been lent to the defendant, or to a third person on his sole credit; where money is lent to be repaid by the defendant on demand, or he is to do some act, the action lies if he omits to do the act(g). An I. O. U. is not in itself evidence of money lent (7). Money paid.|—Money paid lies where the plaintiff has paid money for the defendant by his request, either ex- press or implied ; either by way of contribution (s), or as a surety (¢), as the accommodation acceptor of' a bill (w) ; or under a legal obligation, as where a tenant under threat of distress pays taxes which his landlord is bound to pay(v); and it lies although the plaintiff is not relieved from any liability in consequence of the pay- ment (x). The plaintiff must prove the express agreement if there be one; if not, those facts from which a promise to repay may be implied. Money had and received.|— Money had and received lies to recover money which belongs to the plaintiff, but has been obtained by the defendant by fraud (y) ; by extortion ; by the improper use of legal process (z) ; by legal duress (a); or wrongful detention of goods (2) ; or by arefusal to do what the defendant was legally bound to do (ce). It lies where the defendant has received money et by the plaintiff under a mistake, or forgetfulness of acts (d), but not where it has been paid under a mistake (p) Goodman v. Pocock, 15 Q. B.541; S.C. 14 Jur. 396. (r) Fesenmayer v. Adcock, 16 M. & W. 449. (s) Prior v. Hembrow, 8 M. & W. 873 (t) Kemp v. Finden, 12 M. & W. 421; Pownely. Ferrand, 6 B. & C. 439; Pitty. Purssord, 8 M. & W. 539. (u) Garrard v. Cottrell, 10 Q. B. 679. (v) Evally, Partridge, \ T. R. 310; Hooper v. Treffry, 1 Exr. 17, () Britain y, Lloyd, 14 M.& W. 762; Lewis v. Campbell, 8 C, .B, 576. (y) Crockford v. Winter, 1 (q) Bristowe v. Needham,9 M. Campb. 124. & W. 729. z) Duke de Cadaval v. Collins, 4A. & E. 858. (a) Close v. Phipps, 8 S.N.R. sal. sie (b) Valpy v. Manley, 1 C. B. 594 ; Ashmole v. Wainwright, 2 Q. B. 837; Wakefield y. Newbon, 6 Q. B. 276; Oates v. Hudson, 6 Exr. 346, (ce) Parker v. Great Western Railway Company, 7 8S. N. R. 835, a, d) Kelly v. Solari, 9 M. & W. Assumpsit. 87 of law (e). It lies also where money has been paid on a Cuar. vn. consideration which has afterwards failed (f°); as a deposit ———— on a bargain which has gone off, or paid to a company for shares in an abortive scheme (gy). The plaintiff, in order to succeed, must prove the receipt of the money by the defendant, and his own title to recover it. ‘Where the person receiving the money is a mere agent of another to whom he is accountable (4), or where it is Sen to a third party who has not acknowledged that he olds it for the plaintiff (7), the action does not lie. Interest.|—Interest is recoverable in any case where Interest. there has been an express contract to pay it, and, by the custom of merchants, on bills of exchange (x). In other cases it may be recovered as damages from the time when the debt was due, if payable by a written instrument at a certain time ; if not, from the time when a written demand of it was made (J). Account stated.]|—On an account stated, the plaintiff Account must prove an absolute and unqualified (m) acknowledg- stated. ment by the defendant of his claim. It ought to appear that the account was stated with reference to former transactions (x). An oral admission of a debt due, for goods sold, is evidence of an account stated, although the agreement of sale was in writing (0). An I. O. U. is good evidence of an account stated with the party to whom it is given, though his name is not on it (p); an award made by an arbitrator is not (g). Where a balance due under a deed is admitted, the action must be on the deed (7). An infant cannot state an account, even for necessaries, but he may ratify it after he is of age (s). Bills and Promissory Notes.|—In an action on a bill or Bills and promissory note, if it be by payee against acceptor or ei (e) Knibbs v. Hall, 1 Esp. 84 ; (1) 3&4 Wm. 4, c. 42, 8, 28. Higgs v. Scott, 7 C. B. 63. (m) Wayman v. Hillyard, 7 (f) Young v. Cole, 3B. N.C. Bing. 101. 724. (n) Clarke v. Webb, 1 C. M. & (9) Walstab v. Spottiswood,15 RB. 29. M. & W. 501; Jarrett v. Ken- (0) Newhall v. Holt,G M. & W. nedy, 6 C. B. 319. 662. (A) Stephens v. Badcock, 3 B. (p) Fesenmayer v. Adcock, 16 & Ad. 354; Barlow v. Brown, 16 M. & W. 449. M. & W. 126. (q) Bates v. Townley, 2 Exr. (i) Brind v. Hampshire, 1M. 152; S. C. 12 Jur. 606. & W. 365; Lilly v. Hays,5 A. & (r) Middleditch v. Ellis,2 Exr. E. 548. 623. (k) Page y. Newman, 9 B. & C. (s) Williams v. Moor,11 M. & 378. W. 256. 88 PART I. Defence. For not accepting goods. Evidence in Particular Actions. maker, prove the handwriting; the acceptance of a bill admits the making (¢). 7 If the action is by indorsee, prove in addition the handwriting of the indorsement. : Tn an action by indorsee against a drawer or previous indorser, prove first, the indorser’s signature, which admits the signature and ability of all previous parties; secondly, _ presentment for payment or acceptance, and dishonour ; thirdly, notice of dishonour, or a sufficient excuse for not giving it (7). ; In defence the defendant may shew that the bill or note is not properly stamped. That the signature is a forgery. That a material alteration has been made in the bill with- out the consent of defendant (x). That defendant when he accepted or indorsed the bill was insane, or too intoxi- cated to understand the effect of the contract, within the knowledge of plaintiff; but not otherwise (y). He may also shew that his signature was obtained by fraud, that there was no consideration, or that the consideration was illegal. In these three cases, if the action be by indorsee it must also be proved that he took the bill with know- ledge of the facts, or then overdue, or that he gave no consideration for it. He may also prove payment to the plaintiff or a previous holder, unless the payment was made to the plaintiff by a previous holder upon the understand- ing that the plamtiff should sue for his benefit (2); and if the action be against an indorser, he may shew that the plaintiff has discharged him by giving time to the acceptor or previous indorser (a). For not accepting Goods.|—In assumpsit for not ac- cepting goods, prove the contract, which if within the Statute of Frauds must be in writing, unless there has ‘been payment of earnest or part acceptance. Prove the performance of all conditions precedent on the plaintiff’s part, and refusal of the defendant to accept. The damages are the difference between the contract price andthe market price on the day the contract is broken (8). The defendant may prove that the goods did not cor- respond with the sample, or were not such as were (t) Smith v. Marsack, 6 C. B. 486; S.C, 12 Jur. 1050; Hali- fax v. Lyle, 3 Exr. 446. (u) As to what excuses notice, see Byles on Bills, p. 219. See also Caunt v. Thompson, 7 C. B, 400; S.C. 18 Jur. 495. (2) Master v. Miller, 4 T. R. 320; 1 Smith's L. C. 458; sce notes, (y) Gore v. Gibson, 13 M. & W. 623; Moltan v. Camrouzx, 2 Exr. 487; S. C. 12 Jur. 800. (z) Williams v. James, 15 Q. B. 498; S.C. 19 L. J., Q. B. 445; 14 Jur. 699. (a) Byles on Bills, c. 18. (b) Boorman vy. Nash, 9 B. & C. 145, Assumpsit. 89 mentioned in the contract. For other defences, see Goods CHar. vil. sold and delivered. ——s On Warranties.|—In an action on a warranty the plain- On war- tiff must prove an express warranty on the part of the ranties. defendant; the price being high is no evidenee of war- ranty. He must also prove a breach of the warranty at the time of sale. ‘Trover.|—In trover the plaintiff must prove either a Trover. property in the goods, coupled with a right of possession, or a possession actual or constructive by the plaintiff, the conversion by the defendant, and the value of the goods. A special property, as that of a bailee, is sufficient (c), and against a wrong doer mere possession, as that of a finder, is enough (d). The conversion may be actual, as by a wrongful sale, in which case no demand by the plaintiff need be proved (e), or by a refusal to deliver them to the plaintiff when de- manded; this however is not of itself a conversion, but only evidence of such; in the latter case the defendant must have the power to deliver them when they are asked for (e); he is not guilty of a conversion because he does not at once restore the chattel, where it is not at the moment in his possession and under his own immediate control (f'). The plaintiff is entitled to recover as damages the value of the goods, and damage for their detention. The defendant may disprove the plaintiff's property in Defence. the goods, or the conversion, or may shew that he has delivered them up to the true owner (9), or he may give in evidence the Statute of Limitations, or shew that he has a lien general and particular for work done upon the goods Lien. or by a special agreement with the plaintiff. Bankers, innkeepers, wharfingers, attorneys, factors, dyers, calico printers, packers, and insurance brokers, have by usage liens upon goods entrusted to their charge, for their general balance. Carriers have a lien, but whether general or par- ticular is disputed. In other cases the lien is only on the particular chattel upon which something has been done, as a farrier who has shod a horse, the owner of a stallion which has covered a mare(h). But where nothing has been done on the chattel there is no lien. Hence a livery (c) Nicolls v. Bastard,2 C. M. (f) Const v. Hughes, 2 Scott, & R. 659. 663; Towne v. Lewis, 7 C. B. (d) Armory v. Delamirie,1 Str. 608, 504: 1 Smith’s L. C. 151; (g) Cheesman v. Exall, 6 Exr. Bridges v. Hawhksworth, 15 Jur. 341. 1079. (h) Scarfe v. Morgan, 4M. & (e) Edwards v. Hooper, 11M. W. 270. & W. 363. 90 Parti. Stoppage in transitu. Trespass, To land. Evidence in Particular Actions. stable keeper or innkeeper has no lien on a horse (¢), nor has the unpaid vendor of real property a lien on the title deeds (%), or a conveyancer on papers left in his posses- sion (2). A lien can never exist where possession 1s not continued, as where goods are to be paid for on credit, or where, as in the agistment of milch cows, the owner must by necessary implication have the occasional possession for the purpose of milking (m). Another defence which may be set up is, that the defendant being the unpaid vendor of the goods, has stopped them in transitu, the vendee being insolvent (7). Trespass. }—Trespass (0) lies when a trespass has been committed by the defendant or his agent, or by his cattle on plaintiff’s land. The plaintiff must shew an immediate ossession in the land. The general owner of land may however maintain trespass for injury to the subsoil, though he has let the herbage to another (p). The ownership of wastes, rivers, walls, ditches, &c. is proved either by docu- mentary evidence of title or acts of ownership. The pare must prove that the trespass was committed by efendant or his agent duly authorized, either by previous command or subsequent assent; in the latter case the agent at the time of the trespass must have assumed to act for defendant (g). Evidence should be adduced of the extent and amount of damage done. The defendant may disprove the commission of the trespass, either by denying the fact, or shewing that it occurred by plaintiff’s fault, as by defect of fences; or may shew that the plaintiff was not possessed of the place in question at the time when the trespass was committed ; but he cannot dispute the plaintiff’s title, or set up any title in himself which would limit the plaintiff's (r). He may shew leave and licence from the plaintiff, express or implied from previous circumstances, He may also shew satisfaction to the plaintiff by payment or otherwise, or a release, or may rely on the Statute of Limitation. (i) Smith vy. Dearlove, 6 C. B 132; S. C. 12 Jur. 377; Or- chard v. Rackstraw, 19 L. J., C. P. 308. (4) Goode vy. Burton, 1 Exr. 189; S. C. 11 Jur. 851. (1) Steadman v. Hockley, 15 M. & W. 553, (m) Jackson v. Cummins, 5 M. & W. 342. (n) Lickbarrow v. Mason, 2 T. R.63; 1 Smith’s L. C. 388; see notes. (o) Although these actions in the county court are of tort gene- rally, whether trespass or case, it is thought best to arrange them under the forms as they existed in the superior courts before the Common Law Procedure Act, 15 & 16 Vict. c. 76. (p) Coz v. Glue, 5 C. B. 533; S. C. 12 Jur, 185, (q) Wilson v. Tummon, 6 S. N. R. 894, (r) Ante, pp. 32. 34, Assumpsit. 91 Trespass is the proper form of action where the plain- Cuae. vir. tiffs goods are taken away, or injured by the wilful or ———— immediate act of the defendant. If the injury is only T° 8°°ds- consequential (s) or committed by a servant of the defend- ant, case, not trespass, is the proper remedy (¢). Trespass also lies for an assault, or any other direct Assault. personal injury committed by the defendant on the plain- tiff, as false imprisonment or obstruction of his personal liberty (w). The plaintiff must prove the commission of the acts complained of, by the data /iant, and the damage resulting therefrom. He may recover not only for the damage that has actually occurred, but for such as pro- bably will be the immediate result of the wrongful act (v). The defendant may shew that the act complained of was Defence. done under process or authority of law. In assault he may prove that the plaintiff assaulted him first, and that he, the defendant, only acted in self defence; or that he acted in defence of his possession of a house or goods. He may also shew that the damage sustained by the plaintiff is not as great as he alleges. If the defendant relies on self defence, the plaintiff may shew in reply that the violence used was excessive, and more than the occasion would justify. Case.|—An action on the case lies for injuries and Case. obstructions to incorporeal hereditaments, as disturbance Injuries i of common or right of way; diversion of watercourses; \rodita. nuisances, as by building a roof so as to throw water on ments. plaintiff's premises (w), or carrying on an offensive trade so as to render enjoyment of life or property uncomfort- able, so by building or otherwise obstructing the light and air around plaintiff’s house. In all these cases the plaintiff must prove the existence of the right on his part, the obstruction thereof by the defendant, and the amount of damage he has sustained. The defendant cannot dispute plaintiff’s title, but may give in evidence the same defences which have been men- tioned under trespass to land. Case is also the proper remedy against carriers for not carrying or delivering goods safely. They are at common law insurers, and liable for all accidents except by the act of God or the King’s enemies (x) ; but by the 1 Wm. 4, (s) Leame v. Bray, 3 East, (v) Hodsoll v. Stallebress, 11 593. A. & E, 301. (t) Wheatly v. Patrick, 2 M. & (w) Fay v. Prentice, 1 C. B. W. 650. 828 (u) Bird y. Jones, 7 Q. B. (2) Forward v. Pittard, 1 T. 742, R. 33, per Lord Mansfield. 92 Parti. To person or property. Evidence in Particular Actions. c. 68, they may, by affixing notices in their offices, restrict their liabilities in the case of gold, trinkets, silks, or other valuables, where the package exceeds 10/. in value. If the notice is given they are protected, though guilty of gross negligence (y), but not against the felonious acts of their servants (z). In actions against carriers it is not necessary to prove any contract, therefore a railway com- pany is liable to a servant for loss of his baggage, though his fare is paid by his master (a). Case lies also for negligent acts committed by the de- fendant or his servants, by which the plaintiff or his pro- perty is injured, as by the negligent driving of a carriage, or sailing of a ship; so, if the plaintiff were a passenger in a public carriage, although the injury in part arose from the unskilful management of the carriage in which he was (6). But he cannot recover if such injury could have been avoided by the exercise of reasonable care on the part of the plaintiff, or the person having the manage- ment of the carriage or vessel in which he is (c). Case lies also for neglecting properly to inclose dan- gerous premises. In all these cases the ae must prove negligence upon the part of the defendant, or if the act be committed by a servant, prove the service and negligence on his part. A master is not liable for the wanton or malicious acts of his servant (@), nor for unau- thorized acts committed by him beyond the scope of his employment (e). A master is not liable to his servant for the negligent acts of his fellow-servant (/). The owner of a wild animal, or of a tame one if he knows of its ferocity or habit of doing injury, is answer- able for all damage ensuing by its acts (9). The defendant may disprove any of the facts which the plaintiff is bound to prove, or shew that the act com- plained of arose from such negligence on the part of the plaintiff that the defendant could not by the exercise of ordinary care have avoided it (4), or that the damage is not so great as the plaintiff alleges, (y) Hinton v. Dibbin, 2 Q. B. (e) Joel vy. Morison, 6 C.& P. 646. 501. (z) 1 Wm. 4, c. 68, s. 8. (f). Wigmore v. Jay, 5 Exr. (a) Marshall v. Yorkhand New- 354; 8. C. 19 L. J., Exr. 300; castle Railway Company,2\ L. J., Hutchinson v. The York, Newcas- Cc. P. 34. tle and Berwick Railway Com- (6) Rigbey v. Hewitt, 5 Exr. pany, 5 Exr. 343; 19 L. J., ” 5 pa 19 L. J., Exr, 291. Exr. 296. ¢ orogood v. Bryan, and (g) May v. . Be Cattlin v. Hills, 8 ©. B.115, ino (d) M:Manus v, Crichett, 1 (Ah) Davies v. Mann, 10 M. & ee in Croft v. Alison,2 B. W. 546. Assumpsit. 53 Actions by Executors of Persons killed.|\—When a per- Cuap. vi. son is killed by the wrongful act, neglect, or default of Reto another, an action may be brought in the name of the cto? by deceased’s executor or administrator, for the benefit of of persons the deceased’s wife, husband, parent, or child, amongst killed. whom the damages are to be divided as the jury direct (7). Other Cases.|—Case is also the proper remedy against Other innkeepers, carriers, or other bailees, tor injuries done to cases. goods entrusted to them. Also for deceitful representations made to the plaintiff, by which he is injured; but this action does not lie in tort unless the representation is shewn to be false to the knowledge of the person making it (4), Case also lies for infringement of patents or copyright. (2) 9 & 10 Vict. ev. 93. W. 651; Rawling v. Bell,1 C. B. (2) Ormrod vy. Huth, 14 M. & 951. Adjourn- ment. 94 CHAPTER VIII. HEARING OF PLAINT AND JUDGMENT. ADJOURNMENT, 94. CoMMITMENT Yor Con- TEMPT, 95: For Perjury. Proczrpinas at HEaRine, 97: Where neither party ap- pears. Where Plaintiff does not appear, or is nonsuited. Where Defendant does not appear. Appearance in Person or otherwise. Jury Tria, 98. Rig¢HT To BEGIN, 99. EXAMINATION oF WIt- yessEs, 100: In chief. Opinion of. Refreshing recollection. Cross-examination. Re-examination. Examination oF WIrt- NESSES, 102: Witnesses in defence or reply. AMENDMENT OF VARIANCE, 102. JuD@MENT, 102: Order to Pay by Instal- ments. On Bond, within 8 & 9 Wm. 3, ¢. 2. DeatH oF PLAINTIFF OR DrreEnpant, 103. ORDER AND WARRANT TO Commit at HeEarine, 104. SERVICE OF JUDGMENT OR OrpveEr, 104: When necessary. How served. Payment By Instat- MENTS, 105. On the day named in the summons the plaintiff should appear in court, and the defendant must appear to answer the plaint ; and on answer being made in court, the judge proceeds to try the cause in a summary way, and give judgment without pleading or formal joinder of issue (a). Adjournment. |—The judge may make ordersfor granting time to the plaintiff or defendant to proceed, and may ad- journ any court, hearing, or further hearing of a cause, as (a) 9 & 10 Vict. c. 95, s. 74. Commitment for Contempt. 95 may seem fit to him (6) ; and when anything required by Cuap. vin. the practice of the court to be done by either party before ———— the hearing, is not done, the judge may in his discretion, and on such terms as he thinks fit, adjourn the hearing, to enable the parties to comply therewith (c). The par- ties themselves may also by consent, if the summons has been served, postpone the hearing to such subsequent court as the judge may direct at any time before the cause is called on; but where a cause is called on, the hearing fees are forthwith payable: and if the plaintiff omits when called on to pay them, he is deemed not to have appeared. If the cause is adjourned after the hearing fee is paid, the adjournment fee must be paid by the party who requires the adjournment ; but no further hearing fee is payable at the days of adjournment (d). ‘Where a cause is adjourned, no order of adjournment need be served on either party unless by direction of the judge (e). Commitment for Contempt.|—If any person wilfully in- Commit- sults the judge or any juror, or any bailiff, clerk, or officer ment for of the court for the time being, during his sitting or C™e™Pt- attendance in court, or in going or returning from court, or wilfully interrupts the proceedings of the court, or otherwise misbehaves in court; any bailiff or officer, with or without the assistance of others, may, by order of the judge, take the offender into custody, and detain him until the rising of the court; and the judge may, by warrant under his hand, and sealed with the seal of the court, commit him to prison for any time not exceeding seven days, or impose upon him a fine not exceeding 5/., and in default of payment may commit him to prison for any time not exceeding seven days, unless the fine be sooner paid (7). ae As many acts done by persons may come within the provisions of the statute, which it would be impossible adequately to describe in words, the judge has jurisdiction to decide conclusively whether any particular act amounts to an insult, interruption, or misbehaviour ; nor need the warrant of commitment state more than that the judge has been wilfully insulted. In an action for trespass and false imprisonment brought against the high bailiff and the governor of the gaol, the defendants justified under a warrant under the seal of the court, and directed to them; whereby, after reciting that the plaintiff had wilfully in- (b) 9 & 19 Vict. ¢. 95, s. 81. (e) Rule 85. : See form of order, App. p. 113. (f)9 & 10 Vict. c. 95, vy. 113. (ce) Rule 86. See form of commitment, App. (d) Rule 84. p. 155. 96 Parti Commit- ment for perjury. Commitment for Perjury. sulted the judge during his sitting, and that thereupon the judge had ordered him to be taken into custody and detained until the rising of the court, it “therefore” re- quired the defendants to arrest the plaintiff, and imprison him for seven days; it was held, that the warrant was not bad for uncertainty in specifying the cause of commit- ment, nor for omitting to describe the nature of the insults; and that the recital that the plaintiff had insulted the judge, was a sufficient adjudication of the offence (9). By the 9 & 10 Vict. c. 95,8. 118, the judge might com- mit for contempt to any prison to which he had power to commit other offenders by that act; by the 12 & 13 Vict. c. 101, 8. 2, the judge is empowered to commit for con- tempt to any common gaol wherein the debtors under judgment and in execution of the superior courts may be confined, for any county, &c., wholly or in part, within the district of the judge, or to any other gaol which may be allowed by the declaration of the Secretary of State, or to any person provided under the former act. Hitherto the power thus given to the Secretary of State has not been acted on. Commitment for Perjury.|—A power has recently been given by sect.19 (%) of the 14.& 15 Vict. c. 100 (an Act for Improving the Administration of Criminal Justice) to certain persons, among whom are the Judges of the county courts, in case it appears to them that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, deposition, examination, answer, or other proceeding made or taken before them, to direct such person to be prosecuted for such perjury, in case there appears to them a reasonable cause for such prose- cution, and to commit such zene until the next session of oyer and terminer or gaol delivery, for the county or other district within which the perjury was committed, unless he enters into a recognizance, with one or more sufficient surety or sureties, conditioned for his appear- ance, and that he will surrender and take his trial, and not depart the court without leave. The Judge may also require any person he may think fit to enter into a recog- nizance, conditioned to prosecute or give evidence against the person to be prosecuted, and give to the party so bound to prosecute a certificate of the prosecution having been directed, which certificate must be given without any fee or charge, and will be deemed sufficient proof of such prosecution having been directed. (g) Levy v. Moylan, 1 L. M. & (h) This section will be found P, 307. in full in the Appendix, p. 57. Proceedings at Hearing. 97 Where neither party appears.|—TIf neither party appears Cray. vin. at the hearing, the cause is usually struck out by order of the judge. In this case no hearing fees are payable (i). Where neither arty ap- Where Plaintiff does not appear, or ts Nonsuited.]—If as e the plaintiff does not appear the cause is struck out. If where the plaintiff appears, but does not make proof of his plaintiff demand to the satisfaction of the judge, he may nonsuit does not the plaintiff, or give judgment for the defendant (). *PPet™ oF This is especially provided by the statute, but it does not sited. limit the common law right which a plaintiff possesses, to withdraw from the suit at any time before judgment (J) ; or, if there be a jury before they have delivered their verdict (m). It hes also been decided that the term “nonsuit”’ is used in the act in the same sense as it receives at common law; and, unless the plamtiff con- sents to a nonsuit, the judge has no power to order it (w). Whether there is a nonsuit or judgment for the defendant, if the defendant appears and does not admit the demand, the judge may award to him, by way of costs and satisfaction for his trouble and attendance, such sum as he thinks fit, which is recoverable in the same way as a debt or damage ordered to be paid (0). If, however, the plaintiff does not appear, and the defendant, or some one duly authorized on his behalf, appears and admits the cause of action to the full amount claimed, and pays the fees payable by the plaintiff, the court may proceed. to give Judgment as if the plaintiff had appeared (p) ; and in any case where the plaintiff does not appear by himself or his attorney, and the defendant does so appear, the judge may award to the defendant or his attorney, by way of costs of his attendance and satisfaction for his trouble, such sum as the judge in his discretion thinks fit, to be recovered as above (q). Where the defendant does not appear.|—If the defendant Where de- does not appear, or sufficiently excuse his absence, or fendant neglects to answer when called in court, the judge, on ibes inet appear. (i) Rule 87. (0) 9 & 10 Vict. c. 95, s. 79. (2) 9 & 10 Vict. v.95, 8.79. See form of order, App. p. 114. See form of order, App. p. 114. (p) Ibid. ° (1) Robinson v. Lawrence, 2 L. (q) 13 & 14 Vict. c. 61, s. 10. M. & P. 673; S.C. 21L. J., Under s. 79 of the former act Exr. 36; 15 Jur. 1087. there was some ambiguity as to (m) Outhwaite y. Hudson, 7 whether a judge could grant costs Exr. 380; S. C. 21 L. J., Exr. to the defendant in cases where 151; 16 Jur. 430. the plaintiff does not appear, or (n) Stancliffe v. Clarke,7 Exr. only where there was a nonsuit or 439; S. C. 21 L. J., Exr. 129; — verdict for the defendant. 16 Jur. 430. 98 Jury Trial. Pants. proof of service of the summons, may proceed to the trial of the cause on the part of the. plaintiff only, and the judgment is as valid as if both parties had attended; but the judge may then, or at any subsequent court, set aside the judgment and execution, and grant a new trial, on such terms (if any) as to payment of costs, giving security for the debt or costs, or other terms, as he thinks fit, on sufficient cause shewn to him (7). Admission Admission by person not Defendant.|—Where a person, by person other than the defendant, appears at the trial of a cause, not defend- and admits that he is the person whom the plaintiff in- a tended to charge, his name may be substituted for that of the defendant, if the plaintiff consents, and the cause may proceed as if such person had been originally named in the summons; and if necessary, the hearing may be ad- journed on such terms as the judge thinks fit. The costs of the person originally named as defendant are in the discretion of the judge (s). Appear- Appearance in person or otherwise.|—We have seen, ancein = (ante, p. 25), when counsel or attorneys may appear for ees parties in court. It is not necessary for either party, erwise. . . . . previous to the hearing, to give notice to the other, or to the court, of his intention to employ a barrister or attorney to act as his advocate at the hearing nor is the allowance of costs to the barrister or attorney affected by want of such notice (¢). No attorney may appear for any person, until he has signed a roll or book kept by the clerk for that purpose. No fee, however, is payable for this (zw). Jury trial. Jury Trial.|—In cases in which a jury has been sum- moned at the request of either party to try the action, five jurymen are impannelled and sworn by the clerk of the court, not as in the superior courts, separately to try each action, but to give true verdicts according to the evidence in the causes which are brought before them; and being once sworn, they need not be resworn in each trial. Either of the parties is entitled to his lawful challenge against all or any of the jurors, as in the superior courts. The jurymen when sworn must give an unanimous verdict (v). (r) 9 & 10 Vict. v. 95, 3. 80. (v) 9 & 10 Vict. c. 95, ss. 72 See “New Trial,” post, Chap. and 73, As to the grounds of XV. challenges, either to the array or (s) Rule 94, to the poll, see Archbold’s Prac- (t) Rule 90. tice of Q B. p. 1, v.17, 8. 2 (u) Rule 89. Right to begin. 99 Right to begin.|—The general rule is, that the party Cua. vm. begins on whom the burden of proof lies, so that where ———— any substantial fact must be proved by the plaintiff in a = order to enable him to succeed in his action, he is entitled “6” to begin, and this rule applies equally in actions of con- tract, and tort (w); with this difference, that whereas in actions of contract the defendant, by admitting the plain- tiff’s claim, and relying only on some special defence, as infancy, coverture, payment, and release, or the like, the onus probandi being shifted, may claim the right to begin. In actions of tort, although the act complained of is ad- mitted by the defendant, still, where the plaintiff seeks to recover substantial damages, he has a right to begin, in order to complete his case, by adducing evidence from which the amount of those damages may be estimated («). In accordance with this principle, it was held that where in an action on a promissory note, coverture only was pleaded, the defendant had the right to begin ; although the plaintiff sought to recover interest upon the note, which was not made payable upon the face of it, there being no necessity for a jury to estimate the amount of damages which were in fact liquidated (y). In ascertaining upon whom the burden of proof lies, it is not sufficient to look merely to the form of the issue, whether it be affirmative or negative on either side. The substance must be regarded; and if there be a negative averment which is material to the plaintiff’s case, some general evidence of it must be adduced (z). A common instance of this occurs when a plaintiff alleges that a house was not in repair (a), or that a horse sold with a warranty was not sound (bd) ; and even where a plaintiff complained that premises had not been femal by the defendant pursuant to a covenant to that effect, it was held ne- cessary for the plaintiff to give some evidence that they had not been insured, although he had given notice to produce the policy (c). The test most commonly pro- posed is, to consider for whom the verdict must be, if no evidence at all were given (d); the burthen of proofs then rests upon the other side. The principal exceptions to this rule are. First, where there is a presumption of (w) Mercer v. Whall, 5 Q. B. (a) Soward v. Leggatt,7 C. & 447; Boothv. Milns,15M.& W. P. 613. 669. (b) Osborn v. Thompson, 2 (x) See per Lord Denman, in Mood. & R. 254. Mercer v. Whall. (c) Doev. Whitehead, 8 A. & (y) Cannam v. Farmer, 3 Exr. E. 571. 98. (d) Amos v. Hughes, 1 Mood. (z) See per Alderson, B., Geach & R. 464; Geach v. Ingall, 14M. +. Ingall, 14 M. & W. 98. & W. 97. F 2 6 100 .Parry. Examina- tion of wit- nesses, In chief. Examination of Witnesses. law in favour of a certain state of things; as, that aman is of sound mind, till the contrary is proved; that he will rightly perform the duties which the law casts upon him. Therefore in an action against a carrier for negligence in the conveyance of goods, of greater value than the amount to which he had by notice limited his responsi- bility, it was held that the onus lay upon the plaintiff to prove negligence, and not on the defendant to shew reasonable care (¢). So, as the absence of fraud is always to be presumed, the holder of a bill of exchange is pre- sumed to have come by it honestly, and is not called upon to prove that he has given consideration until his title is impeached by proof of fraud, duress, that the bill had been lost or stolen, or the like (f). Secondly, where it happens that from the nature of the facts in dispute, they lie particularly in the knowledge of one side, very slight evidence, if any, is necessary, in order to cast on that side the burthen of proof (7); therefore in the case of an action for not insuring premises before-mentioned, but little evidence would have sufficed to shift the burthen of proof; indeed, in an action against a railway company by a passenger, for negligence, it was held that the plamtuf makes out a primd facie case, by shewing that when the accident occurred the train and railway were exclusively under the direction and controul of the defendants (h). Ifa mistake be made by the judge in deciding upon the right to begin, whereby manifest wrong is done to either side, it will be a ground for a new trial (2). Examination of Witnesses.|—If the ends of justice will be thereby promoted, the judge will, on the application of either side, order the witnesses on both sides out of court. A. witness, during his examination in chief, that is, by the party on whose behalf he is summoned, should be asked no questions that do not bear immediately on the matter in dispute; he must not be asked leading ques- tions, that is, questions which suggest what answer is expected, or which are answered by “ yes,” or “no.” This rule does not apply to matter introductory, but must be (e) Marsh v. Horne,5 B. & C. (h) Carpue v. London and 327, Brighton Railway Company, 5 Q. (f) Mills v. Burber, 1 M. & B. 747. W. 425; Bailey vy. Bidwell, 13 (i) Ashby v. Bates, 15 M. & M. & W. 73. W. 589. See note at the end of (g) See per Alderson, B. in Bvoth v. Milns, 15 M. & W. ra v. Janson, 13 M. & W. 671. Cross Examination. 101 strictly observed when the material points of the case Cap. yin. are reached ; nor does it hold when a witness is called to contradict another; he may then be asked “Did A. B. use such words” (x). The opinion of a witness, as to a fact in issue, is gene- Opinion of rally inadmissible, as placing the witness in the position Wes. ° of the judge (2), so a witness relating what was said by another, may not be asked “What did you understand by those words,” unless it is first shewn that the words were not used in their ordinary sense (m). Where, how- ever, the question is one as to which no person can be supposed capable of arriving at a correct conclusion, un- less he has devoted his particular attention to the subject, as medicine, science, trade, foreign law, or the like, wit- nesses possessing peculiar skill, from previous study and ee as doctors, chemists, engineers, merchants, or oreign lawyers, may state their opinion (m): but even they are not permitted to state their views on matters of moral or legal obligation, or how persons would probably have been influenced under particular circumstances (0). A witness under examination may refer to any entry, Refreshing or memorandum, made by himself at the time, or shortly recollec- after the occurrence, of the fact to which it relates, in "" order to refresh his memory, though it would not be of itself evidence, as an unstamped receipt (p). The book or paper, to which the witness refers must be pro- duced (q), and the counsel on the other side may inspect it without being bound to make it evidence (7). Cross-examination.|—As a person called merely to pro- Cross-exa- duce a document need not be sworn, the opposite party is mination. not entitled to cross-examine him, even although he is sworn by mistake (s). In cross-examination, leading questions may be asked, nor need they be confined to the matter in issue, since any questions may be put which tend to discredit the witness. If however, the question is irrelevant to the issue, the person putting it must be content with the answer, and cannot call other witnesses to contradict (2) Edmonds v. ,Walter, 3 (0) Ib. per Lord Denman, Stark. 8. Campbell v. Rickurds, 5 B. & Ad. (1) Carter v. Boehm, 3 Burr. 846. 1905. See also the notes, 1 (p) Maugham vy. Hubbard, 8 Smith’s L. C. 283. B. & C. 14. (m) Daines v. Hartley, 3 Exr. (q) Howard v. Caufield, 5 200; S.C. 12 Jur. 1093. Dowl. 417. ‘ (n) M-Naghten’s ease, 10 Cl. & (r) Sinclair v. Stevenson, 1 C. Fin. 200; Folker v. Chadd, 3 & P. 582. Doug. 157; Taylor on Evid. s. (s) Rush v. Smith, 1 C. M. & 1087. R. 94. See note. 102 Part 1. Re-exami- nation. Witnesses in defence and reply. Amend- ment of variance, Judgment. Amendment of Variance. it (#). A witness is not compelled to answer a question which might expose him to prosecution (w). Re-examination.|— After a witness has been cross- examined, the party who ealled him has a right to re-examine him, so as to explain what he has stated on cross-examination, although he may have been asked and answered as to facts not admissible in evidence (v), but no new matter must be introduced (w) ; the object being to explain the cross-examination, not to add facts omitted in the examination in chief. Witnesses in Defence and Reply.|—The plaintiff having closed his case, the defendant calls such witnesses as he thinks fit, and the plaintiff may in reply call witnesses to contradict evidence which has been given by the defendant. But it has been held that he cannot, having relied on a primd fadie case in the first instance, call new evidence to confirm or add to (#). This, however, is a matter for the discretion of the judge, and in cases where it seems to him proper that the plaintiff should supply some de- ficiency in his original case by additional evidence he may receive it (y). Amendment of Variance.|—The cases in which the judge may at the trial amend the summons, either as to the parties to the action or their description have been mentioned at pages 48 and 49. In addition to this, at the hearing where any variance appears between the evidence and the matters stated in any of the proceedings, they may, in the discretion of the judge, and on such terms as he thinks fit, be amended. Such amendment, when ordered, must be made in open court, and during the sitting of the court (z). In all cases of amendment, a corresponding amendment must be made in the presence of the judge in the proceedings of the court, which are antecedent to such amendment, and the subsequent pro- ceedings must be in conformity therewith (a). _ Fudgment.|—When the hearing of a case is ended, the judge gives judgment in a summary way (0), or if there be a jury, sums up to them, and they return their verdict. (t) A. G. v. Hitchcock, 1 Exr. (x) Jacobs v. Tarleton, 11 Q. 91; S.C. 11 Jur. 478, B. 21; S. C. 12 Jur. 517. oe Cates v. Hardacre, 3 Taunt. (y) Wright v. Willcox, 14 Jur. 24, 746. (v) Blewett v. Tregoning, 3 A. tai Rule 104. & E. 554, (a) Rule 105. aise Prince vy. Samo,7 A. & E, (2) 9 & 10 Vict. c, 95, s. 69. Judgment on Bond. 103 In either case the result is entered by the clerk in a Cyap. vin. book (ce). =a The entry of the order by the clerk is conclusive evidence of it, and it cannot be contradicted by the entry made by the judge in his own minute book (4). Nox,order, judgment, or verdict, can be quashed or vacatetyfor want of form (e), nor can a judgment be reversetk by writ of error (f). The judge may make orders concerning the time, or Instal- times, and by what instalments, the debt or damages shall ments. be paid. They must be paid into court, unless the judge otherwise directs (4). Judgment on Bond within 8 & 9 Wm. 8, c. 11.]—In Judgment actions for penalties to secure the performance of coven- on bond ants, within the meaning of the 8 & 9 Wm. 3, c. 11, if ae the court is of opinion that the plaintiff is entitled to. 31.’ recover, judgment must be entered for the amount of the © penalty, not exceeding the amount over which the court has jurisdiction in the action, and an entry must be made on the minutes of the damages awarded to the plaintiff, and execution may issue for the amount of such damages ; and in case of subsequent breaches, the plaintiff may enter a plaint and sue out a summons in the nature of a sci. fa. on such judgment, in the form mentioned in the schedule to the rules, and must deliver particulars of such sub- sequent breaches (h). ‘Where one or more of several plaintiffs or defendants Death of dies before judgment, the suit does not abate, if the cause plaintiff or of action survive to or against them (2). defendant. Where one or more of several plaintiffs or defendants dies after judgment, proceedings thereon may be taken by the survivors or survivor, or against the survivors or survivor, without leave of the court (£). Where a married woman is sued as a feme sole, and she obtains judgment on the ground of coverture, proceed- ings may be taken thereon, in the name of the wife, at the instance of the husband, without leave of the court (2). Where the plaintiff has become bankrupt or insolvent before judgment, the cause may proceed to judgment, at the instance of the assignee, in the name of the plaintiff (m). (c) Ib. s. 111. See forms of (g) Ib. s. 92. See form of judgment against defendant for order for payment by instalments, payment of debt, or damages and App. p. 115. costs ; and judgment against plain- (A) Rule 28. tiff for costs, App. p. 114. (i) Rule 168. (d) Dews v. Ryley, 21. M. & (2) Rule 169. P. 544. (1) Rule 170. ~ (e) 9 & 10 Vict. c. 95, s. 136. (m) Rule 171. (f) Ib. s. 108. 104 Parti. Order and warrant to commit. Service of judgment or order : When ne- cessary ; How served. Service of Judgment or Order. Order and Warrant to Commit.|—The judge may, where the defendant appears, or has been personally summoned to appear, if judgment is given against him, examine him, and the plaintiff and other parties, and make an order of committal, the same as on the hearing of a judgment summons (7). Where it appeared on the face of a warrant, that the defendant had personally appeared at the hearing of the plaint, it was held good although there had been no summons, and the order was made at an adjournment of the hearing (0). See further as to orders and warrants to commit defendants, post, p. 124. + Service of Judgment or Order.]|—The judgment of a county court is similar to that of a superior court, and does not require to be served before execution under it is levied. Where therefore the defendant having received a summons, but failed to appear, was ordered verbally to pay the debt and costs “forthwith,” and between six and seven o’clock on the same day was served with an order, whereby it was “ordered that the defendant do pay the same (the sum adjudged) to the clerk of the court at his office forthwith, &., “attendance at the office from ten till four o’clock.” The defendant not having paid the sum adjudged, and his goods having been taken in execu, tion ; it was held that the proceedings were regular (p). Where, however, the order of the court is in the nature of arule of a superior court—as where it varies the terms of a former order—it must be served before a party is liable to pay under it(q). By the rules of practice, orders for the payment of money, or costs, or both, must in all cases be served by the bailiff of the home court, or be sent by him in a prepaid post letter to the party ordered to pay. No mileage is, however, payable, Pa the bailiff is entitled to be paid only as upon a service within two miles of the court house, and if he elects to serve by post, he must at his own expense prepay the letter. The party in whose favour the order was made, need not prove that it was so served before taking proceedings thereon (7), The effect of the above provision in the rules as to the service of orders is, not to enlarge the duties of the clerk beyond the pone of the statute by requiring him in all cases to make a copy of the order for service by the bailiff, but it points out merely by whom the service is to be made of those orders which require service by the pro- (n) 9 & 10 Vict. c, 95, s. 101, (p) Ely v. Moule, 5 Exr. 918 ; See form of order and warrant, S.C. 1 L. M. & P. 799; 20L. App. p. 115. J, Exr. 29; 14 Jur. 1070, (0) Ex parte Purday,9 C. B. (q) Ibid. 201; S.C. 19 L. J, C. P. 222. (r) Rule 114, Payment by Instalments. . 105 visions of the statute. No action lies, therefore, against Cyap. yin. the clerk for not preparing, or for negligently preparing a. ————— notice to a defendant of an order against him to pay a debt by instalments, which order was made by the judge at the time of delivering judgment; such order being part of the judgment, and, in accordance with the decision already cited, not requiring service (s). Registry of Judgment.|—The 15 & 16 Vict. c. 54, s. 18, Registry of provides that a registry of every judgment for the sum of judgment. 107. and upwards shall be formed under the direction of the Commissioners of the Treasury; and that such fees shall be charged for inspection as shall be appointed by the Commissioners. A Registry has now been established under the above power at No. 1, Parliament Street, London, where all such judgments are registered. Persons may personally search the registry on payment of 1s. for each name searched for. Persons in the country may Payment obtain information through the clerk of the court in the by instal district where they reside, or by writing to the Registry. ™*"™* In these cases the fee is 2s. for each name. When a judgment has been satisfied the name of the defendant may be removed from the registry on payment to the clerk of the court of 1s. 6d. (¢). Payment by Instalments.|— Where an order is made for the payment of any debt, damages, costs, or other sum by instalments, they are payable at. such periods as the court. orders. If no period is mentioned in the order, the first. becomes due on the twenty-eighth day from the day of making the order, and every successive instalment becomes due at a like period of twenty-eight days from the day of the previous instalment becoming due. The instalments. must be paid at the office of the clerk and not to the party in whose favour the order was made (w). ; The clerk must give notice to the plaintiff by prepaid. post letter, according to the form in the schedule, of every ayment made, and the fee allowed for such notice may be deducted from the amount paid in, whether such sum: is paid out to the plaintiff ornot. This fee isnot paid by: the defendant. Notice need not be given where the instalment does not exceed 10s., unless the plaintiff by. writing under his hand requires it from the clerk (a). (s) Robinson v. Geel, 21 L. J., 1852. C. P. 165; S. C. 16 Jur. 615. (uw) Rule 116. (t) This was established by a (v) Rule 117, See form of Treasury minute, issued in Novr., notice, App. p. 117. E3. 106 CHAPTER IX. EXECUTION. Procrepines on Jupe- MENT MORE THAN A YEAR op, 106. Werrr oF Frert Facts, 107: When it may Issue. Cross Judgments. Suspension of Execution. How Issued. Successive and concurrent Warrants. Fees wpon. By whom Executed. Extortion by Bailiffs. Trespass. Neglect to Levy. Supersedeas by Payment. Bankruptcy or Insolvency of Defendant. Death of Plaintiff? Writ when Executed. How and where. Wuat may BE SEIZED, 111: Money, Bank Notes, Se. Bills and other Securities. Chattel Interests in Land. Fiztures. Crops. Stat. 56 Geo. 8, c. 50. Wuost Goops MAy BH Sr1zEp, 114: Goods of Testator. of Partners. —— of Bankrupt. — of Insolvent. of Ambassadors. Goods in Custody of the Law. Lien and Bailment. Goods Assigned. PayMENT OF TAXES AND Rent, aND PRIORITY OF Lanpiorp, 116. Saxe, 117. Rerven oF WARRANT AND Parment oF Money Leviep, 117. ExEcurTion our oF JURIS- piction, 118. How Issued and Executed. Transmission of Fees and Money Levied. InTERPLEADER, 120: Stay of Action in Superior Court. Summonses. Particulars. Hearing and Judgment. Costs of Bailiff: Proceed- Proceedings on Judgment more than a year old.\—No ings on : warrant of execution or summons for commitment may, judgment without le j i j r aaa out leave of the judge, issue on a judgment more a year old. than a year old, unless an instalment has been paid on Writ of Fieri Facias. 107 such judgment, or a warrant of execution against the Cyar. 1x. goods or a warrant of commitment has been issued within a year from the time of obtaining it, or if more than a year has elapsed since an instalment has been paid, or since the expiration of the warrant against the goods, or of the last warrant of commitment; but no notice to the defendant, previous to applying for such leave, is neces- sary. Such leave must be expressed on the warrant under the seal of the court (a). Writ of Fieri’ Facias.|—When the judge has made an Writ of order for the payment of money, the amount is recover- fieri facias able in case of default forthwith, or at the time or times, or in the manner thereby directed. The clerk, at the request of the party prosecuting the order, issues under the seal of the court a writ of fieri facias as a warrant of execution to the high bailiff, who thereby may levy or cause to be levied by distress and sale of the goods and. chattels of the party against whom the order is made, (wherever they are found within the district of the court,) the sum ordered and costs of execution (6). When it may Issue.|—Where a defendant has made When it default in payment of the whole amount awarded by the may issue. judgment or of an instalment thereof, execution may issue against his goods without leave of the court, for the whole amount of the judgment and costs then remaining unsa- tisfied, unless in the case of instalments the judge other- wise directs at the time of giving judgment (c)- When an order has been made to pay by instalments, execution cannot issue until default is made in payment. of one instalment; execution or successive executions may then issue for the whole sum and costs remaining unpaid, or for such portions as the judge orders, under the seal of the court, either when he makes the original order or subsequently (d). A plaintiff who has recovered a judgment for debt and costs, and has received the debt out of court, is still en- titled to have a writ of execution issued for the costs; and in a case where under these circumstances the clerk of the county court declined to issue an execution, the Court of Queen’s Bench granted a mandamus commanding him to issue it (e). a) Rule 118. _(c) Rule 120. b) 9 & 10 Vict. v. 95, s. 94. d) 9 & 10 Viet..¢. 95, s. 95. See forms of writs of execution e) Rey. v. The Clerk of the against defendant and against County Court of Surrey, 21 L. J-,. plaintiff, App. pp.117, 118. Q. B. 310. 108 Successiwe and Concurrent Warrants. Panrr. Cross Judgments.|—Where there are cross judgments between the parties, execution must be taken out by that party only ato has obtained judgment for the larger sum, and for as much as remains after deducting the smaller sum, and satisfaction for the remainder is entered, as well as satisfaction for the smaller sum. Ifthe sums are equal, satisfaction is entered on both judgments (/'). Cross judg- ments. Suspension _ Suspension of Execution. |—The judge may, at any time, of execu- if it appears to his satisfaction by the oath or affirmation Sion, of any person or otherwise, that the defendant is unable from sickness or other sufficient cause to pay the debt, damages, or instalment, suspend any judgment, order, or execution for such time and on such terms as he thinks fit, and so from time to time, until it appears, from lke proof, that the temporary cause of disability has ceased (g). How is- How Issued.|—The clerk of the court must issue the sued, warrant of execution at the request of the party prose- cuting the order under which it is applied for. It must bear date on the day on which it is issued, and con- tinues in force three calendar months therefrom (/), and must be under the seal of the court (7). The clerk must endorse on it the amount to be levied, distinguishing the amount of the debt or damage and costs adjudged to be paid, the amount of the fees for issuing the warrant, and the bailiff’s fees for its execution, including mileage to the place in which the bailiff is directed to take the goods, and no further mileage may be taken by the bailiff (4). Successive Successive and concurrent Warrants.|—Successive war- andcon- rants of execution against the goods may be issued without currents, leave of the Court, and they may also be issued under the same circumstances, and on the same conditions, as in the case of successive summonses to appear to a plaint, except that the fee for issuing them must in all cases be paid, and they must bear date of the day on which they are issued (/). They may be issued when only a portion of the judgment is satisfied, on payment of fees proportioned to the amount of the judgment remaining unsatisfied (m). Warrants of execution may be issued concurrently in one or more districts ; but the costs of more than one war- rant will not be allowed, unless by order of the judge (n). tH) 9 & 10 Vict. c. 95, s. 93. hk) Rule 121. g) To. s. 105. See form of ti Rule 122. Sce also rule order, App. p. 117. 41. (hk) Rule 119. And see post, (m) Rule 123. p. 116. a Rule 124, (i) 9 & 10 Vict. c. 95, s. 94. Trespass. 109 _ Fees upon.|—The fees upon executions must be paid Cyap. 1x. into court at the time of the issue of the warrant of exe- ———— cution, and are to be paid by the clerk to the bailiff, upon Fees upon. the return of the warrant, and not before (0); a scale of these will be found in the Appendix, p.160. By the13 & 14 Vict. c. 61, s. 5, the fees given in cases above 10I. are to be taken under the extended jurisdiction. By whom executed.|—We have already (p) seen that it By whom is the duty of the high bailiff, or one of the bailiffs of the executed. court to execute all writs of execution, and we have seen how they are protected in the performance of their duties. All constables and peace officers within their several jurisdictions, must aid them in the execution of the war- rants (q). Extortion by Bailiffs.|—If the bailiff or his officers are Extortion guilty of any extortion, besides the remedy by action (1), by bailiffs. a summary remedy may be granted by the judge (s). Trespass.]—The high bailiff is liable in trespass for all Trespass. acts done by his bailiffs “ under colour of the writ’? which he has handed to them; but not for other acts, as givin @ person into custody for having assaulted them in the execution of their duty. Therefore where under a warrant issued against a de- fendant, the bailiff broke and entered the premises of a third person, and upon his resisting them, they, under colour of sect. 114 of the 9 & 10 Vict. c. 95, took him into custody, it was held that the high bailiff was liable with the bailiffs for the breaking and entering which was an act done under the supposed authority of the writ, but not for the assault which was committed in the assertion of a power given by the statute to the individual officer obstructed (4). When a warrant issues against a party resident out of the jurisdiction, thé high bailiff of the court out of which it issues is not liable for any irregu- larities in its execution of which the bailiffs of the foreign court are guilty, although his own bailiff assists therein (w). As to the manner in which the bailiffs and others acting under the warrant of the court must be sued, and when the clerk of the court must be joined as a defendant, see ante, p. 22. A bailiff of a county court, who is sued for taking goods under an execution, is within the exception 0) 13 & 14 Vict. c. 61, s. 5. s) Ante, p. 22. Ante, p. 20. t) Smith v. Pritchard, 8 C. B. 4, 9 & 10 Vict. c. 95, s. 94. 565; S.C. 19 L. J., C. P. 53. 7) Scarfe v. Hallifar,7 M.& See 9 & 10 Vict. c, 95,s. 114. . 288. (u) Ibid. 110 Bankruptey or Insolvency of Defendant. Parrr. of sect, 128 of the 9 & 10 Vict. c. 95, which enables parties to sue in a superior court, although the claim is less than 20/., where an officer of the county court is a party (except in respect of any claim to any goods and chattels taken in execution of the process of the court, or the pro- ceeds or value thereof); and the plaintiff in such an action, unless he recovers more than 20/., or the judge certifies, is deprived of costs by section 189; and where, although the action was commenced before the 18 & 14 Vict. c. 61, the master refused to tax the plaintiff's costs, the court declined to interfere. An opinion, however, was expressed that the proper course for a defendant to adopt in such an action, tee commenced before the passing of the 13 & 14 Vict. c. 61, was to apply for leave to enter a suggestion to deprive the plaintiff of costs (v). Neglect to Neglect to Levy.|—If any bailiff employed to levy execu- levy. tion against goods and chattels, by neglect, connivance, or omission, loses the opportunity of levying, upon complaint of the party aggrieved, and proof of the fact alleged is made to the satisfaction of the court, on the oath of any credible witness, the judge may order him to pay such damages as it appears that the plaintiff has sustained thereby, not exceeding the sum for which execution issued; and if on demand he refuses to pay the same, payment may be en- forced in the same way as a judgment of the court (w). Superse- Supersedeas by Payment.|—The clerk must endorse on deas by the warrant of execution the sum of money and costs payment. adjudged, and also the increased costs for execution; and if the defendant pays or tenders to the clerk such sum and costs, or such part thereof as the plaintiff agrees to accept in full for debt or damages and costs, together with the fees, the execution is superseded, and defendant’s goods are discharged (). Bank- Bankruptcy or Insolvency of Defendant.|—If the de- nae or fendant has been discharged by the Insolvent Act (y), of defend 470m the debt or sum ordered to be paid, or has obtained ant: an order for protection under the Bankrupt Act (z), or under the Protection Acts (a), execution cannot be levied on his goods. Death of Death of Plaintiff. }—At common law, the writ of fieri plaintiff. —facias does not abate, although the plaintiff dies before it (v) Mann v. Buckerfield, per (y) 1 & 2 Vict. c. 110,s. 91. Erle, J., reported 15 Jur. 57, ‘3 12 & 13 Vict. ¢. 106,38. 111. (w) 9 & 10 Vict. c. 95, s. 115. a) 5 & 6 Vict. c. 116, and (2) Ib. s, 109. 7 & 8 Vict. c. 96. What may be Seized. 111 is executed ; his executor or administrator may still have Guar. 1x. the benefit of it (a); and by the rules of practice, it is provided that when one or more of several plaintiffs or defendants dies after judgment, proceedings thereon may be taken by the survivors or survivor, or against the sur- vivors or survivor without leave of the court (5). Writ, when executed.\—The bailiff should execute the Writ, when writ within a reasonable time after he receives it; and, as executed. we have seen (c), if by neglect, connivance, or omission he loses the opportunity of levying, the judge may order him to pay damages to the plaintiff. It may be executed at any hour of the day or night(¢d); but not on Sunday, Christmas day, or Good Friday (e). How and where executed.|—The bailiff may not break How and open any outer door or window of the defendant’s dwell- where exe- ing-house, to execute the writ(f); but he may enter ‘4. through the door, or any other opening which is open, although no goods of the defendant are within, if there is reasonable ground for suspecting that they are there (/). He may enter the house of a third person, if the defend- ant’s goods are within (/), but not otherwise (g}. Having once obtained peaceable possession, he may break open inner doors, closets, trunks, &c.; or if he be locked in, he may break open the outer door from the inside to get out, or carry away goods; and if having once entered he is forcibly ejected, he may break open the door to re-enter (h). If the house be that of a third person, to which the defend- ant has taken his goods to avoid the execution, the bailiff may, on demand and refusal, break open even the outer door (7). Outer doors of barns or outhouses, not con- nected with the dwelling-house, may be broken open (7). What may be seized.|—The bailiff executing the fi. fa. What may should enter on the defendant’s premises with the writ, and be seized. having seized the goods deposit them in a fit place, or put in possession a fit person, appointed by the high bailiff (xz). If he seizes part in the name of the whole, it is a sufficient seizure of the whole (J). He may seize any (a) Ellis v. Griffiths, 16 M. & (9) Morrish vy. Murrey, 12 M. W. 106. & W. 52. (8) Rule 169. (h) Eagleton v. Gutteridge, 11 4 Ante, p. 21. M. & W. 465. d) Machally’s case, 9 Rep. 66. () Penton vy. Brown, 1 Sid. e) Rule 6!. See also29 Car. 181.186. 2, ¢. 7, s. 6. (k) 9 & 10 Vict. ¢. 95, s. 106. (f) Semayne’s case, 5 Rep. (6) Cole v. Davies, 1 Lord 21; S. C. 1 Smith’s L C. 89, Raym. 724. and notes. 112 What may be Seized. Paavs. goods or chattels of the defendant (excepting the wearing apparel of himself or his family, and the tools and imple- ments of his trade, to the value of 5J., which are to that Money, extent protected) ; also money or bank notes, whether of bank-notes, the Bank of England or any other bank, cheques, bills of &e. exchange, promissory notes; also bonds, specialties, or securities i money (m). Billsand The high bailiff may hold any cheques, bills of exchange other secu- or promissory notes, bonds, specialties, or other securities TE for money, which have been seized in execution as secu- rities for the amount to be levied; and the plaimtiff may sue in the name of the defendant, or any person in whose name the defendant might have sued for the recovery of the sums secured thereby (7). “Money” means actual money of the defendant’s, and not a mere debt to him; money, therefore, which a sheriff or bailiff has in his hands under a fi. fa., issued by the defendant in another action (0); or the surplus of a former execution against him cannot be seized (p). It has been doubted whether money about the person of the defendant can be seized (¢). Chattel in. The bailiff may seize chattel interests of the defendant terests in in land, as leases or terms for years (r), whether belonging land. to the defendant in his own right, or that of his wife (s); he cannot, however, sell a mere equitable interest as an equity of redemption, the legal estate being in the mort- gagee (f). Fixtures. The bailiff cannot seize fixtures, as furnaces, ovens, doors, windows, hearths, chimney-pieces, &c., which go to the heir and not to the executor (w), even although the freehold belongs to the defendant (r). If the tenant unlawfully removes fixtures, they revert to the landlord and cannot be seized (y). The bailiff may seize and sell _ fixtures which the tenant may remove, as those fixed for the purposes of trade, as coppers, vats, &c. (z). Crops. Corn and other crops, which are raised by the industry of man, are emblements which go the executor, and may be taken in execution; but things which yield no annual ‘m) 9 & 10 Vict. c, 95, s. 96. (t) Metcalf v. Scholey,2.N. R. 461 n) Ib. 8. 97. : 0) Wood v. Wood, 4 Q. B. (u) Com. Dig. “Execution,” 397, Elwes v. Mawe, 3 East, 38; S. (p) Harrison vy. Painter,6 Q. ©. 2 Smith's L. C. 99; see . 887. notes. (q) Per Parke, B., Sunbolfv. (x) Winn v. Ingelby,5 B. & A. Alford, 3 M. & W. 254. 625. (r) Com. Dig. “ Execution,” (y) Farrant v. Thompson, 5 B. C. 3. & A. 826. (xs) Per Buller, Farr v. New- (z) Poole’s case, 1 Salk. 368. man, 4'T.R. 688. What may be Seized. 113 profit, or which are produced without the labour of man, Cyap. 1x. are not emblements, but go to the heir, and cannot be seized (a). The sale of the produce of farms is regulated by the 56 Geo. 3, c. 50. The substance of its provisions 56 Geo. 3, are as follows: c. 50. The bailiff may not sell straw, straw of crops, chaff, colder, turnips, manure, compost, ashes, or seaweed (0), nor clover, rye, or other artificial grasses which are newly sown, and growing under a crop of standing corn (c); nor can he sell hay, grasses (natural or artificial), tares, vetches, roots, or vegetables, where by any covenant or written agreement made for the benefit of the owner or landlord, they ought not to be taken off from the land, or ought to be used thereon, if he has received a written notice thereof before sale (d). The tenant or occupier must give notice to the bailiff of such covenants or agreements, and of the name and re- sidence of the owner or landlord, to whom and to whose agent, the bailiff must give notice that he has taken pos- session, and must postpone the sale until the latest day he lawfully can appoint (e). The bailiff may, however, where no such covenant or written agreement is shewn, sell such crops by written agreement, in such manner as accords with the custom of the country; and in cases where a covenant or written agreement is shewn, then, according to such covenant or agreement; and after sale the purchasers may use all necessary barns, &c., for the purpose of consuming such crops or produce as the bailiff allots to them, and which the tenant or occupier would have been entitled to use (/); should the landlord or owner be aggrieved by breach of such agreement, the bailiff, being indemnified by him, must permit the landlord or owner to use his name for the recovery of damages (9). The bailiff, before selling such crops, must make inquiry within the parish in which the lands are situate, as to the name and residence of the landlord or owner (4). The landlord may not, where such agreement for sale has been made, distrain on corn, hay, straw, or other produce, which at the time of such sale or agreement has been severed from the soil; nor on any turnips, whether drawn or growing, nor on horses, sheep, cattle, or beasts, nor on waggons, carts, or implements of husbandry, which (a) See judgment in Evans v. (e) Ib. s.2. Roberts, 5 B. & C. 829. ( if Ib. ». 3. b) 56 Geo. 3, c. 50, s. 1. g Ib. 5. 4. c) Ib. 8.7. A) Ib. v, 5. d) Ib. s.1. 114 Part f. Whose goods may be seized. Goods of testator. Goods of partners. Goods of bankrupt. Whose Goods may be Seized. the purchaser employs for thrashing, carrying, or con- suming such produce (7). / The act does not extend to straw, turnips, or other articles which the tenant may remove consistently with some contract in writing (4). The bailiff is not liable for any breach or omission of the provisions of the act, unless it be wilful (2) ; and all persons acting under it are indemnified (m). The assignee of a bankrupt, &c., may not take produce, manure, &c., in any other way than the bankrupt, &c., would have been entitled to do (x). Whose Goods may be seized.|—The bailiff must at his peril seize only the goods of the person named in the writ; if he seize those of another, he is liable to an action, though the goods are in the possession of, and apparently the defendant’s (0). The goods of a woman cohabiting with the defendant cannot be taken, though she passes for his wife (p). Terms for years vested in a husband in right of his wife, and all her goods, though bought with money settled to her separate use (g), may be seized in execution against the husband; but not terms or goods, the legal estate of which is in trustees, though the husband has by the settlement an equitable interest for life, and is in possession of them (r). The goods of a testator or intestate cannot be seized for the personal debt of the executor or administrator (s), unless by using them he has made the goods his own (#), in which case he cannot deny that they are his property. Under an execution against the goods of one of the partners, the bailiff must seize the goods of both, and sell the moiety belonging to defendant (w). The vendee is tenant in common with the other partner (x), and his aoa : only what remains after payment of partnership ebts (y). By the Bankrupt Act, 12 & 13 Vict. c. 106, s. 183, ex- ecutions against the goods and chattels of a bankrupt r) Cadogan vy. Kennett, Cowp. hk) Ibid. as : e 1) Ib. 8.9. (m) Ib. s. 10. n) Tb. 8. 11. 0) Jarmain v. Hooper, 7S. N. i 56 Geo. 3, c. 50, 8. 5. (s) Farr v. Newman, 4 T. R. 621. (t) Quick v. Staines, 1 B. & P. 293 R. 663; Catteral v. Kenyon, 3 Q, B. 310. (p) Glasspoole v. Young, 9 B. & C. 697. (q) Carne v. Brice, 7 M. & W. 183. (u) Johnson v. Evans, 78. N. R. 1035. f Ibid. Garbett v. Veale, 5 Q. B. 408. Whose Goods may be Seized. 115 bona fide “executed and levied,” (2) by seizure and sale Cyap. rx. before the date of the fiat or the filing of the petition are ———— valid notwithstanding any prior act of bankruptcy; pro- vided the person on whose account execution has issued, had not at the time of executing or levying such execution, or at the time of making sale thereunder, notice of any prior act of bankruptcy. This does not, however, protect executions on judgments on warrants of attorney or cog- novit actionem, given by a bankrupt by way of fraudulent preference (a). “ Bond fide” in this provision means on the part of the creditor and bailiff, not the defendant (0), the “ notice” may be to the execution creditor, or to one of several, or to the attorney (c), but not to the bailiff (d). Ifthe seizure and notice occur on the same day, their priority may still be inquired into (e). The execution is not protected where it is itself an act of bankruptcy (/). If the goods of the defendant have become vested in Goods of assignees under the Insolvent Act, 1 & 2 Vict. c, 110, or insolvent. the Protection Acts, 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, the writ cannot be afterwards executed ; but where the writ is lodged with the bailiff before the vesting order is made it is otherwise (9). The goods of ambassadors and other ministers of foreign Ambassa- states and their domestics cannot be seized (h). dors. Goods which are in the custody of the law, as those Goods in which are seized under a distress or previous execution, custody of cannot be seized (2). the law. The rule of law being that a bailiff may only seize that Lien. which he can sell, goods in the defendant’s possession, Bailment. and on which he has a mere lien, cannot be seized (#). Where, however, goods are let to the defendant for a term, the bailiff may seize them, and sell the defendant’s interest in them (2). Goods of the defendant pawned or (z) The words of the former Act, 2 & 3 Vict. c. 29, were “executed or levied.” See Whit- more v. Robertson, 8 M. x W. 463; Skey v. Carter, 11 M. & W. 57). ‘a) Ibid. b) Belcher v. Magnay, 12 M. & W. 102. (c) Rothwell v. Dowl. N. S. 778. + (d) Ramsay v. Eaton, 10 M. & W. 22. See 1 Smith's L. C. 237 c. as to what is sufficient notice. Timbrell, 1 (e) Whitmore v. Greene, 13 M. & W. 104. (f) Hall v. Wallace, 7 M. & W. 353. (9) Woodland v. Fuller, 11 A, & E. 859. As to the effect of a dis- charge under the Insolvent Acts, ante, p. 110. h) 7 Ann. c. 12, s. 3. 7) Com. Dig. “Execution,” ec. 4. (k) Legg v. Evans,6 M. & W. 36. () Ibid. 116 Parr i. Goods as- signed. Payment of taxcs. Rent. Priority of landlord, Payment of Taxes and Rent, and Priority of Landlord. leased to another may be sold, subject to the right of the bailee or lessee, but cannot be seized till the bailment or term is determined. If the defendant, after the delivery of the writ to the bailiff, assign his goods even for a valuable consideration, except it be in market overt, no property passes to the assignee, and the bailiff may still seize and sell them (m). So, if the assignment is before the delivery of the writ, if it is made for the purpose of delaying, hindering, or defrauding creditors (7). Payment of Taxes and Rent, and Priority of Landlord.] —The Queen’s taxes, due at the time of seizure, to the extent of one year’s arrears, must be paid by the bailiff to the collector before sale or removal (0). | The statute 8 Anne, c. 14,58. 1, which forbids the re- moval of goods seized in execution, till the landlord has been paid a year’s rent, does not apply to executions under process of the county court (p); but the landlord of a tenement in which goods are taken in execution may by writing, under his or his agent’s hand, delivered to the bailiff or officer making his levy, stating the amount of the rent claimed to be in arrear and unpaid, and the time for and in respect of which it is claimed to be due, in the same manner as is required by law in cases of ordinary distresses for rent, claim any rent in arrear then due to him not exceeding four weeks, where the tenement is let by week, and not exceeding the rent due in two terms, where the tenement is let for any other term less than a year, and in no case more than one year’s rent. If such claim is made, the bailiff must dis- train for the rent claimed, and the costs of the additional distress. He must not sell till five days after the distress is taken. If goods so taken are replevied, he must sell sufficient to satisfy the money and costs for which execu- tion issued and the cost of sale; the overplus (if any) and the remainder of the goods must be returned as in other cases of distress for rent and replevin. For every such additional distress, the high bailiff, instead of the usual fees, may take the fees allowed by 57 Geo. 8, c. 98, An Act to regulate the costs of distresses levied for payment of small rents (¢). No execution creditor may be satisfied his debt out of the proceeds of the execution and distress —or execution only where the tenant replevies—until {m) Samuel v. Duke, 3 M. & Smith’s L. C. 1; see notes. W. 622 ) 43 Geo. 3, c, 99, s. 37. « 622. 0 (n) 13 Eliz. c. 4; 29 Eliz. c. 9 & 10 Vict. c. 95, s. 107. Twyne’s cuse, 3 Rep. 80; 1 q) Ibid. Sale. 117 the landlord who has made such claim has been paid the Cap. 1x. rent in arrear for the periods stated above (r). oe Sale.|—Until the sale, the goods must be deposited by Sale. the bailiff in some fit place, or they may remain in the custody of a fit person approved by the high bailiff, and put in possession by the bailiff (s). The sale must not be until after the end of five days at least, next following the day in which the goods have been taken, unless they are of a perishable nature, or on the request in writing of the party whose goods are taken. The goods, or effects, must be sold or valued by sworn brokers and appraisers appointed by the high bailiff, who are entitled out of the produce to sixpence in the pound on the value of the goods for appraisement, whether there be one broker or more, over and above stamp duty, and one shilling in the pound on the net produce of the sale, for advertise- ments, catalogues, sale, commission, and delivery of goods (¢). The bailiff must not sell more than is neces- sary to satisfy the execution; if he does he is liable in trover (uw); nor when he has sold sufficient, may he sell more on the supposition that by some event for which he is not answerable the amount levied may become insuffi- cient (). Return of Warrant and Payment of Money levied.]— Return of The mode in which the high bailiff must make a return of eee what he has done under writs of execution, and pay over tent oy to the clerk monies he has received thereunder will be money found among the duties of the high bailiff, ante, p. 20. levied. It should be noticed here, however, that the statement made by the bailiff to the clerk, of what has been done under the writ, has not the same effect as the return of a writ which issued from a superior court. In the latter case when once the writ is returned by the sheriff it is iY 9 & 10 Vict. c. 95, s. 107, and 13 & 14 Vict. c. 61, s. 20. By the former of these it was ne. cessary that the landlord should state in his written claim, besides the particulars enumerated in the text, the terms of the holding. The latter provision, after decla- ring that this may lead to tech- nical objections and unnecessary prolixity, repeals so much of the former act as required this state- ment. A similar provision, with respect to executions by a sheriff, is contained in 8 Ann.c. 14, s. 1; and it was held, in a case which arose under that act, that it does not invalidate the execution it- self, but that the goods taken under it are in custodid legis, and cannot be distrained on by the landlord for the year’s rent, whe- ther they are in the hands of the sheriff or his vendee.- See Whar- ton v. Naylor, 12 Q. B. 673. s) 9 & 10 Vict. c. 95, s. 106. t) Ibid. u) Steadv. Gascoigne, 1 Taunt. 527. (v) Aldred v. Constable, 6 Q. B 370. 118 Execution out of Jurisdiction. Parts, exhausted, and no further levy can be made under it ; but in the case of the county court writ it still remains in the hands of the bailiff, oi, if a portion only of the amount, for which the writ is issued, is realized by the first levy he may make further levies under the same writ until the judgment is satisfied, at any time before the expiration of the writ, namely, three months (w). Execution Hxecution out of Jurisdiction. |--Execution of an inferior out of juris- court could not by common law be executed out of the diction. jurisdiction (x); but by a special provision in the act 9 & 10 Vict. c. 95, where a warrant of execution has issued against the goods and chattels of any party, and his goods and chattels are out of the jurisdiction of the court, the warrant of execution may be sent to the clerk of any other court within the jurisdiction of which the goods and chattels may then be or be believed to be, with a warrant annexed, under the hand of the high bailiff and seal of the court from which the original warrant issued, requiring execution of the same; and the clerk of the court to which it is sent, must seal or stamp it with the seal of his court, and issue it to the high bailiff of his court, and thereupon the high bailiff is to act in all respects as if the original warrant of execution had been directed to him by his own court (y). Howissued How isswed and executed.|—Where a writ of execution and exe- requires to be levied in a foreign district, it must be cuted transmitted by the clerk of the home district, and executed by the high bailiff of the foreign district (z). When the warrant has been sealed by the clerk of the court to which it is sent he may re-issue it to the high bailiff of his court, who may act in all respects in the execution of it within the jurisdiction of his court in the same manner, with the same powers, and subject to the same rules as if the district to which the warrant was sent were within the limits of the court which origi- nally issued it (a). The mode in which the bailiff of the foreign court must return the writ of execution to the clerk of the-home court when it cannot be executed, will be found, ante, p. 21. Transmis- Transmission of Fees and Money Levied.|—In all cases sion of fees. of executions issued into a foreign district, the fees due (w) See rule 119, and Jordan v. (z) Rule 137, which applies to Binckes, 13 Q, B. 757. all process of the courts, whether (z) Com. Dig. “ Execution.” before or after judgment. . (y) 9 & 10 Vict. c. 95, 8, 104. (a) 14 & 15 Vict. c. 54, s. 5. Transmission of Fees and Money Levied. 119 -to the clerk and bailiff of the foreign court, for the issuing Cyar. 1x. and execution thereof, must be paid and accounted for by the clerk of the home court to the Treasurer of his court at the time of making his monthly return of fees, &c., to the Treasurer; and the clerk of the foreign court must immediately, on the receipt of the warrant, make an entry in the form prescribed in the schedule to the rules, in a book called “The Foreign Execution Book;” and after the bailiff has made his return, the amount of fees therein mentioned must, at the time of the audit, be divided and applied by the Treasurer of this court, as directed by the order of the Secretary of State, of 15th November, 1850, unless the judge of the court, or the judge of the home court, has in writing or otherwise, signified to the Trea- surer that the bailiff’s fees shall not be paid, in which case they become part of the general fund of the foreign court (4). Where, by virtue of any process issued into a foreign Money district, any money has been received by the bailiff of the levied. foreign court, he must within twenty-four hours from the receiving of it pay it over to the clerk of the foreign court, and make a return in writing of the amount received; and in the case of a levy having been made, the bailiff must state in the return the gross amount produced by such levy, the particulars of the appraiser’s and broker’s charges, and the fees allowed for keeping possession, and pay over to the clerk of the foreign court the amount evied, less such charges and fees; and the clerk of the foreign court must certify therein the amount paid into court, and the correctness of the said charges, and in all the above cases must account for and pay over such amount to the Treasurer of his court, at the time of making his monthly return of fees, to such Treasurer, or at such time as the Treasurer requires ; and the high bailiff must there- upon transmit such return to the high bailiff of the home court as directed by the 104th section of the 9 &10 Vict. ce. 95, and such latter bailiff must within twenty-four hours from the receipt of such return, deliver the same to the clerk of his court, who must thereupon pay out of any money in his hands, to the plaintiff in the cause, the amount certified in such return to have been received by the clerk of the foreign court, as the proceeds of the execution, and enter in a book the amount so cer- tified in the form given in the schedule, and the clerk of the home court must file such return, and the clerk will be allowed by the Treasurer of his court, at his audit, the amount so paid (c). () Rule 138, () Rule 139. 120 Partie Inter- pleader. Stay of ac- tion in superior court. Summon- ses. Interpleader. Interpleader.|--If any claim is made to or in respect of goods -and chattels taken in execution, or in respect of their value or proceeds, by a landlord for rent, or any person other than the party against whom process issued, the clerk upon application of the officer charged with the execution may, before or after any action brought against the officer, issue a summons calling before the court the party issuing the process and the party making the claim. The issuing of such summons operates as a stay of pro- ceedings in any action which has been brought respecting such claim in any court superior or inferior; and the court in which the action is brought or any judge thereof, on proof of the issuing of the summons, and that the goods and chattels were taken in execution, may order the party bringing such action, to pay the costs of all proceedings after the issuing of the summons. The judge of the county court is to adjudicate upon the claim, and make such order between the parties, and as to the costs as to him seems fit (d). The judge may adjudicate, not only upon the claim to the goods, but also upon trespasses to a house committed in executing the process, as being a claim “in respect of goods taken in execution” (e). In a case where an interpleader summons had issued, and the judge of the county court had adjudicated against the party claiming the goods, and a judge of the court of Queen’s Bench made an order staying an action of trespass brought in that court by the claimant against the high bailiff of the county court, for breaking and entering his house, it being shewn that the action was brought for the tres- passes committed under the process of the county court in seizing the goods, with respect to which the adjudica- tion had been made, it was held that the order for staying the action was authorized by the statute and rightly made by the judge of the superior court, the action for entering the house being “in respect of” a claim to the goods (/); where, however, the adjudication on the interpleader sum- mons was in favour of the claimant, and a similar action was brought, it was held that the plaintiff might prosecute his suit, in order to recover the special damage arising from the wrongful entry for the purpose of seizing his goods as the goods of the execution debtor (9). Summonses.]—Upon the application of the officer charged d) 9& 10 Vict. .95,3.118 B.212;8.C. 19 L. JQ. B. e) Tinkler y. Hilder, 4 Exr. 319. 187; S.C. 13 Jur. 684; 18 L. (9) Cater v. Chignell, 15 Q. B. J., Exr. 429. 217; S.C. 19 L. J., Q. B. 520; (f) Jessop v. Crawley, 15 Q. 14 Jur. 698. Particulars. 121 with the execution, the clerk issues summonses, calling Qy,p, 1x, before the court the party who issued the process under . which the goods were seized, and also the claimant (h). Interpleader summonses must be issued from the court of the district in which the levy was made, and the execution creditor and claimant may be summoned without leave of that court (¢). Summonses may be issued by the clerk, on the application of the bailiff, without the leave of the court (k). They must be served in the same manner as @ summons to appear to a plaint (7). The claimant is deemed to be the plaintiff, and the execution creditor the defendant (m). Particulars.|—The claimant, five clear days before the Particu- day on which the summonses are returnable, must deliver Jars. to the officer charged with the execution, or leave at the office of the clerk of the court, a particular of any goods or chattels alleged to be the property of the claimant, and the grounds of his claim or, in case of a claim for rent, of the amount thereof, and for what period and in respect of what premises, it is claimed to be due, the name, des- cription and address of the claimant must also be fully set forth in the particulars; and any money paid into court under the execution, will be retained by the clerk until the claim is adjudicated on. By consent, however, an interpleader claim may be tried, although this rule has not been complied with (x). The former rule of prac- tice (Rule 89) upon this claim, was in the same words ; and upon that it was decided that the particulars ought to state how and by what right the claimant asserts his title; and accordingly that, where such a notice stated only that the goods were the property of the claimant, but omitted to state any grounds of claim, it was insufficient and that the judge properly refused to adjudicate on it (0). Where, however, the particulars of the grounds of claim, stated that the goods were assigned to the claimant by an indenture (giving the date and the parties), it was held that it sufficiently set forth the grounds of the claim within this rule (p); nor is it ne- cessary that the claim should specify the goods or set them forth in a schedule (q). (A) See form ofsummons, App. 220; Ex parte Tanner in re p. 125. Cullum v. Ross, 19 L. J., Q. B. i) Rule 147. 318. k) Rule 146. ) Reg. v. Richards, 2 L. M. 2) Rule 145. & P. 268; S.C. 200 L. J., Q. B. (m) Ibid. 351. n) Ibid. (q) Heslop v. McGeorge, 18 L. 3 R. +. Chilton, 15 Q. B. T. 109. G 122 Paar. Hearing and judg- ment. Costs of bailiff. Hearing and Fudgment. Where a judge of a county court, upon an interpleader summons, erroneously decides against a claimant, on the ground that the notice of claim is insufficient, the court of Queen’s Bench will issue a mandamus to him to adjudicate upon the claim (r). Hearing and Judgment.|—The hearing in cases of in- terpleader, is the same as in ordinary actions (s), the claimant being considered as plaintiff, and the execution creditor as defendant (¢) ; at the instance of either party, a jury may be summoned as in other cases (vw). there is no jury, the jydge may adjudicate upon the claim, and make such order between the parties, and as to the costs as to him seems fit (v). Where the claim is dismissed, the costs of the bailiff may be retained by him out of the amount levied, unless the judge otherwise orders (x). g) Reg. v. Richards, 2 L. M. u) Rule 81. & P. 263; 8. C. 20 L. J., Q. B. v) 9 & 10 Vict. c. 95, s. 118. 351. See form of order, App. p. 126. s) Ante, p. 94. (x) Rule 148. #) Rule 145. 123 CHAPTER X. SUMMONS FOR COMMITMENT AND PROCEEDINGS THEREON. Summons, 123: Warrant oF CommMrit- When and how Issued. MENT, 126: From what Court. When. Successive and concurrent Return of Warrant and Summonses. Payment of Money Le- When and how Served. vied. Fees on Execution. Execution out of Turisdic- Hearine anp OrnpEr,124: Rescinding or altering Sormer Order. tron. Paruent BY DEFENDANT, Transmission of Fees and 126. Money Levied. site Warrant oF Commrir- IvprisonMENT no Satts- MENT, 126: FACTION, 129. Form of. Successive and concurrent | DISCHARGE oN Payment, Warrants. 129. To what Prison. Execution of. DiscHARGE UNDER INsoL- vent Act, 180. Summons when and how issued.]—A_ plaintiff who has summons, obtained an unsatisfied judgment or order for payment when and of a debt, damages, or costs, may obtain a summons from how issued. any court within the limits of which the other party then dwells or carries on his business, requiring him to appear to answer such things as are named in the summons (a). The summons may issue without leave of the court (8). The amount claimed by the summons may exceed 501. if the excess consists of costs which have been incurred by previous proceedings in the action (c). The summons must issue from the court within the From what limits of which the party summoned dwells, and if it be court. issued from another court, as from that in which the defendant was by leave of the judge sued, it is bad for _ (a) 9 & 10 Vict. c. 95, s. 98. See form of summons, App. p. 119. (6) Rule 125. (c) Byrne v. Knipe, 5D. & L. 659; S.C. 18 L. J., Q. B. 33; 12 Jur. 1075. G2 124 Parti. Successive and con- current summon- ses. When and Hearing and Order. want of jurisdiction, and if the judge, on the party not appearing makes an order of committal, he is liable in an action of trespass (d). It may issue at any time without leave of the court (¢). Successive and concurrent Summonses.| — Successive summonses for commitment may be issued without leave of the court, they may also be issued under the same circumstances, and on the same conditions, as in the case of successive summonses to appear to a plaint (f). See this, ante, p. 53. They may be issued im the same dis- trict or in different districts by the several courts, but in no case may a summons for commitment be issued except by the court in the district whereof the party summoned then dwells or carries on his business. The costs of more than one summons are not however allowed against the other party, unless by order of the judge (9). When and how served.|—The summons must be forth- __. how served, With issued by the clerk to the bailiff, and must be served Hearing and order. personally not less than three clear days before the day on which the party is required to appear to it, unless it be proved on oath at the hearing, to. the satisfaction of the judge, that such party was about to remove out of the jurisdiction of the court, or was keeping out of the way to avoid service, in which case service upon the party at any time before the time appointed for the appearance of such party is sufficient (A). Hearing and Order.|—If the person summoned appears in pursuance of the summons, he may be examined upon oath, touching his estate and effects, and the manner or circumstances under which he contracted the debt, or incurred the damages or liability for which judgment was obtained against him, and as to the means and expectation he then had, and as to the property and means he still has of discharging the debt, damages, or liability, and as to the disposal he may have made of any property (7). The person obtaining the summons and all other witnesses the judge thinks requisite, may be examined on oath, touching such inquiries (4). The costs of the summons and proceedings are costs in the cause (2). If the party summoned does not attend or allege a (a) Houldenv. Smith, 19 L. J., h) Rule 125. Q. B. 170; S.C. 14 Jur. 598. i) 9 & 10 Vict. c. 95, s. 98. (e) Rule 125. hk) Ibid. (f) Rule 128 and Rule 41. (2) Ibid. (9) Rule 129. Hearing and Order. 125 sufficient excuse for not attending, or if attending he Cwap. x. refuses to be sworn or to disclose the requisite matters,— or if he does not make answer touching the same to the satisfaction of the judge,—or if it appears to the judge, either by the examination of the party or by any other evidence that such party, if a defendant, in incurring the debt or liability which is the subject of the action in which judgment has been obtained, has obtained credit from the plaintiff under false pretences,—or by means of fraud or breach of trust,—or has wilfully contracted such debt or liability, without having had at the same time a reasonable expectation of being able to pay or discharge the same,—or has made or caused to be made any gift, delivery, or transfer of any property,—or has charged, removed, or concealed the same, with intent to defraud his creditors, or any of them,—or if it appears to the satis- faction of the judge that the party so summoned has then, or has had since the judgment obtained against him, sufficient means and ability to pay the debt, or damages, or costs so recovered against him, either altogether, or b any instalment or instalments which the court in whic the judgment was obtained may have ordered, and if he refuses or neglects to pay the same as so ordered, or as may be ordered as hereafter mentioned, the judge may if he thinks fit, order him to be committed for any period not exceeding forty days (m). Where, however, a defendant does not dwell or carry on business in the district of the Court to which he has been summoned to appear to a plaint, he is not liable to be committed at the hearing of the summons, whether he appears to it or not (7). A warrant of commitment was held valid, although it stated in the alternative that the defendant had made a “ oift, delivery or transfer of property with intent to defraud his creditors” (0). An order may not be made in the alternative, to pay or be committed, since the effect of it is to delegate to the officer of the court or the party putting it in force, a discretion vested by the statute in the judge, who must decide whether or not he will commit a defendant upon the existing facts as they are brought before him, and not upon any contin- gency which may arise subsequently to the making of the order; therefore, where a judge made an order requiring a defendant to pay an instalment on a future day, or in default be committed, it was held to be invalid (yp). Where the commitment is for non-payment, it may be (m) 9 & 10 Vict.c. 95, 8.99. C. P. 222. See form of order, App. p. 120. (p) Abley v: Dale, 9 C. B. (x) Rule 130. 201; 10 C. B. 62; S.C. IL. (0) Ex parte Purdy,191..J3., M. & P. 626; 20 L. J, C. P. 126 Parti Rescinding Warrant of Conumitment. made part of the order that, on production of the clerk’s certificate, stating that payment or satisfaction of the sum and costs remaining due at the time of making the order of imprisonment, together with the costs of obtaining the order and all subsequent costs, has been made, the de- fendant shall be discharged (9). Where a summons for commitment is heard in a court other than that in which judgment was obtained, and the order of the last-mentioned court is altered by the judge of the other court, all payments under it must be made into, and execution thereupon against the goods must be issued by, the court which alters the order (r). Where a certified copy of a judgment is obtained, the clerk must make a memorandum of having given such certificate on the minute of the judgment, and no execu- tion against the goods or summons for commitment may issue upon such judgment, until it is shewn to the court whether any and what proceedings have been taken thereon in any other court (s). Rescinding or altering Order.|—The judge before whom or altering the summons is heard may, whether he makes an order order, Payment by defend- ant. for committal or not, rescind or alter any order previously made against the defendant for payment by instalments or otherwise, and may make any favther or other order, either for the payment of the whole debt or damages, with costs forthwith, or by instalments, or in any other manner which seems to him reasonable and just (¢). Payment by Defendant.|—Where an order is made for commitment for non-payment of money, the defendant may, at any time before his body is delivered to the cus- tody of the gaoler, pay to the bailiff the total amount of the judgment and costs indorsed on the warrant, and on receiving these, the bailiff must discharge him out of custody. The bailiff must within twenty-four hours after receiving it pay over the amount of the judgment and costs to the clerk (w). Warrant of Warrant of Commitment.}|—When an order of commit- commit- ment. ment is made, the clerk issues under the seal of the court a warrant of commitment (x) to one of the bailiffs, to take the body of the person against whom the order is 33; 14 Jur. 1069. See also Ex q) Rule 134, parte Kinning, 4 C. B. 507; 10 r) Rule 126, Q. B. 730; and Kinning v. Bu- s) Rule.127. chanan, 8 C. B. 271, which were t) 9 & 10 Vict. c. 95, s. 100. similar decisions on the 8 & 9 See form, App. p. 125. Vict. c. 127, See post, Part VI., u) Rule 133. “Proceedings against Judgment 2) See forms of warrant, App. Debtors.” pp. 120, 121. To what Prison. 127 made (y). The warrant must bear date on the day on Guar. x. which the order for commitment was made, and continues ————- in force for three calendar months from such date, and no longer; but no order for commitment need be drawn up or served (2). Form of Warrant.|—The amount of the judgment, and Form of. all costs payable by the defendant, must be indorsed on the warrant, and the amount due to the bailiff for exe- cution must be stated separately (a). Successive and concurrent Warrants.|—Successive war- Successive rants of commitment may, by leave of the judge, (without and con. issuing a fresh summons when no previous warrant has current been executed), be issued under the same circumstances, VT" and on the same conditions, as in the case of successive summonses to appear to a plaint, except that the fee for issuing such warrant must in all cases. be paid, and such successive warrants must bear date of the day on which leave was given (0). Warrants of commitment may be issued concurrently against the same party into the same or different dis- tricts; but the costs of more than one warrant will not be allowed against the other party unless by order of the judge (c). To what Prison.}—By the 9 & 10 Vict. c. 95, 8. 49, To what defendants committed under the above power, were to be prison. committed to the common gaol or house of correction of the county, district, or place in which the party sum- moned resided, or to any prison provided as the prison of the court (d). By the later act, 12 & 18 Vict. c. 101, s. 1, defendants may be committed to the common gaol wherein the debtors under judgment and in execution of the superior courts, may be confined for the county, &c., in which the party or defendant is resident, or to any other gaol or debtor’s prison for the same county, &c., which by declaration of the Secretary of State is allowed, so long as such declaration is in force; or to any prison provided as the prison of the court. The bailiff to whom the warrant of commitment is Execution issued is empowered to take the body of the person of. against whom the order was made, and all constables and other peace officers are to give their aid in executing it, and the gaoler or keeper of every gaol, house of correc- t 9 & 10 Vict. ¢. 95, s. 102, Rule 131. Bule 132. ; b) Rule 135. (ce) Rule 136. d) 9 & 10 Vict. c. 95, s. 49. 128 Part I. Return of Warrant. tion, and prison, mentioned in the order, must receive ———— and keep the defendant therein, until discharged under When. Return of warrant, and pay- ment of money levied. the provisions of the act, or otherwise by due course of law; no protection, order, or certificate granted by a bankrupt or insolvent court is available as a discharge to a defendant so committed (e). Care must be taken to execute the warrant against the right person; if the plaintiff directs its execution against a person not named in it, he is liable to trespass (f°). A elon to the present rules of practice, there was no time limited either by the statute of the rules, durin which a warrant of commitment must be executed ; an in a case which came before the Court of Common Pleas upon a rule for a habeas corpus, where the order of com- mitment had been made upon the 15th of April, but the defendant was not arrested until the 14th of November, it was held that the proceedings were regular, there being nothing to restrict the issuing of the warrant within a certain time from the making of the order (g). It is clear, however, that the existence of such an option in the plaintiff is in violation of the principle laid down by the court in Hx parte Kinning and Abley v. Dale (h). A provision has therefore now been made by rule, which eel that the warrant of commitment shall continue in orce for three months only from its date (7); and as it must be dated on the day in which the order is made (4), the plaintiff, if he does not execute the warrant within the three months, can only proceed by applying for a succes- sive warrant, which will be issued only upon the same terms as a successive summons, to appear to a plaint, and, by leave of the court (7), which affords a fresh opportunity for investigation by the judge. Although the warrant continues in force for three calendar months only, yet if the debtor be taken under it within the three months, he may be detained thereunder for the term for which he was committed, notwithstanding such term may not expire until after the expiration of the three months (m). Return of Warrant and payment of Money Levied.|— The return of the execution, or what has been done under the warrant of commitment, and payment of money levied under it, must be made by the igh bailiff, in the same (e) 9 & 10 Vict. c. 95, s. 102. (A) Ante, p. 125, (f) Whalley v. M-Connel, 13 Q. (i) Rule 131. B. 903; 8. C. ly L. J, Q. B. hk) Ibid. 162, ti See rules 135 and 136, (9) Ex parte O'Neill, 1 L. M. (m) Hayes v. Keene, 21 L. J., & P. 737, C. P. 204; S.C. 16 Jur. 976. Imprisonment no satisfaction. 129 way as the return of writs of execution against the goods Cuar. x. of a party. See ante, p. 21. — ——< Fees on Execution.]—The court fees upon the execution Fees on must be paid into court at the time of the issue of the execution. warrant of execution, and must be paid by the clerk to the bailiff, upon the return of the warrant, and not before (m). A scale of these will be found, ante, p. 28, and in the Appendix, pp. 160, 162. Execution out of Jurisdiction.|—Where a warrant of Execution commitment issues against a person who is out of the outof juris- jurisdiction, it may be sent by the clerk of the home ‘ition. court to the clerk of the court within the jurisdiction of which the person is, in the same manner as a writ of exe- cution against goods (0). If the person is apprehended, he must be forthwith conveyed in custody of the bailiff or officer apprehending him, to the prison of the court within the jurisdiction of which he was apprehended, and kept therein for the time mentioned in the warrant of commit- ment, unless sooner discharged under the provisions of the act; and all constables and other peace officers must aid and assist within their respective districts in the execution of the warrant (p). Transmission of Fees and Money Levied.|—Where the Transmis- warrant of commitment is sent to be executed in a foreign sion of fees district, the fees payable thereon and the money levied oe thereunder must be accounted for and transmitted in the , same way as in the case of execution against the goods of a party (q). See ante, p. 118. Imprisonment no satisfaction. |—Imprisonment does not Imprison- operate as a satisfaction or extinguishment of the debt or ment no cause of action for which judgment was obtained ; nor S*tisfaction. does it protect the defendant from being summoned anew, and imprisoned for a new fraud, or default; or deprive the plaintiff of his right to take out execution against the goods of the defendant, as if the imprisonment ee not taken lace (r). Any defendant may, however, by payment or yp, car eo of ti debt or a. or the instalments - a ayable, together with the costs due at the time the order ment. for imprisonment was made, together with the costs of n) 13 & 14 Vict. 0.961, 3. 5. apply to execution both against ey Ante, p. 118. the goods or person. (p) 9 & 10 Vict. c. 95, s. 104. 6) 9 & 10 Vict. c. 95, s. 103. (q) Rules 138 and 139, which a3 130 Parr i. Discharge under In- solvent Act. Discharge under Insolvent Act. the order, and all subsequent costs, obtain his discharge upon the certificate of payment or satisfaction, signed by the clerk, by leave of the judge of the court in which the order of imprisonment was made (s). In order to obtain a defendant’s discharge by payment, this mode of proceeding must be strictly followed. Where a defendant having been committed for non- appearance paid the debt and costs to the plaintiff, but no application was made to the court, and he was subsequently arrested by the bailiff of the court under the warrant of commitment, it was held that the arrest was legal (7). Discharge under Insolvent Act.]—The effect of a dis- charge under the Insolvent Act, 1 & 2 Vict. c. 110, will be found post, Part IV. Chap. IV. (s) 9 & 10 Vict. c. 95, s. 110. (t) Davies vy. Fletcher, Q. B., See form of certificate, App. p. May 24, 1853; 21 L. Times 124, 127, : 131 CHAPTER XI. ACTIONS BY AND AGAINST EXECUTORS. How tory SvE AND ARE | JUDGMENT aGarnst, 182. Svep, 181. Where character denied or Release pleaded. Where defendant admits his character and denies Sucegestion oF DEvasta- vit in Summons, 181. PayMEenT into Covkrt, Ponca 181. And alleges Administra- Non APPEARANCE AT oi. Trrat, 132. In Cases not provided for JUDGMENT aGarnsT, 132. by Rules. Where devastavit. Notics oF Assets, 133. How they Sue and are Sued.]—Executors and adminis- How they trators may sue and be sued in like manner as a party sue and are in his own right (a). Not that their rights of action are Se? extended, but that in so far as they may already sue, the manner of their suing shall be as if in their own right. Suggestion of Devastavit.|— Where it is suspected that Suggestion an executor has been guilty of a devastavit, in order to of devas- avoid the expense, and delay attendant upon obtaining a '”" judgment and execution in the first instance against the goods of the deceased, and then if the bailiff return a devastavit suing out a writ of execution de bonis propriis, the plaintiff may charge in the summons, in the form given in the schedule to the rules, that the defendant has assets and has wasted them (6). Payment into Court.|—Where a defendant admits his Payment representative character, and the plaintiff’s demand, and into Court. that he is chargeable with any sum in respect of assets, he may pay the same into court, subject to the rules relating to payment into court in other cases (c). a) 9 & 10 Vict. ec. 95, s. 66. (e) Rule 186. See mode of ( Rule 177. See form, App. payment into court, ante, p. 63. p. 140. 132 Parti. Non-ap- pearance at trial, Judgment against. Where de- vastavit. Where character denied or release pleaded. Where de- fendant admits his character and denies demand ; and alleges adminis- tration. Judgment against. Non Appearauce at Trial.|\—Where an executor or administrator, plaintiff or defendant, does not appear . the day of hearing, the provisions of sects. 79 and 80 0 the 9'& 10 Vict. c. 95, and of sect. 10 of the 13 & 14 Vict. ¢. 61, apply respectively, subject to the rules applicable to executors or administrators suing or being sued (d). Judgment against.|—The ordinary judgment against executors and administrators is, to pay the debt and costs to be levied out of the assets of the testator, if the defendant have so much, but if not, then the costs out of the defendant’s own goods (¢). If a plaintiff executor fails, the judgment is the same as in ordinary actions, but the costs will, unless the court shall otherwise order, be awarded in favour of the defendant, and be levied de bonis proprits ; In eer te court is of opinion that the defendant has wasted the assets, the judgment will be, that the debt or damage, and costs, shall be levied de bonis testatoris st, &e., et st non de bonis propriis, and the non-payment of the amount of the demand immediately, on the court finding such demand to be correct, and that the defendant is possessed of assets, is conclusive evidence of wasting (4). Where an executor or administrator denies his repre- sentative character, or alleges a release to himself of the demand, whether he insists on any other ground of defence or not, and the judgment of the court is in favour of the plaintiff, it is that the amount found to be due and costs shall be levied and paid de bonis testatoris si, &c., et si non de bonis propriis (h). Where an executor or administrator admits his repre- sentative character, and only denies the demand, if the plaintiff prove it, the judgment will be, that the demand and costs shall be levied de bonis testatoris et si non, &c., as to the costs, de bonis propriis (7). Where the defendant admits his representative cha- racter, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves d) Rule 176. e) This is according to the practice of the superior courts. See 2 Chit. Arch. 1081. In the county court rules of 1847 this form of judgment was expressly given. In the present rules there is no direction on the matter, but by sect. 66 of 9 & 10 Vict. c. 95, judgment and execution is to be ‘such as in the like case would be given or issued in any superior court.” (f) Rule 175. (g) Rule 178, form, App. p. 140. See also Winch v. Winch, 22 L. J. C. P. 104, where it was held that the county court has jurisdiction to try a devastavit, (h) Rule 179, forms, App. pp. 141, 142, (*) Rule 180, form, App. p. 142. Notice of Assets. 133 his demand, and the defendant proves the administration Cuar. x1. alleged, the judgment will be to levy the costs of proving the demand de bonis testatoris si, &c., et si non de bons propriis ; and as to the whole or residue of his demand, Judgment of assets, guando acciderint, and the plaintiff must pay defendant’s costs of proving the administration of assets (x). ‘Where the defendant admits his representative cha- racter, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, but the defendant does not prove the adminis- tration alleged, the judgment will be to levy the amount of the demand, if such amount of assets is shewn to have come to the hands of the defendant, or such amount as is shewn to have come to them, and costs, de bonis testatoris, si, &c., et si non, as to the costs, de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando acciderint (1). Where a defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment will be for assets quando acciderint, and the plaintiff must pay the defendant’s costs of proving the administration of assets (mm). Where a defendant admits his representative character and the plaintiff’s demand, but alleges a total or partial administration of the assets, but does not prove the administration alleged, the judgment will be to levy the amount of the demand, if so much assets is shewn to have come to the defendant’s hands, or so much as is shewn to have come to his hands, and costs, de bonis tes- tatoris, st, &c., et si non, as to the costs, de bonis propriis, and as to the residue of the demand, if any, judgment of assets, guando acciderint (n). In actions against executors or administrators for which provision is not specially made by the rules of practice, if the defendant fails as to any of his defences, the judgment will be for the plaintiff as to his costs of disproving such defence, and such costs are to be levied de bonis testatoris, si, &c., et st non, de bonis propriis (0). Notice of Assets.}—Previous to the framing of the Notice of present rules of practice, it was held by the Court of assets. Common Pleas, that if after a plea of plene administravit and judgment of assets quando acciderint the defendant (k) Rule 181, form, App. p. (m) Rule 183, form, App. p. 143 145. 1) Rule 182, form, App. p. n) Rule 184. ia e (3 Rule 187. 134 Notice of Assets. Panri, receives assets, the plaintiff should proceed by a summons stating the judgment quando, and suggesting assets, and that a suggestion of a devastavit would be wrong (p). This is now provided for by rule 185, which directs that where judgment has been given against an executor or administrator that the amount be levied upon assets of the deceased guando acciderint, the plaintiff or his personal representative may give a notice according to the form in the schedule to the rules; and if it appears that assets have come to the hands of the-executor or administrator since the judgment, the court may direct that the debt, damages, and costs be levied de bonis testatoris si, &e., and st non as to the costs de bonis propriis. The party applying may also charge in his notice that the executor or administrator has wasted the assets of the testator or intestate, in the same manner as in an original summons, and the provisions relating to that apply to such inquiry. The court may, if it appears that the party charged has wasted the assets, direct a levy to be made de bonis tes- tatoris as to the debt and costs, and st non de bonis propriis (q). (p) Ellis v. Watt, 8 C. B. 614; (q) Rule 185. See form of 8.C. 19 L. J., C. P. 118. notice, App. p. 147, 185 CHAPTER XII. APPLICATIONS IN THE NATURE OF A SCIRE FACIAS TO REVIVE PROCEEDINGS. Death of Party. In actions on Bonds Married Woman. within 8 F 9 Win. 3, Bankruptcy or Insol- e. 1. vency. Jury. EXECUTION on a judgment may not issue by or against any person not a party to a suit, without a plaint and summons upon the judgment, the proceedings in which must be the same, and are subject to the same fees, except the general fund fee, as in ordinary cases (a). Death of Party.\—Where a judgment has been given Death of for or against a person deceased, his executors or admi- party. nistrators may in the same manner sue or be sued upon the judgment (6). Where one or more of several plaintiffs or defendants dies defore judgment, the suit will not abate, if the cause of action survive to or against parties (c). Where one or more plaintiffs or defendants dies after judgment, proceedings thereon may be taken, at the in- stance of the survivors or survivor against the survivors or survivor, without notice (d). Married Woman.]—Where a married woman is sued as Married a feme sole, and she obtains judgment on the ground of woman. coverture, proceedings may be taken thereon, in the name of the wife, at the instance of the husband, without leave of the court (e). Bankruptey or Insolwency.]|—Where the plaintiff before Bank. judgment has become bankrupt or insolvent, the cause ruptey or may proceed to judgment, at the instance of the assignee, insolvency. in the name of the plaintiff (/). 6) Rule 173. (e) Rule 170. a) Rules 172. 30. (d) Rule 169. c) Rule 168. (f) Rule 171. 136 Parti. Jury. In Actions on Bonds within 8 & 9 Wm. 8, e. 11.]-In ~ actions for penalties to secure the performance of cove- In actions nants, within the meaning of 8 & 9 Wm. 8, c. 11, where evans judgment has been entered for the amount of the penalty, Wm. 3, 2nd execution has issued for the amount of damages to e. 11. which the plaintiff is entitled; in case of subsequent breaches, the plaintiff may take proceedings in the nature of a sci. fa. on such judgment, in the form given in the schedule to the rules, and must deliver particulars of such subsequent breaches, as in the case of an action on a bond (9) ; upon which the practice in proceedings in the nature of a sci. fa. is adopted (h). Jury. Jury.|—In all proceedings in the nature of a scire Jfacias, a jury may be summoned in the same manner and under the like restrictions as are provided by sects. 70, 71, 72, and 73 of the 9 & 10 Vict. c. 95 (2). (9) See ante, p. 51. (¢) Rule 174, See ante, p. (4) Rule 28. See form, App. 66. p. 137. 137 CHAPTER XIII. ACTIONS TO RECOVER THE POSSESSION OF SMALL TENEMENTS (@). DerenpDant’s EVIDENCE, 141. Wuew Action 11s, 187. Praryt anp SuMMONS, 138 : JUDGMENT AND PossEs- Service of Summons. SION WaRRant, 141. Hearre, 138. How executed. Pruarstrrr’s EvyrmpENce, Where. 139. Protection of Officers. Proof of holding. Effect of Irreqularity. of determination. Stay oF Exxcurioy, 1438. Where title has accrued | BonD and PROCEEDINGS since letting. THEREON, 143. When Action lies.|—When the term and interest of When ac- the tenant of any house, land, or other corporeal heredit- tion lies. ament, where the value of the premises, or the rent pay- able in respect of the tenancy, does not exceed 501. by year, and on which no fine has been paid, has ended, or been duly determined by a legal notice to quit; and the tenant, or (if he does not occupy or only occupies part) any person by whom the premises or part of them are then actually occupied, neglects or refuses to deliver up possession of the premises, or of such part thereof respec- tively, the landlord or his agent may enter a plaint, and thereupon a summons issues to the person so neglectin or refusing (0). ; The landlord, within the meaning of the act, is the person entitled to the immediate reversion of the lands, This action only lies to recover (a) The powers given by the As to when title statute to the county court on this head do not oust the jurisdiction given by 1 & 2 Vict. c. 74, under which act magistrates possess simi- lar powers, in cases where the rent does not exceed 20/. (6) 9 & 10 Vict. u. 95, s. 122. possession. comes in question, see ante, p. 24. Unless the land is within the district of the court, judgment will be of no avail, as execution cannot issue; post, p. 142. 138 Part. Plaint and summons. Service of summons, Hearing, Hearing. or in the case of joint tenancy, coparcenary, or tenancy in common, one of the persons entitled to such reversion (¢). The action only lies where the relation of landlord and tenant exists; therefore where the plaintiff claimed as mortgagee, and there was no sufficient evidence that the defendant, who was tenant of the mortgagor, had con- sented to hold under the plaintiff, it was held that the court had no jurisdiction (d). So, where the defendant had been let into possession under an agreement to pur- chase, one of the terms being that the rent should be deducted from the purchase money, and it appeared that he had paid a sum which, together with a set-off, equalled the amount of the purchase money, it was held that the county court had no jurisdiction (e). If the rent does not exceed 50. per annum, and there is no fine, the court has jurisdiction, whatever may be the value of the land (f). Ploint and Swnmons.|—The plaint for the recovery of the possession of tenements must be brought in the dis- trict wherein the tenements are situate (4). Service of Summons.|—The summons may be served personally, or by leaving it with some person being in, and apparently residing at the place of abode of the per- sons holding over. If they cannot be found, and their place of abode is not known, or admission thereto cannot be obtained for serving the summons, the posting of it on some conspicuous part of the premises held over is good service (2). Hearing. |—The proceedings at the hearing are the same as in other actions. The judge decides all questions both of law and fact, there being no power for a party to demand a jury, as in other cases. If the tenant or occupier on service of the summons does not appear at the time and place appointed, and shew cause to the contrary, and still neglects or refuses to deliver up possession, the landlord or his agent may give to the court proof of the holding, and of the end or other determination of the tenancy, with the time or manner thereof, and (where the title of the landlord has 9 & 10 Vict. ¢. 95, s. 142. (f) Fearon v. Norvall, 5 D. & d) Jonesy. Owen,5 DD & L. LL. 445; 8.C.18L.5.,Q.B.9; 669; 8.C.18L.J.,Q.B.8; 13 13 Jur. 325; Harrington v. Ram- Jur, 261, say, 21. T. 187. (e) Banks v. Rebbeck, 2 L. M. g) Rule 199. & P, 452; §.C.20L. J., Q. B. h) 9 & 10 Vict. c. 95, s. 123, 476. See form, App. p. 152. Plaintiff’s Evidence. 139 accrued since the letting of the premises) the right by Cuar. xu. which he claims possession (i). The tenant, if he appears, must, in order to stay proceedings, shew such cause as constitutes in the opinion of the judge a defence (4). Plaintiff's Evidence.|\—We have already seen, that if Plaintiff's the title comes in question, the court has no jurisdic- evidence. tion (J). If the landlord’s title has accrued previous to the letting of the premises, the plaintiff need only prove as follows. First, the tenancy or holding: if it be by lease, Proof of the lease, or a counterpart, must be produced, or an ad- holding. mission of its terms by the defendant (m) must be proved. A demise from year to year may be proved by the pay- ment and receipt of yearly rent (n). Where the defendant has been let into possession under a lease void by the Statute of Frauds, payment and receipt of rent is still evi- dence of a tenancy from year to year(o). A general letting, without any agreement as to the length of the term or the periods when rent is to be paid, creates only a tenancy at will(p); which by the receipt of rent is converted into a tenancy from year to year. If, however, the rent is reserved as a yearly rent, though it is received at shorter periods, it is a yearly tenancy (g); if deter- minable at three months’ notice, it is a quarterly te- nancy (r) Secondly, the plaintiff must prove the end or other deter- mination of the tenancy, with the time or manner thereof; as, if it be an estate at will, the death of the lessee, de- mand of possession, or other determination of the will on either side; if it be a holding for a time certain, the expiration of that time; and in cases of holding for a time certain, a disclaimer, surrender, or forfeiture by the tenant, or that the tenancy has been determined by a notice to quit. If the holding be from year to year, a mere denial by the tenant that he holds of his landlord, or other verbal repudiation, is sufficient to entitle the landlord to treat Determi- nation. 4) 9 & 10 Vict. c. 95, s. 122. hk) Fearon v. Norvall, 5 D. & L. 489; S.C. 13 Jur. 325. (2) Ante, p. 34, The judge of the county court has jurisdiction, however, to inqnire whether the tenancy was determined by a legal notice to quit, and his de- cision on that fact is conclusive and cannot be questioned on a motion for a prohibition. See Fearon v. Norvall, ante. (m) Howard v. Smith, 3 8. N. R. 574, and ante, p. 73. (n) Doe v. Horn, 3 M. & W. 333; Bishop v. Howard, 2 B. & C. 100. 0) Doe v. Bill, 5 T. R. 471. p) Richurdson vy. Landgridge, 4 Taunt. 128. (q) R. v. Herstmonceaux, 7 B. & C. 551. (7) Kemp v. Derrett, 3 Camp. 509. 140 Plaintiff’s Evidence. Parti. the tenancy as determined (s). In the case, however, of -—-.- a definite term, it cannot be forfeited by mere words, and an attornment to a third person, or some other act on the part of the tenant inconsistent with the existence of the relationship of landlord and tenant, must be proved (Z). : A surrender may be proved either by deed or by act of law, as where the tenant has been party to some act which would not be valid if his lease still existed, as the acceptance of a new lease (w), or authorizing the landlord to let to another (2). The determination by forfeiture depends in each case upon the particular conditions of the lease (y), a sufficient breach of which must be shewn. A notice to quit may, in the absence of any express agreement, be by parol (z) or in writing ; but it must refer to some distinct time. If the tenancy is yearly, it must, in the absence of any special agreement, have been given six months before the end of the year (a); or where the rent is payable on the usual feast days, on one feast day, to quit on the next but one(d). If the holding be for less than a year, the notice must follow the period, as a month’s notice for a monthly, or a week’s for a weekly letting. A tenancy is taken to commence from the time of the tenant’s entry (¢), unless there is evidence to rebut, the presumption, as where a tenant having entered at the middle of a period, has paid rent subsequently according to such period (d). Where a tenant who has entered under a lease holds over and pays rent, notice to quit must be given in accordance with its terms (e). Whena tenant whose term ends in the broken part of a year holds over and pays rent, the notice to quit must correspond with the commencement of the holding over, without reference to the time of his original entry. The notice may be given by the landlord or his agent. One of several joint-tenants may give notice for himself and other joint-tenants (f) ; and if an agent gives notice (s) Doe v. Stanion, 1M. & W. z) Doe v. Crick, 5 Esp. 196. a. a) Right v. Darby, | T. R. (t) Doev. Wells, 10 A. & E. i 427. b) Roe v. Doe, 6 Bing. 574, (u) Lyon v. Reed, 13M. & W. c) Kemp v. Derrett, 3 Camp. 285. 510. (2) Nickells v. Atherstone, 10 (d) Doe v. Johnson, 6 Esp. Q. B. 944; but see Lyon v. 10. Reed, ante, and 2 Smiths L. C. (e) Doe v. Lines, 11 Q. B. 02. 459 a, 4 (y) Roscoe on Evid. 7th edit, (f) Doe v. Summersett, 1 B. 456, & Ad, 135, Judgment and Possession Warrant. 14 in the name of several joint-tenants, it will enure for all, Cuap. xn. although he have but the authority of one (9). Spe Should the title of the landlord have accrued since the Wheretitle letting of. the premises, the plaintiff must prove, in addi- bas ata tion to the above facts, the right by which he claims pos- 00 ae session (h); not that his title can come in issue, but’ © because otherwise his character as landlord would not appear. This right may be evidenced by length of pos- session (7), by title by act of law, as that of heir, or if it be a term of years, administrator, or by will or conveyance. Defendant's Evidence.|—Since, if the tenant bond fide Defend- disputes his landlord’s title, and it really comes in ques- ant’s evi- tion, the jurisdiction of the county court ceases (x), no dence- defence which involves that need here be noticed; and the same remark applies to any other evidence which would exclude the jurisdiction, as shewing that the rent is above 501. a year. A tenant may, however, disprove the fact of tenancy, or deny that it has been ended; he may also contradict any facts which tend to prove a disclaimer, surrender or forfeiture, or may shew that the forfeiture has been waived ; as where the lease is voidable only and not void, by proving that the landlord has received rent or otherwise recognised the tenancy since (2). This, how- ever, is only evidence of a waiver, and the receipt of rent after a forfeiture which accrued due before it, or after the landlord has by some unequivocal act elected to determine the tenancy, will not revive it (m). The defendant may deny either the fact or the suffi- ciency of the notice to quit (”); as that it was bad in form, or was not given to the proper person; or he may shew that it has been waived subsequently by the land- lord’s accepting rent after the expiration of the notice (0). Judgment and Possession Warrant.|\—Upon proof of Judgment service of the summons, and the neglect or refusal of the 294 pos- tenant or occupier, the judge may issue a warrant under “On, the seal of the court to a bailiff, requiring and author- : izing him, within a period therein named, (not less than seven or more than ten days from the date of the war- rant,) to give possession of the premises to the landlord or agent, which warrant is a sufficient warrant to the (9) Doe v. Hughes, 7M. & W. (m) Jones v. Carter, 15 M. & 139. W. 718; 1 Smith's L. C. 18, et A) 9 & 10 Vict. c. 95, s. 122. seq. 7) Doev. Cooke, 7 Bing. 346. (n) Fearon v. Norvall, 5 D. & hk) Ante, p. 34. L. 439. y) Arnshy v. Woodward, 6 B. (0) Goodright v. Cordwent, T. & C. 519. R. 219. 142 Parti. Liffect of Irrequiarity. bailiff to enter on the premises, with such assistants as he ease — shall deem necessary, and give possession accordingly (p). How exe- cuted, Where. Protection of officers. Effect of irregula- rity. The form of judgment before the new rules was “that the defendant do forthwith quit and deliver up possession,” &c., “and that a warrant do forthwith issue,” &e. “Where an order was made for possession to be given six months after the date of the order, it was held that the plaintiff might treat it as a nullity and enter a fresh plaint, and that he was not concluded by the former proceedings (q). The warrant for giving possession must bear date of the day named by the judge for the issuing. It issues to the bailiff, requirmg and authorizing him to give posses- sion of the premises within a period therein named, which must be a period commencing with the date of the war- rant, and ending at a time not less than seven or more than ten days from such date. The bailiff may execute such warrant forthwith on the receipt thereof, or at any time during the period therein prescribed (r). How and where Executed.|—The entry must not be made on a Sunday, Good Friday, or Christmas-day, nor at any time except between the hours of nine in the morning and four in the afternoon (s). ; The warrant cannot be executed out of the jurisdiction of the court; there being no power to transmit it to the bailiffs of other courts, as in the case of warrants of exe- cution against goods or warrants of commitment (¢). Protection of Officers.|—The judge, clerk, bailiff, or other persons executing the warrant, or affixing the sum- mons, are protected from any action or prosecution for so doing, on account of the person suing out the same not having lawful right to the possession of the premises (w); the party, however, who sues out the warrant is not so protected (#). Effect of Irreqularity.|—Where the landlord at the time of applying for the warrant, had lawful right to pos- session of the premises, neither he nor his agent may be deemed a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining possession under authority of the act; but the party (p) 9 & 10 Vict. c. 95, s. 122. (s) 9 & 10 Vict. c. 95, s. 122. See form of judgment, App. p. (t) Edis v. Peachey, 5 D. & L. 153. 675; S.C. 18 L. J., Q. B. 187; (q) Fearon v. Norvall,5D.& 13 Jur. 564. See also rule 199. L. 445. u) 9& 10 Vict. ce. 95, s. 124. i Rule 200. See form, App. wv) Ibid. p. 163. Bond, and Proceedings thereon. 148 aggrieved may bring an action on the case, in which he Guay, xm. must allege special damage, and may recover full compen- —_———- sation with costs of suit. If the special damage is not proved the defendant is entitled to a verdict; if proved, but assessed by the jury under 5s. the plaintiff can recover no more costs than damages; unless the judge before whom the trial is had certifies that in his opinion full costs ought to be allowed (y). Stay of Execution.]—If the plaintiff had not at the Stay of time of suing out the warrant lawful right to the posses- execution. sion of premises, the suing out of the warrant is a trespass against the tenant or occupier, though no entry is made ; and if the tenant or occupier becomes bound with two sufficient sureties (approved by the clerk of the court), in such sum as to the judge seems reasonable (regard being had to the value of the premises and to the probable cost of such action), to sue the person by whom the warrant was sued out, with effect and without delay, and to pay all the costs of the proceeding in such action, in case the verdict passes for the defendant, or the plaistiff discontinues, does not prosecute his action, or is non- suited, execution on the warrant will be stayed until judgment is given in such action. On the trial if a verdict passes for the plaintiff it supersedes the warrant (z). Bond, and Proceedings thereon.|—A tenant who seeks Bond, and to stay execution of a warrant of possession, must apply proceed- for that purpose, in person or by his attorney or agent, to mgs there- the court, when the judge will fix the sum for which °™ security is fo be given; and the names and description of the sureties, according to the form given in the schedule to the rules, must be given to the clerk within such time as the judge directs. The giving such security must be at the expense of the party applying (2). The bond must be made to the other party, and at his cost; it must be approved by the judge, and attested under the seal of the court; if it is forfeited, or if on the proceeding for securing which it was given, the judge before whom such proceeding is had does not certify upon the record, in court, that the condition has been fulfilled, the party to whom the bond was given may bring an action of debt, and recover thereon; the court, however, in which such action is brought, may by rule of court give such relief to the parties liable on the bond as is agreeable to justice and reason, which rule has the effect of a defeasance to the bond (8). Y z a 9 & 10 Vict. c. 95, 5.125. p. 154. Tb. s. 126. (6) 9 & 10 Vict. c. 95, s. 127. Rule 201. See form App. Nature of action and jurisdic- tion. Proceed- ings before piaint. 144 CHAPTER XIV. REPLEVIN. Nature oF AcTION, AND JUBISDICTION, 144. PROCEEDINGS BEFORE Praint, 144: Bond to Sheriff. Praint anp Summons, 145. Parricuars, 145. Hearne, 146: Defendant's Evidence. Plaintiff’ s. JupemeEnt, 146: In ordinary Cases. Assessment of Value of Goods and Rent. or Damage. Removal oF Prarnt, 147: Declaration and Notice of Sureties. Amount of Security. Certiorari. Nature of Action.|—Replevin is a re-delivery to the owner by the sheriff of his cattle or goods distrained,. for any cause, upon surety that he will pursue the action against him who distrained (a). It lies in nearly every case of an alleged wrongful taking of goods (4); but proceedings in the county court under the late act can only be had in the two most ordinary cases; viz., of distress for rent, and damage feasant (c). In cases of distress for rent ‘the county court has jurisdiction, although the title to the premises is disputed, unless ‘the proper steps for removal of the plaint by certiorari, which will be noticed presently, have been taken (d). Proceedings before Plaint.|—The sheriff, upon com- plaint made to him, is bound to replevy without writ (e), and must appoint four deputies, dwelling not above twelve miles from each other, to make replevies (f/). Up to the plaint, the proceedings are the same as before the County Court Act (g). (a) Co. Litt. 145 b; Bac. Ab. “ Replevin.” (6) George v. Chambers, 11 M. & W. 149; Allen v. Sharp, 2 Exr. 352; Mellor vy. Leather, 1 E. & B. 619. (c) 9 & 10 Vict.c. 95, s. 119. It seems from this that in other cases the jurisdiction of the old The sheriff must take pledges county court still remains. (d) R.v. Raines, 22L. J., Q. B. 223; 8. C.17 Jur. 553. ) Stat. Marlebridge, 2 Inst. (f) 1&2 Ph. & Mic, 12. (g) See Archb. Prac. by Chitty, pt. 3, v. 2. 13 Particulars. 145 from the plaintiff to prosecute his suit, and to return the Quap. x1v. goods, if it be so adjudged (g) ; he must also in replevin ———— for distress for rent, take from the plaintiff and two re- clr ae sponsible persons, as sureties, a bond in double the value *"°""" of the goods distrained (to be ascertained on the oath of one witness), conditioned for appearing at the next county court, and prosecuting the suit with effect, and without delay, and for a return of the goods, if a return should be awarded (2). Since the passing of the 9 & 10 Vict. c. 95, a replevin bond, conditioned for the obligor to appear at the next sheriff’s court (that not being a court held under that act), is insufficient, the effect of the establishment of the new jurisdiction in the district county courts being to substitute the proceedings in those courts in lieu of the former proceedings in the old county court (2). The sheriff must, however, still take a bond pursuant to the 11 Geo. 2, c. 19 (£). Plaint and Swnmons.|—The action is brought without Plaint and writ (2); and the court has jurisdiction, whatever may be summons. the value of the goods (m). . The plaint must be entered in the court holden for the district wherein the distress was taken (m). It is pro- vided by one of the rules of practice, that no other cause of action may be joined in the same summons (0). Shortly before this rule came into operation, in a case which came before the Court of Exchequer, where it appeared that to a plaint in replevin, particulars were added which made a claim for damages for an excessive distress, the court held, that as the nature of the action was totally different, and as the statute 9 & 10 Vict. c. 95, had treated replevin as a substantive and peculiar form of action, and had pro- vided a different method of removal to that allowed in ordinary plaints, no other cause of action could be jomed with it (p). Particulars.|—On eptering the plaint, the plaintiff Particu- must specify and describe in a statement of particulars, lars. the cattle, or the several goods and chattels taken under the distress, and of the taking of which he com- plains (¢). ) 13 Edw. 1, ¢, 2. (m) Ante, Introduction, p. 1. h) 11 Geo. 2, c. 19,8. 23. (n) 9 & 10 Vict. c. 95, s. 120. i) Edmonds v. Challis, 7 C. B. (3 Rule 192, 413; 8. C. 6 D.& L. 581; 18 p) Mungeam v. Wheatley, 6 L. J., C. P. 164. Exr. 88; S.C. 2 L.M.& P.30; (2) Ibid. 15 Jur. 110. () 9 & 10 Vict. c. 95, s. 119. (q) Rule 193. H * 146 Judgment. Hearing and Judgment.|—Actions of replevin are tried like other actions, in a summary way (r). Hither party may demand a jury, in which case the proceedings will be the same as in other cases (s). See ante, p. 98. The defendant, or avowant, as he is commonly called, may shew that the goods were not seized within the dis- trict of the court. In the case of distress for rent, he must shew a demise at a fixed rent; a mere agreement for a lease will not suffice (¢), unless the tenant, having entered and paid rent, has become a tenant from year to year (w). The defendant must also shew, the amount of rent in arrear, and the value of the goods distrained (2). If the defendant be only bailiff, and his authority is de- nied, he must prove it; a recognition of his acts by the landlord will suffice, even if it is made after action (y). Where the defendant has taken the distress damage feasant, the same evidence is necessary as in trespass to real property (z). ‘The plaintiff may deny the tenancy, or that he holds at any rent certain (a), or shew that he was holding over after notice to quit from the landlord (6). He may also shew that the defendant’s title expired before the rent became due (c); or that he has been evicted by his landlord or a third person, claiming by title paramount (d) ; he may also shew that there is no rent in arrear; or that defendant’s title to it has been barred by the statute of limitations (e); that he has paid it to the landlord, or under compulsion to a superior landlord, or to a mort- gagee annuitant, claiming by prior title(f). The plain- tiff may also prove a tender of the amount of rent. A tender made before the distress makes the taking un- lawful; if made after the distress, and before impounding, it makes the detention unlawful; after impounding it is bad (9). Judgment.|—The judgment in replevin in ordinary (r) Rule 194. 213° s) Rule 81. (c) Down v. Cooper, 2 Q. B. é t ganar vy. Huswell, 6 A. aa a , . craft v. Keys, 9 Bing. (u) Knight vy. Benett, 3 Bing. aig? i ie ‘ 361. (e) Owen v. De Beauvoir, 16 M. & W.547. (f) Laybr v. Zamira, 6 Taunt. Parti Hearing and judg- ment. Defend- ant’s evi- dence. Plaintiff's evidence. Judgment. (x) Sheape v. Culpeper, 1 Lev. 255. ip Peper, (y) Whitehead v. Taylor, 10 A. & E. 210. z) Ante, p. 90. a 451 Regnart v. Porter, 7 Bing. (6) Jenner v. Clegg, 1 M.& R. 524; Johnson v. Jones,9 A. & E. 809. (9) Six Carpenter case, & Rep. 146a; 1 Smith’sL. C. 61; Ladd v. Thomas, 12 A. & E, 117; West v. Knibbs, 4 C. B. 172. Removal of Plaint. 147 cases, whether for plaintiff or defendant, is in the form Cuap. xw. prescribed by the rules of court, or to the like effect (hk). ——_— Where the distress has been for rent, and the defend- §™ ordinary ant succeeds in the action, if the defendant requires it, the oe judge must, if the cause is tried without a jury, and if the Assessment cause be tried with a jury, they must find the value of goods and the goods distrained. If the value be less than the rent; amount of rent in arrear, judgment must be given for the amount of such value; but if the amount of the rent in arrear be less than the value so found, judgment must be given for the amount of such rent, and judgment for such amount may be enforced in the same manner as any other judgment of the court (2). Where the distress was for damage faisant, and the or damage. defendant is entitled to judgment for a return, if the plaintiff requires it, the judge or jury, as the case may be, must find the amount of the damage sustained by the defendant, and judgment will then be given in favour of the defendant, in the alternative, for a return, or for the amount of the damage so found (4). o Removal of Plaint.|—If in an action of replevin either Removal of party declares to the court that the title to any corporeal Plaint. or incorporeal hereditament, or to any toll, market, fair, or franchise, is in question, or that the rent or damage in respect of which the distress shall have been taken is more than the sum of 20/., and becomes bound, with two suffi- cient sureties, to be approved by the clerk of the court, in such sums as to the judge seems reasonable, (regard being had to the nature of the claim, and the alleged value or amount of the property in dispute, or of the rent or damage,) to -prosecute the suit with effect and without delay, and to prove before the court by which the suit shall be tried, that such title is in dispute, or that there was ground for believing that the rent or damage was more than 20/.(2), then, and not otherwise, the action. i eae 194. See form, App. - 150. : (i) Rule 195. See form, App. p. 150. This is in analogy to the proceedings upon a writ of inquiry ander stat. 17 Car. 2, c. 7, s. 2. See 2d Chitt. Archb. 993. (2) Rule 196. See Bacon’s Abridg. “Replevin.” See form, App. p. 151. () The amount here men- tioned is not affected by the Extension Act, 13 & 14 Vict. c. 61, which extends the juris- diction to the recovery of “any debt, damage, or demand not ex- ceeding the sum of 501.” For the county court by the first act, as the old county court, had (see ante, p. 1) jurisdiction to try actions of replevin to any amount. Plaints in replevin may therefore now be removed in the same way as they could before the Extension Act. See Mungeam v. Wheatley, 2L. M. & P.30; $.C.20L. J., Exr. 108; 15 Jur. 110. H2 148 Pant i. Declara- tion and notice of sureties. Declaration and Notice of Sureties. may be removed before any court competent to try the same, in such manner as has been accustomed (2). Unless the plaint is removed under the above provision, the county court has jurisdiction although title comes in question (m). A party who is desirous of removing a plaint in replevin, is bound to follow the above requirements, and make the declaration as to title or the amount of the rent, before the judge of the county court, and he cannot proceed under sect. 90, and obtain the writ of certiorari by leave of the judge of a superior court without such declaration. Where, however, a writ had been so obtained without any declaration being made in the county court, the court refused to quash it, as it appeared that at the time when the motion was made the judge of the county court had not acted upon it. The court added, that it was like the issuing of a capias against a member of parliament, and that the plaintiff might act upon it at his peril (7). ‘The above preliminaries are not, however, conditions precedent to the validity of the bond. Where the judge of the county court, instead of taking the bond to the other party in the suit as required by the statute, took it to himself as his trustee, and the suit was prosecuted in the court above, but without effect; so that the bond was forfeited, and the judge of the county court brought an action upon the bond, it was held that the bond was valid as a voluntary bond (0). Declaration and Notice of Sureties.|—It is not neces- sary that the declaration required by the statute should be made to the judge of the county court before the certiorari issues, for that writ must be read as embodying in it the terms of the 9 & 10 Vict. sect. 121, and therefore requiring the judge to remove the plaint upon those terms being com- plied with ; nor is it necessary that the declaration should be made by the party himself who applies for the removal, but it may be made by the attorney who conducts his case. ‘Where a judge refused to remove the plaint in consequence of the party himselfnot being present to make the declara- tion, the Court of Exchequer, from which the writ of cer- tiorari issued, granted an attachment for disobedience to the writ (p). The mode of giving notice of removal haa, since that decision, been made the subject of a rule of practice, which provides that, where either party is de- sirous of removing a plaint in replevin, he must five clear days before the return day of the summons deliver to the (2) 9 & 10 Vict. ¢. 95, s. 121. 20 L. J., Exr. 108; 15 Jur. (m) R. v. Raines, 1 EL & Be 110. 855. 0) Stansfield v. Hellawell, 7 (x) Mungeam v. Wheatley, 6 Ey) 373. ie a Exr. 88; §.C.2L. M.& P.30 (p) Mungegm v. Wheatley, ante. Certiorart. 149 clerk a statement, signed by himself, his attorney, or Cuap. xt. agent, stating the ground of such removal, together with om the names of the two sureties whom he proposes to become bound with him, in the form given in the schedule to the rules, and the clerk must transmit one copy of the notice to the opposite party or parties, by prepaid post letter. If such notice is not given, the party removing must pay all the expenses to which the opposite party has been put in consequence of such omission, unless the judge otherwise orders. In case a reasonable time has not been allowed to enable the clerk to ascertain the sufficiency of the sureties, the cause will be postponed at the expense of the party seeking to remove, or upon such other terms as the judge thinks fit (g). The amount of the sum for which the security is taken Amount of will, unless the judge otherwise orders, be the same as security. that of the security given to the sheriff, and the security must be given at the expense of the party seeking to remove (7). Certiorari.|—The removal of the plaint into a superior Certiorari. court must be by certiorari(s), the application for which should be made to a judge at chambers, aid not to the full court (¢). (q) Rule 197. writ, however, being inapplicable (r) Rule 198. to a court of record, so exact i See post, p. 157, The a construction would override the words in the act are, may be well known rules of practice. See removed “in such manner as hath “Introduction,” p. 3. been accustomed,” from which it t) Bowen v. Evans, 3 Exr. might be inferred thattheremoval 111; S.C.6D. & L.193; 18 should still be by re. fa. o.; this L.J., Exr. 38. Applica- tion for. 150 CHAPTER XV. NEW TRIAL. Power of Court to grant. Terms of. Application for. Bond. We have seen that where judgment is given in the defendant’s absence, the judge may grant a new trial on such terms as he thinks fit (@). In addition to this, the judge may in any case order a new trial on such terms as he thinks fit, and may stay proceedings in the mean- time (8). Application for.|—The application for a new trial or to set aside proceedings may be made and determined on the day of hearing, if both parties are present, or may be made at the first court held next after the expiration of twelve clear days from such day of hearing ; but it cannot be made later. The party intending to make the appl- cation must, seven clear days before the holding of such court, give to the clerk at his office a notice in writing, signed by himself, his attorney, or agent, of such inten- tion, stating the grounds of the application. He must also give a similar notice to the opposite party, by serving the same personally on him, or leaving it at his place of abode or business. This notice does not, however, operate as a stay of proceedings unless the judge otherwise orders. If money is paid into court under any execution or order in the suit, the clerk will retain it to abide the event of the application, and if no Eee is made, the money if required will be paid to the party in whose favour the order is made, unless the judge otherwise orders. If the application is not made at the court mentioned in the notice, no subsequent application for a new trial, or to set (a) Ante, p.98. See 9 & 10 See form of order for new trial, Vict. c. 95, s. 80. App. p. 124, (6) 9 & 10 Vict. c. 95, 5, 89. Bond. 151 aside proceedings may be made, unless by leave of the Cuay. xv. judge, on such terms as he thinks fit(c). The fee must be paid by the party when he gives notice (d). Terms of.|—Previous to the present rules of practice, Terms of. it was doubted whether, where there had been a trial before a judge alone, he could order a new trial with a jury; but a plaintiff having accepted costs under such an order, it was held that he could not afterwards take the objection (e). This point can now no longer arise, since by rule 143 it is expressly declared that in all cases where a new trial is granted, the judge may make it a condition of granting it, that it shall take place before a jury, although the former trial did not take place before a jury. It has been held also that where there is a new trial either party may demand a jury for the second trial, although there was no jury at the first (/). Bond.|—Should the judge require a bond to be given Bond. by either party, the expense of it must be borne by the party giving it (7). The proceedings on it will be the same as on a bond to stay a warrant of possession (’). See ante, p. 143. c) Rule 141. (f) R. vy. Harwood, 17 Jur. d) Rule 142. 7: e) Sparrow v. Reed, 5D. & (g) Rule 144. L. 634; S. C. 12 Jur. 896. (2) 9 & 10 Vict. ¢. 95, s. 127. Suing tx formd pau- peris. CHAPTER XVI. Costs. Suine 1n Forma Pav- Freres to CouNSEL AND PERIS, 152. ArrorNney’s Costs, To FoLLOw ORDER OF 154: JUDGE, IF NONE, Under 9 & 10 Vict. TO ABIDE EVENT, ©. 95. 153. Under 13 & 14 Vict. WHERE PLAINTIFF DOES c. 61. NOT APPEAR, OR Table. PROVE HIS Dez- Attorney's Costs under MAND, 158. 15 § 16 Vict. c. 54. TREBLE CosTs FOR BRING- ; Warrants oF Exzcu- ine Second Svrr, 153. vTIon, 156. Aaeowenca® Goo Via Taxation oF Costs, 156. NESSES, SCALE OF, WHEN TO BE PAID, 156. 158. Execution For, 156. Suing in Formdé Pauperis.|—There is no provision, either in the statutes or rules of practice, relative to a party’s suing in formdé pauperis in the county court. In a case which came before the Court of Common Pleas (a), where a plaintiff suing in a superior court in formd pau- peris obtained a verdict under 202. for a cause of action for which he might have sued in the county court, and a suggestion was moved for to deprive him of costs, it was argued on the part of the plaintiff, that had he sued in the county court he would have lost the benefit of suing as a pauper; the court, however, expressed an opinion, that under sect. 78 of the9 & 10 Vict. c. 95 (which directs that where no rule of practice has been framed, the general principle of practice of the courts of common law may be applied by the judges of the county courts to proceedings in those courts) a discretionary power existed to admit a plaintiff to sue in formd pauperis. (a) Chinn v, Bullen, 8 C. B: 447; S.C. 19 L. J., C. P. 42. Allowance to Witnesses. * 153 Order of Fudge, if none, to abide event.|—All costs of Cua. xvr. any action or proceeding not otherwise provided for by —~——— the act, are to be paid or apportioned between the parties Ofer of as the judge thinks fit. In default of any special direc- ila tion, they abide the event of the action (8). abide event, When Plaintiff does not appear or prove his Demand.|— When We have already seen, that if. the plaintiff or his attorney plaintiff does not appear, or appearing does not prove the,demand, does not the judge may order him to pay to the defendant the ®PPe8r oF costs of his attendance or costs by way of satisfaction for ae his trouble (¢) ; and if at the return day of a summons, or at any continuation or adjournment of the court at which it is returnable, the plaintiff does not appear, the judge hab may in his discretion award to the defendant costs in the same manner, and to the same amount, as to counsel, attorney, witnesses, and other matters, as if the cause had been tried, but no hearing fee may be charged (@). Treble Costs for bringing Second Swit.|—If any party Treble sues another in a county court for a debt, or other cause Costs for of action, for which he has already sued the same party, Dinéiné and obtained judgment in another court, on proof of such suit, former suit, and judgment being given, the party suing is not entitled to recover in the second suit, and is adjudged to pay three times the costs of the second suit to the opposite party (e). Allowance to Witnesses.|—The judge must in each case Allowance direct what number of witnesses shall be allowed on to wit- taxation of costs. Their allowance for attendance must "°*S°* be according to the scale in the schedule to the rules, unless otherwise ordered, but may in no case exceed the allowances therein mentioned(f). The costs of wit- nesses, whether they have been examined or not, may, in the discretion of the judge, be allowed, though they have not been summoned (). The scale of allowance to witnesses contained in the Scale. schedule to the rules, is as follows :— Per Day. s. d. Gentlemen, merchants, bankers, and professional men - 7 6 Trgdesmen, auctioneers, accountants, clerks, and yeomen 5 0 Journeymen, labourers, and the like - = - 20 Travelling expenses, per mile, one way - - 0 6 (b) See 9 & 10 Vict c. 95, s. (d) Rule 88. ‘See form of 79; and 13 & 14 Vict. c. 61, order, App. p. 114. s. 10. See form of order, App. (e) 13 & 14 Vict. c. 61,8, 18. p. 114. Cf) Rule 107. (c) 9 & 10 Vict. c. 95, s, 88. (g) Rule 108. HS 154 Parti. Fees to counsel and attor- ney’s costs. Under 9&10 Vict. c. 95. Under 13 & 14 Vict.c 61, Fees to Counsel and Attorney’ s Costs. Fees to Cownsel and Attorney’s Oosts.]—The fees to be received by counsel and attorneys were originally limited to certain amounts, by the 9 & 10 Vict. c. 95,s. 91. They were afterwards, with respect to claims exceeding 201., regulated by the 13 & 14 Vict. c. 61, s. 6. No person, except he be an attorney, can recover fees for acting in court; nor can an attorney recover fees un- less the debt claimed is more than 40s. If above 40s. and under 5/.,he may not recover more than 10s. If above 5/. and under 201. not more than 15s., in any case within the summary jurisdiction. To barristers, no fee exceeding 1/. 8s. 6d. can in any case where the debt claimed is under 20]. be allowed. The fees of neither barrister nor attorney can be allowed on taxation of costs where less than 5/. is recovered or claimed (h). With respect to the remuneration of attorneys under the first of these acts it was decided before the passing of the 13 & 14 Vict. c. 61, that it applied to costs recover- able by the attorney from his client, as well as to costs taxed between party and party(z). But it was also held, that the amount named therem applied only to the appearing and acting of the attorney in court, and not to his services out of court in advising or getting up the case; and that inasmuch as it is often of great benefit to the client that there should be deliberation before the suit is commenced, and the most expensive part of the proceedings may then take place, an attorney was still entitled to a fair remuneration from his client for work done out of court, in respect of a suit afterwards brought in the county court (4). The fees already mentioned were laid down by thé act which established the courts. By the act which extends their jurisdiction to claims not exceeding 50/. (18 & 14 Vict. ¢. 61), the following fees are allowed: to attorneys, where the debt, damage, or demand claimed in any plaimt in covenant, debt, detinue, or assumpsit does not exceed 35/., the sum of 17. 10s.; in any other case 27. These sums include both fees and costs (2). To barristers no fee exceeding 2/. 4s. 6d. is allowed on taxation of costs (m). By sect. 6 of the same act, the expense of employing a (h) 9 & 10 Vict. «. 95, 5. 91. Clipperton. (i) Re Clipperton, 12 Q. B. (1) 13 & 14 Viet. «. 615s. 6. 87, The language of this section being (k) Keighley v. Goodman,9 C.B. nearly the same as that of s. 91 of 338; 5. C. 1 L. M. & P. 204; 9 & 10 Vict. c. 95, the decisions 19 L. J., C. P. 106; Re Toby, of Keighley v. Goodman, and Re 12 Q. B. 634; S.C.1L.M.& — Toby, ante, last note, apply. P. 426; overruling Re Green, (m) 13 & 14 Vict. c. 61, s. 6, 12 Jur. 1044, Q. B., and Re ALUWUT Ney &§ Uuevs wnuer 197g LU rue, C. 54. 155 barrister or attorney is not to be allowed in taxation of Cyap. xvi. costs, unless by order of the judge. ' —— The following table of fees, which is in accordance with the above provisions, will be found convenient for easy reference :— IN COVENANT, DEBT, DETINUE, OR ASSUMPSIT. Table. Attorney. Barrister. £8 d. £E»s ad Under 2i. - - - - os eas Above 22. and not exceeding SI. (2) 0 10 0 13 6 ol | + sig 20. = —- 0 15 0 13 6 201. a - 351, - 1 #10 0 246 351. ss Ks 500, + 2 00 246 IN TRESPASS, CASE, OR TROVER. Attorney. Barrister. £8 ad £ s. d. Under 2/. + - - - - os ts Above 27. and not exceeding 51. (x) 0 10 0 1 3 6 5d ss e 20. =e 0 15 0 13 6 201. a “ 50, - 2 00 24 6 Attorney's Costs under 15 § 16 Viet. c. 54.]—The Attorney’s 15 & 16 Vict. c. 54, s. 1, empowered the Lord Chancellor costs under to appoint five of the county court judges from time to 13 © 16 time to frame a scale of costs and charges to be paid to "“" °™ attorneys in the county courts, to be allowed as between attorney and client, and also as between party and party, and directed that such scale having been certified to the Chancellors hould be submitted to three of the judges of the superior courts of common law, of whom one of the Chief Justices or the Chief Baron should be one, and that each of these judges might approve, disallow, alter or amend the scale ; and further that such scale so approved, altered or amended, should from and after a day to be named by the last mentioned judges be in force in all the county courts. No scale of costs has as yet been issued under this provision. (n) This fee, though it may be allowed on taxation of costs. See recovered from the client, is not ante, note (A). Warrants of execu- tion. Taxation of costs. When to be paid. Execution for. Taxation of Costs. The above act provides that upon the taxation of costs between attorney and client, no charges shall be allowed except such as are sanctioned by the above scale, unless the clerk is satisfied, by writing under the hand of the client, that he has agreed to pay such further charges (0). Warrants of Execution.|—The mode in which the fees payable upon warrants of execution are calculated, and the allowance of them between the parties will be found ante, p. 30. Taxation of Costs.|—All costs, whether between party and party or between attorney and client, must be taxed by the clerk of the court, but his taxation may be re- viewed by the judge upon the application of either party, and no attorney may recover from his client any costs or charges not so allowed on taxation(p). The costs need not be taxed in court or during the sitting of the court at which judgment is given (gq). When to be paid.|—The judge may make orders con- cerning the time or times, and by what instalments, any costs shall be paid. Unless the judge otherwise directs, they must be paid into court (7). Money paid into court is deemed to be appropriated, first in satisfaction of the costs, and afterwards in satisfaction of the original de- mand (s). Execution for.\—Execution may issue for the recovery ot costs in the same manner as for a debt adjudged by the court (¢). (0) 15 & 16 Vict. v. 54, 8. 1.. (7) 9 & 10 Vict. ¢. 95, s. 92. (p) Ibid. See also Rule 106. (s) Rule 109, (q) Rule 106. (t) 9& 10 Vict. c. 95, s. 88, CHAPTER XVII. REMOVAL OF PLAINT BY CERTIORARI AND APPEAL. WHEN PLAINT MAY BE REMOVED, 157: Bond. Writ oF CERTIORARI, 158: Affidavit for. Service of Writ, and effect of APPEAL TO SUPERIOR Court, 160: In what Cases. Notice of Appeal. Security. By Bond. Or deposit of Money. Notice of Court. Form and deposit of Appeal. Transmission to Court of Appeal. Neglect to Prosecute. JUDGMENT OF CoURT OF APPEAL, 164: Entry of. Costs. New Trial under. When Plaint may be removed by Certiorari.\—We have when already seen that no writ of error lies from the judgment plaint ma; of the court, and that a prohibition will not be granted on the ground of an error of the judge, if the matter be within his jurisdiction (a). Tf, however, the damage ” claimed in an action is above 51., the plaint may, by leave of a judge of one of the superior courts, if it appear to such judge a fit case to be tried in one of those courts, be removed thereto, upon such terms as to payment of costs, giving security for debt or costs, or other terms, as such judge thinks fit (2). If the judge requires a bond (a) Ante, p. 37. See also Re Lenaghan, 2 Exr, 333; Toft v. Rayner, 5 C. B. 162. See Jones y. Jones, 17 L. J., Q. B. 170; S C. 12 Jur. 397, where a prohi- bition was granted, on the ground that the judge had reversed his own decision after one of the parties had left the court. (8) 9 & 10 Vict. c. 95, 3. 90. As the 16th section of the Exten- sion Act, 13 & 14 Vict. c 61, enacted that no cause or matter pending in the county court could be removed “by appeal, motion, writ of error, certiorari, or other- wise, save and except in the man- ner and according to the provi- sions hereinbefore mentioned,” it has been questioned whether the right to remove by certiorari was not taken away. It is clear, how- ever, on looking at the statute, that no such alteration was in- tended, since, by sect. 2 of the same act, that provision, together with the rest of the statute, must be read and construed, together be remove by certio- art, 158 Parr I. Bond. Writ of certiorari. Writ of Certiorari. to be given by either party, the proceedings on it will be the same as on the bond to stay a warrant of pos- session (c). It has been held, that cases of partnership accounts, under sect. 65 of the 9 & 10 Vict. c. 95 (d), cannot be removed by certiorari, as, even should the defendant waive the question of jurisdiction, the courts of common law have no machinery by which they can decide the claim of partners, and could only send such cases to a court of equity (e). It has been held also that a plaint for the recovery of a tenement under sect. 122 of the 9 & 10 Vict. c. 95, cannot be removed into a superior court by certiorari (f). Where a plaint in a county court for 20/. damages was removed by certiorari into a superior court, and another plaint including the same cause of action, but laying the damage at 51., was entered, a prohibition having been moved for, it was held that the pendency of the first action in the superior court was no ground for issuing a prohibition to the county court in the second (g). Writ of Certiorari.|\—The proper writ to remove a plaint is a writ of certiorari (h). This issues of right and is granted upon an exparte application (7), which should be made to a judge at chambers, and not to the court(k). The writ should be tested on some day in term and made returnable on a day certain in term(2). The affidavit with the 9th & 10th Viet. c. 95, as one act, where the provisions of the latter act are not inconsistent with the former. In Jones v. Houldsworth it was held by Parke, B., and Platt, B., sitting at cham- bers, that the right to remove by certiorari still exists. See a re- port of the case, 16 L. J. 325. A strong opinion was also ex- pressed to the same effect by the Court of Exchequer in Parker v. The Bristol and Exeter Railway Company, 6 Exr. 184; 8. C. 2 L. M.& P. 136; 20 L. J. Exr 112; and in Brookman v. Wen- ham, 2 L. M. & P, 233; S.C. 15 Jur. 249. Erle, J., so decided in the Bail Court. (c) 9 & 10 Vict. c. 95, s, 127, ante, p. 143, (d) Ante, p. 36. (e) Durant v. Tomlin, 11 L. T. 267. (f) Price v. Price, 15 L.. T. 142, decided by Coleridge, J., in the Bail Court. There appears to be no other report of this case. (9) Edwards v. Rogers, \ L. M. & P. 196. (hk) The court being one of record, which is entered by the clerk (ante, p. 31), whereas in the old county courts the proper writ to remove a plaint was a re. fa. lo.; see ante, “Introduction.” As to the proper mode of removing plaints in replevin, see ante, p. (2) Symonds v. Dimsdale, 2 Exr. 533; S.C. 6D. & L. 17; 12 Jur. 485. (hk) Bowen v. Evans, 3 Exr. lll: & CG 6D. & L. 193; Robertson v. Womack, 19 L. J., Q. B. 367. (1) Rowell v. Breedon, 3 Dowl, 8242. Service of Writ, and effect of. 159 upon which the application is made must not be entitled cu. xvu. in the cause, but simply in the court (m). = As the judge to whom the application for a certiorari is Affidavit made may exercise his discretion with respect to the terms for- upon which he will grant it, as to costs, &c. (7), it is impor- tant that the affidavit upon which the application is founded should state all the facts material to the case. Where a certiorari had been obtained by a plaintiff upon an affi- davit which omitted to disclose facts as to costs which the defendant had already incurred, the Court of Exchequer upon those facts being brought before it quashed the writ (0). Where, however, a certiorari had been issued by leave of a judge, upon an affidavit which stated g@merally that difficult.questions would arise, but did not state what those questions were, or the grounds upon which they would arise the court refused to set the writ aside, as it did not appear that those particulars were not pointed out to the judge at chambers (p). The writ should be delivered as early as possible to the judge or clerk of the county court (q). The effect of it is instantly to suspend the power of the county court in the cause which it removes (7). If the cause has been removed improperly, the opposite party should apply to the court or a judge for a writ of procedendo, which is a.judicial writ issuing from the superior court, and commanding the judge of the county court to proceed with the cause (s). Service of Writ, and effect of.]—The writ should be g. vice of served upon the judge of the county court, or upon the writ, and clerk of the court at the office. Where the writ was left effect of. with one of the under clerks at the office, it was held to be good service (é); but the court intimated that the strictly proper course to pursue, where there has been no personal service on the judge, and the cause does not come on for hearing until after the return day, would be to rule the judge to return the writ (w). The effect of (m) Exparte Nohro,1 B. & C. 267; Exparte Evans, 3 Dow). N.S. 410. (n) 9 & 10 Vict. c. 95, s. 90. (0) Parker v. The Bristol and Exeter Railway Company, 2 L. M. & P. 136; S. €. 15 Jur. 110. (p) Golding v. Caudwell, 2 L. M. & P. 178 (q) According to the old prac- tice, the writ must have been de- livered.to the judge or officer of the court, before the jury appeared, or before one of them had been sworn; otherwise the inferior court might proceed with the cause; 43 Eliz. c. 5. (7) Tidd’s Prac. 404, 9th edit. ; Mungeam v. Wheatley, 6 Exr. 88, 8. G.; 2 L. M.& P. 155; 15 Jur. 130; 20 L. J, Exr. 106. (s) Tidd’s Prac, 410, 9th edit. (t) Brookmun v. Wenham, 2 L. M. & P. 2338; S. C. 15 Jur. 249, («) Ib. 160 Partie Appeal to superior court. In what cases. Appeal to Superior Court. the service of the writ is to suspend the power of the county court, and to render all proceedings taken in that court after its service irregular and coram non judice (0) ; and if the judge of the county court refuses to obey it, he is liable to an attachment for contempt (w). Appeal to Superior Court.|—In all cases in which jurisdiction «was given to the county court by statute 9 & 10 Vict. c. 95, the judgment of the court was final and conclusive between the parties (x), and no method of reviewing the judge’s decision, whether in pomt of law or fact, existed. In cases, however, in which a more extended jurisdiction is given by the later act the 18 & 14 Vict. c. 61, there is an appeal to the superior cougts and in actions where the debt or damage sought to be recovered is above 201., or where a jurisdiction beyond its ordinary limits is given to the court by agreement of the parties, if either party is dissatisfied with the determin- ation or direction of the county court in point of law, or upon the admission or rejection of any evidence, he may appeal from the county court to any one of the superior courts of common law at Westminster. The court of appeal is constituted by two or more of the judges sitting in or out of term for the purpose (y). And the judges of the superior courts, or any five of them, may from time to time make orders for regulating the proceeding in appeals (z). An appeal will not lie where the amount sought to be recovered by the plaint is above 20/., although the ob- jection is not taken until the case has been stated, and has come on for hearing (a). The power of appealing is confined, it will be observed, to those cases only in which one of the parties is dis- satisfied with the “ determination or directicn of the court in point of law, or upon the admission or rejection of any evidence.” Therefore, where there is no jury, and a judge finds certain facts, his finding, as that of all courts. of inferior jurisdiction on questions of fact (6), is final and cannot be questioned. If the law and facts of a case are so mixed up in the judgment of the county court, that it is im- possible to separate them so as to eliminate one of the above (v) 1 Tidd’s Prac. 404, 9th (z) 9 & 10 Vict. c. 95, s. 89.5 edit.; Cross v. Smith, 1 Salk. 148,93 (y) 138 & 44 Vict. e. 61,3, 14 Fazacharly v. Baldo, \ Salk. 352; 15 & 16 Vict. c. 54, s. 2. Bevan v Prothesk, 2 Burr. 115]. (z) 15 & 16 Viet. «44, 5. 3. (w) Mungeam v. Wheatley, 6 (a) Blowers v. Rackham, 20 Exr, 88, S. C.; 2 L. M. & Py L. J., Q. B. 397, 155; 15 Jur. 110; 20 L. J. Exr. (b) Brittain v. Kinnaird, 1 B. 106. & B. 432; 1 Will. Saund. 263 a. ” Notice of Appeal. 161 grounds of appeal, the decision cannot be reviewed (¢). cy. xvn. If an appeal is contemplated, any point which a party may ——-- rely on should be distinctly raised before the judge of the county court, since the court of appeal will allow such objections only to be argued as were made at the trial (d). The right of appeal exists only where there is a judgment of the court, and does not apply to an BO of committal under sect. 99 of the 9 & 10 Vict. c. e). The party who is desirous of appealing may, before the rising of the court on the day of the trial, deliver to the clerk a statement in writing, signed by him, his counsel or attorney, containing the grounds of his dissatisfaction. Iv default of such statement being delivered, the success- ful party may proceed on the judgment unless the judge otherwise orders; but the judge may direct proceedings to be taken on the judgment notwithstanding such state- ment has been delivered. The party so dissatisfied may, however, appeal, on grounds other and different from those contained in this statement, or although he shall not have delivered any statement (/). Notice of Appeal.|—The party appealing must, within notice of ten days after the determination or direction in the county appeal. court, give notice to the other party or his attorney (9). The ten days within which this notice may be given are reckoned, exclusive of the day of trial (%). The notice of appeal must be in writing, and must state the grounds on which the party appeals (7). The sufficiency of this notice is a question, however, for the judge of the county court, and if he thinks it sufficient the objection that it does not contain any statement of the grounds of dissatisfaction with the decision cannot be taken before the court of appeal (%). The notice must be signed by the appellant, his attorney or agent, and it must be served on the clerk, as well as on the successful party, by prepaid post letter, or otherwise (2). If before such notice of appeal is served upon the clerk, execution has issued, and the amount of the Judgment and costs of execution has been paid into the hands of the (c) East Anglian Railway Com- Jur. 758. pany v. Lythgoe, 2 L. M. & P. (f) Rule 149. 221; S.C. 201. J., C. P. 84; (g) 18 & 14 Viet. v. 61, s. 14 15 Jur. 400; Cawley v. Furnell, (A) Rule 150. 20 L. J, C. P. 197. (z) Rule 151. (d) Watson v. The Ambergate, (A) Cannon v. Johnson, 21 L. §e., Railway Company, 15 Jur. J., Q. B. 164. 448. (1) Rule 151. (e) Rackham v. Blowers, 15 162 Part t. Security. Bond. Deposit of money, Security. bailiff, or has been levied and not paid over to the successful party, it must remain in court to abide the order of the court (m). Security.|—The party appealing must give security, to be approved of by the clerk of the court, for the costs of the supe and, if he be defendant, for the amount of the judgment, in case the appeal should be dismissed : this security as to the amount of the judgment is not, however, required in any case where the judge of the county court has ordered the party appealing to pay the amount of the judgment into the hands of the clerk of the court, and the same has been paid(). The security may be either a deposit of money, or a bond executed by the appellant and two sureties, conditioned in conformity with the provisions of the statute; it must be substanti- ally in the form given in the schedule to the rules (0). If before the appellant has given the required security, execution has issued, the clerk must, upon the appealing party giving security, forthwith send notice thereof, by prepaid post letter or otherwise, to the bailiff, and_pro- ceedings on such execution will be forthwith stayed (p). The court of appeal will, if it gives judgment for the appellant, order the money paid in by him as security for costs, to be paid out to him (q). Where the appellant proposes to give a bond, he must serve, by prepaid post letter or otherwise, on the opposite party, and on the clerk at his office, notice of the sure- ties whom he. proposes to submit for the approval of the clerk. This notice must contain the matters stated in the form given in the schedule annexed to the rules (7). The sureties must, unless by consent of the successful party, make an affidavit of their sufficiency in the form in the schedule to the rules(s). The bond must be executed in the presence of the clerk, or some one of the authorities mentioned in sect. 23 of the 138 & 14 Vict. ce. 61; but if itis executed in the presence of the clerk, it is not necessary for him to attest it (¢). The successful party must be the obligee of the bond, and it must be deposited with the clerk until the cause is finally dis- posed of (2). Where the appellant makes a deposit of money in (m) Rule 152, (vr) Rule 155. See form, App. (m) 13 & 14 Vict, c. 61, 3.14. p. 128, (0) Rule 154. See form, App. (s) Rule 156. See form, App. p. 129. p. 128. (p) Rule 153. (¢) Rule 157, aa? Kelly y. Webster, 16 Jur. («) Rule 159. Form and Deposit of Appeal. heu of giving a bond, he must forthwith give notice to the opposite P , by prepaid post letter or otherwise, of such deposit having been made (v). Where money is paid into court to abide the event of an appeal, whether by way of security or in pursuance of an order of the judge, the clerk must give the party pay- ing it a written acknowledgment of such payment (2). At the time of giving security, the appellant must de- liver to the clerk a statement in writing, showing to which of the courts of common law at Westminster he proposes to appeal (y). Form and Deposit of Appeal.|—The appeal must be in the form of a case agreed on by both parties, or their attornies. If they cannot agree, the judge of the county court, upon being applied to by the parties or their at- tornies, must settle the case and sign it (z). The appel- lant should be careful that the case is so prepared as to raise fully any objection on which he may intend to rely ; for both parties are bound by it, and will not be allowed, when before the court of appeal, to travel out of it (a). On the other hand the respondent should be careful that the case when settled does not contain any ground of appeal, which was not taken before the judge of the county court; since if an objection appears on the face of the case, it will be considered as evidence that it was raised before the county court; though, probably, if it could be shown that it was not so raised the court of appeal would refuse to entertain it (6). The case must be signed by the judge, and presented to him for signature, unless he otherwise orders, at the court next after twelve clear days from the giving the determination or direction objected to, and must be sealed with the seal of the court. "When signed and sealed, one copy must be deposited with the clerk, and another sent by prepaid post letter or otherwise, by the appellant, to the successful party, within three clear days next after the time of signing and sealing it. If the appellant does not comply with this, the successful party may proceed on the judgment, unless the judge otherwise orders (c). Transmission to Court of Appeal.|—The appellant must, 168 CH. XVII. Notice of court. Form and deposit of appeal. Transmis- within three clear days next after the case is signed and sion to (v) Rule 160. §e., Railway Company, 15 Jur. (x) Rule [61. 448, (y) Rule 158. (b) Yorke v, Smith, 21 L. J. (2) 13 & 14 Vict. c. 61,5.15. Q, B. 53. (a@) Watson v. The Ambergate, (c) Rule 162. 164 Pant t. court of appeal. Neglect to . prosecute. Judgment of court of appeal. Judgment of Court of Appeal. sealed, transmit two copies thereof, by post or otherwise, to the rule department of the master’s office of the court in which the appeal is to be brought. And notice of such transmission must forthwith be given by the appel- lant to the successful party, by prepaid post letter or otherwise. In default of this, the successful party may proceed on the judgment; and on application to the court, will be entitled to such costs as he may have incurred in consequence of the appellant’s proceedings. The respondent may, however, instead of eee on such judgment, within twenty-eight days from the sign- ing of the case, transmit it in the manner prescribed to the appellant, and give the lke notice to him of such transmission (¢). The appellant must set down the case for argument (e), and deliver copies of the case to the clerks of the judges who are to hear the appeal, in the same manner and at the same time as paper books are delivered before the argument of a demurrer; namely, four clear days before the day appointed for argument (/). Neglect to Prosecute.|—If after the case has been transmitted, the appellant does not prosecute his appeal with due diligence, according to the practice of the court of appeal, the party successful in the county court may apply to the judge for leave to proceed on the judgment, and leave for that purpose may be granted accordingly, if the judge thinks fit; and the successful party will also be entitled to such costs as he may have incurred in consequence of the appellant’s proceedings, which costs will be added to the judgment (9). Judgment of Court of Appeal.|\—The court of appeal having heard the case argued, may order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party, as the case may be, which order is final (4). Where the case stated by the parties does not confine itself to the asking of particular questions, but sets out the judgment of the judge below, or his summing up to the jury, the court of appeal will give judgment upon the whole case (i). Where a plaint was tried by a jury in the county court who found for the plaintiff, and an appeal was brought on the ground of the improper reception of evidence, it was (d) 13 & 14 Viet. «. 61,5.15, R. 16 and Rule 163. (g) Rule 164.. (e) Reg. Gen. H. T. 16 Vict. (A) 13 & 14 Vict. ¢. 61, 5. 14, R. 15; Cooper v. Stephenson, 16 (4) Clarke v. Stancliffe, 7 Exr. Jur. 424, 439, 8. C.; 16 Jur. 430, (f) Reg. Gen, H. T. 16 Vict. Reference to Arbitration. 16 3 held that the court above had no power to set aside the cy, xvi. verdict and direct that judgment should be entered for the defendant, but that they should only direct a new trial (4). When the court of appeal has pronounced judg- ment, either party may deposit the original order of the court of appeal, or an office copy thereof, with the clerk of the county court, and within forty-eight hours from the time of such deposit, give notice thereof in writing to the other party by prepaid post letter, or other- Entry of. wise (1). Ifthe order of the court of appeal is, that judg- ment shall be entered for either party, then such judgment must be entered accordingly, and the successful party is at liberty to proceed thereupon, as if upon an original . judgment of the county court (m). The court to which the appeal is made may make such Costs, order as to costs as they think proper (7). In a recent case (0), Parke, B., said that several of the judges had consulted and come to the conclusion that the costs of appeal ought always to follow the result, as the value of the subject-matter of the appeal might bear a very small proportion to the costs of the appeal. This rule is not, however, inflexible (p). Where the judge of a county court ruled a point of law against the plaintiff, reserving him leave to move to set aside the verdict; instead of which the plaintiff appealed to a superior court, which decided the point in his favour, it was held that he ought to have his costs of appeal, since he was not bound to try the experi- ment of going a second time before the same judge who had once expressed an opinion against him (q). A new trial in pursuance of the order of the court of New trial. appeal must be entered for trial at the court which is held next after twelve clear days from the time when the order or office copy has been deposited with the clerk, unless the parties agree that it shall take place sooner, or the judge otherwise orders, and must be conducted in the same manner as any new trial granted by the county court ‘itself (7). (2) Jonas v. Adams, 20 L. J., _ Exr. 125”, 8. C.; 21 L. J. Exr. Q. B. 397. 837; Cannon v. Johnson, 21 L. J., (1) Rule 165. Q. B. 164. (m) Rule 367. (p) Mountnoy v. Collier, 1 FE, (~) 13 & 14 Vict. c. 61,5. 14. & B. 630. (0) Robinson v. Lawrence, 7 (q) Outhwaite v. Hudson, 7 Exr; 123,8.C.; 2 L. M. & P. — Exr. 380, 8. C.; 16 Jur. 430. 673; 15 Jur. 1087; 21 L. J. Exr. (rv) Rule 166. 36. See also Hunt v. Wray, 7 Reference to arbitra- tion. 166 CHAPTER XVIII. ARBITRATION. Reference to Arbitration. Revocation of Reference. Entry of Award. Reference to Arbitration.|—The judge may, with the consent of both parties, order the suit with or without other matters in difference (within the jurisdiction), to be referred to arbitration, to whom, in such manner and on ‘ such terms, as he thinks reasonable and just (a). Where Revoca- tion of reference. a plaint is entered, the judge may, with the consent of the parties, as well in cases within the ordinary jurisdiction of the court as in cases of enlarged jurisdiction by consent under sect. 17 of the 138 & 14 Vict. c. 61, make an order for a reference without waiting the return of the summons, and all the provisions as to references apply to a proceed- ing under such an order; and the same fees must be paid on making the order as if it were made on the hearing of the cause (0). The judge has no power to refer a cause except by con- sent of the parties ; therefore in pleading such an order of reference it is sufficient to state that the parties mutually agreed to refer, without mentioning that it was done by order of the judge (c). An order of reference when once made cannot be revoked by either party, except by consent of the judge(@). No authority is given by the county court acts to an arbitrator to administer an oath. Therefore an arbitrator appointed under sect. 77 of the 9 & 10 Vict. c. 95, had until recently no more power to administer an oath than an arbitrator acting under a rule of one of the superior courts had before the statute 3 & 4 Wm. 4, c. 42 (e); and con- sequently a person swearing falsely before him in the course of a reference could not be indicted for perjury (f). (a) 9 & 10 Vict. c. 95, s. 77. (d) 9 & 10 Vict. c. 95, s. 77. (>) Rule 191. Form, App. (e) s. 41. 149, (f) R. v. Hallett, 20 L. Ju; (c) aoe v. Levi, 2. M.& Mag. Cas. 197. P. 621; 8. C, 21 L. J. Exr. 28, Lintry of Award. 167 By the act to amend the law of evidence, 14 & 15 Vict. ou, xvi. c. 99, a provision is, however, made which remedies this ————— defect, and by sect. 16, it is enacted that “every court, judge, justice, officer, commissioner, arbitrator, or other person, now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to al such witnesses as are legally called before them respectively.”’ Entry of award.|—The award of the arbitrator, arbi- Entry of trators, or umpire, when made, is entered as the judgment award. in the cause, and is binding and effectual as if given by the judge, but he may at the first court held after the expiration of one week after the entry of the award, set it aside, or with the consent of both parties, revoke the reference and order another (9). (9) 9 & 10 Vict. c. 95, s. 77. What courts may granta pro- hibition. 168 CHAPTER XIX. PROHIBITION. What Courts may grant how to be made. a Prohibition. Waiver. In what cases granted. Setting aside Writ of. In what cases not. Declaring in Prohibition. Application for, when, and Error. Tux writ of prohibition is a writ issuing out of the superior courts to restrain any inferior courts, within the limits and bounds of their several jurisdictions prescribed to them by law. It is granted in all cases where an inferior court exceeds its powers, either by acting where it has no jurisdiction, or where having a primary jurisdic- tion, it takes upon itself the decision of something not included in it(a). There has been great difference of opinion whether this writ is discretionary, or is granted, ex debito justitie, but the better opinion seems to be that it is discretionary, that is, that from the circumstances of the case the courts may exercise a legal discretion, but not an arbitrary one in refusing prohibitions, when in similar cases they have been granted, or when by law they ought to be granted (0). What Oourts may en a Prohibition.|—Any one of the superior courts of common law at Westminster may award a prohibition to the county courts, so also may the Court of Chancery (c); but until recently the former courts could only grant it in term time, while the latter, which sits also in vacation, might issue it either in term time or in vacation (d); it seems, however, that it will not entertain such applications in term time, as they come more appropriately under the cognizance of courts of law (e). The writ from Chancery appears not to be return- able, but if disobeyed that court grants an attachment returnable in the Queen’s Bench or Common Bench (/). (a) 2 Inst, 601; F. N. B. 40; (d) Montgomery v. Blair, 2 12 Rep. 65; Bac. Ab. tit. Pro- Sch. & Lef. (Ir.) 136. hibition. (e) Peere Wms. 476; Wright (b) Bac. Ab, Prohibition (B). v. Cut#ell, 19 L. J., Chan. 527. and cases there cited. (f) 4 Inst. 81. (c) F. N. B. 58; 4 Inst. 71. In what cases granted. 169 And now by the 12 & 18 Vict. c. 109, ss. 26, 27 and 28, a Guap.xrx. writ of prohibition may issue out of the Petty Bag Office ———— of the Court of Chancery in vacation as well as in term time (g), and by the 18 & 14 Vict. ¢. 61, s. 22, any judge of any of the superior courts of common law, as well in term time as in vacation may hear and determine applications for writs of prohibition directed to the judges of the county courts, and may make such rules or orders for the issuing of such writs as might have been made by the court. If the inferior court has no jurisdiction, _a writ of prohibition will be granted even on the applica- tion of a stranger (h). The courts will not grant a rule nisi for a prohibition on the last day of term in cases where the party has been dilatory in applying for it; indeed it is doubtful whether in such a case they will grant it at all (7), unless a rule for that purpose has been obtained on a former day (A). But a rule may be obtained, on motion, staying proceed- ings till the ensuing term (/). This rule of practice is of little importance now that any of the judges can at any time grant a prohibition. In what cases granted.|—A prohibition is granted either In what absolutely or hoc usque only until a particular act be done. C#8°s 4 The first is peremptory and ties up the inferior jurisdic- eee tion till a consultation is awarded; the second is ipso Jacto discharged upon performing the act, and that without any writ of consultation (m). A writ of prohibition will also be granted to a county court in any case in which it exceeds the jurisdiction given by the several statutes by which it is governed, or takes upon itself the cognizance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair or market, or franchise, shall be in question, or in which the validity of any demise, bequest or limitation under any will or settlement may be disputed, or for any malicious prosecution, or for any libel or slander, or for criminal conversation, or for seduction, or breach of pro- mise of marriage (x). Other instances in which a writ of prohibition will be granted are pro defectio triations, that is, the want of any means of trying, as when it is impos- sible to try the cause by the proper and legitimate evi- (9g) Wright v. Cattell, 13 Bea- (1) Latch. 72; Rol. Rep. 456; van, 81;S.C. 19 L.J.,Chan.527, Tidd. 498. (h) 2 Inst. 602; Wordsworth (m) Bac. Ab. Prohibition (F. ); v. Queen of Spain, 20 L. J., Taill v. Edwards, 6 Mod. 308. Q. B. 488. (n) 9 & 10 Vict. ¢. 95, s. 58. (i) Thom v. Simmons,9C. B. See further of these, ante, c. IV., 323, where see per Maule, J. JURISDICTION, pp. 31 to 37. (A) Tidd. 498; 3 Burr. 1922, I 170 Parti. In what cases not granted. In what cases not granted. dence(o). Taking a wrong course in trying is not, however, such a defect (p). So where the judge is a party, or has an interest, neither he nor his deputy can determine a cause or sit in court (q). A writ of prohibition may be partial and prohibit so much of a plaint as exceeds the jurisdiction of the inferior court, allowing it to proceed as to the residue. Thus, where the cause of action disclosed by the particulars was divisible and part had arisen within the jurisdiction of a county court and part out of the jurisdiction, the Court of Queen’s Bench granted a prohibition as to the latter only (r). The writ of prohibition is not taken away by the 13 & 14 Vict. c. 61, ss. 14 and 16, where a county court is acting without jurisdiction (s). In what cases not granted. |—But the courtwill not inquire into the correctness of the judge’s decision, where it is on some matter clearly within his jurisdiction (¢). Where, therefore, the judge of a county court gave judgment for the plaintiff notwithstanding that at the trial the defend- ant’s plea (that judgment had already been obtained and execution executed against him in another inferior court in an action brought in the latter court upon the same cause of action), was admitted to be true, the superior court declined to interfere (w). So, where after recovery of a judgment for a debt against a defendant in a county court, he petitioned for and obtained his discharge under the Insolvent Act and inserted the debt in the schedule, and on ajudgment summons before the county court under the 9 & 10 Vict. c. 95, sec. 60, pleaded his discharge, but the county court judge notwithstanding made an order for the payment of the debt by instalments, and afterwards, upon default, for his committal, it was held that although the defendant, who had been imprisoned, might be entitled to his discharge, it was, at most, an error in the exercise of the powers of the county court judge, and that therefore prohibition would not lie (v). It does not lie for receiving (0) Per Lord Denman, C. J., (s) Wrightv. Cattell, 13 Beay.; in Winsor v. Dunford, 12 Q. B. S.C., 19 L. J., Chan. 52, 608; S. C. 12 Jurist, 630. (t) Winsor vy. Dunford, 12 Q. (p) Per Patteson, J.in Winsor B. 608; S. C., 12 Jur. 630; v. Dunford, ante. Joseph v. Henry, 19 L. J., Q. B, (q) Salk. 396°; Hardw. 503. 365; S.C., 15 Jur. 104, (r) Exparte Walsh, | E. & B. (u) Toft v. Rayner, 5 C. B. 383; S.C. 22L. J.,Q. B.137, 162. See also Free v. Burgoyne, 5 B. (v) Still v. Booth, 1 L.M. & & C, 400. P. 440. Per Wightman, J. Application for, when, and how made. 171 improper evidence (x), nor for the misconstruction of a yap. xix. statute (y), nor on the ground that a former action has been removed by certiorari and is still pending (z). _Lhe application for, when, and how made.]—A probi- pypiica. bition may be obtained by the defendant as soon as any tion for, proceedings have been taken against him in the inferior when and court, and there is no occasion for him to wait till he bow made. has pleaded to the jurisdiction and the plea has been overruled. (a) ; for a prohibition may be granted upon the request of a stranger as well as of the defendant himself, the reason being that when an inferior court exceeds its jurisdiction it is chargeable with a contempt of the crown as well as a grievance to the party (0). It may also issue after sentence and even after execu- tion levied, but not satisfied, in all cases where the want of jurisdiction appears on the face of the proceedings, so long as anything remains to be performed, that is, so long as there is anything which can be prohibited ; for, as has been said, the argument that when the sentence was final and executed the court could not grant a prohibition, for obvious reasons requires to be narrowly watched other- ° wise the court would give effect to unlawful proceedings merely because they were brought to a conclusion (c). Thus-it has been held that the defendant was not too late in his application when execution had issued and a levy had been made, but the goods had not been sold (d). When, however, the sentence has been completely exe- cuted the writ will not be granted, upon the ground that there is nothing to prohibit—thus, on a writ of partition a prohibition was refused on the ground that the partition. had been made and possession given accordingly ; for there was no person to be prohibiter and possession is never disturbed (e). So on a motion for a rule to shew cause why a prohibition should not issue to the judge-martial and (x) In Re Dunford, 12 Jur. 361. But see per Patteson, J., Winsor v. Dunford, 12 Q. B. 611; 8.C., 12 Jur. 629. (y) In Re Bowen, 15 Jur. 1196. (z) Edwards y. Rogers, 19 L. J., Exr. 149; 8. C., 14 Jur. 91. (a) Sewell v. Jones, 19 L. J., Q. B. 372; S.C., 15 Jur. 153, per Wightman, J.; Byerley v. Windus, 5 B.& C.1; 8. C. 7 D. & R. 564; De Haberv. Queen of Portugal, 20 L. J., Q. B., 488; Wadsworth v. Queen of Spain, ib. - (b) Ede v. Jackson, Fortescue, 815; Wadsworth v. Queen of Spain, 20 L. J., Q. B. 488. (c) Per Lord Denman in Re the Dean of York, 2 Q. B. 40. (d) Kimpton v. Willey, 1 1. M. & P. 280; 8. C19 L. J., C. P. 269; 14 Jur. 762; Arnott v. Dowsett, 1 Co. & Macrae, C. C. Cases, 118, Q. B.; Com. Dig. Prohib. D.; 2 Inst. 602 ; Gorhum v. Bishop of Exeter, 15 Q. B. 52; &C.19 L. J., Q. B. 281; Roberts v. Humby, 3 M. & W. 120. (e) Hall v. Norwood, 1 Sid. 165, and see per Maule, J.; Kimpton v. Willey, 1 L. M. & P. 280; S.C. 19 L, J., C. P. 269; 14 Jar. 762. I 2 172 Application for, when, and how made. Parry. advocate-general of His Majesty’s Forces to restrain the ——--- execution of the sentence of a court martial, the court refused the rule, because the sentence had been already carried into execution (f/f). But ina recent case under sec. 122 of the 9 & 10 Vict. c. 95, where a mortgagor had obtained a warrant of possession on a judgment in the county court; but the relation of landlord and tenant did not, in truth, exist, the defendant obtained a rule nisi for a prohibition the day before the execution of the warrant of possession, and the court made it absolute, with a clause of restitution, although it was not served on the plaintiff until after the execution of the warrant of possession. But in that case the defendant’s attorney had protested at the trial against the jurisdiction, and upon his expressing his intention of applying for a prohibition, the judge there- upon ordered possession in seven days instead of a month (4). The question whether a prohibition will be granted after sentence, where the want of jurisdiction does not appear on the proceedings, has been raised in two recent cases (h), but in each the decision was on another point. The first case Platt B., distinguished from one of the authorities cited (7), on the ground that “in that case there was something to be done which might ultimately produce fruits by execution; but here the money has already been paid and may have found its way into the hands of the plaintiff’ (4), which would bring it within the class of cases where there is no one to whom the writ could be directed; and in the other case, Parke B. observed, that the question whether any prohibition would go after sentence when there was no roceedings of a court of record in writing, “was esta- blished at a time when all matters would appear on the face of the proceedings (/);”’ and, indeed, it is difficult to see on what principle a prohibition could be refused, if the want of jurisdiction were made clearly to appear, although not on the face of the proceedings, unless it be that by omitting to raise the objection till so late, the defendant must be taken to have acquiesced in the pro- ceeding ; and, therefore, to be too late to raise any objec- tion. It is clearly settled, however, that where a defendant appears and makes no objection to the jurisdiction of the (f) In Re Poe, 5B. & Ad. L. J., Exr. 381; Robinson v. 681; Kimpton v. Willey,1L. M. Lenaghan, 2 Exr. 333. & P. 280; 8. C.19L. J., C. Py (i) Fitz. N. B. 46 a. 269; 14 Jur. 762. (k) Robinson v. Lenaghan, ante. (g) Jones v. Owen, 18 L. J, (1) Pears v. Williams, 2 J.. M. Q. B., S. C. 13 Jur. 261. & P. 515; & C,20 L.J., Cc. (h) Pears v. Williams,2L.M. P. 383, & P, 515; 8. C., 6 Exr. 833, 20 Application for, when, and how made. 178 court while the case is proceeding, nor till after payment Cyap. xix. of damages and costs, it is too late to apply for a pro- ———— hibition, even although he had no opportunity of applying earlier to the superior court, unless the want of jurisdic- tion appears on the face of the proceedings (m); accord- ingly, im one case in which the want of jurisdiction did appear on the face of the proceedings, the Court of Exchequer expressed a strong opinion that they would have granted a prohibition, although the want of jurisdiction had not so appeared ; the party having had no opportunity of applying earlier, and not having acquiesced in the pro- ceedings of the court below (nz). Now, however, that the judges of the superior court can grant writs of prohi- bition in vacation as well as term time, there will be more reason for contending that the defendant by not applying at once has acquiesced in the proceedings of the inferior court. If an objection to the jurisdiction is taken in the in- ferior court the judge ought to enter it on the proceedings in order that the superior court may see if there is ground for prohibition (0). Formerly the party aggrieved in the court below applied to the superior court setting forth the nature and cause of complaint, in being drawn ad aliud examen, by a juris- diction, or manner of process, disallowed by the laws of the kingdom, and this used to be done, by filing as of record what was called a suggestion containing a formal statement of the facts ; but now by the 1 Wm. 4, c. 21, it is provided that it shall not be necessary to file any sugges- tion, but that an application for a writ of prohibition, may be made by affidavits only, that is, in the ordinary way by motion for a rule to shew cause, upon which if the matter alleged appear to the court upon the shewing cause to be sufficient, the writ of prohibition immediately issues commanding the judge not to hold, and the party not to prosecute the plea. A writ of prohibition cannot (at least under special circumstances) be moved for on the last day of term (g). The affidavits, as in ordinary cases of motions to the court, must state clearly and dis- tinctly the facts which shew that the application should be granted, and it must appear affirmatively that the inferior court has gone beyond its jurisdiction (r). So, (m) Per Patteson, J., in Yates (q) 1 Tidd, 498; Thorne v. y. Palmer; 6 D. & L. 283. Simmons, 9 Cc. B. 223. : (n) Roberts v. Humby, 3 M. & (r) Per Wilde, C. J., in Kémp- W. 120. ton v. Willey, 1 I. M. & P. 280 ; (o) Per Parke, B., in Pears v. 8. Cc. 19 L. J., C. P. 269; 14 Wilson, 20 L. J., Exr. 383, Jur. 762, 174 Wawer. Part x, Where the judge has jurisdiction to inquire into the Waiver. objection, it must shew that it was substantiated before him (s). They must be entitled simply in the court, and not in the name of the cause, as there is at that time no such cause in court, and if that objection is made on shewing cause, the court will not allow them to be re- sworn (¢). A second application cannot be made to the same court on fresh affidavits stating matters which were in existence when the former application was made (z), but a fresh application may be made to every court or judge of one of the courts of common law in Westminster-hall (v). An order for a prohibition will not be granted, unless there be a suggestion or affidavit filed as a ground for the order (). Waiver.|—In cases where the want of jurisdiction does not appear on the face of the proceedings, even although the court originally had no jurisdiction, the defendant may by lying by and acquiescing in the proceedings be considered by his concurrence to have waived his objection (y); thus, if the question of title to an office is not raised at the hearing of a plaint, but the party is taken to be duly appointed (z), or if title to corporeal or incorporeal hereditaments is ad- mitted (a), or if the defendant appears and gives notice of the statute of limitations (6), so where the entry of the judgment of the county court shews that a set-off was allowed by consent (c), so where the plaintiff was non- suited at the first trial, with leave to move to set aside the nonsuit, no leave being reserved to enter the verdict at the next court day, the defendant having duly received notice that the plaintiff would apply to set aside the non- suit and enter the verdict, which was accordingly done, it was held, that as he did not attend and oppose the motion, he was not entitled to a prohibition (d). But if a plea is put in to avoid judgment, and, before trial of the issue on that plea, and within a reasonable time, an ap- (s) Kimpton v. Willey, ante. 6 Q. B. 349. (t) Exparte Evans, 2 Dowl. (z) Per Erle, J., Stevenson v. N.S. 410. Stichle, 13 Jur. 1103; Chesterton (u) Bodenham v. Ricketts, 6 vy. Farlar,7 A. & E. 713. ; Nev, & M. 537. (a) In Re Knight, 1 Exr. 802. (v) Le Caux v. Eden, Dougl. (b) Jones v. James, 19 I. J., 620. Q B. 257, (xv) Harte v. Byrne, 1 Irish C. (¢) Winsor y. Dunford, 12 Jur. L. R 557 (Q. B.) 629. (y) Horne v. Earl Camden, 2 (d) Crowe v. Hunt, Cox & H. Black. 533. 2B. vy. Clarke, Macrae, 153, B. C. Wightman, J. Setting aside Writ. 175 plication is made for a prohibition, there is no waiver (e). Cuap. xrx. And it has been said that if in a plaint for tolls in the ———— county court no objection was there taken to the juris- diction, the defendant might still apply for a prohibition ; for the admission of a party in such a case cannot give jurisdiction (7). * Setting aside Writ.|—The 12 & 18 Vict. c. 109, pro- Setting | vides by sect. 39, that in every action, suit, and proceed- ide writ. ing pending, or which shall be commenced in the common law side of the Court of Chancery, the superior courts of common: law, and the judges thereof respectively, may hear and determine all such matters or applications arising in or incident to any such action, suit, or proceeding, as before that act might have been determined by the lord chancellor and the master of the rolls, or either of them, and also may perform all such business, matters, and things in, about, touching, or concerning any action, suit, or pro- ceeding on the common law side of the Court of Chancery as by virtue of any orders or regulations for the time being in force by virtue of that act, might be performed by such judge; subject, however, and according to the poe of that act and the laws, rules, and regulations or the time being in force, for the regulation of the said court, and the practice and proceedings thereof. A writ of prohibition issued out of the Petty Bag Office in vacation on an exparte affidavit without leave of the court or of a judge, and disclosing no sufficient ground of prohibition on the face of it, will be set aside on motion (7), which motion may be made in either of the superior courts at Westmin- ster. The Court of Exchequer Chamber, however, is not one of the superior courts of common law within the statute (A). It is no answer to such an application, that the attorney of the applicant had not entered his name and address in a book at the Petty Bag Office as required by the 12 & 13 Vict. c. 109, sec. 44 (2). But a prohibition issued out of the Petty Bag Office, which upon its face appears to be regular, and which contains a good ground for prohibition, will not be set aside though issued exparte (x). By sect. 22 of 13 & 14 Vict. c. 61, any rule or order for writ of prohibition made by any judge of a superior court, or any writ issued by virtue thereof, may be discharged (e) Wadsworth v. Queen of P. 440. Spain, 20 L. J., Q. B. 488. (2) Garrard v. Tuck, 8 Com. (f) Per Erle, J.,in Wadsworth 3B. 259. v. Queen of Spain, 20 L. J., Q. (i) Re Baddeley, ante. B. 493. (2) Swain v. Cox, 1 Cox, Mac- (g) In Re Baddely, 4 Exr. rae & Herts, 362. 508. Sétv. Booth, 1 L. M. & 176 Parr t. Declaring in Prohibition. or varied, or set aside, by the court, on application made thereto by any party dissatisfied with such rule or order. A writ of prohibition will be set aside if it does not shew on the face of it the ground upon which such court is - to have acted without jurisdiction (2). Declarmg in Prohibi- tion. Error. eclaring in Prohibition.|—By the 1 Wm. 4, c. 21, “in ease the party applying shall be directed to declare in prohibition before writ issued, such declaration shall be expressed to be on behalf of such party only, and not as heretofore on behalf of the party and of His Majesty, and shall contain and set forth in a concise manner so much only of the proceeding in the court below as may be necessary to shew the ground of the application, without alleging the delivery of a writ, or any contempt, and shall conclude by praying that a writ of prohibition may issue. To which declaration the party, defendant, may demur or plead such matters by way of traverse or otherwise as may be proper to shew that the writ ought not to issue, and conclude by praying that such writ may not issue, and judgment shall be given that the writ of prohibition do or do not issue as justice may require.” ‘When a prohibition is applied for, the court will always, on the demand of the party against whom the application is made, put the party to declare in prohibition (m), and it would seem that the court cannot prevent the party opposing a prohibition from insisting on it (m). But the party applying for a prohibition has no right to insist on declaring when the court is satisfied that his application is groundless (0). Since the 1 Wm. 4, c. 21, several pleas may be pleaded. Under the old law there could be only one plea, because the king was considered to be a party, and he was not bound by the statute of Anne, as he was not named in it (p). Error.|—It has been determined by the House of Lords that no writ of error will lie upon the refusal of a prohibition; but when a consultation is awarded it is with an ideo consideratwm est, and then a writ of error will lie (q). (1) In Re Clive, C. C. C. 875. — Prohibition (I.] (m) Remmington v. Dolby, 9 Q. (p) See Wm. Saunders,136 6. ; . 176, Hall vy. Maule, 4 A. & E, 283. (n) Per Coleridge, J., ib. (q) The Bishops v. St. David’s (o) 1 Burr, 198; Com. Dig. case. Ld. Raym. 545. B 177 PART II. —~>—- JURISDICTION UNDER THE FRIENDLY SOCIETIES ACT, 13 & 14 VICT. c. 115, AND THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 15 & 16 VICT. c. 31. By s. 22 of the 13 & 14 Vict. c. 115, “an act to consoli- statute. date and amend the laws relating to Friendly Societies,” “If any dispute shall arise between the members, or per- son claiming under or on account of any member of any society or branch established under this act, and. the trustees, treasurer, or other officer or committee thereof, it shall be settled in such manner as the rules of such society or branch shall direct, and the decision so made shall be binding and conclusive ; but if such dispute be of such kind that for the settlement of it, according to the laws now in force, recourse must be had to one of her Majesty’s courts of equity, or to the Court of Session, it may be referred at the option of either party, to the judge of the county court or of the sherifi’s court in Scotland, who shall proceed ex parte, on notice in writing to the other of the said parties, being left at his usual place of residence or abode ten days previously ; and he is hereby authorized to require of all parties who are or may have been members, trustees, or officers of such society to pro- duce before him all books or other documents relating to the concerns of such society ; and thereupon, if he shall so think fit, it shall be lawful for him to determine the said dispute, and to displace any trustee or officer, or to make such award as the justice of the case, in his opinion, may require, and such decision or award shall be binding and conclusive.” In cases of reference under the above statute, the rules Practice, of practice direct (a) that the party proposing to refer shall enter a plaint, and that a summons shall issue (a) Rule 205. 13 178 Friendly Societies. Parr u. thereon, and that for the purpose of determining the amount, the subject of the reference shall be treated as a debt or demand, for the trial of which the consent of both parties is necessary under section 17 of the 138 & 14 Vict. c. 61, and all the rules and practice applicable to debts or demands are to be adopted with respect to such matter of reference (8). By rule 82 of a Friendly Society established in 1836 it was provided that if any dispute should arise between any officers of the society, or between any other members and any officer, it should first be referred to the committee, and if their decision should not be satisfactory, then to arbitrators pursuant to the 10 Geo. 4, c. 56,8. 27. In 1839, a reserved fund consisting of subscriptions was established, and was regulated by a new rule called the 38th rule, which provided that every dispute should be referred to arbitration in the manner provided by the rule of the society. In 1850 this rule was expunged. An action having been brought in the county court by the committee of the society against the trustees to recover the amount of the reserved fund ; it was held on a motion for a prohibition that this was a dispute provided for. by the above act, and that it might be referred to arbitration under the 32nd rule of the society, that it was not a dis- pute requiring to be settled by a court of equity, and that the county court therefore had no jurisdiction (c). By the 15 & 16 Vict. c. 831, which extends the provi- sions of the previous act, it is required (by s. 2, Head 12th) that the rules of societies established under that and the earlier act, shall provide for referring to arbitra- tion all disputes which may arise between any member of the society and the trustees, treasurer, manager, com- mittee, or officers of the same or any of them. And by s. 5 it is further provided that “ If either party to any arbitration which shall take place under this act for the settlement of a dispute shall refuse or neglect to comply with or conform to the decision of the arbitrators or the major-part of them, then, in case the sum or value in dispute shall not exceed the limit fixed by law for the time being for any debt or damages claimable in the county court in England or in the court of the assistant- barrister in Ireland respectively (as the case may be), it shall be lawful for the judge of the county court or the assistant-barrister respectively (as the case may be), within whose jurisdiction the society shall be established or shall carry on business for the time being, upon proof (b) Ante, p. 32. 833; S.C. 21 L, J. Exr. 321, (ec) Grinham y. Card, 7 Exr. Friendly Societies. 179 adduced before him to his satisfaction of an award having paper nr. been made by the arbitrators according to the rules of the ———— society, to cause the award to be entered as a judgment in his court, and such award shall thereupon take effect and be enforceable in the same manner to all intents and purposes, as a judgment of such court in a cause between the same persons as shall be parties to the said reference, except that the same shall be final and without appeal.” 180 PART III. —>— JURISDICTION UNDER JOINT STOCK COMPANIES WINDING-UP ACT, 12 & 18 VICT. c. 108. By s. 20 of the 12 & 18 Vict. c. 108, an act amending the Joint Stock Companies Winding-up Act, 1848 (11 & 12 Vict. c. 45), judges of the county courts, who sit at places more than twenty miles from the General Post Office, are appointed commissioners to act under the powers of that and the previous statute, and the master may by any order under his hand, refer the whole or any part of the examination of any witnesses under those acts to any such judge, although he is out of the jurisdiction of the court by which the order absolute was made. The judge in addition to any power of summoning and exa- mining witnesses, and requiring the production or de- livery of documents, and certifying or punishing defaults by witnesses, which he might lawfully exercise as a judge of a county court, may have and exercise, in the matter so referred to him, all the same powers of summoning and examining witnesses, and requiring the production or de- livery of documents, and certifying or punishing defaults by witnesses, as are given by the two winding-up acts, “to any master charged with the winding-up of any com- pany under the same ; and the examinations so to be taken shall be returned to the master as he shall direct.” In these cases the same fees are payable on such refer- ence as on the entering and trial of a plaint for the trial which the consent of both parties is necessary, under sect. 17 of the 18 & 14 Vict. c. 61; and all the rules and practice applicable to debts or demands are to be adopted with respect to such examinations, so far as the same are applicable (a). (4) Rule 206. See ante, p. 32, 181 PART IV. —~<—— JURISDICTION AS TO INSOLVENT DEBTORS UNDER 1 & 2 VICT. co. 110. CHAPTER I. JURISDICTION OF COURT, OFFICERS AND FEES. JURISDICTION, 181: Frrs oF CiLerk anp Transfer of to County Hien Baruire, 183: Court. How regulated. Rules of Practice. Table of. CLERK aND MESSENGER, 189 Freres oF ATTORNEYS, 188 : CouNsEL anp ATTOR- yeys, 182. Table of: Jurisdiction.}—The jurisdiction of the county court, as Jurisdic- regards the discharge of insolvent debtors who are in tion. custody, derives its existence from the statutes 1 & 2 Vict. c. 110, and 2 & 3 Vict. c. 89, as amended by the 10 & 11 Vict. c. 102 (a). The first of these, the general insolvent act, is from s. 22, where the part relating to insolvents commences, nearly a re-enactment of the pre- vious act 7 Geo. 4,c. 57. It establishes a court, com- missioners, chief clerk and provisional assignees ; it enacts that the court shall be a court of record, and directs that it shall sit in Portugal-street, London; and for the more convenient disposal of cases in the country, directs that the commissioners shall make circuits for the purpose of discharging prisoners, and shall possess the same power as the court in London. By the 10 & 11 Vict. ¢.,102, (a) The 48 Geo. 3, c. 123, the application under this act is, (commonly called the Lords’Act), however, to one of the superior which enables judgment debtors courts, and can only be made under 201. who have been in prison = when the insolvent is in execution more than a year to apply for ona judgment. discharge, is still in operation ; 182 Part iv. Transfer to county court. Rules of practice. Clerk and messenger. Counsel and attor- neys. Clerk and Messenger. 8. 10, the circuits are, from and after the 15th September, 1847, abolished, and the act directs, that when any in- solvent debtor in custody in any gaol elsewhere than within the district of the London court, (which by s. 56 is limited to parishes, the distance whereof as measured by the nearest highway from the General Post Office in London to the parish church of such parish, does not exceed twenty miles), petitions, the court, forthwith after the filing of his schedule, is to make an order referring the petition for hearing to the county court within, the district of which the insolvent is in custody, and transmit the petition and schedule to such court, the judge of which must appoint a time and place for the prisoner to be brought up before the court, and cause the usual notice to be given. The court has the same power and authority with respect to the petition, to make orders and give directions, and do all matters and things requisite for discharging or remanding the insolvent, and otherwise respecting him, his schedule, creditors, and assignees, as the Court of Insolvent Debtors. It has power also to issue warrants, or orders, to the governor of any gaol to bring the insolvent before the county court on the day appointed for hearing his petition, or at any adjournment; and may order the expense thereof to be paid by the pro- visional assignee out of the estate and effects of the insolvent; or if there be none, or it is insufficient, out of the unclaimed fund (0). Rules of Practice.|—The rules of practice which have been made by the Insolvent Debtors’ Court in London, (so far as they apply to proceedings in the county court) will be found in the Appendix, p. 210. By rule 210 of the county court rules (c), these are to be used so far as they are applicable to proceedings in the county courts. Clerk and Messenger.|—The clerk of the county court acts as clerk of the insolvent court, and performs all acts and duties which may be ordered by the county court or by any commissioner of the Insolvent Court, and the high bailiff and his assistants act as messengers, and possess all powers, authorities, and privileges in perform- ing the duties as messengers of the court (d). Counsel and Attorneys.|—The provisions of sect. 91 of the 9 & 10 Vict. c. 95, which directed who might appear for parties in the county court, and prevented persons (b) 10 & 11 Vict. ¢. 102, s, 10. (d) 10 & 11 Vict. c. 102, s. 5. (e) App. p. 105. Fees of Officers and Attorneys. 183 who are not barristers or attorneys from appearing in the Cuap. 1. county court for others, except by leave of the judge, ———— were made by rule to apply equally to all proceedings in insolvency (¢). That section is now, however, repealed by the 15 & 16 Vict. ¢. 54,8. 10(f). Fees of Clerk and High Bailiff.|—By the 34th sect. Fees of of 1 & 2 Vict. c. 119, no, fee or gratuity may be received nee a by any officer of the Insolvent Court, except such paitir. as from time to time shall be specified in a list signed by the commissioners, a copy of which is required to be exposed to view in the office of the court. A list How re- of fees was accordingly made and published by the 8¥!te¢- commissioners. This still forms the scale according to which the officers of the Insolvent Court in London may receive fees. By the 13th section of the 10 & 11 Vict. c. 102, (which transfers the country jurisdiction of the Insolvent Court to the county court), a power is, however, given to the Secretary of State, with the ‘consent of the Commissioners of the Treasury, from time to time, to order what fees shall be paid to the officers of the county court for duties performed by them in insolvent cases (g). In accordance with this provision, by an order dated the 8th of July 1851, it was directed that on and after the 1st of August 1851, the fees taken shall be in accordance with the following table :— TABLE OF FEES. Table. Clerk’s Fees. Order for hearing . s . . Warrant to bring up prisone: : djudication 5 - . . ’ . Warrant to gaoler to bring up prisoner, or to discharge prisoner Warrant of attorney executed by prisoner . . Fee on hearing : : : For office copies of proceedings (each folio) On eee ® — x pC POSoos High Bailiff’s Fees. For every copy of order for hearing, sent to each creditor to the amount of 52. or upwards (including postage) 2 0 4 Attorney’s Fees.|—The attorneys who practice in the county courts are attorneys of the Insolvent Debtors’ Court in London, being admitted by that court to (e) County Court, Rule 91. made, the clerks and high bailiff See App. p. 90. should receive for their own use (f) See ante, p. 90. those fees which had been hitherto (g) The section also provided taken by officers of the Insolvent that until such order should be Court in the like cases. 184 Parr i. practice for a particular gaol. Their bills of cost are Table. Table of Fees. therefore taxed by the officers of that court. The follow- ing is the scale of costs, which may be charged by attor- nies, prescribed by the Insolvent Commissioners :— TABLE OF ATTORNEYS’ FEES. As framed by the London Court. Attendances in prison and taking instructions for petition, and attendances for copy of causes Notice to gaoler and service F Drawing and engrossing petition, including parchment Duplicate ditto im country cases ‘ . Preparing and attesting estate paper in 1 duplicate : Ditto, if second page written, additional Obtaining office copy of precipe (not including fee paid) Attending to lodge or file petition, with accompanying documents Notice for appraisement of excepted articles, and attendances Attendances in prison and taking instructions for schedule Drawing schedule (per folio of 72 words) . When the Number of debtors exceeds twenty, then for the excess above twenty, per folio, only 4d.—viz., two words to be computed as one. Engrossing schedule, per folio . . Duplicate, in country cases, per folio ; ‘ Fair copy for prisoner, if required, per folio For parchment of schedule, with printed form Ditto, each additional half-sheet - z Z For paper of schedule, with printed form ‘= : General balance sheet (common case) ‘ F Ditto, per sheet additional 7 . Ditto, duplicate in country cases Drawing and engrossing petition and affidavit for leave to file petition or schedule, time ane meets on printed form (common cases ) Ditto, if another half-sheet is necessary for the debtor and creditor account, additional : : All attendances relating to such application ‘ N.B. Where the Court directs notice to creditors, subsequent charges will be further allowed. Attending at prison, reading over and attesting schedule Attending to file schedule, and for order for hearing . Attending insolvent for his books, &c., indorsing the sanie: and lodging the same at the face or with the clerk of the county court . Advertisement in newspaper or r Dublin or Edinburgh Gazette, including all payments in respect of the same, and for news- paper or Gazette, and attendances . Ditto, if more than one such advertisement required, for the second is . e Copies of order to serie or annex. and. examining, each i Attending messengers to deliver order, copies for service and lists; and for their return mt their affidavits in sae cases . For all lists delivered to messengers, in each town case Ditto ditto in each country case o CSCAWKWHWHYNWND HNnwNaoconoss 10 p COpRahROCOOOD cD Oo AATOHROCAA A 0 Ca Table of Fees. Ditto, in respect of each notice specified in such lists, addi- tional : ‘ Filing affidavits of service with advertisements . In country cases to be charged for all conveyances of docu- ments and books, with expenses and attendances, besides as above-mentioned N.B. If by reason of the small number of cases at any Place, on Circuit or Sessions, either alone or with other cause, the above allowance shall appear not to remunerate an attorney for the parcels con- nected with the petitions heard at such place, the taxing officer may make further allowance, according to such circumstances. Searching with the gaoler for new detainers . Searching for notice of opposition in town cases ‘ Attending court on days of hearing pars and engrossing affidavits of service of rales, per folio Ditto, other affidavits than above-mentioned, per folio. Taking instructions for special affidavits Taking instructions for brief for prisoner Instructing counsel on motion Drawing brief for prisoner, per sheet of ten folios Fair copy ditto, per sheet of ten folios . Attending counsel, court on motion, and other necessary Attendance not otherwise mentioned Copy and service of rules within 3 miles of the General Post ffice P : Writing and sending letters when absolutely necessary Drawing advertisements, other than above-mentioned . Fair copy ditto for printer Bills of costs with copies and getting same taxed, with Affidavit and all expenses and attendances thereon (but not nO the officer’s fee), in each case A ; Ditto, on further taxation after hearing Letters, messengers, stationery, &c., not otherwise charged, in each town case . . . . : “ Ditto, in each country case. : . . é wor mNnww oo NASCKSWOS Ow vw SIQAST FP HORROR DOD oo ao 186 CHAPTER II. PROCEEDINGS PREVIOUS TO HEARING. Prrrrton, 187 : Who may Petition. Married Women, and Persons of Unsound Mind. Infants. Crown Debtors. Time of Petitioning. Contents of Petition. Signature and Filing. Further requirements. RErarner AND EsratTe Papzr, 189. Provistonat AssIGNEE, 190. CREDITORS’ 190. Suits do not abate on death of. Vestine Orper, 191: Effect of. Income of Clergyman or Government Officer. Debts due to Insolvent. Property held as Trus- tee. Goods in order, and dis- position of Insolvent. Fraudulent Warrants of Attorney. Warrants of Attorney, Sc. may not be acted on, ASSIGNEE, Voluntary Preference. Stock. Leases and Agreements Sor Lease. Real Estate and Copy- hold. Tenancy at will. Powers. Distress for Rent. Aets of Assignees valid though Petition dis- missed. Discharge of Insolvent by Detaining Cre- ditor. ScHEDULE, 198: When delivered. Contents of. Misdescription of In- solvent. Amendment. Fraudulent Omission of Property. Omission of Creditor. Error in amount of Debts. What Debts should be inserted. Sprcian Bazance SHEEr, 201. INVENTORY oF ExcEPrrEep ARTICLES, 201. GENERAL Batance SHEET 202. ? Who may petition. ScHEDULE aNnD Baanon SHEET, How SIGNED, 202. How filed. Application to File after Fourteen Days. ORDER FoR Hzarine In Country Court, 202. APPOINTMENT OF AND OnveEr ror Hzar- Ing, 203. Nottces, 203. How served. Defective Service. Wawwer of. Proof of Service. WABRANT TO BRING UP InsoLvent, 204. SUBPG@NAS TO WITNESSES, 205. ORDER TO BRING a PRri- SONER AS WITNESS, 205. Propuction oF PRoceEp- Ina@s, 205. ALTHOUGH, as we have seen, none of the proceedings before the hearing take place in the county court; nor has that court jurisdiction until the petition is referred to it for hearing, it may still be well to notice shortly the necessary steps to be taken previous to the hearing. 187 Cuayp. I. Who may Petition.]—Any person (a) may petition who Petition. is in actual custody (unless he has obtained a medical Who may certificate on oath, when he need only be within the petition. rules) (0), within the walls of any prison in England, upon any process whatever for or by reason of any debt, damage, costs, sum or sums of money, or for or by reason of any contempt of court whatsoever for non-payment of any sum or sums of money, or of costs taxed or untaxed, either ordered to be paid, or to the payment of which such person would be liable in purging such contempt, or in any manner in consequence or by reason of such contempt (c). Married Women or Persons of unsound Mind. |—Married Married women may petition (d); so may per by others on their behalf, a certificate of their mind, insanity being first obtained from a magistrate (e). sons of wasound Women and persons of unsound Infants.\—The insolvent act does not make any provision Infants. as to infants, but it would seem that an infant cannot petition, since if sued on the warrant of attorney signed (a) By 1 & 2 Vict. ¢. 110, s. 36, detaining creditors may also petition. The jurisdiction of the county court, however, applies only to those cases where the in- solvent himself petitions. See 10 & 11 Vict. e. 102, s. 10; and Re Scott, 11 L. T. 69. (b) 1 & 2 Vict. c. 130, s. 38. (c) Ib. s. 35. (d): Ib. s. 101. (e) Ib. s, 102. 188 Time of Petitioning. Partiv. by him on the adjudication he might plead infancy, and so Crown debtors, Time of petition- ing. his creditors would be without that security which they possess in other cases. Crown Debtors.]—Persons who are in prison for any debt due to the Queen, or for any debt or penalty with which they stand charged at the suit of the Crown, or of any person for an offence against an act of Parliament relating to the public revenue, or at the suit of any sheriff or public officer upon any bail-bond, for appearance of any person prosecuted for such offence, cannot be discharged, unless three of the Commissioners of the Treasury certify, under their hands, their consent (7). Persons imprisoned ‘under awritofcapias or extent,issued to re-imburse sureties who have paid debts to the Crown, can only be discharged by application to the Barons of the Court of Exchequer (9). Time of Petitioning.]—The insolvent having first given notice to the keeper of the gaol in which he is confined, may apply. The petition must be made within fourteen days next after the commencement of the actual custody of the insolvent, whether within a prison, or the rules or liberties thereof, unless the court permits it to be made later (h). In order to obtain such permission, a rule of court provides that the insolvent must support this appli- cation by affidavit in the form prepared by the court, in which must be stated his degree, profession, or trade, and last place of abode, the time of his first arrest in the action wherein he is detained, and the time of commit- ment to the prison in which he is confined; together with a statement of all monies paid or spent, and of all property spent, sold, made over, assigned, disposed of, or in any manner parted with by him since such first arrest, and in what manner and to whom; he must also state the cause of his not having sooner presented such petition. The application must be made by petition, with the affi- davit and the gaoler’s certificate annexed : there must also be annexed such accounts in writing of the insolvent’s estate and effects as in all cases are required by the 10th rule of court (2) to be filed with the petition, which account must be verified by the affidavit ; and on such application being granted, a duplicate of the account must be delivered to the officer of the court at the time of filing the petition. The gaoler’s certificate is transferred to the petition (4). (f) 1 & 2 Vict, c. 110,s, 103. (i) Post. (9) Ib.s. 104, (&) Rules and orders of the (A) Ib. 3. 35. Insolvent Court. Rule 11, Retainer and Estate Paper. 189 Contents of Petition.|\—The petition must state the time Cuap. nu. and place of the insolvent’s first arrest in the cause or causes in which he is detained, and the time of his com- Contents mitment to the prison where he is confined ; and also any °f petition. changes, if any, of his prison, and their manner; and also the name or names of the person or persons at whose suit or prosecution he is detained; also the amount of the debt or sums of money and costs, as far as they are ascer- tained ; and must declare that he is willing that his estate, real and personal, shall be vested in the provisional assignee. The description of the insolvent should be accurate, and should correspond with that in the schedule, as to which see post, p. 199. If necessary, the judge of the county court has power to direct that the schedule shall be amended (2). He has no power, however, to order that the petition shall be amended. Signature and Filing.|—The petition must be signed by Signature the prisoner, and filed in the court (m). and filing. Further Requirements.|—The above forms are required Further by the statute. To these the Insolvent Debtors’ Court has tequire- by its rules added the following requirements. ment. The petition must be signed in the presence of and attested by the attorney of the prisoner, or the keeper of the gaol(”). There must also be filed with it a certi- ficate from the gaoler of the day or days, and cause or causes of the prisoner’s detainers (0). Retainer and Estate Paper.|—There must also be filed Retainer with the petition the insolvent’s retainer of his attor- and estate ney (p). The insolvent must also file an account in P4Pe writing, in the form prepared by the court, signed by the insolvent, and attested by his attorney, or by the keeper of the gaol, of all his real and personal estate and effects then in his possession, or under his control, stating their value; and, if liable for rent, stating the landlord’s name and the particulars of his demand, in order that such property may be duly ascertained and given up to the provisional assignee. This account must be signed, at- aq of tested, and filed in duplicate (q). The filing the petition bank- is an act of bankruptcy (r). It is said to be filed not ruptey. when it is first delivered to the officer, but when it reaches its proper place of custody (s). (1) Post, p. 200. (q) Rule 10. (m) 1 & 2 Vict, v. 110, s, 35. (r) 1 & 2 Vict. v. 110, 8. 39. (n) Rule 5. (8) Garlick vy. Sangster, 9 Bing. (0) Rule 6. 46. (p) Rule 2. 190 Pant Iv. Creditor’s Assignees. Provisional Assignee.|—The provisional assignee is an officer of the Insolvent Court, appointed by the court. Provisional Tt, ig his duty to take possession of all the real and per- assignec. Creditors’ assignees. sonal estate of the insolvent (¢). After the vesting order is made, he must sell all the personal effects, of which he takes possession and must account for the produce to the court (w). Before the appointment of creditors’ assig- nees, he may sue in his own name, if the court so orders, for recovering, obtaining, and enforcing any estates, debts, effects, or rights of the insolvent. Property vested in him, on his death, resignation or removal, goes to his suc- cessor in office (x). Creditors’ Assignees.|—Creditors’ assignees are ap- pointed by the court (wr). They will be appointed, if ex- pedient, at any time after the vesting order is made (y). Parties applying for their appointment may take into the office of the Insolvent Court vouchers shewing the wish of the majority, or other portion of the creditors, and appointments will be made in compliance with the ‘desire of the majority, unless some reason appears to the contrary (y). It has been much doubted whether the county court has power to appoint assignees, and the question cannot at present be considered as settled (z); the Insolvent Court will, however, attend to any nomination . made by the judge of the county court (a). The judge should therefore at the hearing, upon the application of creditors, nominate a fit person to be assignee; which nomination being sent to the court in London, the ap- ointment will be made by that court. If no application or the nomination of an assignee is made at the hearing, any creditor may apply subsequently to the court in London to be appointed assignee. So soon as the creditors’ assignees have signified to the court their acceptance of the appointment, all the estate, effects, rights, and powers of the insolvent, vested in the provisional assignee, immediately by virtue of their ap- (t) 1 & 2 Vict, c. 110, s. 42. («) Rule 26. (x) 1 & 2 Vict. c. 110, s. 42. (wx) Ib. s. 45, (y) Rule 25. (z) See the judgment of Mr. Commissioner Law, Re Garside, 15 L. T. 347, where such an appoint- ment was held void. Mr. Com- missioner Harris was of the same opinion. The Chief Commissioner dissented, however, from this view, and Mr. Commissioner Phillips even refused to appoint in cases which had been referred for hear- ing to a county court. See also in Re Howe, 17 L. T. 270, in which Mr. Commissioner Phillips adhered to the view he expressed in the former case. (a) In analogy to nominations by justices of eral, under Rule 25. See also Re Garside, ante, Vesting Order. 191 pointment vest in them without any conveyance or assign- Cuap. 11. ment, in trust for the benefit of the creditors (6). The ———— appointment is entered of record, and the assignees are officers of the court (6). A certified copy of the order and appointment is evidence thereof (c). The creditors’ assignees may sue in their own name in the same way as the proyisional assignee, and may make composition for debts, and by consent in writing of the major portion of the creditors, may submit differences to arbitration (d). Actions or suits do not abate by the death or removal Suits do of an assignee, but the name of the surviving or new not abate assignee may, by permission of the court in which the cath of. action or suit is brought, be substituted (e); if, however, no new assignee is appointed, a person who has a claim against the insolvent, but who has not proved under the insolvency, may sue the executors of the deceased assignee (f). Vesting Order.|—Upon the filing of the petition the Vesting court makes an order that all the estate real and personal, T"- and effects of the prisoner, both within the realm, and abroad (except his and his family’s wearing apparel, bedding, and other necessaries, and his working tools and implements not exceeding in all the value of 202.), and all his future estate, right, title, interest and trust in or to any real and personal estate and effects here or abroad, which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him before he obtains his full discharge, either by adjudication or otherwise, and all debts due or growing due to him before such dis- charge, shall be vested in the provisional assignee (9). After the making of the vesting order the prisoner cannot be discharged out of custody as to any action, suit or process concerning claims respecting which ad- judication can be made, by supersedeas, judgment of non pros, or judgment as in case of nonsuit (/). Effect of Vesting Order.]—The vesting order operates Effect of in the same way as the assignment under the former vesting Insolvent Act (7 Geo. 4, c. 57) did. It has no retro- anjer: spective effect like the appointment of assignees in bank- (b) 1 & 2 Vict. v. 110, s. 45. (A) Ib. s. 41, This applies (c) Ib. x. 46. . only to supersedeas at common (d) Ib. s. 51. law; therefore, the power of dis- (e) Ib, s. 53. charging under the 40 Geo. 3, (f) Fulcher v. Howell, 11 Sim. ve. 123, is not affected by it, Chew 11. vy. Lye, 5 M, & W. 388. (9) 1 & 2 Vict. c. 110, s. 37. 192 Part Iv. Income of clergythan or govern- ment offi- cer. Debts due to insol- vent. Debts due to Insolvent. ruptcy, nor.does it operate as a sale in market overt (7). Subject to some exceptions to be mentioned presently, it aletlics the provisional assignee with such rights only as are possessed by the insolvent himself at the time it is made (). The title, however, of any subsequent assignee relates, on his acceptance of the appointment, to the date of the vesting order (7). The effect of a discharge of the insolvent out of custody by the detaining creditor will be found, post, p. 198. Income of Clergyman or Government Officer.]— Where the insolvent is a beneficed clergyman or curate, the assignees may not take the income of the benefice or curacy, but must apply for a sequestration (2); nor in the case of an officer in the army or navy, or other person employed by government, can they take his pay until the court has communicated with the commissioners of the department in which he is, and they have consented (m). An annuity granted to a commissioner of bankruptcy under the 1 & 2 Wm. 4, c. 56, and 5 & 6 Vict. c. 122, is not within the exception, but passes to the assignee, since the office is not one in the service of the Queen, and such a pension is a mere compensation for loss of salary (7). Debts due to Insolvent.|—All debts accruing due to the insolvent between the date of the vesting order and the final discharge, pass to the assignee (0). The assignee cannot, however, recover for work done during that period by the insolvent for his necessary maintenance (p). An insolvent, generally speaking, has not such an in- terest in property assigned to his assignees as to entitle him to enter into any litigation respecting it (g). He has, however, an insurable interest in it (7), and it has been held that an insolvent may sue for a debt which accrues (i) Yorke v. Brown, 10 M. & W. 78, which decided also that the proper evidence of the date of the vesting order is the adjudica- tion. (k) Sims v. Simpson, 1.B. N. C. 306; Woodland v. Fuller, 11 A. & E. 859, See the judgment of Tindal, C. J.,in Sims v. Simpson, where the difference in this respect between bankruptcy and insol- vency is very clearly pointed out. (1) 1 & 2 Vict. c. 110. s. 55, Bishop v. Hatch, 1 A. & E.171; Waite v. Bishop, 1 C. M. & R. 507; Smith v. Wetherell, i7 L.J., Q. B. 57 ; S. C.12 Jur. 53. (m) 1 & 2 Vict. c. 110, s. 56. (n) Spooner v. Payne, 4 Exr. 138; S.C.18 L. Js, Exr. 401. See also the same point decided in Equity. Spooner v. Puyne, 16 Jur. 367. (0) Ford v. Dabbs, 6S. N. R. 192. (p) Williams v. Chambers, 10 Q. B. 337; $8. C. 11 Jur, 798. (q) Rochfort v. Battersby, 2 H. of Lords’ Cases, 388. me Marks v. Hamilton, 7 Exr. wooas in Urder and Disposition of Insolvent. 193 due to him after the vesting order, and before his final Qyar. n. discharge, unless the provisional assignee interferes (s). Property held as Trustee.|—The assignee can only take Property such property as the insolvent is entitled to equitably as pe = well as legally (¢); where, therefore, the insolvent had : agreed to assign specific goods as a security for money advanced, and afterwards actually assigned them, the assignee was held not entitled to them, though the assign- ment itself, being voluntary, would have been void had it not been for a previous agreement (w). Goods in Order and Disposition of Insolvent.]|—Goods Goods in in the order and disposition of the insolvent, with the con- order and sent of the true owner, and of which the insolvent is the ae reputed owner, (except ships and shares thereof trans- cla ferred as security for a debt,) vest in the assignees (v). * This section is substantially the same as the 72d section of the Bankrupt Act, 6 Geo. 4, c. 16, re-enacted in sect. 125 of the 12 &18 Vict. c.106. The cases decided on this are therefore directly in point. To bring a case within this section there must be a real owner distinct from an apparent owner, and the real owner must consent to the apparent ownership as such (w). If goods therefore be bought by an insolvent with the fraudulent intention of never paying for him, the section does not apply (#) ; nor does it apply to the goods of an infant who is incapable of giving his consent (y). The goods ofa woman married to and living with an insolvent, who had a former wife living, were held not to pass to the assignees, she being ignorant of his former marriage; but it would have been other- wise if she had known that fact, and still permitted the goods to remain in his possession (z). Goods left in the possession of a bankrupt by his assignees are within this section (a). If there be a known custom in a particular trade for a party carrying it on to hire from other persons | a part of his implements or means of conducting the busi- ness, he cannot be considered as the reputed owner of such goods, these therefore do not pass to his assignees (4). In such a case nobody is deceived. Still less does the (s) Juckson v. Burnham, 8 Exr. Green, 15 M. & W. 216. 173; S.C. 22 L. J., Exr, 13. (2) Ib. (t) Garry v. Sharratt, 10 B. (y) Viner v. Cadell, 3 Esp. 88. & C. 716; Simsv. Thomas, 12 A. (z) Miller v. Demetz, | Moody & E. 536. & R. 479. («) Mogg v. Baker, 3 M. & W. (a) Butler vy. Hobson, 4 B N. 19d. C. 290. (v) 1 & 2 Vict. ec. 110, s.°57. (b) Watson v. Peache, \ B. N. (w) Per Parke, B., in Load v. C. 327. K 194, Fraudulent Warrants of Attorney. Parriy. section extend to the case of a factor, who has possession Fraudulent of other men’s goods, merely as trustee, or under a bare authority to sell for the use of his principal (c), unless he has sold the goods and received the proceeds in cash before the insolvency (d). Where A., in contemplation of marriage, assigned furniture to trustees to the separate use of his intended wife ; and after the marriage A. became bankrupt, the settled furniture being then in the house in which he resided with his wife; it was held that the furniture was not at the time of the bankruptcy in his order and disposition with the consent of the true owners (¢). Money or goods, entrusted to an insolvent for a particular purpose, are not within this section (/). Nor is any kind of property to which the insolvent is not equitably as well as legally entitled; the assignor there- fore of a chose in action, who is insolvent, may, after the date of the vesting order, sue the debtor for the benefit of the assignee (g); but in order to prevent such chose in action being still considered within the order and dispo- sition of the insolvent, it is necessary that the notice of the assignment should have been given to the debtor before the vesting order was made (). Questions of this kind most commonly arise on policies of insurance, and they usually tur upon the sufficiency of the notice of assignment (7); it is enough if the assignee has done all he can to give notice, though difficulties of time and space have prevented his notice being received before the vesting order (4). A symbolical delivery of goods by the insolvent will be sufficient to prevent this section from applying, if that be the best delivery of whith the nature of the goods will admit (J). The words of the section being confined to goods and chattels, it does not include chattels real or things attached to the free- hold (mm). Fraudulent Warrants of Attorney.|—Fraudulent war- warrants of rants of attorney made by the insolvent to creditors are attorney. void against the assignees, the provisions ofthe 3 Geo. 4, (c) Whitfield v. Brand, 16 M. 619. & W. 282, (h) Buck v. Lee, 1 A. & E. (d) Scott v. Surman, Willes, 804. 400. (i) See the cases collected, (e) Simmons y. Edwards, 16 Archb. Bt. Law, 10 Ed. p. 245:. M. & W. 838. and Gale v. Lewis, 9 \. B. 750.: (f) Tooke vy. Hollingworth, 5 (k) Belcher v. Bellamy, 2 Exr. T. R. 215; 2H. Bl. 501; Toovey 308. v. Milne, 2 B. & A. 683; Giles (1) Manton v. Moore, 7 T. R. y. Perkins, 9 East, 12. 67. (9g) Winch v. Keeley, 1 T. R. (m) Archb. Bt. Law, 244, Voluntary Preference. 195 ce. 39, being extended to them(n). By that act, if Guar. u. after twenty-one days from the execution of a warrant of attorney, a commission of bankrupt issued against the person executing it, it was declared void unless it had been filed in court, or judgment had been signed, or execution issued within that time. This cannot be read as judgment signed and execution issued ; therefore where a party became bankrupt more than twenty-one days after giving the warrant of attorney, and the warrant had not been filed, but judgment was signed within twenty- one days after its execution, afi. fa. under such judgment was held to be valid against assignees, though not issued until more than twenty-one days from the execution (0). Warrants of Attorney, Sc. may not be acted on.|—War- Warrants rants of attorney, cognovits, and bills of sale, although of attorney, given for a good consideration, may notbe put in force by pe” seizure or sale of the insolvent’s property after his im- acted on. prisonment has commenced; but the holder must come in with the creditors(p). A bill of sale, however, to be within this provision, must be one which is not absolute, but which requires the person to whom it is given to do -some act in order to complete his title ; for the statute does not intend to interfere with the right of one who has become absolute owner of the property before the imprisonment (¢). Voluntary Preference.|—Voluntary conveyances made Voluntary by the insolvent before or after imprisonment, are frau- preference. dulent and void against the assignees; this is not so, however, unless they are made within three months before the commencement of the imprisonment, or with the view or intention of petitioning (r). A payment made under similar circumstances, although it is not expressly men- tioned by the statute, is equally void (s). In order to constitute a voluntary assignment or pay- What is a ment within the meaning of the statute, it must be shewn voluntary to have originated in a voluntary act on the part of the pisference: insolvent; if it is made in consequence of a bond fide demand by the creditor, although there is no actual pressure by him, it is not “voluntary” (4). An assign- (n) 1&2 Vict.c. 110,s. 60, —p. 257. (0) Greenv. Wood, 7 Q. B.178. (7) 1 & 2 Vict. c, 110, s. 59. (p) 1 & 2 Vict. c. 110, s. 61. (s) Herbert v. Wilcox, 6 Bing. (q) Hunt v. Robins, 2G.& D. 203. 646; Hardy v. Tingey, 5 Exr. (t) Doe v. Gillett, 2 C. M. & 294; 8.0.19 L. J., Exr., 288. RB. 579; Mogg v. Buker,4 M. & See also the similar provision con- W. 348; Reynard v. Robinson, 9 tained in the Protection Act, post, Bing. 717. See similar decisions K 2 196 Part wv. Stock. Leases and agreements for lease. Leases. ment made after the commencement of the imprisonment, or within the three months, is void, although it is of all the insolvent’s property, for the benefit of all his creditors, if there be no pressure or new consideration (u). It is void, though made long before the imprisonment, if made with the intention of petitioning (v); but not other- wise (v). The fact of a judgment having been suffered by default does not in the absence of collusion make it void if there was a bond fide debt (y). Where a convey- ance is made to a creditor for a consideration sufficient in itself to justify it, it is valid, though part of the con- sideration is a pre-existing debt(z). Where, however, there is no new consideration, it is not the less voluntary because the person to whom it is made has called on the insolvent for an additional security (a). A conveyance which is fraudulent against the creditors, under 13 Eliz. c. 5, is void also against the assignees (6). Stock.|—Stock, of which the insolvent is possessed in the funds or any public company, may be transferred to the assignees by order of the Insolvent Court (c). Leases.|— Where the insolvent is entitled to a lease, or agreement for a lease, the assignees may elect whether or not they will accept it (d). They are allowed a reasonable time to make their election, and will not be held to have accepted it by merely taking steps to make it productive, but must do some unequivocal act which manifests their intention(e). An insolvent lessor cannot, however, continue to exercise the right of a landlord, as, for instance, to eject an occupier, although the assignee has never done any act to shew his acceptance or refusal of the lease(f). If the assignee accept the lease or agreement, the insolvent is discharged as to future rent, conditions, or covenants; if they decline to determine, upon fraudulent preference in bank- ruptcy, Cook v. Pritchard, 6 S. N. R. 84; Van Casteel v. Booker, 2 Exr. 691. (u) Binns v. Towsey, 7 A. & E. 869; Thompson v. Jackson, 4 S. N. R. 234; Jackson v. Thomp- son, 2 Q. B. 887. (v) Becke v. Smith, 2 M. & W. 191. See, however, Thoytes v. Hobbs, 21 L. J., Exr. 840, and post, p. 259. (x) Davies v. Acocks, 2 C. M. & R. 461, (y) Thorpe v. Eyre, 1 A. & E. 926. (2) Margareson vy. Saxton, 1 Y. & C. 525; Knight v. Fergusson, 5 M. & W. 389. (a) Harries v. Lloyd, 6 Beav. 426. (b 531. (c) 1 & 2 Vict. c. 110, s. 54. is) Tb. s. 50. e) Lindsay v. Lambert, 12 Moore,.209; 8.C.2C. & P. 526. (ff) Doev. Andrewes, 2. C:& P. 593 ; 4 Bing. 348. ) Doe v. Ball, 11 M.& W. Distress for Rent. 197 on being required so to do, whether or not they will yap. un. accept it, the lessor, or person agreeing to make the —---—— lease, may apply to the Insolvent Court, praying that the assignees may either accept it or deliver it up together with the premises; and the court may make such an order as is meet and just under the circumstances, which order is binding on both parties (). Real Estate and Copyhold.|—The duties of the assignees Real estate as to the sale of real estate will be found in sect. 47 of and copy- the act(h), where will be found also the method by which hold. they may surrender copyhold or customary estate beloug- ing to the insolvent. The directions there given are not mandatory, but only directory; the assignees therefore are not bound to act upon them (2). So although they do not strictly comply with the manner of selling the real estate which the creditors prescribe under that sec- tion, the contract is not void (4). Tenancy at Will.|\—Where a tenant at will becomes Tenancy insolvent the tenancy is determined by the vesting order. at will. So where a party creates a tenancy at will, and afterwards becomes insolvent, the vesting order, with knowledge thereof by the tenant, is a determination of the tenancy, and if the tenant, after such information, continues possession, he may be treated as a trespasser (/). Powers.|—All powers which are vested in the insolvent Powers. for his own benefit (except the right of nomination to a vacant ecclesiastical benefice), are vested in the assignees, and may be executed by them (m). Distress for Rent.|—No distress for rent levied after pistress the arrest or other commencement of the imprisonment, for rent. upon the goods of the insolvent, is available for more than one year’s rent accrued prior to the making of the vesting order; the landlord or person to whom the rent is due may, however, prove for the overplus of the rent due, for which the distress is not available, and is entitled to all the rights of a creditor as to that amount (7). Acts of Assignees valid, though Petition dismissed. |—If Acts of the petition is dismissed the vesting order is avoided; all co ei alid, g) 1 & 2 Vict. c. 110, s. 50. (k) Wright v. Maunder, 4 Beav. A) App. p. 172. The sale of 512. : an ingolvent’s property by his as- () Doe d. Davies v. Thomas, signees is not subject to auction 6 Exr. 854, 3 duty. See 1 & 2 Vict. c. 110, (m) 1 & 2 Vict. c. 110, ». 49. s. 116, (n) Ib. s. 58. (i) Cole v. Coles, 6 Beay. 517. 198 Parriv. though petition dismissed. Discharge of insolvent by detain- ing cre- ditor. Schedule ; when deli- vered ; contents of. Schedule. acts, however, done by the assignees, or others acting under their authority according to the act, are good and valid (0). Discharge of Insolvent by detaining Oreditor.\—Tf, after the vesting order has been made, the Insolvent is dis- charged out of custody by the consent or default of his detaining creditor, without any adjudication by the court, all acts done by the provisional assignee before the dis- charge, are valid, and no action can be commenced against him except to recover any property or estate, money, or effects of the insolvent detained after an order has been made by the court for the delivery thereof, and a demand thereupon (p). The Court of Queen’s Bench, (dissen- tiente Erle, J.,) held that the effect of such a discharge is to revest all the property in the petitioner (q). In a case, however, before the London Insolvent Court, Mr. Commissioner Law refused to act upon this view to its full extent, and held that although the discharge by the detaining creditor withdraws the person of the msolvent from the jurisdiction of the court, it does not divest the property passing under the vesting order, unless the petition is dismissed by the court (r). The view taken by Erle, J., and Mr. Commissioner Law, in these cases has since been adopted by the Court of Exchequer Cham- ber (s). Schedule.|—The insolvent must, within fourteen days after the vesting order has been made, or within such further time as the court may think reasonable, deliver to the court a schedule containing a full and fair descrip- tion of himself as to his name, trade or trades, profession or professions, together with his last usual place of abode, and the place or places where he has resided during the time when his debts were contracted ; also a full and true description of all debts due or growing due from him at the time of making the order, and of all and every person and persons to whom he is indebted, or who to his know- ledge or belief claim to be his creditors, together with the nature and amount of such debts and claims respec- tively, distinguishing such as are admitted from such as are disputed by him;—also a full, true, and perfect account of all his estate and effects, real and personal, in (2) 1 & 2 Viet. c. 110, s. 87. 211. The judgment of Mr. Com- p) Ib. s. 44, missioner Law was approved of by (q) Grange v. Trickett,21 L. Erle, J. in Kernot v. Pittis, ante, J., Q. B. 26, S.C. 16 Jur. 287; who differed from the rest of the Kernot v. Pittis,21 L. J.,Q. B. court in that case. 413; 8. C. 17 Jur. 383. (s) Kernot v. Pittis, ante. (r) Re Mander, 18 L. J. 175, Misdescription of Insolvent. 199 possession, reversion, remainder, or expectancy ;—also of Cuar. n. all places of benefit or advantage held by him, and whether the emoluments of the same arise from fixed salaries or from fees, or how otherwise ;—also of all his pensions or allowances in possession or reversion, or held by any other person or persons for or on his behalf, or of and from which he derives or may derive any manner of benefit: or advantage ;—also of all rights and powers of any nature and kind whatsoever, which he or any other person in trust for him, or for his use, benefit, or advan- tage in any manner whatsoever, is seised or possessed of or interested in, or entitled to, or which he or any other person or persons in trust for him, or for his benefit, has any power to dispose of, charge, or exercise for his benefit. or advantage ;—together with a full, true, and perfect account of all the debts at the time of making such order due or growing due to him, or to any one in trust for him, or for his benefit or advantage, either solely or jointly with any other person or persons, and the names and places of abode of the several persons from whom such debts are due or growing due, and of the witnesses who can prove such debts, so far as he can set forth the same. The schedule must also contain a balance sheet of so much of the prisoner’s receipts and expendi- tures, and of the items composing the same, as shall be at any time required by the court in that behalf (¢) ;— and also must fully and truly describe the wearing ap- parel, bedding, and other necessaries of the prisoner and his family, and his working tools and implements, not exceeding in the whole the value of 207. (which may be excepted from the operation of the act), together with the values of such excepted articles (w). hiped Misdescription of Insolvent.|—Great accuracy should be Misdes- used in the description of the insolvent in his schedule. cription of If he wilfully mistakes or mis-spells his name, the petition insolvent. will be dismissed (v). The court has, however, refused to dismiss a petition on the ground of the transposition of the Christian and surname (x). If the insolvent has carried on business under a fictitious name or firm, it should be inserted (y). So if he has carried on more trades than one, they should be inserted (z). So if he (é) See special balance sheet, v) Re Foster, Cress. :157. post, 201. a) Re Wolf, Cress. 138. (u) 1 & 2 Vict. c. 110, s. 69. (y) Re Blondell, Cress. 254. See as to the form of inventory of (z) Re Cooper, Cress. 168. excepted articles, post, p. 201. 200 Part Iv. Amend- ment. Fraudu- lent omis- sion of property. Omission of creditor. Error in amount of debts. What debts should be inserted, W hat debts should be inserted. has been in partnership (a). The description of his trade as “agent” only has been held too general (6). The last place of abode should be inserted, though it were only a temporary lodging which he has occupied in addition to his own house, especially if a debt has been contracted there (c). A mere casual visit to a friend’s house, no debt having been contracted there, need not be noticed (a), In all these cases, if the misdescription be wilful and fraudulent, the court will dismiss the petition ; ifit be unin- tentional only, but still such as would prejudice creditors, although the mistake is made, not by the insolvent him- self, but by others, as in the Gazette Office (e), it will direct the insolvent to amend and re-advertise (f'). Where there has been no fraud it will not affect the future vali- dity of the insolvent’s discharge as of creditors (9). Fraudulent Omission oj° Property.|—If a prisoner, with intent to defraud his creditors, wilfully and fraudulently omits in his schedule any property above the value of 20/., he and every one aiding him is guilty of a misdemea- nor (h). Omission of Oreditor.|—If a creditor is omitted he may apply to the court to have his name inserted on proof of his claim (2). Error in amount of Debts.|\—If a debt is stated in the schedule, although “not exactly the actual amount thereof,” without culpable fraud or negligence on the part of the insolvent, it will not affect the discharge as to the actual amount. See further of this, post, p. 227. What Debts should be inserted.|—Although creditors cannot oppose in respect of debts barred by the statute of limitations (£), they should be inserted in the schedule, as the effect of the statute is not to extinguish the debt, but only to bar the remedy. The effect of the insolvent’s ( Re Hyde, 14 L. T. 109. 54. (0 Fe Gibbon, Cress. 244; Re (A) 1 & 2 Vict. ve. 110, 5. 99. Feisiat, ib. 248. This does not apply to the special (c) Re Thompkins, Cress. 85; balance sheet, R. v. Marner, 1 C. Re Worster,ib. 80; Re Staves,ib. & M. 628. 7 56; Re W. M’Lintock, ib. 254. (i) 1 & 2 Vict. c. 110, s. 62. (d} Re O’ Keefe, Cress. 252. Borell v. Dunn, 2 Hare, 440, de- (e) Re Watt, Cress. 176. cided on 7 Geo. 4, c. 57. (f) Re Cody, 12 L. T. 334, (A) Post, p. 210. (9) Pascall v. Brown, 3 Stark. Special Balance Sheet. 201 omitting to insert any of his debts in his schedule is, that Cuar. n. he renders himself liable to be called on to pay them, not- withstanding his discharge (2) ; he is not bound, however, to insert a debt in order to relieve another from his liabi- lity to pay it. Thus, where a person who had mortgaged land to secure the payment of 100J., having sold it subject to the mortgage, taking a covenant from the vendee for pay- ment thereof, became insolvent, and subsequently sued the vendee for a breach of that covenant ; it was held that the insolvency of the plaintiff, and his omission to insert the 1007. in his schedule, was no answer to the action (m). Special Balance Sheet.|-—The court requires that the Special balance sheet of receipts and expenditures, called the balance “ Special Balance Sheet,” shall in no case begin later than four calendar months before the insolvent’s last commit- ment to custody. That if he was before that time arrested in any suit which is still continued, it shall begin not later than the time of such arrest. That if before those periods, but since the commence- ment of his present embarrassments, any property has gone away from him by sale, assignment, mortgage, dis- tress, execution, or any means other than the ordinary course of trade, the account shall commence so as to include all such transactions. That the blanks in the description of the debtor side of the account shall be filled up with a date early enough for compliance with the above directions. That the specific appropriation of each sum received shall be separately shewn, where the case admits of it. That the date of each item in the account shall be given by stating the day, as well as the year, when the same can be ascertained. That money and other property, whieh was in the posses-. sionof the insolvent or his family, or of any other person for his or their benefit, at the same time when he was last taken into custody, shall in all cases be made a specific item or items in the account (n.) Inventory of excepted Articles.) —Together with the Inventory schedule must be filed an inventory of excepted articles, with a valuation and certificate signed by the appraiser (0). (2) Post, p. 225. (o) Rules and orders of the (m) Allard v. Kimberley, 12 M. Insolvent Court, Rule 12, which & W. 410. gives the form to be used. See (x) Directions annexed to form App _p. 212. Where the insol- of special balance sheet. vent has made a false estate paper E3 of excepted. articles, 202 Filing Schedule. Panriv. General Balance Sheet.|— With the schedule must also -be filed a general balance sheet, in the form prepared by roce the court, of the insolvent’s receipts and expenditures cheet.. from the date of the earliest debt in his schedule up to : the time of signing his petition, including all property of every kind, with a description of the same, which he ma: have had at any time during that period; together wit the time when, persons to whom, and consideration for which any part thereof has been disposed of or parted with by him. In the general balance sheet reference may be = for the particulars of any matter to the special balance sheet contained in the schedule; but in the schedule reference must not be made to the general ‘balance sheet. The insolvent must also state in the general balance sheet the cause of his present insolvency, and the amount of debts, if any, al due by him under any prior insolvency or bankruptcy (p). A bankruptcy must be mentioned, even though it has occurred twenty years before (q). Schedule Schedule and Balance Sheet, how Signed.|—The schedule and ba- must be signed by the insolvent (r), and the schedule and lance sheet, balance sheet, with every amendment thereto, must be howsigned. read over in his presence by or in the presence of the attorney named in the retainer, before the insolvent signs it; and the balance sheet, and every side of every sheet of the schedule, and of any amendment thereof, must be signed by the insolvent. Such signature must be attested by the attorney, and not by any clerk; and such reading over signatures and attestation must be verified by the affidavit of the attorney, to be filed with the schedule ; for preparing and swearing which affidavit no charge may be made (s). Filing * Fuling Schedule.|—The schedule is filed forthwith in schedule. the court, together with all books, papers, deeds, and writings, in any way relating to the insolvent’s estate or effects in his possession, or under his order or control ( ¢): Applica- An application for leave to file the schedule after the tion to file expiration of the fourteen days must be supported by an after four- affidavit in the form prepared by the court ia teen days. Order for Order for Hearing in County Court.|--The court in hearing in London after the filing of the schedule “ forthwith” makes county court, the court has refused to discharge (r) 1 & 2 Vict. ce, 110, 8. 69. him forthwith, Re Drakeford, (s) Rule 15. Cress. 100; Re Jaklin, ib, 93, (é) 1 & 2 Vict. c. 110, s. 69. (p) Rule 14, (u) Rule 16. (q) Re Wall, Cress, 127, ; Notices. 203 an order referring the petition for hearing to the county Cuap. u. court within the district of which the insolvent is in cus- tody, and transmits the petition and schedule to such court for hearing (v). This order, with duplicates of the petition and schedule, is ready for delivery at the opening of the office on the ‘second day (exclusive of Sunday) after the filing of the schedule, but is not issued be- fore (x). The town agent should obtain these and for- ward them to the insolvent’s attorney, who should deliver them, together. with all books, papers, and accounts in the insolvent’s possession, and relating to his debts, credits, or estate, to the clerk of the county court to which the petition is referred. Appointment of, and Order for Hearing.|—The judge of the county court will appoint a time and place for the insolvent to be brought up before the court, and must follows : Appoint- ment, of, and order 2 A for hear- cause the usual notices to be given(y). These are as ing Notices.|—The act requires that notice of the making Notices. of the vesting order, and of the filing of the schedule, and of the time and place appointed for thé insolvent to be brought up, be given by the court, by such means as it shall direct, to the creditor or creditors at whose suit the insolvent is detamed-in custody, or to their attorney or agent, and to the other creditors named in the schedule, and resident within the United Kingdom, and whose debts amount to the sum of 5/., which notice must be - inserted in the “ London Gazette,” and also, ifthe court thinks fit, in the Edinburgh and Dublin Gazettes, or either of them, and also in such other newspaper or newspapers as the court directs (z). This notice must be given to the creditors whether the debts are admitted or disputed (a). a et How Served.|—To detaining creditors, and creditors for How 51. or more, service must be by sixteen days’ notice by *'ve4- personal service or post, and to the attorney or agent (resident more than ten miles from London) of’ every de- taining creditor suing by attorney (0). ~ Inall cases, by advertisement in the “ London Gazette” fourteen days before the day of hearing (¢). Where the insolvent is described in the schedule as (v) 10 & 11 Vict. c. 102,s, 10. (z) 1 & 2 Vict. c. 110, 5. 71. () Rule 18. See form of notice, App. p. 219. (y) 10 & 11 Vict. c. 102, s. (a) Rule 20. 10. See form of order for hear- (b) Rule 20, sect. 2. ing, App. p. 218” ce) Rule 20, sect, 3. 204 Pant iv. Defective service, Waiver of: Proof of service, Warrant to bring up Insolvent. Proof of Service. having resided in Scotland, or Ireland, or where four of the creditors so reside, by advertisement in the Edin- burgh or Dublin Gazette, fourteen days before the day of hearing (d). Where the insolvent is described in the schedule as having resided in some county in England other than London, Middlesex, or Surrey, by advertisement, pub- lished eleven days at least before the day of hearing, in some newspaper usually circulated in the neighbourhood of the insolvent’s last usual place of residence in such county. This rule applies to each of such counties, if there be more than one, in the description (e). In all cases, by advertisement, eleven days before the day of hearing, in some newspaper most usually circu- lated in the county or place where the case is ordered to be heard (f). Defective Service.|—Where notices have been served, but not in time, and the case is adjourned, a fresh notice may be given, in such time as, together with the former notice, will complete the regular period; but the second notice will not be effectual unless served five days if personal, and six days if by post, before the day of hear- ing ; nor unless the insolvent consents to waive notice of opposition; and notice for the original hearing is of no effect if served less than seven and nine days in such cases respectively (4). Waiwer of.]— Where the service has been defective, the creditor by appearing to oppose waives the defect (h). Proof of Service.|—As to the proof of such notices ; of those in the “London Gazette” no proof is needed (7). Other advertisements may be proved by production of the paper in which they are (£). Service personal or by post may be proved by affidavit of the messenger (/). Affidavits and advertisements (except those in the “London Gazette”) must be lodged between twelve and four o’clock, two days before the day notified in the “London Gazette,” for the hearing (m). Warrant to bring up Insolvent.|—The judge of the county court having made an order for hearing, may issue (d) Rule 20, sect. 4. (7) Rule 21, sect. 1. (e) Rule 20, sect. 5, (hk) Rule 21, sect. 2. (Ff) Rule 20, sect. 5. (4) Rule 21, sects. 3, 4, 5 (g) Rule 24, sect. 8, Form, App. 220. (4) Rule 20, sect, 9. qm) Rule 21, sect. 7. Production of Proceedings. 205 a warrant or order, directed to the governor, keeper, Cyap. 1. or gaoler of any gaol in which the insolvent may be, ——-— directing him to bring the insolvent before the county court, on the day appointed for the hearing of his petition, or at any adjourned sitting held in the matter thereof; and may order the expenses of bringing him up to be paid Expenses. by the provisional assignee out of the estate and effects of the insolvent, or if there be no estate, or it is insufficient for the purpose, out of the interest arising from the un- claimed fund (7). Subpoenas to Witnesses. |—The clerk of the county court, Subpcenas on application, issues subpoenas to all necessary wit- to wit- nesses. The names of not more than four persons may 788s. be inserted in each subpoena (0). The party requiring the attendance of the witness must tender to him his expenses (p). Order to bring a Prisoner as Witness.]—If any prisoner Order to whose estate has been vested by order in the provisional bring a assignee is a necessary and material witness in any matter P"soner as pending in the court, the court, or a judge of the county “'"*** court, may order him to be brought before the court, a judge, or examiner as often as is requisite (g). In cases where this is necessary, such an order should be obtained. Production of Proceedings.|—The clerk of the county Production court must, when the proceedings and papers are in his of proceed- custody, upon receiving a day’s notice from the insolvent 8s or a creditor, produce them for inspection at any time before the last day of entering opposition, before the hours of ten and three, and must provide copies if required (7). (n) 10 & 11 Vict. c. 102, 3. © (p) 1 & 2 Vict. c. 110, s. 27. 10. See form of this warrant, (q) Ib., and 10 & 1] Vict ¢. App. p. 220. 102, s. 10. See form of order, (0) 1 & 2 Vict. c. 110, 83.27. App. p. 222, ‘ 107; and 10 & 11 Vict. c 110, ir) 1&2 Vict. c. 110, s. 105, s. 5. See form, App. p. 222. and Rule 23. Hearing, 206 CHAPTER III. HEARING AND ADJUDICATION. Huanine, 206: Certificate of Property de- livered up. : Discharge of Insolvent on hus finding Sureties. Neglect by Insolvent to appear. Adjournment. Power to Commit for Con- tempt. For Perjury. * Opposition. Proof of Debi. Friendly Arrest. Reference of Schedule to Examiner. Grounds of Opposition. Examination of Insolvent and Witnesses. Affidavits and Interroga- tories. . Affidavits, how sworn. Evidence for Insolvent. Counsel’s Address and Reply. Apsupication, 211: Warrant of Attorney. Conditional Discharge. Prom what tume. Forthwith, or at End of Six Months. At End of Three Years. At End of Two Years. Order and Warrant to Gaoler. Imprisonment within the Walls. Where Insolvent has been out of Custody. Hearing. Tr ans a OFFENCES AGAINST CREDI- TORS GENERALLY, 212: Fraudulently withholding Books, Se. Concealment of Debts. Undue Preference. Making away with or Charging Property. OFFENCES AGAINST CREDI- TORS INDIVIDUALLY, 215: Breach of Trust. Contracting Debts fraudu- lently, or by false pre- tences. Waiver of Fraud by Cre- ditor. Contracting Debt without reasonable expectation of paying it. Fradulently obtaining Forbearance. Vexatious or Frivolous Defence. Incurring Damages in Ac- tion for Crim. Con., Se. Costs, 220: To Opposing Creditor. To Insolvent. How recovered. ALLOWANCE TO INSOLVENT, 220. RECOMMENDATION AND Ap- POINTMENT OF CREDI- TOR’ SASSIGNEE, 220. Mistake rn OrpDER, 221. RE-HEARING IN CASE OF Fravup, &c., 222. mn. os OR Be OARS Discharge of Insolvent on his finding Sureties. 207 made an order referring the petition for hearing to the Ogap. ur. county court, and having transmitted the petition and ———— schedule, and the judge having appointed a time and place for such hearing, and caused the usual notices to be given, the insolvent being brought up by his warrant (a), and any witnesses required bemg duly summoned, the hearing and examination takes place. any property has been Certificate given up by the insolvent, a certificate How the provi- of property sional assignee, or other sufficient voucher, must be e per produced (6). e Discharge of Insolvent on his finding Sureties.|—The Discharge court in London, or the county court, may after the order of insol-__ for bringing up the insolvent has been made, on giving f-y;°" os notice to the detaining creditors (c), direct that the insol- suretis, vent shall be discharged out of custody on his finding two sufficient sureties to enter into a recognizance to the pro- visional assignee in such sum as the court may think fit; with a condition that the insolvent shall duly appear at the time and place fixed for his hearing, and at every adjourned hearmg, and shall abide by the final judgment of the court, and on such other terms as the court may impose; and may issue a warrant to the gaoler to dis- charge the insolvent accordingly (d). An insolvent de- siring to be discharged on sureties till the hearing, must apply in the office of the court, and deliver the names, &c., of the necessary parties, entered in the proper printed form; he will thereupon receive a form of notice to be served on the detaining creditor and the proposed sureties, containing an appointment for entertaining such applica- tion (¢). In order to enable persons residing more than ten miles from the London court to enter into such recog- nizances without their appearing at Portugal-street for that purpose, the court has power to appoint persons in the various towns and places in the country to receive such recognizances(f). The judges of the county court may also take such recognizances from sureties willing to acknowledge them (g). The recognizances when taken are transmitted to and filed in the London court. If taken before a judge of the county court no oath of their execu- tion is necessary (/) ; if, however, they are taken before a person appointed by the court, an affidavit of their (4) As to this warrant and ex- vent Court, Rule 19. penses, see ante, p. 204. (f) 2&3 Vict. c. 39, ss. 2 & -(b) Rule 27. ss : (c) See form of this notice, (g) Ib. s. 5, and 10 & 11 Vict. App. p. 223. c. 102, s. 10. See form of recog- (d) 1 & 2 Vict. v. 110, s, 38. nizance, App. p. 224. (e) Rules and orders of Insol- (A) 2 & 3 Vict. c. 39, s. 5. 208 Adjournment. Partiy, having been duly taken, made by some person present Neglect by insolvent. to appear. Adjourn. ment. when they were taken, must be filed with them. For the taking of every recognizance the fee is 2s. 6d. (%). So soon as it is taken, justified by affidavit (4), and filed, the court issues an order and warrant to the gaoler for the discharge of the insolvent (2), and the insolvent is free from arrest or imprisonment by any creditor whose debt is specified in the schedule until the time appointed for his hearing, or such further time as the court by indorsement on the order from time to time may ap- point (m). If at the time and place fixed for the hearing, or any adjourned hearing, the insolvent, (not being prevented by illness or other lawful impediment allowed of by the court), does not duly appear, the recognizance is forfeited, and the amount secured thereby is recoverable in a sum- mary way by distress and sale of the goods of such sureties as the court directs. The amount so recovered is applied for the benefit of the creditors as if it were part of the insolvent’s estate. The court may also issue a warrant for the arrest of the insolvent, and deliver him to the. custody of the gaoler in whose keeping he was when dis- charged, who is to retake him ; all detainers which were in force against him at the time of his discharge, or have been since lodged against him, are in force, and on his appearance at the hearing he is for all purposes in the custody in which he was at the time of his discharge (7). Recognizances of sureties entered into before the transfer of the jurisdiction to the county court by 10 & 11 Vict. c. 102, are by that act made binding on the persons who have entered into them if the insolvent does not appear at the time appointed before that court (0). Adjournment.\—If the judge entertains any doubt touching any matter alleged against the insolvent at the hearing, to prevent his discharge, or otherwise touching the schedule, or the examination of the insolvent ; or if it appears to be necessary that any amendment should be made of the schedule; or if the insolvent refuses to be sworn, or does not answer upon oath to the satisfaction of the judge ; the judge may adjourn the hearing and exami- nation to some future sitting of the court. The insolvent upon such adjournment remains in custody, and may be again brought up, and the hearing and examination may (¢) 2 & 3 Vict. c. 39,5.3. See | See form of order and warrant to form, App. p. 224. gaoler, App. p 228. (A) See form of this affidavit, (m) 1 & 2 Vict. cu 110, 8. 38. App. p. 225. (n) Ib. s, 38. (4) 2 & 3 Vict. c. 39, s. 6. (0) 10 & 11 Vict. ec. 102,s. 11. Proof of Debt. 209 be further proceeded in as often as the judge thinks fit; Cuar..u. provided that when the hearing is adjourned by the judge —-———— generally, he must, upon the application of the insolvent (to be made within such time as the judge directs), order him to be brought up for rehearing accordingly, and such notice thereof must be given, and to such parties, as the judge directs (p). Power to Commit for Contempt.\—The judge of the Power to _ county court, when exercising his functions under the commit for statute which gives to his court jurisdiction with respect °™*°™?* to the hearing of insolvents, has power to commit for con- tempt; this power he enjoys as incident to a judge of the Insolvent Court, and not under the power given him by the County Court Act; this should therefore be ob- served in making out the warrant for commitment. Commitment for Perjury.) —In what cases and how the Commit- judge may commit persons to take their trial for perjury, ment for see ante, p. 96, and Appendix, p. 57. perjury. Opposition.|—A creditor before he can oppose the in- Opposi- solvent’s discharge, must have given notice in writing to tion. the prisoner of his intention to do so two clear days before Notice of. the day of hearing, exclusive of Sundays, and both the day of giving the notice and of the hearing (q). If, however, any one creditor has given notice, the others may be heard to oppose, though they have omitted to do so (7). This notice must be served personally (s). If an opposing creditor having given notice of his oppo- sition agrees to withdraw his opposition in consideration of a promise to pay a sum of money, even thou ghit be made by a third person, it is illegal and the contract cannot be enforced (¢). Proof of Debt.]—If the insolvent requires it, a creditor Proof of before he can oppose or examine the insolvent must make debt. oath or affidavit of his debt, or otherwise give satisfactory proof of his right to oppose (w). The debt must be one the amount of which is either certain, or may be ascertained by computation and with- out the intervention of a jury, and not merely a claim for (p) 1 & 2 Vict. c. 110, 8. 72. Practice, 162. See form of order for adjourned (t) Hall v. Dyson, 21 L. J, hearing, App. 228. Q. B. 224; 8. C., 16 Jur. 270. @ 1 & 2 Vict. c. 110,s.72, See also Murray v. Reeves, & B. and Rule 22, sect. 2. & C. 421. (r) 1 & 2 Vict. e. 110, s. 72. (u) 1 & 2 Vict. v. 110, s. 72. - (s) Rule 22, Cooke’s Insolvent 210 Examination of Insowent and Witnesses. Parr iy, unliquidated damages (v). If it be barred by the statute ————— of limitations the creditor cannot oppose (w). Friendly If there be a bond fide debt existing, the fact of the arrest. arrest being friendly or collusive is no ground for dismiss- ing the petition (#). Reference Reference of Schedule to Examiner.|—-The judge may of schedule ypon the application of a creditor supported by oath or to exa- affidavit, refer the schedule to the clerk of the court, or to mers an examiner duly appointed to investigate the insolvent’s accounts and examine into the truth of his schedule. The provision relating to this will be found in sect. 74 of the act 1 & 2 Vict. c. 110 (y). Grounds of — Grounds of Opposition. |-Before the examination of the opposition. insolvent is commenced, the opposing creditor, his counsel, or attorney, should state to the court shortly, and in their proper order the grounds of opposition. These may be, ‘ Ist. Objections to the petition (z) or schedule (a) which shew that the insolvent has not complied with the requirements of the act. 2d. That the insolvent has been guilty of acts which are injurious to the general body of creditors, and which render him lable to three years’ deten- tion (6). 3d. That he has committed acts which are injurious to creditors in their individual capacity, and which render him liable to two years’ detention (c). Examina- Examination of Insolvent and Witnesses.|—The insol- tion of in- vent being sworn, the opposing creditor, his counsel, or Te attorney, may put such questions to him, and examine nesses, SUCh witnesses as the judge may think fit, touching the matters contained in the schedule, and touching such other matters as in the opinion of the judge it may be fit and proper to inquire into (d). The creditor himself may be a witness. The rules of evidence as regards both the . nature and method of proof, and the examination of wit- nesses, are the same as in civil actions (e). The witnesses having been examined in chief, the insol- (v) Post, p. 226. Cy) App. p. 184. See form of (w) Re Boys, Cooke’s Insol- order for reference, App. p. 221, vent Prac. 164; Re Vallett, ib. ' (2) Ante, p. 189, 165. A debt barred by the sta- (a) Ante, p. 198. tute cannot be proved in bank- (6) Post, p. 214. ruptcy. Exparte Dewdney, 15 (ce) Post, p. 215. Ves. 479; Exparte Roffey, 2 (d) 1 & 2 Vict. c. 110, s. 72. Rose, 245. (e) Ante, pp, 72, 100. (x) Re Field, Cress. 236, Counsel’s Address and Reply. 211 vent, or his counsel or attorney, may cross-examine Cwap. m1. them (/'). Affidavits and Interrogatories.|—In addition to the evi- Affidavits dence given by the insolvent and witnesses, the judge may, 2nd inter- in cases where the usual place of abode of the insolvent, '°8*tones- at or lately before his imprisonment, has been other than in the county or riding where he is brought up, receive affidavits of creditors or other persons not resident within such county or riding, in opposition to the insolvent’s , discharge. The judge may also permit interrogatories to be filed for the examination or cross-examination of per- sons making such affidavits, and may adjourn the hearing till they are satisfactorily answered (y). 4 Affidavits, how sworn.|—Affidavits may be sworn before Affidavits, the court or judge, or any commissioner appointed by the bow sworn. court, or before a master extraordinary in Chancery, or commissioner appointed by a superior court, or in Scot- land or Ireland before a magistrate (h); also, by prisoners, before a magistrate, or, if the magistrate does not attend within twelve hours, before the keeper of the gaol (2). Evidence for Insolvent.|—The examination of witnesses Evidence or the reading of affidavits on the part of the opposing for insol- creditors being closed, the counsel for the insolvent may ‘°"* examine him upon the whole of the case, in explanation of his former evidence, or in contradiction to the wit- nesses or affidavits produced against him. The insolvent is liable to be re-examined on the part of the opposition, upon all the points referred to in the examination by his own counsel, but not as to any new matter. Witnesses may then be examined on the part of the insolvent. If he appear to have disposed of any property, or if any has been in any manner taken from him, he is bound to pro- duce all witnesses who can explain such dispositions or removals (4). Counsel’s Address and Reply.|—The evidence on both Counsel's sides being concluded, the opposing counsel may address aes the court, and the insolvent’s counsel is entitled to a *0°7P'Y- general reply. Adjudication.|— After the examination is concluded, Haase: Jon, (f) See Rules for Cross-ex- (4) 8 & 9 Vict. c. 127, s, 7. amination, ante, p. 101. App. p. 289. (g) 1 & 2 Vict. ce. 110, s. 73. (k) Cooke, p. 185. 7 (A) Ib, s. 112, 212 Part tv. Warrant of attorney. Conditional Discharge. upon the insolvent’s swearing to the truth of his schedule (and executing a warrant of attorney, authorizing one of the assignees to enter up judgment against him in one of the superior courts for the amount of the debts in the schedule, or so much thereof as are unsatisfied) (2), the court may adjudge that the insolvent is entitled to the benefit of the act, and that he shall be discharged from custody at such time as the court shall direct (m), and may make a warrant to the gaoler accordingly (7). ° The adjudication and order may be made without speci- : fying the debts, sums, or claims, or naming the creditors, Condi- tional dis- charge. From what time; forthwith, or at the end of six months, At end of three years, except so far as is necessary to distinguish between those as to whom an insolvent is discharged forthwith, and those as to whom he is discharged from some future period. The detainer or detainers with respect to which he is discharged must be specified in the warrant to the gaoler (7). Conditional Discharge.|—If it appear to the court that certain matters or things ought to be performed by or on behalf of the insolvent before his discharge, but that it is not expedient to adjourn the case, the order for discharge and warrant may be conditional on the performance of such things, and may provide that on their non-perform- ance, the hearing shall stand adjourned according to the direction made (0). From what Time.|—Where no cause appears to the contrary, the discharge may be forthwith, or so soon as the insolvent shall have been in custody at the suit of one or more persons as to whose debts and claims the dis- charge is adjudicated, for such period, not exceeding six months in the whole, as the court directs (p). | This is usually called the “ discretionary power’’ of the court. If, however, it appears to the court that the insolvent has fraudulently, with intent to conceal the state of his affairs, or to defeat the objects of the act, destroyed, or otherwise wilfully prevented or purposely withheld the production of, any books, papers, or writings relating to such of his affairs as are subject to investigation under (2) 1 & 2 Vict.c 110, s. 87. order for adjudication forthwith, See further of this, and how exe- _ and gaoler’s warrant thereon, and cution may he taken thereon, post, the like at a future period, App. p- 223. See form, App. p. 230. p- 2380, 231, 232, Also, forth. (m) 1 & 2 Vict. c. 110, s. 75. with as to some of the creditors, (n) Tb. s. 83, and at a future period as to others, (0) Ib. s. 84. App. p. 233, 234, (p) Ib. s. 76. See forms of : Hrom what Lime. 213 the act;—or kept, or caused to be kept, false books, or Cyap. mm. made false entries in, or withheld entries from or wilfully altered or falsified any such books, papers, or writings ;— or has fraudulently, with the intent of diminishing the sum to be divided among his creditors, or of giving an undue preference to any of his creditors, discharged or con- cealed any debt due to or from him ;—or made away with, charged, mortgaged, or concealed any part of his property, of what kind soever, either before or after the commence- ment of his imprisonment ;—then the court may adjudge . that the insolvent shall be discharged, and entitled to the benefit of the act so soon as he shall have been in custody at the suit of some one or more of the persons as to whose debts and claims such discharge is adjudicated, for such period or periods, not exceeding three years in the whole, as the court shall direct, to be computed as aforesaid (¢). And if it appear to the court that the insolvent has At end of contracted any of his debts fraudulently, or by means of two years. a breach of trust, or by means of false pretences ;—or without having had any reasonable or probable expecta- tion at the time when contracted of paying the same ;— or shall have fraudulently, or by means of false pretences, obtained the forbearance of any of his debts by any to his creditors ;—or shall have put any of his creditors to any unnecessary expense by any vexatious or frivolous defence or delay to any suit for recovering any debt or sum of money due from him to such creditor ;— or shall be indebted for damages recovered in any action for criminal conversation with the wife, or for seducing the daughter or servant of the plaintiff in such action, or for breach of promise of marriage made to the plaintiff in such action ;—or for damages recovered in any action for a malicious prosecution, or for a libel, or for slander ;— or in any other action for a malicious injury done to the laintiff therein, or in any action of tort or trespass to the person or property of the plaintiff therein, where it shall appear to the satisfaction of the court that the injury complained of was malicious ;—then the court may ad- judge that the insolvent shall be so discharged and entitled forthwith, except as to such debt or debts, sum or sums of money, or damages, as above-mentioned ; and as to such debt or debts, sum or sums of money, or damages, that he shall be sodischargedand so entitled,as soon as he shall have been in custody, at the suit of the person or persons who shall be creditor or creditors for the same respectively, for a period or periods not exceeding two years in the whole, as the court shall direct, to be computed as aforesaid (r). (q) 1 & 2 Vict. c. 110, s 77. (7) 1& 2 Vict. c. 110, 5. 78, See form, App. p. 235. See form, App. p. 236. 214 Part Vv. Offences against Creditor’s generally. It has been doubted whether an order can be made under both the above sections, although it has been the usual practice so to make them. Where an order directed that an insolvent should be discharged as to all his debts, except four, at the expiration of six months under sect. 76; and as to those four debts at the expiration of sixteen months under sect. 78, it was held by the Court of Com- mon Pleas that even if the latter part of the order were invalid, on the ground that after making the earlier part . the commissioner was functus officio, still as the insolvent Order and warrant to _gaoler. Imprison- ment with- in the walls, Where in- solvent has been out of custody. Offences against creditors generally. Fraudu- lent with- holding books, &c. was not discharged as to those debts, the detainers lodged in respect of them remained in force, and he was not entitled to be discharged on habeas corpus (s). The adjudication having been made, the judge may make an order and issue a warrant to the gaoler accord- ingly, ordering the insolvent’s discharge from custody as to the detainers under which he is confined, or which are lodged against him before he is out of custody for debts in respect of which the adjudication has been made (¢). In any of the above cases, where the prisoner is detained, the judge may, if he think fit, order that the insolvent shall be kept within the walls of the prison, and not within the rules or liberties (w). The insolvent may in these cases be detained or arrested at the suit of one or more creditors with respect to whom his detention is adjudged; but when the time of their detention has determined, he is entitled to the benefit of the act, though he has been out of actual cus- tody part of the time by reason of his not having been arrested or detained (v). Offences oe Creditors generally.|—The following remarks apply to those acts which, when committed by the insolvent, are injurious to his creditors generally, and which, if proved, render him liable to be imprisoned for three years. As to what constitutes a fraudulent withholding of books or papers, keeping false books or accounts, or wil- fully altering or falsifying them, it is needless to add any remarks; it may be useful, however, to direct attention to the Bankrupt Act, 12 & 18 Vict. c. 106, sect. 201, which contains a somewhat similar provision. The next offence in order is the insolvent’s fraudu- (s) Ex parte Violett, 10 C, B. and 10 & 11 Vict. c. 102, s. 10. 891; 8S. C.2L.M.& P. 279; 20 See forms of orders and warrants, L.J.,C.P.171. See also Har- App. p. 234. vey v. Hudson, 5 Ex. 845; 8. C. (uw) 1 & 2 Vict. e. 110, 81. 1L.M. & P. 660. (v) Ib. s. 85. (t) 1 & 2 Vict. c. 110, s, 83; YY eIWOD WYWEIs’ WTOWLLUTS cnuvovawally. 215 lently, with the intent of diminishing the sum to be Cuar. 1m. divided among his creditors, or of giving an undue pre- ference to any of them, discharging or concealing an debt due to or from him. What is a concealment of a debt must depend upon the particular circumstances of each case, and calls for no observations. With regard to undue preference, as this portion of the statute is of Undue a penal character, decisions respecting fraudulent pre- preference. ferences, void against assignees of a bankrupt or insol- vent, though somewhat analogous, cannot, perhaps, be considered as strictly in point; they may, however, form a considerable guide in determining what is an undue preference within the meaning of the act. These having been already mentioned need here be only referred to (#). ‘ The last of this class of offences is, making away with, Making charging, mortgaging or concealing his property before away with or after the commencement of the imprisonment. The or enener is offence of making away with property applies not only to ? ae cases in which the insolvent has deprived all his creditors of the benefit of it, but also where he has given up the whole of his property to one or two creditors, to the pre- judice of the rest (y). Conceal- ment of Debts. Offences against Creditors individually.|\—We will now Offences consider those offences which are injurious to the creditors against individually, and which render the insolvent liable to im- oo prisonment for two years. dually. Contracting a debt by means of “a breach of trust” 5 oon of does not apply to cases where a trustee is guilty of a tract, breach of trust against his cestui que trust, but to cases in which the word is used in another sense, viz.: where a confidence has been established, such as exists between principal and agent (z), and is especially applicable to the cases of collectors, clerks, commercial travellers, and the like; nor as against the employer is an act the less a breach of trust because it amounts to an embezzlement, if the position which enabled the insolvent to commit the act was created by a confidence on the part of the cre- ditor (a). In these instances the court usually acts with greater severity than in other cases (6). In order to prove that a debt is contracted fraudulently, Contract- or by means of false pretences, there must appear, first, ing debts the fraudulent intent on the part of the insolvent, evi- mau: lent] denced by any deceit, whether by word or act, or by con- i ele retences. (x) Ante, p. 195. plied, Re Egler, Cress. 5, . (y) Re Johncock, Cress. 170. (2) Re Langley, Cress. 43. (z) As where money received (6) Re Davis, Cress, 143. for a specific purpose is misap- 216 Pant Iv. Offences against Creditors individually. cealment of the truth where it was his duty to declare it; and secondly, that, without such fraud or false pretences, the creditor would not have allowed the insolvent to con- tract the debt. ‘he fraudulent intent must be shown to have existed at the time of contracting the debt: where therefore the insolvent has at the time when he obtained money, or goods on credit, acted with bona fides, no subsequent fraud can avail to make the original act (the contracting of the debt), fraudulent within the statute (c). Fraud may be evidenced by any false statements on the part of the insolvent which are calculated to weigh with his creditor in giving him credit, as representing that he had an order for a particular article which he seeks to obtain (d), or stating that he has an account with a banker on whom he gives a bill (e), or the like; these instances rank under the head of contracting debts “by means of false pretences,” and are analogous to similar offences whichare indictable ( /),andas towhich it has been heldthat the pretence must be of some existing fact, and not merely a pretence that the party would do an act which he did not mean to do, as promising to pay for goods on delivery (4), this being a mere promise, so that common prudence would enable the creditor to guard against injury from the breach of it; but even in these cases it is not necessary that the pretence should have been by words, but it may be proved by the acts of the party, such as producing false papers, or assuming a character which does not belong to him (A). The word “ fraudulently”’ is, however, of wider significa- tion, and includes not merely cases of pretence, whether by word or deed, but any deceitful or dishonest scheme, plan, or contrivance, whereby one person is induced to pay money to or for another, or to lend money to him, or to sell goods, or to part with any species of property whereby a debt is incurred (7), as by allowing the person with whom he is dealing to remain in ignorance of the fact of his having been arrested (4), or of his being in prison (J), or suffering the creditor to remain in error as to a material (c) Re Bate, Cress. 249; Re Manton, Cress. 253. See Major Semple’s Case, 1 Leach, C. L. 420 ; Roscoe Crim. Evid. 608, 3rd edit. as to the original intention with which goods are obtained. (d) Re Ogston, Cress. 105. (e) Re Steer, Cress, 135. (f) 7 & 8 Geo. 4, c. 29, s. 53. Roscoe’s Crim. Evid. “ False Pretences.” (g) BR. v. Goodall, Russ. & Ry. 461. (A) R. v. Douglass, 7 C. & P. 785, note; R. v. Barnard. ib, 784; in which a person at Oxford, wearing a commoner’s gown, but not being a member of the uni- versity,e having ordered goods, was held to have obtained them under false pretences. (i) Cooke, 199. (k) Re Bray, Cress. 89. (1) Re Tolfrey, Cress, 48. Offences against Creditors individually. 217 fact (m), or to act on a false representation made by a Cuar.m. stranger (n). The fraud must, however, in all cases amount to moral fraud ; a false statement supposed by the party making it to be true will not suffice (0). Although fraud on the part of the insolvent is clearly Waiver of proved, the court, in accordance with a rule well known fraud by to the courts of common law in cases of contract (p ), ‘editor. holds, that if the creditor, being aware of the fraud, does any act of condonation or waiver of the fraud, as by accepting as a fresh security a bond (g), or warrant of attorney (r), or by accepting payment of a portion of the debt (s) or the like, he is estopped from reverting to the fraud as a ground of opposition. So where subsequently to and with knowledge of the fraud, any agreement or settlement is made or entered into by or between the creditor and insolvent which has the effect of altering the nature or character of the cre- ditor’s claim (4), as by a submission to arbitration, whe- ther there is a subsequent award or not, the fraud is considered as superseded (wz). There is often a question of much nicety as to what Contract- constitutes the contracting of a debt “without reason- nae able or probable expectation at the time when contracted as of paying the same.” The offence being classed among expecta- those which affect the creditors in their individual capa- tion of - city only, the inquiry on this head must be limited to the Paymg '- particular debts due to those creditors who oppose the discharge; and an opposing creditor may inquire of an insolvent what his expectation was at the time of con- tracting his debt, but he will not be permitted to extend his examination for the like purpose to any of the other debts contained in the schedule. He may, however, ascertain, by the examination of the insolvent, and his schedule, the state of his affairs and the extent of his debts at the time of contracting the particular debt which is made the ground of complaint, from which the court may judge how far the insolvent’s expectation at the time of contracting this debt of being able to pay it was reason- (m) Hilly. Gray, 1 Stark. 434, after discovering the fraud, con- (2) Pilmore v. Hood,5B.N. C. _ tinues to deal with it as his own, 7. he cannot recover back the money (0) See cases in which this dis- from the seller. tinction is pointed out, ante, p. () Re Scotson, Cress. 102. 216, note (c). r) Re Streachan, Cress, 109. (p) See Cumptell v. Fleming, | 8) Re Gibbons, Cress. 244. A. x E. 40, where it was held t) Cooke, 210. that if a party, who has been in- (u) Re Ashley, Cress. 125; Re duced by fraudulent misrepre- Taylor, ib. 155. sentation to purchase an article, Te 218 Parr v. Fraudu- Jently ob- taining forbear- ance. Vexatious or frivolous defence. Offences against Creditors individually. able or probable (x). In cases where there is any ground for supposing that the opposing creditor was aware when the debt was contracted that the insolvent had no pro- perty, the creditor himself should be examined (y). ‘The court in coming to a-conclusion on this head of oppo- sition must necessarily take into consideration various circumstances; the immediate pecuniary state of the insolvent, his future expectancies, either reasonable or not; his condition in life, and that of his immediate rela- tions; the nature and amount of the debt, whether con- tracted for necessaries or luxuries; all or some of which facts as they may exist in each individual case form, when viewed both separately and in the aggregate, the grounds from which the court must arrive at its deci- sion in each particular case. One rule has, however, been observed which will admit of definition, namely, that where the debt has been contracted by the purchase of goods by the insolvent in the ordinary course and bond fide prosecution of his business, since from the very fact of obtaining them he provides to himself a pros- pective means of payment on their sale, the court will not, unless gross improvidence appears in the transaction, hold it to come within this provision. Where an insolvent, who had been arrested on mesne process, whilst out on bail purchased goods to re-sell for which he never paid, the court held that he had obtained them without reasonable expectation of paying for them (2). ‘With respect to the “fraudulently or by means of false pretences” obtaining forbearance of debts by any cre- ditors, the same observations are applicable as those which have been made on the contracting debts in a similar manner (a). In order to prove that the insolvent has put any of his creditors to unnecessary expense by any vexatious or frivolous defence or delay to a suit for recovering a debt, or sum of money, due from him, the proceeding in such suit, unless admitted by the insolvent, must be proved in the usual way (6). The amount of expense occasioned by the delay must also be proved. The statute only applies to suits for recovering a “debt,” or “sum of money :”’ actions, therefore, of tort, as ejectment, tres- sie, case and trover, are not within its provisions, nor oes it apply to actions of assumpsit to recover unliqui- (x) Cooke, 212. The practice (y) Re Brewster, Cress. 192. as there laid down was cited and (z) Re Stockford, Cress. 87. approved of by the court in the (a) Ante, p. 215. case of in Re Brewster, Cress, 192, (6) Ante, “ Evidence,” p. 75. Offences against Creditors individually. 219 dated damages for the breach of an agreement, express OF Cyap. m1. implied; since in these cases no debt being ascertained —-_—— it cannot be shewn that a debt or sum of money is “due’’ (ce). It is impossible, from the nature of the offence, to lay down any general rule as to what is a vex- atious or frivolous defence or delay; one of the most common evidences thereof is where an insolvent having pleaded to an action, at the trial offers no defence (d); or before trial admits his liability; in which cases the court is guided by what took place ‘at the time of the trial or admission. So where the insolvent has pleaded a state of facts impossible, or contrary to truth (e). If however, the insolvent appears to have bond fide believed that he had a good defence to an action, and accordingly resisted it, the defence or delay cannot be considered frivolous or vexatious; although owing to some mistake either in fact or law under which he laboured, he is not justified by the result (f). A defence cannot be con- sidered frivolous on account of its being technical, if there be a reasonable probability of its success (9). Another consideration which frequently weighs with the court in adjudicating on this offence, is the fact that the insolvent, from his being an attorney, or otherwise specially conversant with the practice of courts, is fully. aware of the amount of expense which a plaintiff under such cir- cumstances incurs, and also of the effect of such a course of conduct as regards himself (4). A circumstance, also which, although a substantive offence in itself when it co-exists, as it frequently does, with that which we are now considering, aggravates the amount of blame attach- ing to each separately, is the insolvent’s employing that time which is gained to him by means of vexatiously defending an action, in making away with his property, thus wholly or in part depriving his creditors of it (2). The last offence mentioned by the statute is, where Incurring the insolvent is indebted for damages in an action for damages criminal conversation, seduction, breach of promise of : action . oe : : or crim, marriage, malicious prosecution, libel, or slander, or for oy ac. malicious injuries. The court in the first six of these cases is governed entirely by the amount of the verdict, and refuses to hear evidence which affects the merits, since otherwise each case might be re-tried (4). With (c) Re Everard, Cress. 195. (A) Re Giles, Cress. 127. (a) Re Clayton, Cooke, 218 ; (4) Re Loving, Cress. 117. Re Bedford, ib. ; Re Gould, Cress. (Rk) Re Palmer, Cooke, 222; 130. Re March, ib. 28; Re Juckson, (e) Re Loving, Cress. 117. Cress. 37; Re Howard, 17 .. 't. (f') Re Hindle, Cooke, 219. 312. (g) Re Hoskins, Cooke, 220. L2 220 Part iv. Damages in action for mali- cious in- jury. Costs ; to oppo- sing cre- ditor ; to insol- vent; how re- covered, Allowance to insol- vent. Recom- mendation and ap- Allowance to Insolvent. regard, however, to the condition and station of life of the defendant, which, although it does not affeet the amount of crime attaching to the offence, may, and pro- bably would, have materially influenced the jury m the amount of damages they gave, the court will receive evidence (/). Where, however, the damages have been given in an action for a malicious injury, the statute requires that it shall “ appear to the satisfaction of the court that the injury complained of was malicious ;”’ in these cases, therefore, besides the proof of the verdict and of damages having been given, evidence aliwnde is required to show the extent of that malice which constitutes the offence to be inquired into (m); the court, however, is still guided in its judgment by the amount of the damages (m). Costs.|— When any opposing creditor proves to the satisfaction of the judge that the insolvent has done any act for which upon adjudication he is liable to remain in custody for a period not exceeding three years, the judge is directed by the act to order the taxed costs of the opposition to be paid to the opposing creditor out of the estate and effects of the insolvent, by the assignee, before any dividend is made; in other cases also where the opposition is substantiated, or effectual, the judge may so order if he thinks fit (0). If it appears to the judge that the opposition was frivolous and vexatious he may award such costs to the insolvent as appear to him to be just and reasonable, to be paid by the creditor making the opposition (p). The court may cause these costs to be recovered in the same manner as costs awarded by any rule of the superior courts may be recovered (pp). Allowance to Insolvent.|—The court may order the creditor at whose suit the insolvent is detamed, to pay him a sum not exceeding 4s. per week, at such times and in such manner or proportion as the judge directs, and may order that on failure of payment the insolvent shall be discharged at the suit of the creditor or creditors fail- ing to pay (q). Recommendation and Appointment of Oreditors’ Assignee. ] —At this state of the proceedings any one of the creditors (1) Re Allen, Cress. 100. See forms of order in either case, (m) Re Pratt, Cress, 229; Re App. pp. 238, 239, Marsh, Cooke, 22:. (p) 1 & 2 Vict. ¢. 110, s. 82, (n) Re Shepherd, Cooke, 299. (pp) Ib. s. 118, (9) 1 & 2 Vict. c. 110, s. 82. (q) Ib. ». 86. Fee-hearing in case of Fraud, &e. 221 who is desirous of becoming assignee, may signify his Cyap. m. willingness to be appointed, and should fill up an accept- ————— ance paper. On the recommendation of the judge of the ee county court, and the acceptance paper being presented foe as. to the court in London within ten days, the clerk of the signee. court will give a receipt for them, and will, on ascer- taining the sufficiency of the acceptance, prepare the order of appointment; which may then be taken, together with the insolvent’s books and papers, if any, from the care of the book-keeper (7). ‘ Mistake in Order.|—If any order or warrant for the Mistake in discharge of an insolvent has been made by mistake, on order. the error being shown to the judge he may revoke, annul, suspend or amend the order, and, if necessary, re-commit the insolvent (s). Eee-hearing in case of Fraud, &c.|—The adjudication and Re-hearing order are final and conclusive and. cannot be reviewed, un- in case of less “the court” (¢) shall afterwards see good and sufficient fraud, &c. cause to believe that the adjudication has been made on false evidence, or has been otherwise improperly made, or fraudulently obtained ; in which case it may direct a re- hearing before the judge of the county court, who may annul the original adjudication and order, and adjudicate upon the case as if it were an original hearing, and if necessary may remand the insolvent to the custody he was in before the hearing. All detainers against him remain in force as if he had not been discharged. If he refuses or neglects to appear, the court may order him to be arrested. The judge may in such second adjudication direct that the time since the former hearing shall not be calculated in the time for which he orders his detention (w). The application for a re-hearing upon the ground of fraud or false evidence must formerly have been made to the Insolvent Court in London (v). Since the hear- ing of insolvents has been transferred to the county courts, it has been held that the court m London has no jurisdiction to make an order for re-hearing, upon the ground that the provisions of the statute do not m terms apply to the case of an adjudication by a county court, and that on principle, although it was reasonable to vest the power of deciding or re-hearing in a tribunal, of which all, or at least one, of the judges bad presided over the (r) See ante, p. 190. For form (wu) 1 & 2 Vict. c. 110, s. 96. of acceptance paper, App. p. 239. (v) This is clear from the lan- (s) 1 & 2 Vict. c. 110, 8. 97. guage of 1 & 2 Vict. c. 110, s. 96. (t) See post. 222 Re-hearing in case of Fraud, Se. Parriv. former hearing, it would be inconvenient to require that a tribunal should have to decide whether. a judge had been deceived either by false evidence, or otherwise, with- out having the power of communicating officially with that judge upon a matter depending chiefly on what passed in his own mind (). The above decision shews that the Insolvent Court in London has ‘not jurisdiction. In a more recent case (y) it was decided that the county court has jurisdiction to direct a re-hearing ; it may be doubted, however, whether if an order for re-hearing is made by the judge of a county court, and the insolvent neglects to attend, the judge can by his warrant enable the bailiff of the court to arrest the insolvent, unless he be within the jurisdiction of the court from which the warrant issues. This question was raised during the argument of the last-mentioned case, but the court declined to express any opinion upon the point. (@) Re Clabburn, 21 L. J., Q. (y) R. v. Dowling, 22 L. J., B. 379; 8. C. 16 Jur. 859. Q. B. 296. 223 CHAPTER IV. PROCEEDINGS SUBSEQUENT TO, AND EFFECT OF ADJUDICATION. Retury oF Procrrpies to Insonvent Court, 228. Warrant oF ATTORNEY AND EXECUTION THERE- ON, 223. CaNncELLING WARRANT OF ATTORNEY AND RBE-as- SIGNMENT OF PROPERTY, 224. Errect oF DiscHares, 224: To what Debts it extends. Costs. Annuities. Executory Contracts. Debis of Wife. Errrct oF D1scHarGe, 224: Error in Amount of Debts stated in Schedule. Absence of Notice or Mis- description. Sureties. Protection oF INSOLVENT, 228. ComMIrMEeNnT By County Covrt, 228. New Securiry, 229. AFTER ACQUIRED PROPER- TY, 230. EXAMINATION OF INSOL- VENT AFTER DiscHARGE, 230. Return of Proceedings to Insolwent Court.]—After the Return of hearing and adjudication. in the county court, the petition, proceed- schedule, and all judgments, rules, orders, and proceedings Tee ; of the county court are returned to the Insolvent Court Gout in London, signed by the judge of the county court, to be a record of the London court (a). Warrant of Attorney and Execution thereon.|—We have Warrant of already seen, that before the adjudication can be made, attorney the court must require the insolvent to execute a warrant and exe- of attorney to authorize the entering up of a judgment oe against him in one of the superior courts, in the name of , the assignee or assignees, for the amount of the debts stated in the schedule, or so much thereof as appear to be due and unsatisfied at the time of executing the warrant of attorney. The warrant is not within the act, 3 Geo. 4, clerk of the county court and re- (a) 10 & 11 Vict. e. 102, s. 10. See form of calendar of cases heard, to be made out by the turned to the Insolvent Court in London, App. p. 241. : 224 Part iv Cancelling warrant of attorney and re-as- signment of pro- perty. Effect of discharge. Effect of Discharge. c. 89, it need not therefore be filed to make it valid; nor need it be executed in the presence of an attorney acting on behalf of the insolvent. The order of the Insolvent Court is a sufficient authority to the assignee to enter up judgment, and the judgment when entered up has the force of a recognisance. Tf at any time it appears to the court that the insolvent is of ability to pay his debts, or any part of them, or that he has died, leaving assets for that purpose, the court may permit execution to be taken out on the judgment for such sum as, under all the circumstances of the case, the court. may order. The sum so obtained must be distri- buted rateably among the creditors, in the same way as a dividend. The court may direct further proceedings on the judgment if necessary, until all the debts are satisfied, together with such costs as the court thinks fit to award. No secire facias is necessary to revive the judgment, but execution may at all times issue by order of the court (4). After the death of the insolvent, neither the Insolvent Court nor a Superior Court can order judgment to be entered up (c). If an application to enter up judgment appears to be ill founded or vexatious, the court may dismiss it, and order the party making the application to pay costs (0). Cancelling Warrant of Attorney and Re-assignment of Property.\—If at any time after the adjudication, it ap- pears. to the satisfaction of the court that all the debts, in respect of which the adjudication was made, have been discharged and satisfied, the court may, upon appli- cation, direct that the warrant of attorney shall be can- celled ; or if judgment has been entered up thereon may order satisfaction to be entered on the judgment. The court may also, if any goods or property of the insolvent remain in possession of the assignees, order that they be vested in the insolvent, or his heirs, executors, or admi- nistrators. Any deed of release required for this purpose is not liable to stamp duty (d). Effect of Discharge.|—The discharge does not extin- guish the debt, but operates as a protection to the person of the insolvent and his goods from future suits or execu- tions, in respect of all the debts and sums of money due at the time of making the vesting order from the insolvent to the persons named in the schedule as creditors, or for which they have given him credit before the vesting order, (6) 1 & 2 Vict. c. 110, s. 87. 177, (¢) Harden v. Forsyth, 1 Q. B. (d) 1 & 2 Vict. c. 110, s. 92. Affect of Discharge. 225 but which are not then payable (e). In order to see towhat Cuap..v. debts the discharge extends, reference must be had to sect. ———— 69 (ante, p. 198), which directs what debts must be inserted in the schedule. The words “ debts growing due, used in ‘that section, do not mean growing debts, but debts which To what are ascertained in amount and payable in future (f). The debts it insolvent is discharged also from all claims of other per- ¢*tends. sons not known to the insolvent at the time of the adju- dication, who are indorsees or holders of any negotiable security set forth in the schedule (g), although they are not named therein (%). The discharge, however, does not operate generally as to all debts then due to such cre- ditors, which are not specified in the schedule, but only as to those which he mentions in the schedule and of which he gives notice (7); this has been held to be so, although the debt was omitted at the express request of the cre- ditor, as being against the policy of the Insolvent Acts (4), and the discharge from a debt for which the insolvent has accepted a bill of exchange, is no discharge as to the bill in the hands of a third party, unless the holder’s name has been inserted in the schedule, or it is stated that he is unknown (J). The discharge is not only a bar to a future action, but it prevents a creditor from setting off the debt in an action by the insolvent, for a demand accruing since the discharge (m). In the case, however, of an insolvent tenant, who has inserted rent in his schedule, and been opposed by the landlord, it is no bar to a subsequent dis- tress for it (x). The payment of a dividend under an insolvency will not operate to take a case out of the statute of limitations. When one of three joint makers of a promissory note be- came insolvent, and inserted the note and the holder’s name in his schedule, and a dividend was afterwards paid to the latter in respect of the note, it was held in an (e) 1 & 2 Vict. c. 110, 3. 75. (f) Skelton v. Mott, 5 Exr. 231; S.C. 19 L. J., Exr. 243. (g) 1 & 2 Vict. c. 110, s. 75. If the holder be known, notice must have been given, Pugh v. Hookham, 5 C. & P. 376. Where an insolvent who had accepted and given to the payee a bill drawn on him by J. S., described the bill in his schedule as drawn by J. S., - but did not name the payee or al- lege that the holder was unknown. It was held that the insolvent was not discharged as to the payee, Lambert vy. Smith, 20 L. J., C. P. 195. (h) Boydell v. Champneys, 2 M. & W. 433. (4) Taylor v. Buchanan, 4 B. & C. 419; Tyers vy. Stunt, 7 Scott, 343 ; Leonard v. Baker, 15 M. & W. 202, overruling Davis v. Lloyd, 1 Jur. 349. (k) Tubram v. Freeman, 2 C. & M. 451, but see Howard v. Bartolozzi, 4 B. & Ad. 555. (1) Beck v. Beverley, 11 M. & W. 845. (m) Francis. v. Dodsworth, 4 C. B, 202. (n) Phillips v. Shervill, 6 Q. B. 944. L3 226 Effect of Discharge. Parr iv, action upon the note that such payment was not sufficient ——— to take the case out of the statute of limitations, either as against the other makers of the note, or as against the insolvent himself (0).. Costs. ~ ‘The discharge extends also to the process of any court for contempt, for non-payment of costs or expenses, and all costs arising therefrom (p); and the discharge as to any debt or damages includes all costs incurred by a creditor before the filing of the schedule, in any action or suit against the insolvent for the recovery thereof (gq). Where judgment was signed in an action of tort, after the filing of the petition, but on a verdict obtained before, the insolvent was held to be discharged’ from both damages and costs (r). An insolvent inserted in his schedule the name of a person to whom he had given two bills to dis- count, and who had endorsed them for his own use. The schedule was amended by putting in the name of the indorsee, to whom notice of the hearing was given. The indorsee having notwithstanding, brought an action on the bills, and obtained judgment against the insolvent, it was held that the insolvent’s discharge extended to the costs, though incurred after the filing of his petition (s). Annuities. |The discharge extends also to sums payable by way of annuity, for which, the court having determined their pre- sent value, creditors may prove without prejudice to other securities (¢). Executory The insolvent, notwithstanding his discharge, remains contracts. Hable to perform executory contracts; thus, a mortgagor who had covenanted, as a further security, to insure his life, was held liable on the covenant for future premiums, though he had inserted the mortgage debt in his sche- dule (w) ; nor does the discharge extend to claims for un- liquidated damages, therefore it is no answer to an action for mesne profits though they accrued before the dis- charge (v); nor to damages which are not ascertained at the time of the discharge, although the action in which they are sought to be recovered was commenced and judgment suffered by default prior to the insolvent’s im- prisonment (2). So in all cases where the payment de- (0) Davies v. Edwards, 7 Exr. (s) Berry v. Irwin, 8 C. B, 22, 532; S.C. 19 L. J., C. P. 110, (p) This would not include a t) 1 & 2 Vict. ¢. 110, s. 80. fine on a conviction for perjury u) Bennett v. Barton, 12 A. & (R. v. Norris, 4 Burr. 2142); but E. 657; La Coste v. Gillman, 1 it applies to an attachment for Price, 315. So under the Bank- non-payment of costs,on 5 W. & rupt Act, Toppin v. Field, 4 Q. M. c. 11, on an indictment for B. 386. assault, Anon. Lofft. 648. (v) Lloyd v. Peell, 3 B.& A. (7) 1 & 2 Viet. c. 110, s. 79. 407, (7) Goldsmid y. Lewis, 3 B. N. (1) Wilmer y. White, 6 Bing. C. 46, 291, Sureties. 227 pends upon a contingency which cannot be valued under Cuap. w. the insolvency (y) ; where, however, the fulfilment of a ———~ contract may be reduced to the payment of a sum certain, as in the case of a bond to replace stock (2), or to pay a sum by instalments (a), the amount may be inserted in the schedule and the insolvent discharged in respect of it. The discharge of a husband extends to a debt due from Debts of his wife before marriage (0), and the discharge of the wife wife. before marriage is a bar to an action against the husband for one of the debts inserted in the schedule (c). Error in Amount of Debts stated in Schedule.|—If the Error in debt is stated in the schedule at “ not exactly the actual saves of 4 amount thereof,” without any culpable negligence, fraud, °°" or evil intention on the part of the insolvent, the dis- dule. charge extends to the actual amount, notwithstanding the error (d) ; if, however, the difference is so great as to remove a creditor from a class requiring special notice to one not entitled to such notice, as by stating 3/7. instead of 71., although there be no fraud, the discharge is not a bar to a future action (e). Absence of Notice or Misdescription.|—If the debt be Absence of properly inserted in the schedule, the absence of the re- ee a wired notice to a creditor does not render the discharge hag invalid (f°), though the insolvent would not be protected from arrest (g) ; nor does a misdescription of a creditor or debt in the schedule, in the absence of fraud, affect the validity of the discharge (A). Sureties.]|—There being no provisions, in the case of Sureties. annuities, relating to sureties, corresponding with those in the two last Bankrupt Acts (2), although the grantor is, as we have seen (4), discharged from future payments, the discharge does not exonerate the sureties, and the insolvent is also liable for payments made by the surety, which become due before the petition is presented, but (y) Brown v. Fleetwood, 5 M. 868. ; & W. 19; Lawrence v. Walker, (d) 1 & 2 Vict. ¢. 110, s. 93. 3 Dowl. 614. See the same prin- (e) Hoyles vy. Blore, 14 M. & ciple under Bankrupt Act, Green W. 387. v. Bicknell, 8 A. & E.701; Wool- (f. Reid v. Croft, 5 B. N.C. ley v. Smith, 3 C. B. 610. 68. See Troup v. Bofi, 3 M. & (z) Sammon v. Miller, 3 B.& W. 615. d Ad. 596. : (9g) 1 & 2 Vict. c. 119, s. 90. (a) Guy v. Newson, 2 C. & M. (A) Nias v. Nicholson, 2 C. & 140. P. 120. (b) Lockwood v. Salter, 5 B. & (#) 9 Geo. 4, c. 16.8. 55; 12 Ad. 303. & 13 Vict. c. 106, 5, 191 (c) Storr vy. Lee, 9 A. & E. (4) Ante, p- 226, 228 PaRT Iv. Protection of insol- vent. Commit ment by county court. Commitment by County Court. which he is not called on to pay until after the discharge (£); so in the case of other sureties, as one who is liable for the amount of a promissory note (J). Where an annuity bond was given jointly by two persons, there being nothing on the face of it to shew which was the principal and which the surety, the insolvent, who had jomed only as surety, having inserted the bond in his schedule, was held to be discharged as to the arrears which became due afterwards (m). Protection of Insolvent.|—An insolvent who has “ be- come entitled to the benefit of the act,’ cannot be imprisoned by reason of any judgment entered up against him ; and if arrested, a judge of the court from which the process issues may order him to be discharged; unless it appears that adjudication was made without due notice having been given to the plaintiff, or dispensed with by him. The judge may also order costs to be paid to the insolvent, on his entering a common appearance to the action (n). No execution can issue against the insolvent on any judgment obtained against him for a debt in respect of which he has been discharged, or upon any new contract or security thereof (0). Where the dis- charge is by the court in London, it may be pleaded generally to any suit or action for such debt or upon such contract (p). When, however, the discharge is by a county court the right to plead generally would seem not to be applicable, and it would be safer to plead the dis- charge specially (q¢). Commitment by County Court.|—It has been often ques- tioned whether, after an insolvent has obtained his dis- charge under the 1 & 2 Vict. c. 110, a judge of a county court may, upon his being summoned before him, under ‘the 9 & 10 Vict. c. 95, s. 98 (gg), make an order for his com- mitment with respect to a debt which has been inserted in his schedule (7). In a case, however, which lately (2) Freeman v. Burgess, 4 Bing. 416; Abbotty. Braere,5 B. N.C. 598; Hacken v. Browne, 4 B. N. C. 400. (1) Powellv. Eason, 8 Bing. 23. an Collins v. Lightfoot, 5 B. & . 581. (n) 1 & 2 Vict. c. 110, s. 90. (0) In. s. 91. p) Ib. *(q)Sect. 91 of 1 & 2 Vict. c. 110, which gives the right to plead the discharge generally, enacts e that a defendant may plead gene- rally that he was discharged “ ac- cording to this act.” This would scarcely extend to a discharge by a county court under the 10 & Yl Vict.c. 102. There is no section in the latter act directing that it shall be read as part of the former act. (qq) See proceedings under this section, ante, pt. I. chap. X.p. 123. (r) See Ex parte Purdy, 9 C. B. 201; S.C. 1 L. M. & P. 16 New Security. 229 came before the Court of Common Pleas, a judge of a Cyap. tv. county court having made such an order notwithstanding the defendant’s discharge, the court said that the question depended upon the true construction of the word “ un- satisfied,’ as it occurs in sect. 98 of the 9 & 10 Vict. ec. 95, which enables a party who has obtained an “ un- satisfied judgment”’ in any county court, to summon the defendant for commitment, and that as the discharge of an insolvent does not, in any view of the case, satisfy the judgment or order, the jurisdiction of the county court is not taken away by the effect of the Insolvent Act, and such an order for commitment is valid notwithstanding the discharge (s). The court, however, in giving judg- ment in that case, observed: “To commit a debtor for nonpayment to a particular creditor, and thus obtain indirectly by imprisonment what cannot be had by direct means, is, except under very special cases, manifestly unjust ; but cases may occur, though rarely, in which the exercise of such a power would be justified, and it is not impossible that the legislature may have supposed that a discretion upon this subject might safely be entrusted to gentlemen who were to discharge the important duties of local judges.” New Security.|—The above protection extends not only New secu- to debts which the insolvent has inserted in his schedule, rity. but also protects the insolvent from any execution on a judgment in an action founded on a new contract or security for the payment of such debts. The new security is equally unavailing although an additional consideration be added, as the joining a new party(¢). Where, however, it is given partly for the old debt from which the insolvent has been discharged, and partly for a new debt, it is effective to the extent of the new debt, and the insolvent may be arrested in an action brought upon it (w). A promissory note from which the maker would have been discharged under the statute, as against the payee, may be sued on by an indorsee for value with- out notice, and who took it before it was due (v). An insolvent becomes “entitled to the benefit of the act” as soon as the order of adjudication is made, although he is 19 L. J., C. P. 222; 14 Jur. Wz. 509. 382; and Still vy. Booth, 1 L. M. («) Denne v. Knott,7 M. & W. & P. 440. 143; Sheerman v. Thompson, 11 (s) Ableyv. Dale,2 1, M.& P. A. & E, 1027. 433; 8.C. 20 L. J., C. P. 233. (v) Lucas v. Winton, 2 Camp. (t) Evans v. Williams, 1 C. & 443; Northam v. Latouche, 4 C. M. 30; Avhley v. Killick, 5 M.& & P. 140. 230 Part Iv. After acquired property. Examina- tion of in- solvent after dis- charge. Examination of Insolvent after Discharge. not entitled to his discharge until a later time; therefore a new security given between those periods for a debt in respect of which he was discharged is void, and if it be a warrant of attorney it will be set aside by the court (w). After acquired Property.|—If after the discharge the insolvent becomes entitled to stock, or other property which cannot be taken in execution under the judgment on the warrant of attorney by the assignee, and the insol- vent refuses to assign it, the assignee may apply to the court in a summary way. If the insolvent does not appear, or if on his appearing the complaint against him is proved, the court may commit him to prison until he conveys the property to the assignees as the court shall direct (x). If another person becomes possessed, of pro- perty belonging to the insolvent the court may order. that it shall be assigned to the assignees (y). Examination of Insolvent after Discharge.|—In case it is found after the discharge of the insolvent that his estate is insufficiently described or discovered in the schedule, or if his assistance is required to adjust, make out, recover, or manage his estate for the benefit of his creditors, the court may on the application of the assignee direct that the insolvent shall be re-examined ; in which case the judge of the county court may summon the in: solvent before him, and re-examine him. If (his reason- able expenses having been tendered to him) he neglects to attend, or on attending refuses to be sworn, or to answer such questions as are put to him relating to the discovery of his estate and effects, the court may commit him until he submits himself to the order thereof (z). If the discharge was made by a commissioner on circuit before their jurisdiction was transferred to the county court, the application by the assignee must be to the court in London, and not to the county court (a). (w) Humphreys vy. Smith, \ B. (z) 1 & 2 Vict. ¢. 116, s. 98. C. Cases, 151; S.C. 17 Jur. 165, (a) Re Willcox, 18 L. J., Q. B. (z) 1 & 2 Vict. c. 110, 8.88. 244, (y) Ib. s. 89. 231 PART V. JURISDICTION UNDER PROTECTION ACTS. CHAPTER I. e JURISDICTION OF COURT, OFFICERS AND FEES. JURISDICTION, 231: Transfer from Bankrupt Court. Residence of Petitioner. Rules of Practice. CLERK oF CouRrt, 233: To act as Assignee and Registrar. How Paid. Hier Bartirr, 234: Jurisdiction.|—The jurisdiction of the county court Jurisdic- relating to the granting of orders for protection from tion. To act as Messenger. How Paid. CouUNsEL AND ATTORNEYS, 234. FEES OF CLERK AND Hien Battirr, 235: How regulated. Table of. Frrs oF ATToRNEYS, 236: Table of. process to insolvent debtors who are not traders within the bankrupt statutes, or who, being such traders, owe less than 300/., derives its existence from the statute 5 & 6 Vict. c. 116, as amended by the 7 & 8 Vict. c. 96, and 10 & 11 Vict. c. 102 (a). By the two former of these acts benefits which, previous to their passing, had been given by the legislature to persons only who were traders within the Bankrupt Acts, were extended to others in (a) See these three acts in App. pp. 242, 247, 206. The first of these acts did not apply to per- sons in custody at the time of the petitioning, Culpeper v. Joy, 4 Q. B. 172; the second act, however (by sect. 6), extended its provi- sions to prisoners in execution upon judgments obtained in ac- tions for recovering debts. The principle of these statutes is to be found in the Lex Julia, which provided the cessio bonorwm to re- lieve a debtor from personal suffer- ing. See an account of this, Burge’s Comm. on Colonial and Foreign Laws, vol. iii. p. 886. 232 PaRT v. Transfer from Bank- rupt Court. Residence of peti- tioner, Jurisdiction. insolvent circumstances who had become indebted without fraud, or gross or culpable negligence on their own part; in addition to which, to traders whose debts are under 3007. a more speedy and less expensive method of obtain- ing protection from their creditors was given than they already possessed under the bankrupt statutes. Un- happily, whatever advantages may have accrued from the introduction of this new system, its practical efficiency has been considerably retarded by the manner of its in- troduction by the Legislature. Its establishment is found in two different acts, the provisions of which it is often difficult to reconcile; and from the later of the two in many instances impliedly, though not expressly, repealing the enactments of the earlier statute, there is considerable difficulty in arriving at their true construction. The jurisdiation, as created by the statutes 5 & 6 Vict. ce. 116, and 7 & 8 Vict. c. 96, was by those acts given to the Court of Bankruptcy. By the 10 & 11 Vict. e. 102, it is transferred to the Insolvent Court in London, and the county courts respectively (6). The jurisdiction of the London court by that act, extends to all cases in which the insolvent has resided for six months next immediately preceding the filing of his petition within any parish, the distance whereof (as measured by the nearest highway from the General Post-office in London to the parish church of such parish) does not exceed twenty miles. If the insolvent reside elsewhere, and has resided for six calendar months next immediately preced- ing the time of filing his petition within the district of the county court to which he prefers his petition, the county court has the same power and authority in all respects as the commissioners of bankruptcy previously possessed (c). If the petitioner has not resided for six months in any one place he must file his petition in the Insolvent Court in London, and the jurisdiction relating to it is vested in that court, or one of the county courts, as the former court directs (d). As many of tle proceedings under the Protection Acts, ‘and the law and practice relating thereto, are the same as under the Insolvent Act 1 & 2 Vict. c. 110, it is un- necessary here to state them anew, references will, how- ever, be found in some places to the practice under that statute. Rules of Practice.|—By the 5 & 6 Vict. ¢. 116, s. 13, (6) 10 & 11 Vict. c. 102, s. 4. (d) Ib. s. 8. (c) Ib. s. 6. Olerk,, Assignee and Registrar. 233 the judges and commissioners of the court of bankruptcy Guar. 1. were empowered to make rules and orders for carrying the act into execution, and particularly for regulating and Buss ud Speenane the duties of official and other assignees, the P™°"* auditing of their accounts, the collecting of debts, and realizing the estate of the petitioner, and the notification of the time of hearing petitions and motions in the London Gazette or otherwise, which when approved of by the Lord Chancellor, and laid before Parliament, were declared to be binding to all parties. Under this power rules and orders were made, dated the 1st November 1842. By the later act 7 & 8 Vict. c. 96, s. 88, the rules and orders so made extend to and are applicable to that act, and a power is given to the commissioners of the court of bank- ruptcy to alter or vary those rules, and to make other rules, or orders to be approved of by the Lord Chancellor, for the better carrying into execution the two acts. In accordance with this provision further rules and orders were made, dated the 21st December 1844. These rules and orders have all been adopted by the Insolvent Court in London. By sect. 16 of the 10 & 11 Vict. c. 102, (which transfers the country jurisdiction to the county courts), the forms in use may be altered so far as to adapt them to the change of jurisdiction; no provision is however made as to rules and orders, whether past, or future ; the practice of the county court has therefore been to follow as closely as the existing system will admit of, those already made by the commissioners of the Court of Bank- ruptey, and by rule 210 (e) of the county court rules, it is expressly provided that the rules of practice in protec- tion cases, as used by the court for the relief of insolvent debtors in London, are to be adopted and used in the county courts, so far as the same are applicable to those courts. Clerk, Assignee, and Registrar.}— The clerk of the Clerk, as- county court acts as the official assignee of the insol- eae one vent’s estate and effects, and also as the registrars of the "8!" Court of Bankruptcy formerly did, and must perform all duties which were performed by them or which are ordered by the court (f). He is bound, whenever re- quired so to do by the treasurer, to make out an account of all receipts and disbursements of the court and of cash. still in hand, and to produce it to the treasurer and pay to him the balance (g). (e) App. p. 105. The rules (f) 10 & 11 Vict. ¢. 102, s. 5. made by the Bankrupt Court will (g) See County Court Rules, be found in the App. p. 261. 14 & 15 App. p. 81. See further 234 Part v. How paid. High bai- lif, mes- senger. How paid. Counsel and attor- neys. Counsel and Attorneys. How Paid.|—As assignee, the clerk is entitled to re- ceive such remuneration for his services in the matter of the petition, as the judge directs; but not exceeding the rate of five per cent. on the sum received as produce of the property of the petitioner (A). With respect to his fees when acting as registrar, one of the Secretaries. of State has power, with the consent of the Commissioners of the Treasury, to order what fees he shall receive, but until that was done (¢) the clerks might take and receive for their own use such fees as have been hitherto taken by the registrar (4). A table of these will be found post, p. 235. High Bailiff, Messenger. |—The high bailiff of the county court and his assistants act as the messenger of the Court of Bankruptcy formerly did, and possess and enjoy all the powers, authorities, and privileges when so acting as were enjoyed by him, and must perform all duties ordered by the court (7). How Paid.|—The high bailiff, when acting as messen- ger, might, like the clerk (m), until an order was made on the subject, receive for his own use all fees which have hitherto been paid to the messengers of the Court of Bankruptcy (7). A table of these will be found, post, 36. p. 2 Counsel and Attorneys.|—In making applications to the court, or taking any proceedings under the protection statutes, it is not requisite for any party, whether creditor or debtor, to employ a counsel or attorney (0). Where, however, attorneys are employed, their fees are allowed. The provisions of sect. 91 of the 9 & 10 Vict. c. 95, which provided for the appearance of parties in county courts by a barrister or attorney, and prevented persons who are not barristers or attorneys from appearing in the county court for others, except by leave of the judge, were by rule made to apply equally to all proceedings in protection (p). This section is now, however, repealed by 15 & 16 Vict. c. 54, s. 10 (q). Hees of Clerk and High Bailiff.|—By the 86th sect. of as to audit of clerks accounts re- (2) Ib. s, 5. lating to estate of petitioner, 15 (m) Ante. & 16 Vict. c. 54, 3. 8. (n) 10 & 11 Viet. c. 102,s, 13. (A) 7 & 8 Vict. c. 96, s. 35. (0) 8 &9 Vict. c. 127. (4) See post, p. 235. (p) Rule21. See App. p. 105. (4) 10 & 11 Vict. ¢. 102,s, 13. & See ante, p. 25. Fees of Clerk and High Bailiff. 2385 the 7 &8 Vict. c. 96, it is provided that no fee or gratuity Cuap.1. may be received or taken by any solicitor (7), auctioneer, broker, appraiser, accountant, messenger, or other officer a ce a of the court, for anything done or to be done in the mat- high bai ter of any petition from any person (except the per- liff. centage received by the official assignee, as already men- tioned), unless they are such fees as are specified in a list signed by the commissioners of the Court of Bankruptcy, or the major part of them, and approved of by the Lord Chancellor, a copy of which list must be exposed to view im every court. | A list of fees was accordingly made, and is still observed. in the London Court. By sect. 13 of the 10 & 11 Vict. c. 102 (the statute which transfers the country jurisdic- tion to the county court), a power is given to the Secre- tary of State, with the consent of the Commissioners of the Treasury, to order what fees shall be taken by the officers of the county court for duties performed by them in proceedings under the Protection Act. In accordance with this power, by an order dated the 8th July, 1851, it was directed that on and after the 1st of August, 1851, the following fees shall be taken :— Clerk’s Fees (as Registrar). On filing every petition, affidavit, or other document On swearing every affidavit F : , : For every certificate to authorize advertisement in London Gazette . : . . For entering every matter for hearing For every order pronounced 2 For every subpoena . For every search 2 . . : Preparing warrant to bring up petitioner under 7 & 8 Vict. c. 96, s.:7, or order of remand, under s, 24 ‘ For every sitting held in the matter of any petition . For office copies of proceedings (each folio ) , F N. B.—When an office copy is made, to which a printed form is applicable, printed words are not to be computed by folio; but paper and print will be charged as two folios, 3d., whether the copy be of a schedule or of any other proceeding. tt og” . . mre Oe mR COSSH OO8 ounw Oo ee Clerk's Fees (as Official Assignees). For every letter for debt, notice of audit and proof, or notice of dividend (inclusive of postage) : ‘ For summoning assignee to audit and proof of debts, or to dividend meeting . : . ‘ sos Sitting, attendance, &c., audit and proof of debts, or dividend meeting . . . . : : . 5 0 (r) See post, pe 236. 236 Part v. Attorneys’ Fees, Fees of Olerk and High Bailiff Duplicate list of creditors for official assignee, per folio . 0 15 For preparing Gazette notice of dividend (exclusive of charge for insertion and Gazette) . . ‘ Per-centage on gross amount of recepts (not exceeding five per cent. ) High Bailiff’s Fees (as Messenger). Executing warrant of seizure, to be allowed only when the judge directs warrant to be executed . 5 : 5 0 Keeping possession, for each day the man is actually in pos- session (of which 3s. Gd. to be paid the man), and including affidavit of possession being kept, per day (the number of days charged to be allowed by the clerk) . 4 6 Preparing advertisements for Gazette or newspapers, and attending to insert same (besides sum paid for insertion and Gazette) : . 7 - 3 4 For attendance on court at each sitting =. : . 2 0 Executing warrant to bring up petitioner under 7 & 8 Vict. c. 96, s. 7, order of remand, under sect. 24 (besides neces- sary expenses out of pocket, to be submitted to and taxed by the court) 6 8 On commitment of any person by the judge executing the warrant (besides necessary expenses, &c., as above) . 6 8 Preparing and service of notice to creditors, on each cre- ditor by post, including postage thereof, and affidavit of service. ‘ . : ‘ . : 04 Ditto (if directed by the judge to be served personally, includ- ing affidavit of service) . ‘ 1 6 Messenger’s man travelling to place of possession, to execute warrant of commitment, or any other purpose spécially directed by the court, per mile : - 10 6 If messenger directed by the court personally to travel, his travelling per mile . é ‘ 8 7 3 6 “5 "i “a his time per day - 10 0 » 3 3 his expenses perday . 10 0 Attorneys’ Fees.|\—As the table of fees framed by the commissioners, above alluded to, affects the attorneys only as officers of the Bankrupt Court, they are not bound by ‘it when practising in the county court; and as they are not officers of the county court, they are not included in the order of the Secretary of State, by which the fees receivable by the clerk and high bailiff are fixed. As, however, the scale which is adopted by the London In- solvent Court may be useful as a guide to attorneys practising in the county court it is here inserted :— Attorneys’ Fees, s. d. Attending and taking instructions for petition 7 6 8 Drawing and engrossing petition, including parchment 364 Preparing and attesting estate paper in duplicate 3 4 Attending for copy causes (éf insolvent in prison) . 3.44 Instructions for schedule ‘ : < 56 0 Drawing same (for first 20 creditors aud debtors) : 0 8 and 4d, per folio after. Attorney's Fees. Engrossing, per folio e : . : . 0 No charge to be made for drawing, engrossing, or copying the part printed. Copy for official assignee, per folio ‘ . 0 Attending, reading over, and attesting . 6 Affidavit of same . . : : 5 3 Paid oath . 2 ei 3 ; 1 Affidavit of insolvent to truth of petition and schedule 3 Paid oath 7 3 7 - . 1 Attending him to be sworn A ‘i : . 3 Attending to file petition, &c., and ballot for commis- sioner. : ‘ c : . 3 Paid filing (as paid) . . . . 7 Attending for interim order ‘ . . . 6 Notice to execution creditor of application for order of discharge, when insolvent in custody . ‘ 5 Preparing order of discharge in duplicate “1 : 5 Affidavit of service of notice in case creditor do not appear 5 Paid oath ‘ ‘ : ‘ ‘ i 1 Transmitting to broker of the court copy of the estate paper 5 . . . ‘ < 3 Attending provisional assignee (who is in all cases official assignee) with copy of schedule, estate paper, books, &c. 3 Attending first examination and choice of assignees, or any adjournment thereof, provided the court shall allow the costs of attending such adjournment . F 10 (If by agent, the solicitor being resident at a distance, and including letter of instructions) : eo eg 15 Attending court on final order ‘ : . 10 If by agent, &c., as above . “ 15 Notice of taxing . . . 3 Attending taxing costs . a 7 . 3 Letters and messengers, forms, &c , in town : ‘ 5 country . . 7 General Charges. Instructions for special affidavits . ‘ ¥ - 3 Drawing same (per folio) 3 : . 0 Engrossing (per folio) . : 3 3 : 0 Special attendances will be allowed (where neces- sary) in the direction of the taxing officer Attending court on each sitting appointed by the court . 10° If by agent, &c. (see above) 3 : 5 js 15 Drawing summonses for witnesses, aud copy and per- sonal service, each ‘ : i 5 beyond 3 miles, per mile extra . . . . . 0 Instructions for briefs é 3 Drawing brief, per sheet . - 5 Copy... . . . : 2 Attending counsel : 5 x ¥ 3 Drawing advertisements, where necessary : 2 Writing letters, where necessary, each 2 Circular, ditto, each 1 Solicitors residing at a distance from the district court not to be allowed for travelling, &c., and loss of time in attending the court, beyond the amount allowed in the above table for attendance by agent. > > Aveo Co a POR DDD HAoproooeo co Op COMPkACHRA fon oo 237 Cuap. 1. “tS: the statutes relatin 238 CHAPTER II. PETITION AND INTERIM ORDER. Wao may Peririon, 238: Persons not Traders. Traders owing under 3001. Prisoners in Execution. How 3001. computed. Prrrrion, 240: Second Petition. How presented. Form. Minute of Petition of Trader. Death of Petitioner. ScHEDULE, 240: Form of. Signature. What Debts must be in- serted. Excepted Articles. Amendment. Fraudulent Omission. GeweraL Batanokr SHEET, 242 ; Not required. Sprorat Batance SHEET, 242. AFFIDAVIT, 242. Estate Pargr, 242. Cause Paper, 2438. Powrr oF CovuRT OVER Proprrty, 248. PROPERTY VESTED IN OF- FICIAL ASSIGNEE, 243: His Powers and Autho- rity. Change of Assignee. Acts valid if Petition dis- missed. Warrant of Seizure. Sum to be paid to Bank- rupt Fund. Notice to Derarnine CREDITOR WHERE PETI- TIONER A PRISONER, 245: IntERIM ORDER FoR Pro- TECTION, 245. How Issued. Form. Orv To DiscHarGE Prri- SONER, 245: Who may Petition.|—There are three classes of persons who may petition the court under the Protection Statutes. 1. Persons First, Persons who are not traders within the meaning of g to bankruptcy (a). Secondly, Per- sons who are traders, but who owe debts amounting in the whole to less than 300/. (a), and Thirdly, Prisoners in (a) 5 & 6 Vict. c. 116, s. 1. Who may petition. execution upon any judgment obtained in any action for the recovery ofany debt, who are either not traders within the bankrupt acts, or being traders owe debts amount- ing in the whole to less than 3001. (6). A. person who is in custody under an attachment issued by the Court of Chancery for nonpayment of a sum of money is not within the provision of the act (c). A person may petition though he is possessed of no estate whatever at the time of filing his petition (d). A petitioner is a trader, if any of the debts in his schedule were contracted whilst he was in trade (¢). In estimat- ing the 3002., he must include debts which are still owing by him, though their remedy is extinguished; as debts barred by the statute of limitation(/). Where a peti- tioner had been twice bankrupt, and under his second bankruptcy had obtained his certificate, but had not paid 15s. in the pound, it was held that his debts were still due, though the remedy for their recovery was barred, and that therefore they must be included in estimating his liabilities (7). So unpaid debts under a former insol- vency (h). Where an insolvent, not a trader, had been formerly a trader, and as such insolvent, it was held that the debts under his previous insolvency must be in- cluded (2). Where the debts of a trader are above 3001/., but are reduced within that sum by a set-off, it has been held that he is entitled to the benefit of that set-off for the purpose of petitioning (4). Debts, however, which are covered by securities are not to be excluded (2). The petitioner’s debts may be reduced so as to be within 3001. by releases from his creditors, but such releases in order to be effective must be bond fide, and not merely colour- able, otherwise they will not only be of no avail for that purpose, but will form no valid consideration for a pro- mise by a third person to pay the debts which they assume to release (m).. It has been doubted whether in calculating the 3001. debts still unpaid, but in respect of which the petitioner has previously obtained a final order for protection should (b) 7 & 8 Vict. c. 96, 3. 6. (f) Re Lucas, 14 L. T. 404; By 10 & 11 Vict. c. 102,s.7,it Re Veal, ib. 381. is declared that the two protection (9) Re Busbey, 15 L. T. 477. acts shall apply to the cases of See 6 Geo. 4,c. 16, 3. 127. persons petitioning, although they (4) Re Nott, 14 L. T. 227; Re have been already in prisonunder Honey, ib. 830; Re Goddard, ib. judgment or otherwise for debt. 381. (c) Re Bell, 17 L. T. 312. ' (i) Re Nordon, 10 L. T. 117. (d) Laurie v. Bendall, 12 Q. h) Re Spink, 10 L. T. 90. B. 634. ° 1) Re Tynman, 11 L. T. 112, (e) Re Mills,10 L. T. 91. (m) Coles v. Strick, 15 Q. B. 3. 239 Cwap. 11. 3. Prison- ers in exe- cution. How 3007. computed. 240 Part v. Second petition. Petition, how pre- sented ; Form. Death of petitioner. Schedule. Schedule. be included. Where, however, a judge of a county court excluded them, the Court of Queen’s Bench upon an application for a prohibition held that even if the judge were wrong in the view he took the court would not interfere (7). Second Petition.|—A second petition will not be enter- tained while the first is on the file of the court (0). The Insolvent Court refused in one case to allow a second petition to be filed immediately on the dismissal of the first (p), nor will a bankrupt whose certificate has been suspended by the Court of Bankruptcy be allowed to petition until the expiration of the period of suspen- sion (q). Petition, how presented ; form.|—The petition may be presented without any notice being given to any creditor, or in the “ London Gazette,” or any newspaper (7). The petition must be in the form specified in the schedule to the7 & 8 Vict. c. 96 (s); otherwise it will be dismissed (¢). Each sheet of it must be signed by the petitioner in the presence of, and attested by, his attorney (uv). The same truth and accuracy in the name and description of the petitioner is required as under the 1 & 2 Vict. c. 110 (v). If the petitioner omits to describe himself by all the names whether real or assumed, under which he has car- ried on business the petition will be dismissed (w). Death of Petitioner.|—If the petitioner dies after the filing of his petition, the judge may proceed in the matter for the discovery and distribution of his property as he might have done if the petitioner were living («). Schedule.|—Annexed to the petition must be a sche- dule, containing a full and true account of the debts of the insolvent, with the names of his creditors, and the dates of his contracting them, the nature of the debts, and the security (if any) given for them; and also an account of the nature and amount of his property, and of the debts owing to him, and their dates, and the names of his debtors, and the securities (if any) which : u) Rule 4, 1842. (0) Re Hance, 11 L. T. 435. v) Re Hammond, 12 L. T. 223; ( P Anon, 12 LL. T. 455. Re Barnett, ib. 274; Re Harris, (q) Re Todd, 11 L. T. 492; ib. 855, ante, p. 189. Re Bussey, 16 L. T. 131. w) Re W. Sloate, 18 L. T. 9. (r) 7 & 8B Vict. c. 96,5. 1. z)7& 8 Vict. c. 96, s. 8. (s) See form, App. p. 264. z ) In re Bowen, 21 L. J., Q. ‘3 Post, p. 249. 4 Amendment. 241 he may have for them (y). The schedule must be an- Cmap. n. nexed at the time of filing the petition, and must be in the form, mutatis mutandis, awed by insolvents petitioning Form of under the 1 & 2 Vict. c. 110 (z); it must contain a list of the excepted articles with their respective value fully and truly described (a). Each sheet of the schedule must be Signature. signed by the petitioner in the presence of, and attested by, his attorney (6). Debts from which a petitioner has What been discharged under the 1 & 2 Vict. c. 110, need not be debts must inserted (c). See also the observations made upon the beinserted. schedule of an insolvent petitioning under the 1 & 2 Vict. c. 110, which equally apply here (d). + Excepted Articles.|—The wearing apparel, bedding, Excepted and other necessaries of the petitioner and his family, articles. and the working tools and implements of the petitioner, may be excepted by him in his petition from the opera- tion of the acts; and, subject to a description of them in his schedule already alluded to, they are altogether excluded from its operation (e). Amendment.|—If there be any error or mis-statement Amend- in the schedule the judge may, at his discretion, allow ment. the petitioner to amend and correct it(/), and where debts of, or claims upon, or balances due from a peti- tioner are specified in his schedule and sworn to at an amount which is not exactly their actual amount, without any culpable negligence, fraud, or evil intention on the part of the petitioner, the judge may allow the schedule to be amended. Where an amendment of the schedule is allowed, the petitioner is entitled to every benefit and protection, and the creditor is entitled to the benefit of all the provisions made for creditors in respect of the actual amount of the debt, claim, or balance, notwithstand- ing such error (9). If any petitioner, with intention to defraud his cre- Fraudulent ditors, wilfully and fraudulently omits in his schedule as omission. sworn to any property, or retains or excepts out of his schedule as wearing apparel, bedding, or other neces- saries, or working tools or implements, property of greater value than 20/., he and any person aiding and assisting him to do so, being convicted, is guilty of a misdemeanor, (y) 5 & 6 Vict. c. 116, s. 1. Re Hance, 11 L. T. 831. But (z) Rule 3, 1842, and Rule 2, see Re Bohn, 1 Cox & Maer. 28; 1844, See form, App. p. 266. S.C. 10 L. T. 311, : See as to form of contents of sche- (d) Ante, p. 198. dule, ante, p. 198. (e) 7 & 8 Vict. c. 96,5. 9. (a) 7 & 8 Vict. c. 96, y. 9. f) Ib.s. 3. (u) Rule 4, 1842. (g) Ib. s. 30. (c) Re Parsons, 6 L, T. 455; M 24.2 Parr v. General balance sheet. Special balance sheet. Affidavit. Estate paper. Estate Paper. and the court before whom such offender has been tried and convicted may sentence him to be imprisoned and kept to hard labour for any period not exceeding three years (h). , General Balance Sheet.|—The general balance sheet being no part of the schedule is not required by the court in protection cases; it is however sometimes filed, and when this is done it should be in the form required in the case of insolvents petitioning under the 1 & 2 Vict. ce. 110 (4). Special Balance Sheet.|—The special balance sheet being a portion of the schedule, must be in the same form as that required in proceedings under the 1 & 2 Vict. c. 110 (&); its contents are also the same, with the ex- ception that it must begin from a period not later than sie months before the presenting of the petition, whereas that of an insolvent petitioning under the latter act need not begin from one earlier than fowr months. The in- formation which the court requires that this account should contain will be found annexed to the form in the App. p. 267, Affidavit,|—The petition and schedule must both be verified by an affidavit of the petitioner, in the form spe- cified in ihe schedule to the 7 & 8 Vict. c. 96, which may be sworn in like manner as affidavits in matters of bank- ruptecy (2) ; that is before the Court of Review, or before either of the subdivision courts in bankruptcy, or any commissioner, or the master, registrar, or deputy regis- ‘trar of the Court of Bankruptcy, or master in ordinary or extraordinary of the Court of Chancery; or before a magistrate of the county, city, town, or place where the affidavit is sworn ; or before a British minister, consul, or vice-consul; it may also be sworn before the judge of a county court, or before a commissioner for taking affida- vits in any of the superior courts (m). The affidavit must be annexed to the petition at the time of filing it (). _ Estate Paper.|—Every petitioner must deliver with his petition an account im writing called an estate paper, (A) 7 & 8 Vict. c. 96,8. 29. () 7 & 8 Vict. c. 96,5. 2. See (7) See ante, p. 202, and form, form, App. p. 272. App. p. 271. (m) 5 & 6 Vict. c. 122, s. 67, P (k) Rule 3, 1842, and Rule 2, and 18 & 14 Vict. c. 61,5. 23. 1844, See what it must contain, (n) 7 & 8 Vict. c. 96, s. 2. ante, p. 20), andform, App. p. 27). ‘ , Property vested in Official Assignee. 243 in the form required by the court, and signed by the peti- Cuap.1. tioner, of all his books of account and vouchers, and of all his personal estate and effects then in his possession or control, or in the possession or control of any other person by his authority, or in trust for him, and the place or places where the same then are or are believed to be, and whether the same are liable for rent or any other charge, and to whom by name, and the particulars of the demand, in order that such property may be duly ascertained and given up to the official assignee, or the messenger ; this account must be signed and delivered in duplicate (0). One copy of this estate paper must be forthwith trans- mitted to the broker appointed by the court, and he must _ forthwith proceed to appraise the personal estate and effects of the petitioner, .and make a return in the form required by the court (p). Cause Paper.J|—In all cases in which a petitioner is in Cause eustody, there must be filed, with his petition, a certifi- paper. eate from the gaoler of the cause or causes of his deten- tion (9). Power of Court over Property.|—Upon the petition Power of being filed the judge possessesthe same power and authority court over touching the seizure of the property of the petitioner Property. {except as otherwise directed by the act), and also to compel the attendance of and to examine the petitioner and his wife, and every person known or suspected to have any of his ee in his possession, or who is supposed to be indebted to him, and every person whom the judge believes capable of giving any information concerning the person, trade, business or calling, dealings or property of the petitioner, or any information material to the full disclosure of his dealings, and to enforce obedience to such examination, and the production of books, deeds, papers, writings, and other documents, as are possessed by the Court of Bankruptcy touching the seizure of pro- perty, and the examination of a bankrupt or other person under a fiat in bankruptcy (r). Property vested in Official Assignee.|—Upon the pre- Property sentation of the petition, all the estate and eftects of the vested in - petitioner forthwith vest in the clerk ofthe court as official assignee. He has authority, and it is his duty, forthwitk (0) Rule 4, 1844. See form, App. p- 273. App. p. 272. q) Rule 3, 1844. (p) Rule 5, 1844. See form, (7) 7 & 8 Vict. c. 96,5. 5, M 2 official assignee, 244 ~ Warrant of Seizure. Parry, to take possession of so much thereof as can be reasona- — ~~ bly obtained and possessed without suit, and he holds and stands possessed thereof in the same manner as the official assignee under the bankruptcy statutes (s). The peti- tioner must deliver over to him all monies, bills, notes, securities, and other personal estate belonging to him, in his possession and power, together with all the books of account, papers, and writings relating to his estate and His powers effects (4). Until an assignee is chosen by the creditors, and autho- he is enabled to act, and is deemed to be, to all intents rity: and purposes, a sole assignee of the property ; and if the judge so orders, he may sell or otherwise dispose of it, and make such allowance out of it for the support of the peti- .tioner and his family as the judge directs. The property so vested in the clerk or official assignee, alone or jointly with any assignee chosen by creditors, does not remain in Change of him alone or jointly with such assignee, if he resigns or assignee. is removed from his office, nor in his heirs, executors, or administrators, nor in the surviving assignee alone, in case of the death of the official assignee, but all the pro- perty in such case goes to and is vested in the successor in office of the official assignee alone, or jointly with the assignee chosen by the creditors (if any), as the case may be; and whenever any petition is dismissed, all sales and dispositions of property, and payments duly made, and all other acts done by any assignee, or any person acting under his authority, or by any messenger or other person under the authority of the judge, according to the provi~_ Acts valid sions of the acts, are good and valid, but the property of — ifpetition the petitioner otherwise revests in the petitioner; no dismissed. action or suit may, however, be prosecuted or commenced against the assignee, messenger, or other person so acting, except to recover any property of the petitioner detained after an order made by the judge for the delivery thereof, and demand made thereupon (w). Warrant of | Warrant of Seizwre.|—The warrant of seizure or pos- seizure.” session to be granted to the bailiff as messenger under any petition must be in the same form, mutatis mutandis, as that in use (v) in the Bankrupt Court, and must be issued in the same manner; it may not, however, be executed without the special direction of the judge, or of the assignee or assignees for the time being (w) ; if executed without such direction, no charge may be made (2). (s) 5 & 6 Vict. c. 116, s. L of that rule. See form, App. (t) Rule 7, 1844. p- 274. (u) 7 & 8 Vict. 96, s. 10. w) Rule 6, 1844. (v) That is, in use at the date x) Rule 14, 1844. Interim Order ‘for Protection. 245 Sum to be paid to Bankrupt Fund.|—The official assignee Cyap. us. must, out of the effects of the petitioner, pay into the ———— Bank of England, to the credit of the accountant in bank- Sum to be ruptey, to the account called “The Secretary of Bank- Pad! rupts’ Account,” a sum not less than one-eighth of a pound fund. E per cent., and not exceeding five per cent. on the gross produce of the petitioner’s estate (z). The Lord Chan- cellor, under a power given to him by the act (a), has set- tled this sum to be at the rate of 1/. for every 10/. where the estate does not in the whole amount to 501., and at 51. per cent, where the estate is above 50/., to’ be paid by the assignee into the bank as soon as he has 5/. in hand. Notice to Detaining Creditor where Petitioner a Pri- Notice to soner.|— Where the petitioner is a prisoner, in execution detaining upon any judgment obtained in an action for the recovery ahtbe of a debt, he must, before the granting of the interim patie nae order for protection, give such notice to the detaining a prisoner. creditor under such execution as the court in which the petition is prosecuted directs, so that such creditor may be heard against the granting of the interim order, and the discharge of the prisoner out of custody (4). Interim Order for Protection.|—When the petition is Interim filed, the judge of the county court to which it was pre- order for sented makes an order protecting the petitioner from all Protection. process whatever, ‘either against his person, or his pro- perty of every description, which protection continues in force and all process is stayed until the appearance of the petitioner in court (c). This order is called the interim order, and must be in the form prescribed by the rules of the Insolvent Court (d) ; it does not prevent the insolvent Form. from being arrested or held to bail under the authority of a judge’s order (e). Order to Discharge Prisoner.|—W here the petitioner is Order to a prisoner in execution, the judge may order any officer discharge who has him in custody under the execution to discharge Prsoner- him, without exacting any fee, and the gaoler or other officer is indemnified by such order, and the petitioner is protected by the interim order from all process for so long as the judge, by the interim order, or any renewal thereof, appoints, until the making of the final order; when, how- (z) 7 & 8 Vict. v. 96, s, 34. p. 274, 275. a) Ib. (c) 5 & G Vict. c. 116, s. 1. iW Rule 9, 1844. See form of (d) Rule 6, 1842. Form, App. order for service of notice onde-__p. 275. . taining creditor, and notice, App. (e) 5 & 6 Vict. vw. 116, s. 2. 246 Order to discharge Prisoner. Parry. ever, that time elapses, the judgment under which he isin ———— execution remains in force, and he may again be arrested on it (f). Where after an interim order had been granted to a petitioner he was arrested under a warrant of commit- ment issued from a county court, for nonpayment of in- stalments, 2 commissioner of the Insolvent Court made an order for his discharge (9). (f) 7 & 8 Vict. c. 96, 8. 6 (g) Re Thomsett, 16 L. T. 421, See form of order, App. p. 276. 247 CHAPTER III. EXAMINATION AND FINAL ORDER. APPOINTMENT OF First Examination, 247: Service of, and Affidavit. WaRRANT TO BRING UP Prisoner, 248. Summons to WITNESSES, 248. Firsr Examination, 248: Adjournmentand Renewal of Protection. Commitment for Prevari- cation or Non-attend- ance. Commitment for Perjury. Dismissal of Petition for Informality. When Judge may appoint a Day for Final Order. When not. ? Remand of Prisoner. First Examination, 251: ~ Choice of Assignees. APPOINTMENT OF TIME FoR Makine Finan OnpDER, 252. ADJOURNMENT oF Finan Orver, 252. Frvat Orper, 252: Form. , Allowance for Support. Finan Orper arrer Re- FUSAL, 253: Order to Discharge Pri- soner wpon. Notice of Application for. Morton to Ruscryp Finan ORDER, 254: Notice of. Costs. Appointment of First Examination.}—The act re- Appoint. quires (a) that after the petition has been filed the judge ment of shall cause notice of its filing to be given to the creditors first exami- named in the schedule, and resident within the United "to". Kingdom, whose debts respectively amount to the sum of 51., and shall cause the notice to be inserted in the “London Gazette,” and in some newspaper or news- papers circulating within the county in which the peti- tioner resides ; and shall thereby appoint a public sitting for the first examination of the petitioner. In addition to this an order, made under the 5 & 6 Vict. c. 116, requires that the judge shall appoint the time for hearing the peti- tion, and shall cause it to be advertised in an appointed (a) 7 & 8 Viet. c. 9, s. 8, 248 First Examination. Part v. form in the “ London Gazette,” and in one newspaper circulating within the county in which the petitioner resides, three clear days at least: before the day appointed for such sitting (6). Service of Service of, and Affidavit.|\—These and all other notices and affida- are served by the high bailiff in such manner as the judge as directs ; he afterwards makes an affidavit thereof, stating how they were served (c). Warrant Warrant to bring up Prisoner.J--If the petitioner is a to bring up prisoner under any process, attachment, execution, com- prisoner. ‘mitment, or sentence, the judge may, by warrant under his hand directed to the person in whose custody the petitioner is confined, cause the petitioner to be brought before him for examination at any sitting, either public Expense. or private. The expense of bringing up the petitioner is to be paid out of bis estate. The person in whose custody the petitioner may be, is indemnified by the warrant of the judge (d). Summons Swmmons to Witnesses. |—The judge may summon to be to wit- examined before him any debtor or creditor of the peti- nesses: tioner, or any other person whose evidence may appear necessary for the inquiry (e). Summonses to witnesses are obtained from the clerk of the county court; they must be signed by the judge, and, being in the nature of orders made in court, can only be obtained on days when a court is held. As to tender of expenses, and the penalty for not obeying the summons, see post. First exa- Hirst Hxamination.|—The judge, on the day notified, mination. may examine upon oath the petitioner, and any creditor who may attend the examination, and also any witnesses whom the petitioner or any creditor may call, and ma summon before him any debtor or creditor of the peti- tioner whose evidence appears to be necessary for the purposes of the inquiry (7). The mode of proceeding in opposition to and in support of the petition, and in the examination of the petitioner, and any creditors or other witnesses who may be called, is similar to that pursued on the hearing of insolvents under the 1 & 2 Vict. ¢. 110 (4). (b) Rule 7, 1842. See form of (d) 7 & 8 Vict. ¢.96,s. 7. See advertisement, App. p. 277. form, App. p. 278. (c) This is in analogy of the (e) 5 & 6 Vict. c.116,s. 1. See orders of the Insolvent Court to form of summons, App. p. 278. their messengers. See form of (f) 5 & 6 Vict. c. 116, s. 4. affidavit, App. p. 277. (g) See this, ante, p, 210. Dismissal of Petition for Informality. 249 A creditor who is inserted by the petitioner in his schedule, Cyap. m1. cannot, however, be called upon, as under the 1 & 2 Vict. ¢. 110, s, 72, to prove his debt before he opposes (A). Adjournment and Renewal of Protection.|—The judge Adjourn- may adjourn the examination from time to time (2) ; and ment and may, at the first examination of the petitioner renew the marth a order for protection; and may from time to time renew it ?*° ae until the final order for protection is made (k). He may Amend- also allow the petitioner to amend his schedule, and correct ment of any mis-statement therein at his discretion (J). schedule. Commitment for Prevarication or Non-atiendance.}—The Commit- judge may, by warrant under his hand and seal, commit ment for to prison any petitioner who appears to him to have pre- Prevarica- varicated or made any false statement before him for such 1°" OY time as he thinks fit, not exceeding one calendar month. tendance. ‘With respect to any person examined before him, or who, being lawfully summoned, refuses or neglects to attend, the judge has the same power of commitment as the Commissioners of Bankrupt possess under the Bankrupt Act (m), namely, to commit to such prison as the judge thinks fit, there to remain without bail until he shall submit himself to them to be sworn, and full answers make to their satisfaction, to all such lawful questions as shall be put to him (). Before, however, a witness can be committed for non-attendance, his necessary expenses must have been tendered to him in the same manner as is required upon the service of a subpcena to a witness in an action at law (0). Commitment for Perjury.|—In what cases and how the Commit- judge may commit persons to take their trial for perjury. ment for See ante, p. 96, and Appendix, p. 57. perjury. Dismissal of Petition for Informality.|—If the petition Dismissal and affidavit are not in the form prescribed, the petition of petition must be dismissed (p). This being a direction imposed for alr by the statute, the judge has no discretion in the matter, ™ Nye and although power is expressly given to him to amend the schedule if necessary, there being no similar provision as to the petition, although it follows the form required (ah) Re Evans, 10 L. T. 116. (m) 5 & 6 Vict. c. 116, s. 6. (i) 5 & 6 Vict. c.116,s.4; That is under the acts then in and 7 & 8 Vict. c. 96,s. 3. See force. f order for adjournment, (x) 6 Geo 4, vc. 16,8. 34, * pies ‘ 278. Wee : (0) Ib. 8, 35. See of this, ante, (A) 5 & 6 Vict. c. 116, 8. 5 p- 70. . Q) 7&8 Vict. «. 96,8. 3. (p) 7 & 8 Vict, v. 96, s. 2. uM 3 250 When not. Panrv, by the act, if there is any mistatement in it, the judge ———— cannot (as under the Insolvent Act, 1 & 2 Vict. ¢. 110) order it to be amended ; and, one of the conditions of his naming a day for making the final order being, that the allegations in the petition are true (g), such an error is fatal (r). When When Judge oint a Day for Final Order.|—If ge aay on the day ite the first examination of the peti- ae for tioner it appears to the judge that the allegations in the final order. petition are true, and that, The debts of the petitioner were not contracted by any manner of Pad or breach of trust ; : Or any prosecution against the petitioner, whereby. he had been convicted of any offence ; Or without having at the time of becoming indebted reasonable expectation of being able to pay the debts ; And that such debts were not 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 suing out a fiat of bankruptcy, or malicious trespass ; And thatthe petitioner has made a full discovery of his estate, effects, debts, and credits ; And has not parted with any of his property since the presenting of his petition ; The judge may cause notice to be given that on a certain day to be named therein, he will proceed to make the final order, unless cause be shewn to the contrary (s). When not, When not.|—If, however, on the day of the first ex- amination of the petitioner, or any adjournment thereof, it appears to the judge— That the debts of the petitioner, or any of them, were contracted by any manner of fraud or breach of trust (£) ; Or by any prosecution whereby he has been con- victed of any offence ; Or without having at the time of contracting them a reasonable or probable expectation of being able to pay such debt or debts (x) ; (q) Post. (t) See remarks on these of- (r) Re Dottham, 11 L. T. 112, fences, ante, p. 215. 1s)5 & 6 Vict. & 116, 8. 4, (u) See ante, p. 217, See form of notice, App. p. 261. Choice of Assignees. 251 Or that such debts, or any of them, were contracted Cuay. m1. 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 suing out a fiat of bankruptcy, or malicious trespass (7) ; Or that the petitioner has parted with any of his _ property since the presenting of his petition (y) ; The judge may not name any day for making the final order ; nor may he renew the interim order. Remand of Prisoner.|—If the petitioner has been a Remand of prisoner in execution, and discharged out of custody by prisoner. order of the judge (z), he must, if the final order is refused, be remanded by the judge to his former cus- tody (a). The power of remanding as if the interim order had not issued does not depend upon the 24th section alone, which is compulsory in the cases therein mentioned, but it is incident to the jurisdiction to grant the interim order, given by the statute to the judge; where, there- fore, a final order was refused, not for any of the causes mentioned in that section, but because the petitioner had previously applied to the Insolvent Court, and all his estate had been vested in the assignee of that court, if was held that the commissioner who had granted the interim order acted rightly in not only revoking that order, but also remanding the petitioner to the same custody in which he was when the interim order was obtained (8). Choice of Assignees.) — The choice of the creditors’ Choice of. assignee or assignees also takes place at the sitting ap- assignees. debt,” and so the offence has been reached. ( Reynolds v. Parker, 7 L. T. 7; Re Foster, Cox & (x) Ante, p. 219. (y) Ante, p. 215. Itis singular that a vexatious defence, which when an insolvent in eustody is seeking his liberty under the 1 & 2 Vict. c. 110, is treated as an offence, and subjects him to a re- mand for two years, is not a ground for refusing the final order under the Protection Acts, where the petitioner is at liberty. It is true that it has been held that the- extra costs incurred in such de- fence may form a debt incurred by the insolvent “without having reasonable or probable expecta- tion of being able to pay such Macrae, 82.) The propriety of such a construction being given to a statute of a penal character may,. however, well, be doubted ;. and the policy of a direct enact- ment,.including clearly all offences which the Legislature intends to punish is obvious. (z) See unte, p. 245. (a) 7 & 8 Vict. ¢. 96, s, 24. See form, App. p. 279. : (b) Ex parte Purtington, 13 M. & W. 679; 6Q B, 64y. 252 Part v. Appoint- ment of time for making final order. Adjourn- ment of final order. Final order. Final Order. pointed for the first examination, or at any adjournment thereof ; it must be made by the majority in number and value of the creditors who attend (c), by themselves or by their attornies duly authorized by letters of attorney in that behalf (d). The judge has power to reject any person so chosen who appears to him unfit to be an assignee, and to remove an assignee ; and upon such re- jection, or removal, a new choice of another assignee must ‘be made in the same manner (e). "When the assignees have been chosen the judge makes a certificate of their appointment (f). The appointment of the assignees may be evidenced in the same way as that of assignees of bankrupts (g) ; this may now be by a copy of the certi- ficate purporting to be signed by the proper parties (A). Appointment of time for making Final Order.|—The ices making the ce nie be appointed by the judge; of which time he must cause notice to be given ten days at least before the time appointed, by advertise- ment in the appointed form (¢). Adjournment of Final Order.}|—The consideration of the final order may be adjourned by the judge at the time appointed for making it, and from time to time, without any fresh notice (4) ; the judge may also adjourn such consideration sine die (1). Final Order.|—Tf on the day appointed for making the final order no cause is shewn to the contrary, the judge may proceed to make it. It is not usual to allow grounds of opposition which have been opened at the first exami- uation, but have then failed, to be now urged again (7), unless they have been expressly reserved. The final order must be in the form given in the sche- dule to the Act, 7 & 8 Vict. c. 96 (x) ; it must be made in duplicate, one copy to be filed with the proceedings, and the other delivered to the petitioner (0) ; it need not specify any of the debts, sums of money, or claims in respect of which it is made, nor specify any of the cre- (c) As to how creditors are to (¢) Rule 11, 1844, See form of ‘vote, see post, p. 261. order and advertisement, App. p. (d) 7 & 8 Vict. ec. 96,5. 3. 281. (e) Ib, (A) 5 & 6 Vict. c. 116, s. 4. ty) Beaters certificate, App. (1) 7 & 8 Vict. c. 96, s 27. 7 See form, App. p. 281. (9) 5 & 6 Vict. c. 116, s. 11. (m) Re Proudleck, 10 L. T. 117. The act then in force was the 2 & (n)7 & 8 Vict. c. 96, s, 22. 3 Wm 4, 114, 5. 9, See form, App. p. 262. (h)8 & 9 Vict. ec. 118, 8. 1, (o) Rule Y, 1842. ante, p. 73. Order to discharge Prisoner. 253 ditors (y). If any proposal has been set forth by the Cyap. ue petitioner in his petition, for the payment of his debts, a ———— direction may be made in the final order for carrying it into effect (¢). : The judge may, if he thinks fit, direct in the final order Attow- that some allowance shall be made for the support of the ance for petitioner, out of his estate and effects (r). support. Final Order after Refusal.\—If for any of the causes Final anda above mentioned no day is named for making the final after re- order, or if its consideration is adjourned sine die, or the fusal. final order is refused, the judge may, after the expiration of such time subsequent to the filing of the petition as, having regard to all the circumstances of the insolvency, and the conduct of the petitioner as an insolvent debtor before and after his insolvency, he thinks just, and after hearing the petitioner or any of his creditors, or his or their counsel or attornies, make an order to protect the petitioner in the same form and of the same effect as that which he had power to make on the day previously named. No debtor may, however, be imprisoned on any process for more than twelve calendar months for any debt contracted before filing his petition, in case the final order is refused or is not made, or in case the protecting order is not renewed (s). Order to Discharge Prisoner.|—Where a final order Order to has been made under the above power, if the petitioner discharge is a prisoner in execution under a judgment, the judge Prisoner. may make an order for his discharge without fee, as in the case of an interim order (#). This last proviso is not a general provision that every one who has been imprisoned for debt for twelve months shall be discharged, but it is a proviso engrafted on the discretionary power given to the judge in the previous part of the section, so as to limit the imprisonment after the final order is refused, or indefinitely postponed, or the interim order is not renewed, to a period of twelve months (w). Before making an application to the court for a final Notice of order to be made in the manner above mentioned, the applica- petitioner must give such notice of application, by adver- '"- tisement, and to his creditors, as the court under the circumstances of the case may think fit to direct (2). (p) 7 & 8 Vict. c. 96.s. 22. (t)7 & 8 Vict. c. 96, s. 29. (q) 5 & 6 Vict. e. 116, =. 4. See form of Order, App. p. 284. (7) Ib. (u) Ex parte Partington, 13 (s\7 & 8 Vict. ec. 96, s. 28. M. & W 635. See form, App. p. 283. (a) Rule 13, 1844, 254 Party. Motion to rescind final order, Notice of. Costs. Authority and Duties of Assignees. This applies to all cases in which the petitioner is entitled to the interim order (y). Motion to rescind Final Order.|—Any creditor, or off- cial or other assignee, at any time after the final order has been made, may give one month’s notice to the peti- tioner, either by personal service, or, if he cannot be found, by service at the place of his residence mentioned in his notice of petition, that he intends to apply by motion to the judge, or, in case of his death, resignation, or removal, to the judge appointed to succeed him, that the final order be rescinded as far as relates to the pro- tection of the petitioner’s person from process, and as far as relates to the effect of the order in bar of suits and actions. The judge, upon hearing the matter of such motion, and any evidence in support of it, and what the petitioner has to allege against it, and any evidence against it, and upon examining the petitioner, if he desires to be, or thejudge thinks fit that he should be examined, may proceed to make such rescinding order, if he see reason to believe that the petitioner had not before the making of the order, sought to be rescinded made a full disclosure of his estate effects, and debts, or had since the making of the order not given notice to the assignees of any property after acquired by him. On any such motion by a creditor, the official and other assignee must be duly served with a month’s notice to attend the judge; and notice of the hearing of the motion must be given twice in the “ Lon- don Gazette,” and twice in the same paper in which notice of the petition was given, or in some other paper circulating in the same county. The judge, if he refuses to make the rescinding order, may, if he think fit, order the petitioner’s costs of the motion to be paid by the creditor making the motion, or by the assignee chosen b the creditors, if he makes the motion, but not out of the petitioner’s estate and effects (z). (y) Rule 13, 1844. See form, (z) 5 & 6 Viet. c. 116, s, 12. App p. 282. 255 CHAPTER IV. VESTING AND DISTRIBUTION OF ESTATE AND EFFECT OF FINAL ORDER. Avrsority ,anp Durtss- Duty payable. oF Asstavess, 255: DrvipEnp, 260: Suits not toabate on Death When and how made. of. How Creditors to Vote.. Vestine oF Property rn | Errrct or Frnat Orpen, AssianeEs, 256: 261: Registry of their Appoint- As to what Debt it is a ment. Protection. Future Property. Indorsees of Bills. Goods in Order and Dis- Absolute Bar to Debts in position of Petitioner. Schedule. Warrants of Attorney, Annuities and future Cognovits, and Bills of Payments. Sale. Sureties. Voluntary Preference. Commitment for Contempt Stock. or Costs. ‘ Lease, or Agreement for Final Order may tbe Lease. pleaded. Powers. Proof of Petition and Distress for Rent. Proceedings. Sate or Dusts anp Pro- | OrpER To DIscHARGE Px- PERTY, 260: TITIONER ARRESTED No Stamp or Auction OR DETAINED, 264. Authority and Duties of Assignees.|—The assignees may Authority sue from time to time as there may be occasion, in their and du-— own names, for the recovery, obtaining, and enforcing of bee ae any property or rights of the petitioner, in trust for the pee benefit of the creditors, and may give such discharge to persons who are indebted to the petitioner as may be requisite ; and may make compositions with debtors to the petitioner, where such are necessary, and take such reasonable part of the debts as can be obtained in full discharge of such debts ; they may also submit to arbitra- tion any difference or dispute’ between themselves and 256 Part v. Suits not to abate on death of. Vesting of property in assignees. Registry of their appoint. ment. Vesting of Property in Assignees. others relating to the property of the petitioner: no composition or submission to arbitration may, however, be made,nor may any suit in equity be commenced without the consent in writing of the major part in value of the creditors, who must meet together pursuant to a notice published at least fourteen days before the meeting in the “London Gazette,’ and also in some newspaper usually circulated in the neighbourhood of the place where the petitioner had his last usual residence before the filing of his petition, nor without the approbation of the judge (a). ‘When an assignee dies, resigns, or is removed, or anew assignee is appointed, actions or suits by or against them do not abate, but the court in which the action or suit is depending may, upon suggestion of the death, resignation, or removal and new appointment (if any), allow the name or names of the surviving or new assignee to be substi- tuted, and the action or suit may be prosecuted as if it had been so commenced originally (4). Vesting of Property in Assignees.]|—The property of the petitioner vests in the assignee or assignees for the time being for the purposes of the acts by virtue ofhis or their appointment. The assignees are deemed to be officers of the court in which the petition is filed, and are liable to the control thereof (c). The assignees are not, inthe absence of an express contract, personally liable for the messengers’ fees and expenses (d).’ The vesting of the petitioner’s property in the assignee includes only such as he has, or obtains before the final order. With respect to future property which comes to him after he has obtained his final order, the assignees can obtain it only by filing their claim thereto in the manner pointed out below (e). Where according to any laws in force a conveyance or assignment of real or personal property of a petitioner would require to be registered, a certificate of the appoiut- ment of the assignees similar to that described in the 1&2 Wm. 4, c. 66, must be registered in the place wherein such conveyance or assignment would require to be regis- tered, which registry has the same effect, to all intents and purposes, as the registry would have had. The title of any purchaser for valuable consideration, who has duly (a) 7 & 8 Vict. c. 96, s. 13. 422. (b) Ib, s. 16. (e) Sees 83 0f 7 & 8 Vict. ce (ce) Ib. 5. 4. 96. (The Interpretation Clause.) (d) Munday vy. Stubbs, 10 C. B. Warrants of Attorney, Cognovits, and Bills of Sale. 257 registered his purchase deed previous to such registry, is Cyar. 1v. not, however invalidated by the appointment of assignees, ———— or the vesting of the property in them, unless the certifi- cate of such appointment is registered within two months, ifin Great Britain or Ireland, from the date of their ap- pointment, and within twelve months if elsewhere (/). Future Property.|—The assignees may claim and de- Future mand from the petitioner, at any time after the final property. order, any estate and effects acquired by him at any time after such order has been made; and all such estate and effects are absolutely vested in them upon their filing a copy of their claim, served upon the petitioner personally, or by leaving it at the place of residence mentioned in his notice of petition, and they hold such property in the same manner as they held the previous estate and effects of the petitioner; they are not, however, authorized to take possession of any estate or effects which the peti- tioner may have acquired or become possessed of after the making of the final order, except under the authority of an order of the judge made for that purpose, and then only to the extent and atthe time and in manner directed by such order, and after giving such notices, and doing such acts, matters, and things as by the rules, orders, and regulations made under the authority of the Protection Acts are required and directed (g). Goods im Order and Disposition.|—Goods in the posses- Goods in sion, order, and disposition of the petitioner at the time of order and the filing of his petition, by the consent and permission of aera tise the true owner, and of which the petitioner is reputed oe owner, (except ships or shares thereof transferred as a security for a debt), vest in the assignees in the same manner as under the Bankrupt and Insolvent Acts (%). Warrants of Attorney, Cognovits, and Bills of Sale.|— Warrants The provisions of the 3 Geo. 4, c. 39, relating to fraudu- of attor lent warrants of attorney, extend to the assignees of every mere petitioner whose estate, after the expiration of twenty- hile of one days next after his execution of such warrant of sale. attorney, or giving of such cognovit actionem as 1s men- tioned in that act, vests in an assignee or assignees under the Protection Acts ; and every such warrant of attorney, and judgment and execution thereon, and every such cognovit actionem, and judgment entered up thereon, and é. . (f) 5 & 6 Vict. c. 116, ». 8. For decisions on this section, see (g) Ib. s. 9. ante, p. 193, (h) 7 & 8 Vict. c. 96,8. 17. 258 Part y. Voluntary preference, Voluntary Preference. execution taken out on such judgment as are declared by that act to be fraudulent and void against assignees, are fraudulent and void against the assignee or assignees of the estate of the petitioner, and his assignees may recover back and receive, for the use of the creditors, all monies levied and effects seized under or by virtue of such judgment or execution (¢). And where a petitioner whose estate has vested in assignees has executed a war- rant of attorney to confess judgment, or has given a cognovit actionem, or bill of sale, whether for a valuable consideration or not, no person may after the filing of the petition avail himself of any execution issued, or to be issued upon a judgment obtained, or to be obtained, on such warrant of attorney or cognovit actionem, either by seizure and sale of the property of the petitioner, or by sale if already seized, nor may one avail himself of any such bill of sale ; but the parties to whom anything is due in respect of such securities may prove as creditors (). The object of this provision is that whatever transac- tions are complete and do not require any further step to be taken before the filing of the petition should remain complete, and, on the other hand, whatever is incomplete before that date should remain so (J). Therefore, where some further step is necessary to be taken by the party in order to make a til of sale effectual, as by the sale of the goods where the bill is an executory instrument, he cannot take that step. But where everything requisite has been done before the petition, the statute does not. apply (mm). Voluntary. Preference.|—If the petitioner, before or after the filing of his petition, in contemplation of his becoming insolvent, or bemmg in insolvent circumstances, voluntary conveys, assigns, transfers, charges, delivers, or makes over any estate, real or personal, security for money, bond, bill, note, money, goods, or effects, to any creditor or creditors, or to any person or persons, in trust for, or to, or for the use, benefit, or advantage of any cre- ditor or creditors, or to any person who is or may be liable as surety for the petitioner, such conveyance, assignment, transfer, charge, delivery, and making over, is fraudulent and void as against the assignees. This is not so, however, unless such conveyance is made within three months before the filing of the petition, or with the view or intention of petitioning the court for protection ® 7 & 8 Vict. c. 96, 8. 20. p. 195. #) Th, s. 21. See the similar (2) See per: Pollock, C. B., in provisions contained in the In- Simpson v. Wood,7 Exr. 352. solvent Act, 1 & 2 Vict. c. 110, (m) Simpson y. Wood, 7 Exr. and the decisions upon it, ante, 349. Powers. 259 from process (). And the question in these cases is, not Cyap. qv. whether the petitioner, when he executed the bill of sale, had a general intention of petitioning at any future time, when he might apprehend proceedings being taken against him, but whether he had the present intention of so doing (0). Stock.|—If the petitioner at the time of filing his peti- Stock. tion, or at any time before he has become entitled to his final order, has any Government stocks, funds, or annu- ities, or any of the stock of or in any public company in England, Scotland, or Ireland, standing in his own name in his own right, the judge may order all persons whose act or consent is necessary, to transfer it into the name of the assignees; and such persons are indemnified by the act for things done or permitted pursuant to such order (p). Lease, or Agreement for Lease.|—Where the petitioner Lease, or is entitled to a lease, or agreement for a lease, and his agreement assignees accept it as part of his property, the petitioner ®t lease. is not liable to pay any rent accruing after the filing of his petition, nor to be sued after such acceptance in respect of any subsequent non-observance or non-per- formance of conditions or covenants. The lessor, or per- son agreeing to make such lease, his heirs, executors, or assigns, if the assignees decline (upon being required so to do) to determine whether they will accept such lease, or agreement, may apply to the judge, praying that they may either accept the lease or agreement, or deliver it up, together with possession of the premises demised or intended to be demised, and the judge may thereupon make such order as under all the circumstances of the case seems meet and just, which order is binding on both. parties (q). Powers.|—All powers vested in the petitioner, whose Powers. estate has vested in an assignee or assignees, which the petitioner might legally execute for his own benefit (ex- cept the right of nomination to a vacant ecclesiastical benefice), are vested in the assignees, to be by them executed for the benefit of the creditors in such manner as the petitioner himself might have executed them (r). 7 & & Vict. c. 96,8. 19. (p)7 & 8 Vict. . 96, s. 15. a Thoyts v. Hobbs, 7 Exr. (q) Ib.s. 12. As to what is an 810; S.C. 21 L.J., Exr. 349. acceptance, see ante, p. 196. See further as to what is a volun- (7) 7 & 8 Viet. c. 96,5. 11. tary preference, ante, p. 195. 260 Dividend. Parry, Distress for Rent.|—No distress for rent made and — levied, after the filing of the petition, upon the goods or Distress effects of the petitioner, is available for more than one menenls year’s rent accrued prior to the filing of the petition ; the landlord or party to whom the rent is due may, however, be a creditor for the overplus for which the distress is not available, and is entitled to all the provisions made for creditors by the acts (s). Sale of Sale of Debts or Property.|—If at the expiration of debts or twelve calendar months tot the filing of the petition, property. any outstanding debts or other property due or belonging to the estate of the petitioner remain, which cannot, in the opinion of the judge, be collected and received, with- out unreasonable or inconvenient delay, the assignees, under the direction of the judge, may sell and assign such debts or property in such manner as the judge orders (f). No stamp Wo Stamp or Auction Duty Payable.| —Letters of or auction attorney, affidavits, certificates, or other proceedings, in- a pay- struments, or writings in the matter of a petitioner, or ne copies thereof, and advertisements inserted in newspapers by order of the judge, are not liable to stamp duty; nor is any auction duty payable on the sale of the estate, real or personal, of the petitioner, for the benefit of his cre- ditors; this latter exemption is not however allowed, unless the sale is conducted by a licensed auctioneer, who must, at the time of passing his account, produce to the officer of excise, a catalogue signed and certified by the assignees by whose order the sale was made, as required by the excise laws (w). Dividend, . Dévidend.|—Whenever after an audit there appears to the judge to be in the hands of the official assignee any balance wherewith a dividend may be made, proceedings must be had forthwith, under the direction ot the judge, for making it; so also, when it appears necessary, for correcting and ascertaining the list of creditors entitled to receive the same. Notice of any sitting of the court ordered to be held for such ascertaining of debts, or for an audit, or for declaring a dividend, or for all of these purposes, must be given for such time and in such manner as the judge from time to time directs. The dividend is to be made amongst the creditors of the petitioner whose a 7 & 8 Vict. c. 96, s. 18° order for sale, App. p. 285. (t) Ib. s. 32, See form of (u) 7 & 8 Vict. c. 96, s, 33, Effect of Final Order. debts are admitted in his schedule and sworn to by him, Cuar.tv. and amongst such other creditors (if any) who shall prove their debts in pursuance of any order of the judge, in pro- portion to the amount of the debts admitted, or admitted and proved, as the case may be. If the petitioner, or any creditor or assignee, objects in whole or in part, to any debt tendered to be so proved, or to any debt men- tioned in the schedule, or if any person whose demand is stated in the schedule, but is not admitted therein to its full extent, claims to be admitted as a creditor for the whole of such demand, or for more thereof than is ad- mitted, the objections and claims, upon application duly made, must be examined into by the judge, and his de- cision thereupon is conclusive with respect to the title of the creditor to his share of the dividend. If in any case it appears expedient, the judge may, by notice, cause all or any of the creditors to prove their debts, in such manner as he requires, and may decide upon such debts, and the right to receive dividends thereon, and may do all things requisite thereto (v). 261 How Creditors to Vote.|—In all matters wherein cre- How cre- ditors vote, or wherein the assent or dissent of creditors ‘itors to is exercised, every creditor is accounted such in respect of such amount only as upon an account fairly stated be- tween the parties, after allowing the value of mortgaged property, and other available securities and liens, appears to be the balance due ; and all disputes arising ‘concerning such amount, upon application duly made, are examined into by the judge, who has power to determine the same, and, if it seems fit, to refer the examination thereof to an officer of the court: the amount in respect of which a creditor votes is not however conclusive of the amount of his debt for any ulterior purposes (). Effect of Final Order.|—The final order for protection Effect of from process, protects the person of the petitioner from final order. being taken or detained under any process in respect to the debts and sums of money due, or claimed to be due, at the time of filing the petition, from the petitioner to the persons named in his schedule as creditors, or as claiming to be creditors; or for which they have given credit to the petitioner before the time of filing the peti- tion, and which were not then payable; or in respect of the claim of any other persons, not known to the peti- tioner at the time of making the final order, who may be " (0) 7& 8 Viet. c. 96, 2.31. See dend, App. p. 285, form of notice of audit or divi- (z) 7 & 8 Vict. c. 96,5. 14. 262 Part v. Tndorsees of bills. Absolute bar to debts in schedule. Liffect of Final Order. indorsees or holders of any negotiable securities set forth in the schedule (y). The protection applies only to such process as arises out of subject-matters in respect of which jurisdiction is given by the Protection Acts. It does not therefore pro- tect against an execution issued against the petitioner in an action of tort (z). And with the respect to the matters to which those acts do apply, the final order operates as a protection only in respect of the debts which are named in the schedule (a). As to these it is not only a protec- tion to the person, but an absolute bar to an action for the same debt, and may be pleaded as such to any future action brought to recover the same debts (6). Consider- able difficulty has arisen in declaring what is the effect of a final order under the two acts, in consequence of the apparent inconsistencies of their provisions. The 10th section of the first act (¢) enacted, that to any such action it should be a sufficient plea, that a final order for pro- tection and distribution had been made. The 22d section of the second act (d) enacted, that “the final order to be made under the provisions of the said act, as amended by this act, shall protect the person of the petitioner from being taken or detained under any process whatever,” and the form for the final order for protection given inf the schedule (e), was only to “ protect the person.” This discrepancy between the two statutes led to an opinion that an order under the second act being for protection only, and not, as under s. 10 of the first, for protection and distribution, operated as a mere protection to the person of the petitioner only (f) ; taking however into consideration the 4th section of the last act, which vests in the assignee all the property of. the petitioner, both present and future, and considering the acts together as one system, the courts have after much discussion held, that the final order under the last act constitutes an absolute bar to actions in respect of which it is a protection (9). (y) 7 & 8 Vict. c. 96,5, 22. As to indorsees of bills and notes, see ante, p. 225. (z) Beavan: v. Walker, 19 L. T. 92. Seealso Thomas vy. Hud- 802, post. "__(a) Phillips v. Pickford, 1 L. M.& P. 136; S.C.19 LJ, P.171. (8) Jacobs v. Hyde, and Platel v. Bevill, 2 Exr. 508, See Toomer vy. Gingell, 3 C. B. 322. As to proper form of plea, see Gillon v. Deare, 2 C. B. 309; Tyler v. Shinton, 8 Q. B. 610; Wright-v. Hutchins, 4 C. B. 569; Lewis v. Harris, 11 Q. B. 724. (c) 5 & 6 Vict. c. 116. (2) 7 & 8 Vict. c. 96. (e) Schedule( A.) 3. See form, App. p. 282. (f) Toomer v. Gingell, 3 C. B. 322 (g) Platel v. Bevill ; Jacobs v. Hyde, and Phillips v. Piekford, ante. Vommitment Jor Uontempt, or Costs. 263 Annuities and future Payments.|\—Sums of money-which yap. i. are payable by way of annuity, or otherwise, at any future time or times, by virtue of any bond, covenant, or other Annuities security, are debts within the Protection Acts, and credi- "4 anes tors under them may prove for such value as the judge PY" upon application ascertains; regard being had to the original price given for the annuity, and deducting there- from such diminution in value, as has been caused by the lapse of time since the grant to the time of filing the petition ; for this amount the creditor may prove, and the final order is consequently a protection with regard to it; but this does not prejudice securities which the creditor may have from sureties, or persons other than the petitioner (A). Where, however, a surety for a grantor Sureties. of an annuity becomes insolvent and obtains a final order for protection, he is not protected from being sued on the default of the grantor for instalments: which accrue due subsequently to the filing of the petition, his liability to pay not bemg a debt within the meaning of the above provision (7). Commitment for Contempt, or Costs. ]|—The final order for Commit- rotection from process extends also to all process issuing ment for om any court for any contempt of court, ecclesiastical ee or civil, for non-payment of money, or of costs, or ex- “°** penses, in any such court; and in such case the final order extends also to all costs which the petitioner would. be liable to pay in consequence or by reason of such contempt or on purging it ; and every final order as to any debt or damages of any creditor of the petitioner extends also to all costs incurred by the creditor before the filing of the petitioner’s schedule in any action or suit brought by such creditor against the petitioner for the recovery thereof ; and all persons as to whose demands for any such costs, money, or expenses the final order extends, are creditors of the petitioner in respect thereof, and entitled to the benefit of all the provisions made for creditors; subject, however, to such ascertaining of the amount of the ‘de- mands as may be had by taxation or otherwise, and to the same examination as all claims to a dividend (4). Final Order may be Pleaded.|—If any suit or action is Final order brought against a petitioner for or in respect of any debt may be contracted before the date of filing his petition, it is a suf- Pleaded. ficient plea in bar that the petition was duly presented, (h) 7 & 8 Vict. c. 96, s. 25. under the Insolvent Act, 1 & 2 (i) Thompson v. Whatley, 16Q. Vict. c. 110, ante, p. 227. B. 189; S. C. 20 L. J., Q. B., (4) 7 & 8 Vict. ¢. 96, s, 26. 86. See also cases of sureties 264 Part v. Proof of petition and pro» ceedings. Order to discharge petitioner arrested or detained. Jurisdic- tion. Order to Discharge Petitioner Arrested or Detained. and a final order for protection made, of which the pro- duction of the order signed by the judge, with proof of his handwriting, is sufficient evidence (J). Proof of Petition and Proceedings.|—The petition and any proceedings in the matter of the petition purporting to be signed by the judge, or a copy of such petition or other proceeding purporting to be so signed, is in all cases receivable in evidence of such proceedings having re- spectively taken place (m). Order to Discharge Petitioner Arrested or Detained.|— If the petitioner is taken or detained under any process for any debt or claim, in respect of which he is protected from process by the final order, the judge may order any officer who has the petitioner in custody to discharge him without exacting any fee, and the officer is indem- nified for so doing (z). So also, if the petitioner is a pri- soner in execution at the time of filing his petition, and is detained in prison for any debt or claim in respect of which he is protected from process by his final order, the judge may order any officer who has the petitioner in custody by virtue of the execution to discharge him with- out exacting any fee; and the officer is indemnified for so doing (0). In these cases, where the petitioner hav- ing obtained an order for his discharge, is liberated by the keeper, the order of the court being the order of a judge acting in a matter over which he had jurisdiction, affords a sufficient justification to the keeper, although the debt on which the judgment under which the prisoner is detained is founded, is one from which the commissioner had no power to discharge him (p). (2) 5 & 6 Vict. c. 116, s. 10. In Dunn v. Loftus, 8 C. B. 76, the Court of Common Pleas al- lowed a defendant to plead his final order puis darrein continu- ance without the usual affidavit that the matter arose within eight days before the plea, it being shewn that the omission did not arise from any culpable conduct on his part, and occasioned uo disadvantage to the plaintiff. (m) 7 & 8 Vict. c. 96, s. 37. (nm) Ib. s. 29. (0) 7 & 8 Vict. c. 96, s. 28, (2) Thomas v. Hudson, 14 M. & . 353; S. C., affirmed in error, 16 M. & W. 885. The judgment in that case against the petitioner was in an action of tres- pass for assault and false impri- sonment. Although it was not necessary to the decision of the case, the court expressed a strong opinion that the judgment debt being in tort, the statutes did not apply, and consequently that the commissioner had no jurisdiction. See Beavan v. Walker, ante, 265 PART VI. PROCEEDINGS AGAINST JUDGMENT DEBTORS. JUBISDICTION, 265. ORDER For Payment, 268. Cuzrx anp Barrer, 266, | Commitment, 268 : CounseL anp ATTORNEYS, hem, 266. Ton: 4 Exxcurion oF OrnpEr, 269: Fuzs, 266. Out of Jurisdiction. APPLICATION aND Svum- Necessaries. mons, 267. Imprisonment no Satis- Wiryesses, 267. faction. Examination, 267. Discharge on Payment. Jurisdiction.|\—The jurisdiction of the county courts, Jurisdic- which enables the judge to imprison, for a period not ex- tion. ceeding forty days, defendants against whom a judgment for a debt not exceeding 20/. (a), exclusive of costs, has been obtained in any competent court, is created by the 8 &9 Vict. c. 127, and 10 & 11 Vict.c. 102 (6). The statute 7 & 8 Vict. c.96, having by s. 57 abolished arrest for judgment debts under 20/., exclusive of costs ; by the 8 & 9 (a) The act applies to cases in parte Foulkes, 15 M. & W. 612. which, although the existing debt @) See both acts in the Ap. does not exceed 201, the original pendix, pp. 206, 288. judgment was for more. Ex N 266 Part vi. Clerk and bailiff. Counsel and attor- neys. Fees. Fees. Vict. c. 127, power was given to the commissioners of bankruptcy and judges of certain inferior courts, to sum- mon such judgment debtors ; and if they failed to attend, or make satisfactory answers, or had been guilty of fraud or the like, to commit them. The powers created by this act were by the 10 & 11 Vict. c. 102, s. 4, transferred, so far as the country districts are concerned, to the county courts. The jurisdiction of the London district is trans- ferred to the Insolvent Court in London. Clerk and Bailiff.\—By s. 5, the clerk of the county court is to perform the duties of registrar; and the high bailiff and his assistants, those of messenger under the former act. Counsel and Attorneys.|—In making applications to the court, parties need not employ either counsel or attorney (c). Fees.|—The fees which are to be paid (d@) to the clerks and bailiffs (under the old act, to the registrars and mes- sengers of the Insolvent Court, and to the clerks and bailiffs of other courts), are prescribed in schedules C. and D. of the 8 & 9 Vict. c. 127 (e); but they may be varied by order of the Secretary of State, with the consent of the Commissioners of the Treasury (j'). They are as follows: FEES TO BE TAKEN BY THE CLERK OF THE COURT (9)- If Debt If 51. 10%. is under | and under eae ae 40s. 100. 201. s. d. s. d. s a On filing application for summons - 06 09 10 For summons ; - - 06 09 10 Order - - 1°0 1 6 20 For every examination 0 6 09 10 For every warrant - - 0 6 09 10 On filing affidavits or other documents - - 0 6 09 10 For every search - - - 0 6 09 10 For registering every order < - - 0 6 09 10 For copies of any documents filed, 14d. per folio of ninety words. (c) 8 & 9 Vict. ce. 127, s. 6. the act to be taken by the re- (d) 10 & 11 Vict, c. 102,8.13. — gistrar in bankruptcy; but by 10 (e) App. p. 291, & 11 Vict. c. 102, s. 13, they are us 10 & 11 Vict. c. 102, 8.18. to be taken by the clerk of the (9) These fees are allowed by court. Examination. 267 BAILIFFS AND SERJEANT’S FEES. Part vi. On On On Demands | Demands On Demands 5 Race exceeding | exceeding not 40s, 5l. Demands and not | and not |exceeding exceeding exceeding | exceeding “100. 40s. ol. 102. s. d. s. a. a a ws @ Forcalling every plaintiff ordefendant| 0 2 0 3 05 0 6 For serving every summons, order, or subpcena within one mile of the court-house - - - - 04 0 6 0 10 10 If above one mile, then extra for every mile not exceeding seven miles from the court-house - 0 2 0 3 04 04 For the execution of any warrant, precept, or attachment against the goodsorbody - -— - 10 16 26 3 0 If above one mile, then extra for every mile not exceeding seven niles from the court-house - 0 2 03 0 4 04 If an assistant serjeant should be necessary in the judgment of the court, then for assistant - - 0 6 10 20 26 If above one mile, then extra for every mile not exceeding seven miles from the court-house - 0 2 0 3 04 04 For carrying every plaintiff, defend- ant, or delinquent to prison (in- cluding all expenses and assist- ants), for every mile - 0 6 0 6 0 6 0 6 Application and Summons to Debtor.|—Any creditor Appilloas who has obtained a judgment for a sum not exceeding tion and 201., besides costs, may, on application in writing, in the summonsto form given in the schedule to the act (h), obtain from the debtor. clerk of the court of the district within which the debtor resides, a summons, requiring him to appear before the court, and answer such questions as are put to him, touching his not having paid the debt (7). Witnesses. |\— Witnesses whose evidence is material, Witnesses. may be summoned in the same way as under the Pro- tection Act, 7 & 8 Vict. c. 96 (4). Examination.|—On the appearance of the debtor be- ryamina- fore the judge at the time appointed in the summons, he tion. is to be examined by the judge ; and if the creditor thinks (4) App. p. 291. The appli: See form of summons, App. p. cation should be signed by the 292. creditor ; if by his attorney, it is (2) 8 & 9 Vict. v. 127, s. 23. insufficient, Re —,7 L. T. 118. See form of summons, App. p. (4) 8 & 9 Vict. v. 127, 8. 1. a N 268 Part vi. Order for payment. Commit- ment. When. Form of. Commitment. fit, he may interrogate him, touching the manner and time of his contracting the debt, the means and prospect of payment he then had, the property or means of pay- ment he still has or may have, and the disposal he may have made of any property since contracting the debt. The creditor may also be examined by the judge, if he thinks fit, touching his claim against the debtor; and if the debtor thinks fit, be interrogated by him, touching the claim (7). The judge may make an order on the debtor for the payment of the debt by instalments or otherwise (m). Commitment.|—If the debtor does not attend as required by the summons, and does not allege a sufficient excuse for not attending, or, if attending, he Shall refuse to disclose his property, or his trans- actions respecting the same, or respecting the con- tracting of the debt (m). Or shall not make answer thereof to the satisfaction of the commissioner or court; Or shall appear to such commissioner or court to have been guilty of fraud in contracting the debt (7); Or of having wilfully contracted it without reasonable prospect of being able to pay it; Or of having concealed or made away with his pro- perty in order to defeat his creditors ; Or if he appears to have the means of paying the same by instalments or otherwise, and shall not pay the same at such times as the commissioner or court shall order, or as the court shall have ordered in which the original judgment shall have been obtained or order made; Then the judge may order such debtor to be committed, for any time not exceeding forty days (0) to the common gaol, wherein the debtors under judgment and in execu- tion of the superior courts of justice may be confined, within the county, city, borough or place in which such debtor is resident, or to any other gaol or debtors’ prison within the same county, city, borough or place which shall (1) 8 & 9 Vict. c. 127, 8. 1. (m) Ib, See forms of order, App. p. 292. (x) With respect to these of- fences, see remarks, ante, pp. 214 to 220, upon similar offences under the Insolvent Act. (v) Sce forms of order, App. pp. 293, 294. It need not be under the seal of the court, Re Bowdler, 11 L. T. 289. The duration of the imprisonment runs from the time at which the pri- soner is actually lodged in gaol, Ex parte Foulkes, 15 M. & W. 612; Re Bowdler, 12 Q. B. 612. Execution of Order. 269 by any declaration of one of her Majesty’s principal Paar vi. secretaries of state be allowed as a place of imprisonment —-—— under the act, so long as such declaration shall remain in force and unrevoked (p). The order need not be under seal (g). It is sufficiently certain if it directs that the party be imprisoned for forty days, though it bears no date and does not say from what time the imprisonment shall commence (q). It has been doubted whether an order of commitment upon non-payment at the time ordered, can be embodied in the original order to pay (r); and it has been decided that when an order has been made for payment by in- stalments which is neglected, the judge cannot grant a warrant for commitment against the debtor, without first summoning him to shew cause why he has omitted to comply with the order (s). In the case of non-payment the practice is to issue and serve a rule nisi upon the debtor, calling on him to shew cause why the debt has not been paid (¢). The debtor on the receipt of this may admit the debt and consent that an order shall be made for its payment in the manner agreed upon. Execution of Order.|—The bailiff to whom the order Execution is issued is empowered to take the body of the person of order. against whom the order is made, and constables and other peace officers within their several jurisdictions must aid in the execution of every such order; and no pro- tection, or interim or other order issuing out of any court of bankruptcy or for the relief of insolvent debtors, nor any certificate obtained after such order for imprisonment under the act, is available to any debtor imprisoned under such order (wz). The warrant being backed by a justice Out of may be executed in his district out of the jurisdiction of jurisdic- the court from which it issued (x). tion. The wearing apparel and bedding of the debtor, or his Wearing family, and the tools and implements of his trade, not aes exceeding in the whole the value of 5/., are exempt from “~ seizure (y). p) 8&9 Vict. c. 127, 8. 1. 507; S.C. 10 Q. B. 730. Kin- (q) Bowdler’s case, 12 Q. B. ning v. Buchanun, 8 Cc. B. 271; 612, overruling Re Fletcher, 1D. 8. C.18 L. J., C. P. 352. See & L. 726. also Alley v. Dule, ante; Dixon (r) Per Cresswell, J., Ex parte vv. Hambrook, 15 L. T. 562. Kinning, 4 C. B. 529. It would (¢) See form, App. p. 294. seem it cannot, from the case of 8 & 9 Viet. c. 127, s. 2. ‘Abley v. Dale, 1 L. M. & P. 626; 2) Ib. s, 22. §. C.20 L.J., C. P. 33. (y) Ib. ». 8. (s) Ex parte Kinning, 4C.B. 270 Execution of Order. Part vi. The imprisonment does not operate as a satisfaction or ——— extinguishment of the debt or demand; but any person oa imprisoned who has paid or satisfied the debt or demand, satisfac. OF the instalments thereof payable, and the costs remain- tion. ing due at the time of the order of imprisonment being Discharge made, and all subsequent costs, may, upon entry of such on pay- pone endorsed on the order signed by the plaintiff, or ment. is attorney, be discharged out of custody by leave of the judge(z). - (z) 8 & 9 Vict. c, 127, 8. 3. 271 PART VII. ARREST OF ABSCONDING DEBTORS. JURISDICTION, 271. Lrapitity sanp Prorec- APPLICATION AND PROOF TION OF Battrr, 2738. or Dest, 271. Writ or Cartas, 274. WARRANT AND ARREST, Liffect of it. 272. Discuarce oF DEFEND- Fess, 278. ANT ON Batt, 275. Cost oF Warrant AND | Apprication to Court ABREST, 278. For DiscHaras, 275. Jurisdiction.|—In order to prevent frauds practised jurisdic. upon creditors by their debtors leaving this country, and tion. to give a more expeditious mode of arrest (a), stat. 14&15 Vict. c. 52, gives a power to the District Commissioners of Bankruptcy, and also to the county court judges, except those acting in the counties of Middlesex and Surrey, upon application on behalf of creditors, and due proof of a debt to the amount of 20/., to issue a warrant to the high bailiff for his arrest. As the mode of proceeding before the judge of the county court is similar to that under the 1 & 2 Vict. c.110,s. 3, which directs how such an application shall be made to a judge of a superior court, reference may be had to the practice under the latter act (6). Application and proof of Debt.|—The application may Applica. be made by the creditor or by any one on his behalf; it tion and must be accompanied by an affidavit, which must be in- ey of (a) See this act, App. p. 295. more especially if he were near Before it passed the arrest of an the coat, he would have oppor- absconding debtor could be pro- tunity to effect an escape before cured only by application toajudge the writ of eapias for his arrest of oncof thesuperior courts (see1 & could be procured. 2 Vict. cv. 110, 8.3). So that if the (6) See 1 Chit. Arch. 652. debtor were in the country, and 272 Warrant ond Arrest. Part vu tituled in one of the superior courts of common law, and Warrant. must be made either by the creditor or any other party. In cases in which affirmation is received by law, proo affirmation is allowable. The affidavit must state that a debt of 202. or upwards is owing to the creditor who applies, and is then payable from the person or persons against whom the application is made, and that there is probable cause for believing that the debtor or debtors, unless he or they be forthwith apprehended, is or are about to quit England with intent to avoid or delay such creditor, or with intent to remain out of the jurisdiction of the courts of law in England so long that thereby he will or may be delayed in the recovery of his debt (c). The affidavit may be sworn before a Commissioner of the Court of Bankruptcy acting for any district in the country, or the judge of any district county court, or before any person having authority to administer oaths in any of the courts of law (@). Warrant and Arrest.|—Upon the judge being satisfied that the necessary facts are proved (e) he may grant a warrant to the high bailiff for the apprehension of the debtor. The warrant must be in the form and indorsed in the manner specified in the schedule to the act, and must bear date of the day on which it is issued (f). It must also be indorsed with the amount of the debt and costs claimed by the plaintiff in the same manner as writs of capias are now endorsed (g). On payment of the amount endorsed all proceedings will be stayed, and the person arrested may be discharged from custody, and he is at liberty afterwards to tax the costs so endorsed as if he had been arrested under a writ of capias (h). The warrant may be executed by the high bailiff at any time within seven days after its date, including the day of date, and the high bailiff must detain the debtor until he has given bail according to the practice of the superior courts, or until he has paid the debt and costs endorsed on the warrant, or he is otherwise discharged by due course of law. The warrant may be executed in any (c) 14 & 15 Vict. c. 52, 8. 1. writ of capias is given in the (d)-Ib. s, 2. schedule of the 1 & 2 Vict. ¢. 110. (e) These have been already The form of it is also given in mentioned as necessary to the affi- _ the schedule to the 14 & 15 Vict.c. davit. me. 59, and will be found in the App. (f) 14 & 15 Vict. &. 52, s. 1. p. 299. ) This indorsement on the (h) 14 & 15 Vict. ¢, 52, s, 7. Costs of Warrant and Arrest. 273 part of England. A copy of it must be served on the Paxr vu. debtor (7). _ The person to whom the warrant is directed must, seems | on its being executed, endorse a certificate upon it the time and place where the debtor was arrested ; and the production of the warrant and certifi- cate to the sheriff of the county where the warrant issued, or to the keeper of the gaol of the county, is a sufficient authority to the sheriff or keeper to detain the debtor until he is discharged by due course of law (4). Fees.|—The fees which may be taken in respect of the Fees. proceedings and warrant are specified by schedule B. of the 14 & 15 Vict. c. 52 (2), and are as follows :— To the attorney, for preparing the affidavit of debt, and £ s. showing that the debtor is about to abscond, and oath . 01 To the same, for attending to issue the warrant . . 0 To the clerk of the county court on the issuing of a warrant 0 To the party executing the warrant, for the caption 1 To the same, for every mile from the place where the warrant shall be issued to the place where it shall be executéd, a further sum of ; “ ‘ P 006 To the same, for every mile from the place where the debtor shall be arrested to the gaol where he shall be lodged, the further sum of . . ‘i - O10 =—AQne cone The above fees may, however, be altered by the Secre- tary of State with the consent of the Commissioners of the Treasury (m). The costs of the writ of summons are left as before (m). Costs of Warrant and Arrest.|—The costs of and attend- Costs of ing the warrant and arrest are costs in the cause. But warrant no costs will be allowed to a plaintiff unless the court or and arrest. its officer is satisfied, by affidavit or otherwise, that the plaintiff had good reason to believe that he would pro- bably have failed in causing the defendant to be arrested if he had proceeded in the first instance by application to a judge of one of the superior courts for a writ of capias, without first applying to a judge of the county court (0). Liability and Protection of Bailiff.|—The bailiff to whom Liability the warrant is directed is subject to the jurisdiction of the court inwhich the action is brought, or of any judge thereof, and is responsible to them, and also to the person at whose suit it issued, for its due execution, in the same (i) 14 & 15 Viet, v. 52, 8. 1. (m) Ibid. (2) Ib. Sect. 4. (n) Ibid. (J) Ib. s. HM. (0) Sect. 10. and pro- tection of 274 Writ of Capias. Parr vir Manner as sheriffs are responsible for the execution of ...... writs of capias ; he is also entitled to the same protection Writ of capias. as sheriffs are entitled to on executing such writs (p). Writ of Oapias.|\—The warrant issued from the county court is only auxiliary to the process now in use and is void and of no effect as a protection to the creditor unless a capias is issued and served in the manner provided by the act (q). The creditor who issues the warrant must forthwith issue a writ of capias, and also in cases where no action is pending must before the issuing of the writ of capias, cause a writ of summons to be issued out of one of the superior courts against the debtor, and upon the capias all mandates and warrants must issue according to the prac- tice now in use, notwithstanding the defendant has been arrested by virtue of the warrant and the debtor must if in custody be’served. with the writ of capias within seven days from the date of the warrant, including the day of the date; and thereupon the debtor is deemed to have been arrested by virtue of the capias, and all proceedings must be had upon as if it had been issued prior to the issuing of that warrant, and the arrest had been made on the writ of capias, and according to the old practice (r). If no writ of capias is issued and served within seven days from the date of the warrant, including the day of date, the debtor is entitled to be discharged from custody, or if the deposit has been made with, or a bail bond has been given to the officer, then the deposit must be re- turned and the bail bond be given up to be cancelled (s). If the capias is not issued and served within the seven days it ceases to have any operation, nor can it be treated as a valid capias under the 1 & 2 Vict.c. 110. A second capias may, however, be issued after the seven days upon fresh materials, under the general powers given by the 1 & 2 Vict. c. 110 (#). The statute directs not only that the capias shall be issued but also that it shall be served. It has been held that this does not mean that it shall be served in all cases, but only in those cases in which the defendant con- tinues in custody and does not make the deposit. If, however, the defendant has paid the debt and got out of ( ?) 14 & 15 Vict. c, 52, sect.9. a fresh affidavit. Examined co- (q) Ib. Sect. 3. pies of the affidavits filed in the (r) Ib. s. 1. Where a de- county court may be used for this fendant has been arrested under a purpose. Pearce v. Martin, 16 warrant from the county court Jur. 270. under this section, an order to (s) 14 & 15 Vict. c. 52, sect. 6. hold to bail under s. 3 of 1 & 2 (¢) Masters v. Johnson, 8 Exr. Vict. c. 110, may be made bya 68; §.C. 21 L, J., Exr, 253. judge of a superior court without Application to Court for Discharge. 275 custody, although the capias must still be issued it need Panr vit. not be served (w). ————— Effect of Writ of Capias.|—As soon as the debtor has Effect of been arrested, under the writ of capias, the force and writ of effect of the warrant granted by the county court ceases, “P!* and the sheriff holds the debtor, under the writ of capias, as if he had been first arrested under it, or in case he has made a deposit with the high bailiff, or entered into the bail-bond, then, upon delivery to the officer by whom he was arrested of a copy of the warrant granted by the sheriff upon the capias, the officer must pay over to the sheriff the deposit, or assign to him the bail-bond, and the sheriff may enforce the bail-bond in his own name or assign it in the usual manner. The sheriff is not, how- ever, liable for any default, misbehaviour, or miscarriage of the person to whom the warrant was addressed, or who makes the arrest, Discharge of Defendant on Bail.|—Any person arrested Discharge upon any warrant may forthwith, and before the issuing of defend- of the writ of capias, pay the debt and costs which are ae endorsed on the warrant to the high bailiff, or enter into bel, a bail-bond to him, with two sufficient sureties, for the amount which is endorsed on the warrant, conditioned to put in special bail as required by the warrant, or to make deposit of the sum endorsed on it, together with 10/. for costs, and thereupon he will be entitled to be discharged from custody (v). Application to Court for Discharge.|—Any person for Applica whose arrest a warrant has been granted, may either tion to before or after arrest and before the writ of capias court for has been issued, apply to any commissioner of bank- “charge. ruptecy, or county court judge, or to any judge of the superior courts, or to the court mentioned in the affidavit. of debt or warrant for the arrest, for a sum- mons or rule calling upon the creditor who has the warrant to shew cause why it should not be set aside (if the application is made before arrest), or why the debtor should not be discharged out of custody, (if the appli- cation is made after arrest), and the commissioner or judge may make absolute or discharge the summons or rule, and direct the costs of the application to be paid by either party, or make such other order therein as he thinks fit; but such order may be discharged or varied by the court, on application made by either party dis- satisfied with it (#). é is Eld v. Vero, 17 Jur. 737, (z) Ib. Sect. 8. (w) 15 & 16 Vict. c. 52, sect. 5. Jurisdic- tion, 276 PART VIII. —~— ADMINISTRATION OF CHARITABLE TRUSTS. Jurisdiction. Order of County Court to be Rules of Practice. affirmed by Board. Notice of intended applica- | Order how enforced. tion. Appeal. By whom application may | Transmission of accounts be made. of Charities to County Enrolment of order. Courts. By the 16 & 17 Vict. c. 187, (“The Charitable Trusts’ Act, 1858”) (a), the Queen is empowered to appoint four Commissioners, a secretary, and two inspectors (0), as “ Charity Commissioners for England and Wales,” two of whom may form a Board to act (ec). This Board has power to examine and inquire into all or any charities in England or Wales, and their nature and objects, adminis- tration, management, and results, also the value, con- dition, management, and application of the estates, funds, property, and income belonging to them, and to cause examinations and inquiries in relation to these matters to be made and prosecuted by their inspectors. Jurisdiction.|— Where any charity of which the gross annual income does not exceed 301., is established wholly or partially for objects or purposes within the district of a county court ; and the appointment or removal of a trus- tee, or any other relief, order, or direction concerning the charity, is considered desirable, and such appointment or removal, or other relief, order, or direction, might now be made or given by the Court of Chancery in respect either of its ordinary or its special or statutory jurisdiction, or by the Lord Chancellor intrusted with the care and com- mitment of the custody of lunatics, any person authorized by the order or certificate of the Charity Board, or the Attorney General, may make application to the county court, for such order, direction, or relief as the nature of " (a) See this act, App. p. 300. (c) Ib. s. 6. (b) 16 & 17 Vict. c. 137, 3.1. Rules of Practice. 277 the case may require; and the county court may enter- parr yur. tain the application, and hear the matter in open court, and give such relief, and make such orders and directions in relation to the matter of the application, as might, before the passing of the 16 & 17 Vict. c. 187, be made or given by the Court of Chancery or Lord Chancellor, in a suit regularly instituted, or upon petition, as the case may require(c). The county court may not, how- ever, vary or make any order inconsistent or conflicting with a decree, order, or direction of the Court of Chancery, or any judge thereof (d). Where two or more county courts have concurrent jurisdiction with respect to the same charity, no applica- tion may be made to more than one court at the same time (e). In these cases the Charity Board may order to which court application is to be made, and such order will be conclusive as to the jurisdiction of the county court (e). For the purposes of determining the jurisdiction with respect to a charity, the Board may declare, according to such judgment as they may be able to form upon the returns or statements before them in relation to the charity, whether its gross annual income for the time being does or does not exceed 30/., and a statement in any certificate or order of the Board that according to their judgment, the gross yearly income of a charity does or does not exceed 302. is sufficient evidence of the amount for the purpose of determining the question of jurisdiction (/). A deputy judge of a county court may not exercise jurisdiction under the Charitable Trusts’ Act (g). The county court has no power to determine the title at law or equity to any real or personal property or any term or interest therein as between any charity, or the trustee of it, and any person holding or claiming it adversely to the charity, nor to determine any question as to the existence or extent of any charge or trust (h). Rules of Practice.|—The Lord Chancellor may make Rules of orders for regulating proceedings in the county courts practice. and for fixing and determining the fees to be taken, Subject to these orders the Judges themselves may regu- » (c) 16 & 17 Vict. c. 137, 3.32. made in the first instance to the (@) Ib. See, however, s. 35, Court of Chancery. which empowers the board, if (e) 16 & 17 Vict. c, 187, 8. 34. they think fit, to direct that even (f) Ib. s. 44, where the income of a charity is (g) Ib. s. 33, under 30/. the application shall be (A) Ib. s. 41, 278 Order of County Court to be Affirmed by Board. Part vn, late the proceedings before them so as to render them as _____— summary and inexpensive as conveniently may be (7). Notice of Notice of intended Application.]|—Before any application intended can be made to a county court, notice in writing must be applica- given in the form and manner which the Board may HOR: direct ; and if the order be that the notice be affixed to or near the door of any parish or district church, the incum- bent and churchwardens are required to allow it to be affixed and to remain so during that period, not less than fifteen days, as the Board may have ordered; and in any case in which the order is that the notice shall be affixed to any place, evidence that the same has been so affixed is prima facie evidence that it has remained affixed during the period prescribed by the Board (£). By whom By whom Application to be made.|—An application to applica- the county court may be made by the Attorney General, tion to be or by all, or any one, or more of the trustees or persons made. administering or claiming to administer, or interested in, the charity which is the subject of the application, or any two or more inhabitants of any parish or place within which the charity is administered or applicable (2). Enrolment Enrolment of Order.]|—The clerk of the county court of order, Order of county must transmit a copy of every order or direction of the court to the office in London of the registrar of county court judgments. Order of County Cowrt to be affirmed by the Board.|— ‘When any order or decisionis made by a county court for court tobe the removal of a trustee, or approving of any scheme for re- affirmed by oulating or directing the administration of charity, or the the Board. estate, funds, property, or income thereof,a copy of the order or decision must be transmitted by the clerk of the count; court, together with all requisite particulars, to the Board, , for the purpose of being considered by them; and no order or decision is valid or effectual until it has been approved by the Board, such approval being testified by a certificate in writing, signed by the secretary, which may not issue until one calendar month has elapsed after the receipt by the Board of the copy and particulars (zm). If an order of the county court is not approved by the Board, the Board may remit it for reconsideration and de- cision with such remarks and recommendations thereon (if any) as may seem fit and expedient. The Board may (i) 16 & 17 Vict, c. 187,845. (1) Tb. 8, 43. (A) Tb. s. 42. (m) Ib. s. 36, Appeal. 279 order and direct that the subject-matter to which the pagr vin. order relates, together with the order shall be submitted to the consideration and decision of a Judge of the Court of Chancery, in which case no further proceedings may be taken in the county court with respect to the matter in question (7). Order how enforced.|—Subject to any orders which Order, how may be made by the Lord Chancellor all proceedings in enforced. the county court, and all orders and directions made or given by virtue of the jurisdiction created by the Chari- table Trusts’ Act are subject to the same rules and regu- lations, and have the same effect, and may be registered, enforced, and executed in the same manner as the other proceedings, orders, judgments, and directions of the court under its ordinary jurisdiction, and the county court with the consent of the Board may rescind or vary any order which has been previously made without pre- judice to any act or matter in the meantime done under such order; and for executing and putting in force any order made by a county court, every judge may exercise all the powers which are given by the 9 & 10 Vict. c. 95, for enforcing the payment of a debt, damages or costs (0). Appeal.|\— When any person (other than the Attorney Appeal. General acting ex officio) is aggrieved by, or dissatisfied with, an order made by a county court in respect of a charity, he may, with one calendar month after the making of the order, give notice in writing to the court, and also to the Board, that he is desirous to appeal against it; and if the Board think it reasonable and proper that the appeal should be entertained, and give a certificate to that effect, the county court must suspend any proceed- ings upon the order appealed against during such time as the circumstances may require, and the Board if they so think fit, may require the person giving notice of appeal to become bound with two sufficient sureties, to be approved by the clerk of the county court, to the treasurers of the court, in such sum as the Board think reasonable, to pay such costs of the proceedings on the appeal as may be ordered to be paid by the appellant, and also (if the Board think fit) to indemnify the charity against the costs and expenses of the appeal (p). nad, ‘A bond executed under this provision is exempt from stamp duty. ; : The Attorney General (acting ex officio) may, however, at any time within three calendar months after the mak- (nm) 16 & 17 Vict, «. 137, 8. 37. (p) Ib, s. 39. (a) Ib. 8. 38. 280 Transmission of Accounts of Charities to County Courts. Panr vi. ing an order by a county court, lodge and prosecute an Transmis- sion of ac- counts of charities to county courts. appeal against it without giving any notice or becoming bound (p). Where an order allowing an appeal has been made, the person allowed to appeal must within three calendar months present a petition to the Court of ‘Chancery set- ting forth the order appealed against, and the order allow- ing the appeal and praying such relief as the case may re- quire ; and upon the hearing of the petition the court may confirm, vary, or reverse the order appealed against, or may remit it to the county court by which it was made, with or without any declaration or directions in relation to it, or may proceed in relation to the charity to which it relates as in the case of an application to a judge of the Court of Chancery at chambers; and any judge sitting at chambers or in open court may make any orders or direc- tions in relation to the matter of the order as he sees fit, or the court may make such other order in relation to it as may seem just, and as might be made in the case of a suit regularly instituted, or a petition, as the case may require. Ifthe party allowed to appeal does not within three calendar months present the petition of appeal, the order against which it was allowed is final; and in case any costs adjudged on it to be paid by the party allowed to appeal are not paid, the bond may be put in suit, and the money recovered may be applied to indemnify the Charity Estate, or the person damnified or otherwise, as the justice of the case may require and the cour’ or judge by whom the appeal has been heard may think fit (g.) | Lransmission of accounts of Charities to Cownty Courts.] ~—In order to facilitate proceedings in County Courts under the Charitable Trust Acts the statute provides that the trustees of charities shall keep books shewing the in- come, revenues, receipts, and expenditures of the charities for the year ending each 31st December, and also make out a statement, and balance sheet ; and that where the gross annual income for the time being of the charity does not exceed thirty pounds, the statement and balance sheet ora duplicate or true copy of them shall be delivered or sent by the trustees or persons free of charge to the office in London of the registrar of county courts judgments, and to the clerk of the county court or some one of the county courts (if more than one) to whose jurisdiction the charity may be subject (7). p) 16 & 17 Vict. c. 137, ». 39. — (r) Ib. s, 61. q) Ib. s. 40. 281 Orvers for regulating Proceedings by and before the Judges of County Courts under “ Phe Charitable Trusts Act, 1853,” and for fixing and determining the Fees to be taken in respect of such Proceedings, made by the Right Honourable Robert Monsey, Baron Cranworth, Lord High Chancellor of Great Britain. Wuenreas, in pursuance of “ The Charitable Trusts Act, 1853,” certain orders were, on the 8th day of December, 1853,” made by me for regulating proceedings by and before the Judges of the County Courts, and for fixmg and determining the fees to be taken in respect of such proceedings, and such orders were limited to be in force until further orders should be made for ‘regulating such proceedings as aforesaid: now, seeing fit to make such further orders, I hereby revoke the said Orders of the 8th day of December, 1853: and, in pursuance of “ The Charitable Trusts Act, 1853,” I hereby direct that the orders hereinafter mentioned shall be used in the County Courts for regulating proceedings by and before the Judges of the County Courts, and for fixing and determining the fees to be taken in respect of such proceedings until further orders shall be made by me for the same purpose, under “The Charitable Trusts Act, 1853.” Cranworty, C. March 6th, 1854. I. The clerk of every County Court shall keep a book, to be Record. called “The Charitable Trusts Book,” in which all proceedings taken in that Court in matters of Charitable Trusts shall be recorded in the form in the Schedule hereunto annexed. II. When any person has obtained the required order or Proceedings certificate from the Charity Commissioners, and he is desirous He of taking proceedings in the County Court, he shall produce a such order or certificate to the clerk, who shall retain and file the same in numerical order in his office, and the party pro- ducing such order or certificate shall be deemed the plaintiff in such proceedings; and the person served with a summons under Order IV. shall be deemed the defendant. III. When the Attorney General shall propose to take pro- Proceedings ceedings in the County Court, he shall cause to be delivered or by Attorney transmitted to the clerk a written statement showing the nature 0°". and object of the proposed proceedings, and the clerk shall retain and file such statement in numericaj order in his office, B2 282 Summons. Notice to attend pro- ceedings. Service of summons, and notice to attend pro- ceedings. Notice of hearing. Summons and notices to be issued in certain cases. Judge’s power. Judge’s note in ordinary cases. Charitable Trusts Orders. and the Attorney General shall in such proceedings be deemed the plaintiff; and the person served with a summons under Order IV. shall be deemed the defendant. IV. Upon the production of any order, certificate, or state- ment hereinbefore mentioned, the clerk shall at the instance of the plaintiff prepare a summons thereon in the form set forth in the Schedule hereunto annexed, in which shall be stated the substance of the order, certificate, or statement, and he shall make as many copies thereof as there are parties required by the plaintiff in writing to be summoned, and two additional copies, the one to be filed in the clerk’s office, and the other to be transmitted to the Charity Commissioners. V. The clerk, if required by the plaintiff, shall prepare a notice to attend proceedings in the form set forth in the said Schedule to be served on any persons indicated by the plaintiff, in writing, besides those summoned under the last preceding order, and the said clerk shall make as many copies thereof as there are persons to whom such notice is to be given, and two additional copies, one to be filed in his office, and the other to be transmitted to the Charity Commissioners. VI. The clerk shall forthwith transmit by prepaid post letter a copy of the summons to each of the parties required to appear ; and a copy of the notice to attend proceedings to each of the persons indicated by the plaintiff, and such transmission shall be sufficient service, unless the Judge shall in any case other- wise direct. VII. Where the plaintiff does not require any summons or notice to attend proceedings to be issued, the clerk shall prepare a notice of hearing, in the form set forth in the said schedule, and two additional copies thereof, one to be filed in his office, and the other to be transmitted to the Charity Commissioners, and shall either deliver such notice to the plaintiff, or cause it to be served on him by prepaid post letter, unless the Judge shall in any case otherwise direct. VIII. In all cases it shall be competent for the clerk, if required by the plaintiff, to summon some persons, and to serve others with either or both of the said notices, or to serve a notice of hearing on the plaintiff, and a notice to attend proceed- ings on any other person. IX. In all cases, it shall be competent for the Judge to direct in any case what persons, or additional persons, shall be served with a summons or notice to attend proceedings or notice of hearing. X. Upon the requisition of the Charity Commissioners, a copy of the Judge’s note of the evidence taken at the hearing, or such part thereof as may be required by the Commissioners, shall be transmitted under the seal of the Court by the Judge to them at their office by post or otherwise. Charitable Trusts Orders. 283 XI. Upon the requisition of the Attorney General in pro- Indge’s note ceedings instituted by him, a copy of the Judge’s note of the where Attor- evidence taken at the hearing, or such part thereof as may be proceeds. required by the Attorney General, shall be transmitted under the seal of the Court to him by post or otherwise. XII. A copy of the summons, notice to attend proceedings, gopy of pro- notice to appear, together with a copy of the order made by ceedings to the Court, shall in all cases be transmitted by the clerk, forth- be set te with after the hearing, by te or otherwise, as the Judge shall gioners. direct, to the office of the Commissioners. XIII. Where the annual income of the Charity exceeds 10/., Fees where the Court fees shall be payable as in cases within the ordinary income o! jurisdiction of the Court, without prejudice to the privilege of ee ge the Attorney General as to costs, and the Charitable Funds - may be made liable to the payment thereof, at the discretion of the Judge. XIV. Where the annual income of the Charity does not goes where exceed the sum of 10/., no fees of Court shall be payable out of income does the funds of the Charity; nor shall any fees be paid by any ao party to the proceeding, unless the Judge shall, in his discre- ~~ tion, order any of the parties to the proceeding before him to pay such fees of Court as he shall think fit, without prejudice to the privilege of the Attorney General as to costs. XV. Where more than one charity is joined in one applica- Fees where tion, one set of Court fees only shall be payable, such fees to several Cha- be calculated on the aggregate amount of the incomes of the” ">" Charities so joining. XVI. Where Court fees are payable, they shall be calculated Fees how according to the scale of fees applicable to proceedings for the c#culated. recovery of tenements under the 9th and 10th Vict. cap. 95, sect. 122, the annual income of the Charity, like the annual rent of the tenement, being treated as the basis of calculation. XVII. At the hearing, any person who has been summoned, Who may or has received notice to attend proceedings, or who is autho- }ppear at rized to apply under sect. 43 of “The Charitable Trusts Act, SEU» 1853,” may appear, and shall be heard to oppose the application authorized by the order or certificate of the Commissioners, or the statement of the Attorney General, subject to the payment of such costs as the Judge shall direct. XVIII. The order or certificate of the Commissioners, or Effect of statement of the Attorney General, as to the amount of Commis- : the annual income, shall be conclusive on the Court, and the or certificate, other statements contained in the certificate or order of the or Attorney Commissioners, or the statement of the Attorney General shall, Gepera!’s unless disputed, be taken as true. XIX. Where any person is desirous of appealing against an Appeal. order made by the Court in any matter of a charity, he shall, 284 Forms. Practice to continue subject to these orders. Clerk's duties as to trustees’ accounts. Charitable Trusts Orders. within one calendar month after making such order, give notice in writing, stating the grounds of such intended appeal, to the Court ; and such notice may be served, by post or otherwise, on the clerk of the said Court at his office. XX. The Forms contained in the Schedule may be varied by the Court, according to the circumstances of each case. XXI. The enactments, Secretary of State’s orders, practice, and forms in force and used in the County Courts shall, subject to the foregoing orders, be adopted with reference to proceedings in matters of Charitable Trusts, so far as the same are appli- cable, mutatis mutandis. XXII. The accounts of Trustees of Charities, when delivered to the clerk of the County Court, shall be filed by him in numerical order, and annually indexed alphabetically according to the titles of such Charities, or the names or description by which they are known, or may be identified. SCHEDULE OF FORMS. Summons. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. (Name, description, and address of party to be summoned). You are hereby summoned to appear at a County Court to be holden at on the day of 18 at the hour of in the forenoon, upon the hearing of an application which has been made to the Court in the matter of the above Charity, by which it is suggested (here state substance of order, certificate, or statement). And you are informed, that if you do not attend pursuant to the requisition of this summons, the Court may proceed in the matter in your absence, and make such order as may appear just therein. And you are further informed, that if you do not obey such order, you will be liable to be imprisoned by order of the Court. A. B., Clerk of the Court. Dated this day of 18 Charitable Trusts Orders. 285 Notice to attend Proceedings. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. (Name, description, and address of party to whom notice is to be given). Take notice, that the hearing of an application in the matter of the above Charity, by which it is suggested (here state substance of order, certificate, or statement), will take place on the day of 18 , atthe above County Court. The object of this notice is that if you are desirous of attending the said hearing, you are at liberty to do so, and you may be heard in support of any objection, you have to such proceedings in respect of the above Charity. But if you do not attend at the hearing, you will not be subject to any costs or penalty in respect of such non- attendance. A. B. Clerk of the Court. Dated this day of 18 Notice of Hearing. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. Name description, and address of party to whom notice is to be given). Take notice, that the hearing of the application in the matter of the above Charity is appointed to take place at this Court on the day of 13” A. B., Clerk of the Court. Dated this day of 18 *This should be at the earliest convenient sitting of the Court. 286 Charitable Trusts Orders. Form of Record. Asuuey, Lady, Charity of, In the Matter of. No. 1. On the day of 18 an order (certificate, or statement, as the cuse may be,) was produced by (state the party producing or transmitting it), and the same has been numbered 1 (or, as the case may be; according to the priority of production to the clerk.) On the day of 18 asummons (or other process, as the case may be, ) was issued and directed to be served by post (or otherwise, as the case may be,) on (state the parties ), requiring him (her or them, as the case may be, ) to appear at this Court on the day of 18 ‘ AtaCourt holden on the day of 18 appeared (State parties appearing, or reasons for not appearing, and whether they appeared by counsel or otherwise. If any adjournment takes place, state the cause thereof, and adjournment, and until when adjourned; then on the adjournment day, proceed in a similar manner as on the first day of hearing ; and the same on every successive adjournment day. When the matter is finally disposed of, then proceed)— The matter having been heard, the Court made the ful- lowing Order (ere state the order. If any other proceedings, whether before or after the final order, are taken in the matter, they must be recorded in a similar manner in their proper places. dt will not be necessary to set forth on the record any of the evidence, as that will appear on the Judge's notes ; but any docu- ment produced, or any copy thereof, which the Judge requires to be filed, should be filed along with the other papers relating to the mutter.) ( When the record of proceedings in any Charity occupies more than one page, the record may be continued on the next blank page, and a reference should be made from such previous page to such neat page, and from such neat page to such previous page. The book in which the record is hept should be paged throughout, and have an alphabetical index at the end. The names of the Charities should be arranged in the index alphabetically, and the numbers of the pages in which any proceedings are recorded should be given at the end of the names). Charitable Trusts Orders. Form of Order for the Removal or Appointment of a Trustee, or Removal and Appointment of a Trustee; vesting the Estates of a Charity in a Trustee ; and approving a Scheme. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. ‘ e o Upon THE APPLICATION of (name, description, and address of applicant) to (here state the substance of the application authorized by the order or certificate ; but in the case of a scheme, only refer to it as “a certain scheme for regulating or directing the administration of the said Charity,”) and uron Hearine the matter of the said application : Ir 1s oRDERED that (name, description, and address) one of [or the trustee] the trustees of the above Charity be removed, [or that (name, description, and address) be appointed a trustee of the said Charity], [or that (name, description, and address), one of the trustees (or the trustee) of the said Charity be removed, and that (name, description, and address) be appointed a trustee instead of the said (name of removed trustee)]: AND IT IS FURTHER ORDERED that (state property and rights of the Charity as described or indicated in the order or certificate) do vest in the said (names of trustees in whom the said property and rights are to vest): AND IT IS FURTHER ORDERED that the scheme set forth in the Schedule hereunto annexed for the regulating (or directing) the administration of the said Charity be approved and established. Given under the seal of the Court this day of 18 By the a . B., Clerk of the Court. Schedule referred to in the foregoing order. (Here insert scheme approved of ). This is the schedule referred to in the above order. (Clerk's signature). *,* Where the application to the Court does not embrace all the subjects of the above form, such part may be adopted as is applicable to the exigency of the case. Form of Order under Section 48. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. Upon THE APPLICATION of (name, description, and address of applicant) to (here state the substance of the application authorized 287 288 Charitable Trusts Orders. by the order or certificate) and upon #EARING the matter of such application : Iv 1s orpERED that the (here describe the estates of the Charity as described or indicated in the order or certificate) holden in trust for the above mentioned Charity do vest in “The Treasurer of Public Charities,” and his successors in trust, for the said Charity. [(Where any periodical or other payment is directed with respect to any copyhold land, add as to a periodical payment the Sollowing clause). AND IT Is FURTHER ORDERED, with the consent of the (name, description, and address of the lord of the manor wherein the estates are situated) that the sum of £ be paid by (name, description, and address of person ordered to pay) to the said lord of the manor of on the day of next, and on the same day in each succeeding year (as the case may be) in compensation for fines or other profits which would have become due upon the death or admittance of the tenants of such land, being part of the said manor holden upon trust for the said Charity. Given under the seal of the Court, this day of 18 By the Court, A.B, Clerk of the Court. Form of Order under Section 51. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. Upon THE APPrication of (name, description, and address of applicant) to (here state the substance of the application authorized by the order or certificate), and UPON HEARING the matter of the said application : Ir is onpERED that (names, descriptions, and addresses) [where they are personal representatives, insert “The executors (or administrators) of (name, description, and address) deceased” do transfer the £ — bank £3 per centum annuities or reduce annuities, or £3 5s. per centum annuities, or bank stock, promissory note, bill of exchange, bond, debenture, or other security (as the case may be), standing in the name (or names) (insert the names, descriptions, and addresses of the persons in whose names the stock is standing), into the names of (names of official trustees). [Where securities are to be deposited, vary the preceding order commencing with the words “ do transfer,” and substitute Charitable Trusts Orders. the following: ‘do deposit the following Exchequer bills, dated, that is to say, No. 1,806 for £500, No. 772 for £50, &c., or any other Exchequer bills, for which the same may be exchanged (as the case may be) with (names of official trustees) ]. Given under the seal of the Court this day of 18 By the Court, A. B., Clerk of the Court. Form of Order for Payment of Money by any Trustee of any Charity or any Person holding Money belonging to any Charity. In the County Court of holden at (Seal.) In the matter of (Title of Charity). No. of Charity. Upon the application of (name, description, and address of applicant) to (here state the substance of the application authorized by the order or certificate), and UPON HEARING the matter of the said application : Ir 1s ORDERED that (name, description, and address) do on or before the day of 18 , pay the sum of £ [with interest thereon (if any) ] to (state party or account). Given under the seal of the Court, this day of 18 By the Court, A. B., Clerk of the Court. Notice of Appeal. In the matter of (name Charity). I (name, description, and address of the appellant) do hereby give notice, that I am aggrieved by (or dissatisfied with) a cer- tain order made by the County Court of holden at and dated the day of and that I intend to appeal against the same, and the grounds of appeal are that (here state grounds). Signed (appellant’s name). To the clerk of the County Court of holden at Dated this day of 18° 289 290 I approve of this bond. (1.8.) J. K. Charitable Trusts Orders. Notice of Sureties. “In the County Court of holden at In the matter of (Title of Charity). Take notice that the sureties whom I propose as my sureties on the appeal in the above matter are [here state the full names and additions of the sureties, whether housekeepers or freeholders, and their residences for the last six months, therein mentioning the county or city, places, streets, and numbers, if any]. Form of Bond. Know all men by these presents that we (names, descriptions, and addresses) and (names, descriptions, and addresses) are jointly and severally bound to (name, description, and address of obligee) in £ of good and lawful money of Great Britain, to be paid to the said (name of obligee) or his certain attorney, executors, administrators, or assigns. For which payment to be made, we bind ourselves and each (and every) of us, in the whole, our, and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated this day of one thousand eight hundred and Whereas an order dated the day of 18 was made in the matter of (name) Charity by the County Court of holden at And (name, description, and address of api) states himself to be aggrieved by (or dissatisfied with) the said order, and has given notice of appeal pursuant to the Charitable Trusts Act, 1853, and the practice of the Court. And whereas the Charity Commissioners of England and Wales have required that the said (appellant) should, together with two sufficient sureties, become bound to (person whom the Com- missioners direct to be obligee) in the sum of £ to pay such costs of the proceedings on the appeal as shall be ordered to be paid by the said appellant [if required by the Commissioners, and also to indemnify the Charity against the costs and expenses of and attending such appeal}. And whereas the above named (names, descriptions, and addresses of sureties) at. the request of the said (name of appel- lant) have agreed to enter into the above written obligation for the purpose aforesaid, and the security intended to be given has been approved of by (name of clerk). Now the condition of this obligation is such, that if the above bounden (names), and any or either of them, shall pay unto the said (name of the obligee), his executors, administrators, or assigns, the costs of the said appeal, as the said Court of Appeal shall order, then this obligation shall be void, otherwise to remain in full force and virtue. A. B. (u8.) C.D. (us.) £. FP. (us.) Signed, sealed, and delivered by the above bounden in the presence of APPENDIX TO PART I. x —— 9 & 10 VICT. CAP. 95. An Act for the more easy Recovery of Small Debts and Demands in England. (28th August 1846.] Wuenreas sundry acts of Parliament have been passed from time to time for the more easy and speedy recovery of small debts within certain towns, parishes, and places in England: and whereas by an act passed in the eighth year of the reign of her Majesty, intituled ‘* An Act to Amend the Laws of Insolvency, Bankruptcy, and Execution,” arrest ¢, upon final process in actions of debt not exceeding twenty pounds was abolished, except as to certain cases of fraud and other misconduct of the debtors therein mentioned: and whereas by an act passed in the ninth year of the reign of her said Majesty, intituled ‘An Act for the gg 9 Vict better securing the Payment of Small Debts,” further remedies were ¢, 197, given to judgment creditors, in respect of debts not exceeding twenty pounds, for the discovery of the property of debtors, and punishment of frauds committed by them: and whereas by the last-mentioned act her Majesty is enabled, with the advice of her privy council, to extend the jurisdiction of certain courts of requests and other courts for the recovery of small debts to all debts and demands, and all damages arising out of any express or implied agreement, not exceeding twenty pounds, and also to enlarge and in certain cases to contract the district of such courts, and make certain other alterations in the practice of such courts in manner in the now-reciting act mentioned ; and it is expedient that the provisions of such acts should be amended, and that one rule and man- ner of proceeding for the recovery of small debts and demands should prevail throughout England; and whereas the county court is a court of ancient jurisdiction having cognizance of all pleas of personal actions to any amount by virtue of a writ of justicies issued in that behalf: and whereas the proceedings in the county court are dilatory and expen- sive, and it is expedient to alter and regulate the manner of proceeding in the said courts for the recovery of small debts and demands, and that the courts established under the recited acts of parliament, or such of them as ought to be continued, should be holden after the passing of this act as branches of the county court under the provisions of this act, and that power should be given to her Majesty to effect these changes at such times and in such manner as may be deemed expedient by her Majesty, with the advice of her privy council: Be it enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parlia- ment assembled, and by the authority of the same, That it shall be yer Majesty lawful for her Majesty, with the advice of her privy council, from time may order B 4 2 Appendix to Part I. (9 § 10 Vict. this Actto to time to order that this act shall be put in force in such county or be putin —_ counties as to her Majesty, with the advice aforesaid, from time to time execution. shall seem fit; and this act shall extend to those counties concerning which any such order shall have been made, and not otherwise or elsewhere: provided always, that no court shall be established under this act in the city of London. Countiesto II, And be it enacted, That it shall be lawful for her Majesty, with be divided the advice aforesaid, to divide the whole or part of any such county, into dis- . » f nae . cur : tricts. including all counties of cities and counties of towns, cities, boroughs, towns, ports, and places, liberties and franchises therein contained, or thereunto adjoining, into districts, and to order that the county court shall be holden for the recovery of debts and demands under this act in each of such districts, and from time to time fo alter such districts as to her Majesty, with the advice aforesaid, shall seem fit, and to order from time to time that the number of districts in and for which the court shall be holden shall be increased until the whole of such county shall be within the provisions of this act, and with the advice aforesaid to alter the place of holding any such court or to order that the holding of any such court be discontinued, or to consolidate any two or more of such districts, and from time to time, with the advice aforesaid, to declare by what name and in what towns and places the county court shall be holden in each district; and if it shall appear to her Majesty that any part of any county, liberty, city, borough, or district may conveniently be declared within the jurisdiction of the county court of an adjoining county, it shall be lawful for her Majesty, with the advice aforesaid, to order that such part shall be taken to be within the jurisdiction of the county court holden for the purposes of this act for such adjoining county in and for such district as her Majesty shall order, in like man- ner as if it were part of such adjoining county. Courts held _ III. And be it enacted, That every court to be holden under this act under this shall have all the jurisdiction and powers of the county court for the nese pare recovery of debts and demands, as altered by this act, throughout the jurisdiction Whole district for which it is holden, and there shall be a judge for each as county district to be created under this act, and the county court may be courts, and holden simultaneously in all or any of such districts; and every court to be courts holden under this act shall be a court of record. Preserving _ IV. And be it enacted, That for all purposes, except those which the juris- shall be within the jurisdiction of the courts holden under this act, the oe of county court shall be. holden as if this act had not been passed ; and all sours, proceedings commenced in the county court of any county before the time when any court shall be holden under this act in such county may be continued, executed, and enforced against all persons liable there- unto, in the same manner as if they had been commenced under the authority of this act. Her Majesty V. And be it enacted, That it shall be lawful for her Majesty, with mee pan the advice of her privy council, to order that any court holden for the anter Acts Tecovery of small debts or demands within the provisions of any act inSchedules cited in either of the schedules annexed to this act, and marked (A.) oe aaa - and (B.) respectively, shall be holden as a county court; and it shall tid os a be lawful for her Majesty, with the advice aforesaid, to assign a district county to every such court, either greater or less than the district in which the court, and court holden under the provisions of any such act now has jurisdiction, iste and to alter the place of holding any such court, or to order that any the same (a). such court be abolished ; and every such court shall continue to be (a) See 15 & 16 Vict. c. 54, s. 7, post. cap, 95.) County Court Acts. 3 holden under the act according to which it is now constituted or regu- lated, until the time mentioned in any such order which shall be made with reference to such court; and from and after the time mentioned in any such order the act or acts under which such court is now con- stituted, so far as the same relate to the establishment or jurisdiction or practice of a court for the recovery of small debts or demands, shall be repealed, but not so as to revive any act thereby repealed ; and such court so ordered to be holden as a county court shall thenceforth be holden as a county court under this act, and in all respects as if it had been originally constituted under the provisions of this act. _ VI And be it enacted, That as soon as a court shall have been estab- When lished in any district under this act, and also at the time mentioned court shall in any such order which shall have been made as aforesaid, for holding be eta any of the courts mentioned in either of the said schedules as a county ynder this court under this act, the several provisions and enactments of the said Act, recited acts of parliament of the eighth and of the ninth year of the reign of her Acts andall Majesty, and of every other act of parliament heretofore passed, so far einai as the same respectively relate to or affect the jurisdiction and practice jurisdiction, of the court so established or ordered to be holden as a county court, repealed. or give jurisdiction to any court, or to any commissioner of the Court of Bankruptcy, with respect to judgments or orders obtained in the court so established or ordered to be holden as a county court, shall be repealed. VII. Provided always, and be it enacted, That all proceedings in Proceedings execution of the said acts, or any of them commenced before the passing under ; of this act, or before the days severally appointed for the alteration Peta aie A . 4 to be valid. . of the constitution of the said courts, shall be as valid to all intents and purposes as if this act had not been passed, or as if the said courts had not been altered, and may be continued, executed, and enforced against all persons liable thereto in the same manner as if they had been com- menced under the authority of this act. VIII. And be it enacted, That any order in council made for the Orders in purposes of this act shall be published in the London Gazette; and council to. 7 notice of the intention of her Majesty to take into consideration the ;" the Zan. propriety of making any such order shall be published in the London don Ga- Gazette one calendar month at least before any such order shall be etée (a). made. IX. And be it enacted, That the Lord Chancellor shall appoint as Appoint- many fit persons as are needed to be judges of the county court under ment and. this act, each of whom shall be a barrister at law who shall be of seven arjudees years’ standing, or who shall have practised as a barrister and special pleader for at least seven years, or a barrister or attorney at law who, under the provisions of any of the acts cited in the said Schedules (A.) and (B.), or under the provisions of either of the said acts of the eighth year and of the ninth year of the reign of her Majesty, shall have been nominated or appointed to preside in or hold any court con- stituted or held under any of the acts cited in either of the said Sche- dules (A.) and (B.), whether by the title of judge or barrister, or county clerk, assessor, or steward, or deputy steward, or by any other title or style whatsoever, or a person filling the office of Judge of the county court, or county clerk, in the said county, at the time of the passing proviso as of this act: Provided always, that every attorney at law who shall be to attorneys appointed a judge of the county court under this act, and who shall be aati to the partner of any other attorney at law, shall, within twelve calendar ae (a) Repealed by 12 a Vict. c. 101, 8. 11. B 4 under acts cited in Schedules (A.) and (B.) Provisions for certain lords of ma- nors having rights of ap- pointment under the acts hereby repealed. Lords of manors, &c. may surren- der courts with con- sent of per- sons inte- rested. Appendia to Part I. (9 J 10 Vict. months next after entering on the said office of judge of the county court, dissolve such partuership or vacate the said office of judge, and shall not during his continuance as such judge enter into any new parte nership ; and that no attorney at law who shall be appointed a judge of any county court under this act shall be, either by himself or his partner, employed or act as town clerk, or clerk of the peace of any county, city, or borough, or as clerk to any bench of justices, or as clerk or secretary to any board of guardians, or governors or directors of the poor, or of any vestry or local or parochial] board of trustees or commissioners, or of any public company or corporation whatsoever, or directly or indirectly concerned as attorney or agent for any party in any court regulated by this act, or after the expiration of the said term of twelve calendar months, in any other court of law or equity. X. By this section the judges at present acting in the courts of Bath, Bristol, Liverpool, and Manchester are entitled to the first appointment under this act for those places. XI. The stewards of the manors of Sheffield and Ecclesall appointed under 48 Geo. 3, «. 108, to be the first judges under this act for those districts. XII. The present county clerk of Middlesex, appointed under 23 Geo. 2, ¢. 33, to be the first judge under this act, and may continue to appoint a deputy, subject to approval of the Secretary of State, and the present registrar to be the first clerk. XIII, And be it enacted, That whenever any order shall be made for holding a court under this act within the several towns mentioned in the first column of the Schedule marked (C.) annexed to this act, then, upon the next vacancy which shall happen after the passing of this act in the several offices mentioned in the second column of the said Sche- dule (C.) in conjunction with such courts, the several lords for the time being of the manors and liberties mentioned in the third column of the said Schedule (C.) in conjunction with the said courts shall be entitled to appoint persons, properly qualified according to the provisions of this act, to fill the said offices respectively, subject nevertheless in ee case to the approval of one of her Majesty’s principal secretaries of state. XIV. And be it enacted, That it shall be lawful for the lord of any hundred, or of any honor, manor, or liberty, having any court in right thereof in which debts or demands may be recovered, to surrender to her Majesty the right of holding such court (for any such purpose, with the consent of any steward or other officer, if any, having a freehold office in such court), or upon the next vacancy in any such freehold office; and from and after such surrender such court shall be discon- tinued, and the right of holding such court shall cease, and all pro- ceedings commenced in such courts may thereafter be continued, and shall be enforced and executed, as if they had been commenced under the authority of this act in a county court holden for the district in which the cause of action arose ; but no person shall be entitled to claim any Compensation under this act by reason of any such surrender: Provided always, that the surrender of the right of holding any such court for the tecovery of debts and demands shall not be deemed to infer the sur- render or loss of any other franchise incident to the lordship of such hundred, honor, manor, or liberty, and that the court thereof may be oe for all other purposes, if any, incident thereunto, as now by law it may. On cap. 95.) County Court Acts: XV. And be it declared and enacted, That the appointment of any Appoint- person who at the passing of this act shall by any of the titles herein- ments of before specified preside in or hold any court constituted or held under tave pres . any of the acts cited in either of the said schedules (A.) and (B.), to viously be the judge of any county court, shall not be deemed an appointment Officiated in to hold a public office or employment within the meaning of an act 20Y founty passed in the sixth year of the reign of her present Majesty, intituled subject to “ An Act for the Amendment of the Law of Bankruptcy,” so as to 5 & 6 Vict. deprive him of any compensation to which he may be entitled under % 12? the said act. XVI. And be it enacted, That from time to time when any judge For supply- appointed under this act shall die, resign, or be removed, and the eren district for which he was appointed shall not be consolidated with any the judges" other district, another judge shall be appointed who shall be a barrister of the coun. at law who shall be of seven years standing, or who shall have practised ty court. as a barrister and special pleader for at least seven years, or who shall have been the county clerk of the same county at the time of the pass- ing of this act; and every such appointment shall be made by the Lord Chancellor, or, where the whole of the district is within the duchy of Lancaster, by the Chancellor of the duchy of Lancaster. XVII. And be it enacted, That no judge appointed under this act Judges not shall during his continuance as such judge practise as a barrister within t© practise the district for which his court is holden under this act, except those Bs barristers barristers already appointed to preside in or hold the said courts in tricts, ex- Bath, Bristol, Liverpool, Manchester, Sheffield, Ecclesall, and Mid- cept in dlesex, and now practising in chambers as conveyancing counsel, who peer may continue such practice. ; XVIII. And be it enacted, That it shall be lawful for the said Lord Judges of Chancellor, or, where the whole of the district is within the duchy of the county Lancaster, for the chancellor of the said duchy, if he shall think fit, to Ou 6% remove for inability or misbehaviour any such judge already appointed inability, or hereafter to be appointed. ‘ &e. XIX. Provided always, and be it enacted, That it shall be lawful Districts of for the Lord Chancellor, or chancellor of the said duchy, within their judges may several jurisdictions, to remove any judge from any district to which he & changed. shall have been appointed, for the purpose of appointing him to any other district in which the salary of such judge shall not be less than in the district from which he shall be so removed. XX. And be it enacted, That in case of illness or unavoidable ab- As to the sence, the cause whereof shall be entered on the minutes of the court, appoint: it shall be lawful for the judge appointed to hold any court under this edd ae act, or, in case of the inability of the judge to make such appointment, judge. for the Lord Chancellor, or, where the whole of the district is within the duchy of Lancaster, for the chancellor of the duchy, to appoint some other person, who shall be a judge appointed under this act, or who shall have practised as a barrister at law for at least three years, or as an attorney of one of her Majesty’s superior courts of common law for ten years, but not then residing or practising as an attorney in the district for which the court is holden, to act as the deputy of such judge during such illness or unavoidable absence; and it shall also be lawful for the judge, with the approval of the said Lord Chancellor or chancellor of the duchy, to appoint a deputy, who shall be a judge appuinted under this act, or who shall have practised as a barrister at (a) See 13 & 14 Vict. c. 61, 5. 3, and 15 & 16 Vict. u, 54,8, 16, 6 Appendiz to Part I. [9 & 10 Vict. law, for at least three years, to act for him for any time or times not exceeding in the whole two calendar months in any consecutive period of twelve calendar months; and every deputy so appointed, during the time for which he shall be so appoiated, shall have all the powers and privileges and perform all the duties of the judge for whom he shalk have been so appointed (a). Sadged may XXI. And be it enacted, That every judge of the county court whose tees fin. name shall be inserted by her Majesty in any commission of the peace thecom- _ for the county, riding, or division of a county for which he is appointed mission of judge of the county court, may and shall act in the execution of the the peace. ‘Office of justice of the peace for the said county, riding, or division although he may not have such qualification by estate or interest in lands, tenements, and hereditaments as is required by law in the case of other persons being justices of the peace for a county, provided that he be not disqualified by law to act as a justice of the peace for any other cause or upon any other occasion than in respect of the want of such an estate or interest as aforesaid. Judges, &c. XXII. And be it enacted, That the judges and other officers te be aCe appointed under this act shall be authorized and required to perform act autho. ll such duties in or relating to any causes or matters depending in the rized to per- High Court of Chancery, or before any judge thereof, or before the eee Lord Chancellor in the exercise of any authority belonging to him, ting to mat. Hecessary or proper to be done in their respective districts, as the Lord ters depend- Chancellor shall from time to time by any general order direct, and for inginthe this purpose, and subject to the general rules and orders of the said aa court, shall have and exercise all such authorities as may be duly exer- ¥ cised by the commissioners or other officers of the said court by whom such duties are now usually performed, and shall be entitled to receive the same fees and sums of money as are now payable in respect thereof, to be accounted for and applied by them as the other fees authorized by this act to be received are directed to be accounted for and applied : Provided always, that the future amount of such fees shall continue ed to the same authority for revising the same to which it is now subject. Treasury XXIII And be it enacted, That the Commissioners of her Majesty’s Toappont Treasury of the United Kingdom of Great Britain and Ireland shall cfcourts @Ppoint so many persons as they shall think fit to be treasurers of the holden un- courts holden under this act, and may remove any such treasurer, if der this act. they shall see occasion so to do, and appoint another person in his room ; and every such treasurer shall be paid by salary in such manner and to such amount as the said commissioners from time to time shall order; and the salary of every such treasurer shall be paid out of the Consolidated Fund of the United Kingdom of Great Britain and Ireland: Provided always, that the person appointed or acting as treasurer before the passing of this act to any court holden under any act cited in either of the said schedules (A.)} and (B.), if not disqualified under this act, shall be entitled to be the first treasurer of the same court re~ spectively, when holden as a county court under this act, in every case in which a separate treasurer shall be appointed exclusively for such court, and shall in such case continue to exercise his office, subject to the power of removal provided in this act. Appoint- XXIV. And be it enacted, That for every court under the authority ment of ‘ of this act there shall be a clerk, who shall be an attorney of one of nin wdees her Majesty’s superior courts of common law, and whom the judge (a) See 18 & 14 Vict. c, GI, 5. & emp. 95.] County Court Acts. 7 shall be empowered to appoint, subject to the approval of the Lord subject to Chanceilor, and in case of Inability or misbehaviour to remove, subject approval of to the like approval (a); and, until otherwise directed by her Majesty, a Chen with the advice of her privy council, every such clerk shall be paid “ by fees as hereinafter provided; and in cases requiring the same such assistant clerks as may be necessary shall be provided and paid by the elerk of the court. XXV. And be it enacted, That it shall be lawful for the Lord Chan- In populous cellor, in populous districts in which it shall appear to him expedient, eee to direct that two persons shall be appointed to execute jointly the aang taay? office of clerk, under such regulations as to the division of the duties direct two and emoluments of the said office as shall be from time to time made Clerks tobe by order of court in case of difference between them, each of such per- @PPointed. sons being qualified as is hereinbefore provided in the case of a single clerk ; and where under the provisions of any act cited in either of the said schedules (A.) and (B.) more than one clerk is now acting in and for the court holden under such act, the same number of clerks shall be continued, unless it shall seem expedient to the Lord Chancellor to order that such number be reduced. XXVI. And be it enacted, That it shal! be lawful for the clerk of tn case of any such court, with the approval of the judge, or in case of inability illness, &c. of the clerk to make such appointment, for the judge to appoint from 2 clerka time to time a deputy, qualified to be appointed clerk of the said court, Ae ne to act for the clerk of the said court at any time when he shall be pre- ed. vented by illness or unavoidable absence from acting in such office, and to remove such deputy at his pleasure ; and such deputy while acting ander such ee shall have the like powers and privileges, and be subject to the like provisions, duties, and penalties for misbehaviour, as if he were the clerk of the said court for the time being. XXVII. And be it euacted, That the clerk of each court, with such Duties of assistant clerks as aforesaid, in cases requiring the same, shall issue all clerks. summonses, warrants, precepts, and writs of execution, and register all orders and judgments of the said court, and keep an account of all proceedings of the court, and shall take charge of and keep an account of all court fees and fines payable or paid into court, and of all monies paid into and out of court, and shall enter an account of all such fees, fines, and monies in a book belonging to the court, to be kept by him for that purpose, and shall from time to time, at such times as shall be directed by order of the court, submit his accounts to be audited or settled by the treasurer. XXVIII. And be it enacted, That it shall not be lawful for the Ofices of clerk of any court holden under this act, or the partner of any such clerk, trea- clerk, or any person in the service or employment of such clerk or his Sane partner, to act as treasurer or high bailiff of the court ; or for the trea- to be con. surer, his partner or clerk, or any person in the service or employment joined. of such treasurer or his partner, to act as clerk or high bailiff; or for the high bailiff, his partner or clerk, or any person in the service or em- ployment of such high bailiff or his partner, to act as clerk or treasurer of the court. XXIX. And be it enacted, That no clerk, treasurer, high bailiff or Officers not other officer of the. court shall, either by himself or his partner, be Lene ag a directly or indirectly engaged as attorney or agent for any party in any the pels proceeding in the said court. (a@) See 13 & 14 Vict. c. 61, 8. 4. 8 Penalty of 504. on none observance of the two previous enactments. Appoint- ment of bailiffs. Provision for the high bailiffs of Westmin- ster and Southwark. Duties of the high bailiffs, &c. Appendix to Part I. [9 & 10 Viet. XXX, And be it enacted, That every person who, being the clerk of any such court, or the partner of such clerk, or a person in the service or employment of any such clerk or of his partner, shall accept the office of treasurer or high bailiff of such court, or who, being the treasurer of any such court, or the partner of any such treasurer, or a person in the service or employment of any such treasurer or of his part- ner, shall accept the office of clerk or high bailiff in the execution of this act, or who, being the high bailiff of such court, or the partner or any such high bailiff, or a person in the service or employment of any such high bailiff or of his partner, shall accept the office of clerk of treasurer in the execution of this act, and also every clerk, treasurer, high bailiff, or other officer of any such court who shall be, by himself or his partner, or in any way, directly or indirectly, concerned as attorney or agent for any party in any proceeding in the said coust, shall for every such offence forfeit and pay the sum of fifty pounds to any person who shall sue for the same in any of her Majesty’s superior courts of record, by action of debt or on the case. XXXI. And be it enacted, that for every such court there shall be one or more high bailiffs, whom the judge shall be empowered by order of court to appoint, and, in case of inability or misbehaviour, to remove by a like order ; and every such high bailiff shall be empowered, subject to the restrictions hereinafter contained, by any writing under his hand to appoint a sufficient number of able and fit persons, not exceeding such number as shall be from time to time allowed by the judge, to be bailiffs, to assist the said high bailiff, and at his pleasure to dismiss all or any of them, and appoint others in their stead (a); and every bailiff so appointed may also be suspended or dismissed by the judge. XXXII. Provided always, and be it enacted, That, until Parliament shall otherwise direct, the high bailiff of Westminster shall have the execution of all process issuing out of any of the said courts, the jaris- diction of which shall include the city and liberty of Westminster or any part thereof, and shall be deemed the high bailiff of such courts; and the high bailiff of Southwark shall have the execution of all pro- cess issuing out of any of the said courts the jurisdiction of which shall include the borough of Southwark or any part thereof, and shall be deemed the high bailiff of such last-mentioned courts, and no other high bailiff shall be appointed for such courts. XXXIII. And be it enacted, That the said high bailiffs or one of them shall attend every sitting of the court, for such time as shall be required by the judge, unless when their absence shall be allowed for reasonable cause by the judge, and shall, by themselves or by the bailiffs appointed to assist them as aforesaid, serve all the summonses and orders, and execute all the warrants, precepts and writs, issued out of the court; and the said high bailiffs and plaintiffs shall in the execution of their duties conform to all such general rules as shall be from time to time made for regulating the proceedings of the court, as hereinafter provided, and, subject thereunto, to the order and direction of the judge ; and the said high bailiffs shall be entitled to receive all fees and sums of money allowed by this act in the name of fees payable to the bailiff, out of which they shall provide for the execution of the duties for which such fees are allowable, and for the payment of the bailiffs and officers appointed to assist them, according to such scale of Temuneration as shall be from time to time approved by the judge; and every such high bailif shall be responsible for all ‘the acts and (a) See 13 & 14 Vict. c. 61, 5. 4. cap. 95.] County Court Acts. 9 defaults of himself and of the bailiffs sppuinted to assist him, in like manner as the sheriff of any county in England is responsible for the acts and defaults of himself and his officers. XXXIV. Provided always, and be it enacted, That the persons provision holding the offices or performing the duties of clerks and high bailiffs respecting in any court holden under any act cited in either of the said Schedules clerks and (A.) and (B.) on the first day of June in this year, and who shall Ben bales continue respectively to hold the same offices or to perform the same under acts duties at the time when such act shall be repealed under the provisions cited in of this act, whether or not qualified as hereinbefore provided, shall be Schedules entitled, if not disqualified under this act, to be the first clerks and high (g’) ra bailiffs of the same court when holden as a county court under this act, and shall continue to execute their several offices, subject to the power of removal provided in this act, except that the clerks and high bailiffs already appointed to any court named in the said Schedule (A.) shall be removable only for such cause as would have warranted their removal under the acts according to which their court is now holden ; and where, under the provisions of any of the said acts, more than one clerk was on the said first day of June, and shall be when such act shall be re- pealed, under the provisions of this act, acting in and for any of the said courts, or in and for any district or division of any court, the same persons shall jointly execute the office of clerk of the same courts as aforesaid, under such regulations as to the division of the duties and emoluments of the said office as shall be from time to time made by order of court, in case of difference between them: Provided always, that if the clerk of any court cited in the said Schedule (A.) shall, within one calendar month next after the repeal of the act under which it is now holden, decline to accept the office of clerk to the same court as holden under this act, it shall be lawful to the commissioners of her Majesty's treasury, if they shall think fit, to take into consideration the special circumstances of each case, and to award such compensation to be paid to such clerk as under the circumstances they shall think reasonable, in the manner herein provided in the case of persons whose emoluments will be diminished or taken away by this act. XXXV. And whereas the jurisdiction of the court of conscience in Provision the city of Bristol, under the provisions of an act passed in the first year respecting of the reign of her Majesty, and cited in the Schedule (A.) to this act eee annexed, extends to the recovery of debts and demands not exceeding courts at forty shillings; and the jurisdiction of the court of requests in the said Bristol. city, under the provisions of an act passed in the fifty-sixth year of the reign of King George the Third, and also cited in the said Schedule (A. ) extends to the recovery of debts and demands above forty shillings and not exceeding fifteen pounds: Be it enacted, That in case the persons now holding the office of registrar and clerk and deputy registrar of the said court of conscience shal! continue to hold the same offices respect- ively when a court shall be established in the said city of Bristol under the provisions of this act, they shall be entitled to hold the office and execute the duties of clerks of any such court in all causes and matters relating to debts, claims and demands not exceeding forty shillings, under such regulations as to the division of the duties and emoluments of the said office as shall be from time to, time made by order of court, in case of difference between them; and in case the person now holding the office of clerk of the said court of requests shall continue to hold the same office at the time when such court shall be established, he shall be entitled to hold the office and execute the duties of clerk of any such court in all causes and matters relating to debts, claims, and demands exceeding forty shillings and the said persons severally shall be removable only for such a as would have warranted their B 1 10 Treasurers, clerks, and high bailiffs to give se- curity. Fees to be taken ac- cording to Schedule (D.), and tables to be exhibited in conspicuous places. Fees may be reduced. Appropria- tion of sur- plus fees. Compensa- tion for per- sons whose rights or emoluments will be di. minished. Appendix to Part I. (9 & 10 Vict. removal under the several acts according to which the said courts are now holden. XXXVI. And be it enacted, That the treasurer, clerk, and high bailiff of every court holden under this act who may receive any monies in the execution of his duty shall give security for such sum and insuch manner and form as the commissioners of her Majesty’s treasury from time to time shall order for the due performance of their several offices, and for the due accounting for and payment of all monies received by them under this act (or wnich they may become liable to pay for any misbehaviour in their office). XXXVII. And be it enacted, That there shall be payable on every proceeding in the courts holden under this act, to the judges, clerks, and high bailiffs of the several courts, such fees as are set down in the Schedule marked (D.) to this act annexed, or which shall be set down in any schedule of fees reduced or altered under the power hereinafter contained for that purpose, and none other ; and a table of such fees shall be put up in some conspicuous place in the court house and in the clerk’s office ; and the fees on every proceeding shall be paid in the first instance by the plaintiff or party on whose behalf such proceeding is to be had, on or before such proceeding, and in default payment thereof shall be enforced by order of the judge by such ways and means as any debt or damage ordered to be paid by the court can be recovered ; and the fees upon executions shall be paid into court at the time of the issue of the warrant of execution, and shall be paid by the clerk of the court to the bailiff upon the return of the warrant of execution, and not before: Provided always, that it shall be lawful for one of her Majesty’s prin- cipal secretaries of state, with the consent of the commissioners of her Majesty’s treasury, to lessen the amount of the fees to be taken in the courts holden under this act in such manner as to him shall seem fit, and again to increase such fees, so that the scale of fees given in the Schedule to this act be not in any case surpassed ; and in every court holden under this act in which the fees allowed to be taken by the judges, clerks, or bailiffs of the court shall appear to be more than suffi- cient, it shall be lawful for the said secretary of state to order that a certain part only of their fees shall be paid to them respectively, not exceeding, in the case of judges and clerks, the sums hereinafter men- tioned as the greatest salaries to be by them respectively received ; and in such case, and so long as such direction shall be in force, the amount of the residue of the fees shall be accounted for and paid to the treasurer of the court, and shall form part of the general fund of the court; but no such order shall be made to reduce the fees of any of the judges, clerks, and officers of any court mentioned in the said Schedule (A.) (so long as they shall be paid by fees) below the average amount of their fees or emoluments during theseven years next before the passing of this act with a reasonable increase for any increase of business which they may severally have to perform by reason of this act. XXXVIITI. And be it enacted, That every person who is entitled to any franchise, right of appointment, or office under any of the acts under which any court mentioned in the said Schedule (A.) is holden, and every person who shall have been entitled to any fees or salary for his services in the execution of any of the same acts, or for the issue of any writs to the sheriffout of the High Court of Chancery, and also every person who is entitled to any franchise, or right of appointment to hold office in any court in any district in which the county court had not jurisdiction before the passing of this act, and in which district a court shall be established under the provisions of this act, and also every person holding any office in any such last-mentioned court whose fran= cap. 95.] County Court Acts. i chise or right of appointment or office shall be affected, abolished, or taken away, or whose emoluments shall be diminished or taken away under the operation of this act, shall be entitled to make a claim for compensation to the commissioners of her Majesty's treasury within six calendar months after the passing of this act, or after the alteration of such court; and it shall be lawful for the said commis- sioners in such manner as they shall think proper, to inquire what was the nature of the franchise or right of appointment, and what was the tenure of any such office, and what were the lawful fees and emoluments in respect of which such compensation should be allowed; and the commissioners in each case shall award such gross or yearly sum and for such time as they shall think just to be awarded upon consideration of the special circumstances of each case; and all such compensations shall be paid out of the consolidated fund of the United Kingdom of Great Britain and Ireland: Provided always, that if any person holding any office in any of the said courts shall be appointed after the passing of this act to any public office or employment, the payment of compen- sation awarded to him under this act, so long as he shall continue to receive the salary or emoluments of such office or employment, shall be suspended if the amount of such salary or emoluments is greater than the amount of such compensation, or if not, shall be diminished by the amount of such salary or emoluments: Provided also, that nothing in this act contained shall be deemed to entitle any person to compensation for the loss or diminution of the profits of any office to which he shall have been appointed under any act containing a provision, either that he is not to be entitled to compensation for the loss or diminution of the profits of his office, or that such act should cease on or within a limited time after the passing of any general act for the recovery of small debts, or under the provisions of either of the said acts of the eighth year of her Majesty and of the ninth year of her Majesty. XXXIX. And be it enacted, That it shall be lawful for her Majesty, officers of with the advice of her privy council, to order that the judges, clerks, courts may bailiffs, and officers of the courts holden under this act, or any of them, be paid by a eae . -? salaries in- shall be paid by salaries instead of fees, or in any manner other than is stead of provided by this act: And if her Majesty shall be pleased, with the fees (a). advice aforesaid, to make such order, or to order that any such court If court shall be abolished, or that the district for which any such court is ered holden shall be consolidated with any other district, or if any act shall tion allow- be passed whereby it shall be provided that the said courts or any of ed, except them shal] be abolished, or otherwise constituted than is provided by 19 certain this act, no such clerk or bailiff, nor any judge, county clerk, treasurer, °*°°* or other officer of any such court, shall be entitled to any compensation on account of ceasing to hold his office, or to receive the fees allowed by this act, or on account of his emoluments being affected by such abolition or alteration, unless he shall have presided or acted as judge, assessor, county clerk, treasurer, clerk, bailiff, or other officer, before the passing of this act, in any of the courts mentioned in the Schedule (A.) to this act annexed, in which case he shall be entitled to com- pensation for the loss of his fees or emoluments, in like manner, and subject to the same regulations as he would have been entitled thereto under the provisions herein contained in case he had been deprived of any fees or emoluments by reason of the passing of this act ; and in such case all sums payable in the name of fees to such officers of the court as shall be paid by salaries shall be paid from time to time to the treasurer of the court, who shall pay the said several salaries out of the proceeds of such fees, and the surplus shall form part of the general fund of the court; and whenever the net amount of the fees shall not be sufficient to pay the said several salaries, the deficiency (a) 13 & 14 Vict. c. 61, 5. 7, and 15 & 16 Vict. c. 54,5, 14, 12 Appendix to Part I. [9 & 10 Vict. shall be made good and paid out of the consolidated fund of Great Britain and Ireland. Limiting XL. And be it enacted, That the greatest salaries to be received in amount of any case by the judges and clerks of the courts holden under this act, salaries to shall be one thousand two hundred pounds by a judge, and six hundred vere ie pounds by a clerk, exclusive of all salaries to his clerks employed in the act. business of the court, and other expenses incidental to his office, uuless in the case of any judge or clerk of any such court acting in the same capacity before the passing of this actin any court mentioned in the said Schedule (A.), whose salaries shall not be limited to any sum less than the average amount of the fees and emoluments of their respective offices during the seven years next before the passing of this act: Pro- vided always, that it shall be lawful for the commissioners of her Ma- jesty’s treasury to allow in each case such sum as they shall in each case deem reasonable to defray travelling expenses, with reference to the size and circumstances of each district. Fees and XLI. And be it enacted, That the clerk of every court holden under fines tobe this act, from time to time as often as he shall be required so to do by accounted 3 A for totrea- the treasurer or judge of the court, andin such form as the treasurer or surer(a). judge shall require, shall deliver to the treasurer a full account in writing of the fees received in that court under the authority of this act, and a like account of all fines levied by the court, and of the expenses of levying the same, and shall pay over to the treasurer, quarterly or oftener in every year, by order of the court, the monies remaining in his hands over and above his own fees, and such balance as he shall be allowed by order of the court to retain for the current expenditure of the court. Clerk’s ac- XLII. And be it enacted, That the treasurer of every court holden youre to under this act shall from time to time, quarterly or oftener, as shall and settled be directed by-order of the court, audit and settle the accounts of the by treasu- clerk and other officers of the court, and shall receive the balance of rers. the various monies which such clerk and other officers shall have received under this act, and shall pay over to the judge of the court the amount of his fees, and make all such other payments as it shall be requisite to make thereout in accordance with the provisions of this act, and shall] from time to time pay the balance remaining in his hands, or so much thereef as he shall be directed to pay, into such bank, or otherwise as shall be directed by the commissioners of her Majesty's treasury. Treasurer of XLII. And be it enacted, That the treasurer of every court holden mae eee under this act shall once in every year, and oftener if required, on such countsto day as the commissioners of her Majesty’s treasury from time to time auditboard. shall appoint, render to the commissioners for auditing the public ac- counts of Great Britain a true account in writing of all moneis received and of all monies disbursed by bim on account of every court holden under this act of which he is treasurer, during the period comprised in such account, in such form, and with such particulars of receipt and disbursement, or otherwise, as the said commissioners of audit shall from time to time require. oe XLIV. And be it enacted, That the commissioners of her Majesty’s treasury to treasury shall from time to time make such rules as to them shall seem direct how meet for securing the balances and other sums of money in the hands balances _ of any officers of every court holden under this act, and for the due shali be ap- plied. (a) The latter portion of this scction is repealed by 12 & 13 Vict. c. 101, s. 7. cap. 95.) County Court Acts. 13 accounting for and application of all such balances and other sums of money. XLV. And be it enacted, That the accounts to be kept by the several Accounts of treasurers on account of the said courts shall be examined and audited treasurers by the commissioners for auditing the public accounts of Great Britain, a be ena under the powers vested in them under an act of the twenty-ffth year ise c i i powers 0} of the reign of King George the Third, intituled ‘An Act for the better 25 Geo. 3, Examining and Auditing the Public Accounts of this Kingdom,” and ¢- 52- under any act now in force, or otherwise howsoever, except so far as the same are varied by this act. XLVI. And be it enacted, That the clerk of every such court shall Clerk to once in every year, and oftener if required, on such day as shall be send to com- appointed by the commissioners of her Majesty’s treasury, make out and of endiban send to the said commissioners of audit an account of all sums paid over account of by him to the treasurer of the court, including all unclaimed balances, all sums | carried to the account of the general fund, as hereinafter provided; and paid by im every such account, duly vouched by receipts given under the hand of surer, the treasurer, shall be a voucher to charge the treasurer in his account before the said commissioners of audit. XLVII. And be it enacted, That it shall not be necessary to declare Accounts the accounts of the said treasurers before the Chancellor of the Ex- when au- chequer, but the said commissioners of audit shall transmit a statement Ce ea of every account examined and audited by them under the authority of sury, this act to the lord high treasurer or the commissioners of her Majesty’s treasury for the time being, who, having considered such statement, shall return the same to the commissioners of audit, together with his or their warrant, directing them to make up and pass the account, either conformably to the statement, or with such variations as he or they may deem just and reasonable; and the account having been made up pursuant to such directions, and signed by two or more of the said commissioners for auditing the public accounts, shall remain de- posited in the audit office, and shall -have the same force and validity, and be as efficient in Jaw for all purposes whatsoever, as if the same had been declared according to the usual course by the Chancellor of the Exchequer ; and the said commissioners shall thereupon, as soon as conveniently may be, cause such or the like certificate thereof, in the nature of a quietus, to be made out and delivered, as is now practised by them with regard to declared accounts, and which shall be equally valid and effectual to discharge the accountants, and to all other intents and purposes, XLVIII. And be it enacted, That the treasurer of any court holden Treasurers, under this act for which a court house and offices, with necessary ap- with ap- purtenances, sball not bave been already provided, or where such Broval of ¢ court house and offices are inconvenient or insufficient, shall, as soon state, tonto. as conveniently may be, with the approval of one of her Majesty’s vide court principal secretaries of state, build, purchase, hire, or otherwise pro- ponees of- vide messuages and lands, with all necessary appurtenances, fit for CS “c- holding the court therein, and for the offices necessary for carrying on the business of the said court, or, instead of providing separate buildings, may, with the like approval, contract with any person, being the owner of or having the control and management of any county or town hall or other building for the use and occupation thereof, or of so much thereof as may be needed for the purposes of this act, and subject to such annual rent and to such conditions as to the repairs, alterations or improvements of such hall or building, as may be agreed upon ; and all lands, messuages, and other real and personal estates 14 When com- mon gaols are incon- venient, prisons be- longing to courts un- der acts cited in Schedules (A.) and (B.) may be used 5 & 6 Vict. c. 98. Power for purchasing land. Treasurer empowered to borrow money for the purposes of this act. A general fund to be raised for paying off money bor- rowed. Appendia to Part I. (9 & 10 Pict. and effects belonging to the court shall vest in the treasurer for the time being, and in his successors in that office, in trust for the purposes of this act. XLIX. And be it enacted, That it shall be lawful for any court holden under this act, with the approval of one of her Majesty’s principal secretaries of state, to use as a prison for the purposes of this act any prison now belonging to any court holden under any of the acts cited in the said Schedules (A.) and (B.), in all cases where it shall appear to the said secretary of state, that the common gaol or house of correction of the county, district, or place in which the court is established is inconveniently situated, or is not applicable for the use of the said courts; and whenever any such prison shall be so allowed to be used it shall be deemed one of the common gaols of the county for which it shall be used, as if it had been provided, after presentment of the insufficiency of one common gaol for such county, under the pro- visions of an act passed in the sixth year of the reign of her Majesty, intituled, “An Act to amend the Laws concerning Prisons,” or where such prison shall be situated within a borough having a separate court of sessions of the peace, it shall be deemed a house of correction for such borough. L. And be it declared and enacted, That the provisions of the Lands Clauses Consolidation Act, 1845, shall apply to the purchase of Jands by the treasurer of any such court for the purposes of this act, except so much thereof as relates to the purchase and taking of lands otherwise than by agreement ; aud in construing the said act, the treasurer acting with the approval of one of her Majesty’s principal secretaries of state shall be deemed the promoter of the undertaking for which such lands are required. LI. And be it enacted, That for the purpose of defraying the expenses of building, purchasing, or providing any messuages and lands for the purposes aforesaid, it shall be lawful for the said treasurer to borrow and take up at interest so much money as he shall find to be necessary, the amount thereof, and the rate of interest in each case, being first allowed by the said commissioners of her Majesty’s treasury ; and the treasurer may enter into and execute such securities as may be required, and the securities so entered into shall be binding on him and his suc- cessors in the office of treasurer for securing repayment of the monies borrowed, with interest for the same, out of the general fund hereinafter mentioned ; and shall enter in a book belonging to the court, to be kept by him for that purpose, the names of the several persons by whom any money shall be advanced for the purpose aforesaid, in the order in which the same shall be advanced, and the monies so borrowed shall be paid off in the same order. LU. And be it enacted, That for raising a fund for providing a court house and offices, and for paying off any monies which may be borrowed as aforesaid, and the interest due in respect thereof, the clerk of every court holden under the authority of this act, in which and while it shall be necessary to raise such fund, shall demand and receive from the plaintiff in any suit brought in that court the sum of sixpence when the debt or damage claimed shall exceed twenty shillings, and shall not exceed forty shillings, and for every claim exceeding forty shillings one- twentieth part thereof, neglecting any sum less than sixpence in esti- mating such twentieth part, or such other sum in either case, not exceed- ing the rates hereinbefore mentioned, as one of her Majesty’s principal secretaries of state, with the consent of the commissioners of her Ma- jesty’s treasury, from time to time shall order, which sum, if not paid cap, 95.) County Court Acts. in the first instance by the plaintiff upon suit brought in the court, may be deducted from the sum recovered for the plaintiff, and shall be con- sidered as costs in the cause; and the clerk of the court shall keep an account of all monies so paid to him, and shall pay over the amount from time to time to the treasurer of the court, and the amount thereof shall accumulate, to form a fund to be called ‘‘The General Fund of the County Court of at ,”? and shall be applied in the first place toward paying the interest of the several sums so borrowed, and in the second place toward paying the rent and other expenses necessarily incurred in holding the court, and in the third place toward paying off the several principal sums borrowed, in the order in which they were borrowed, and in the fourth place toward defraying the other expenses herein charged on the said general fund, in such manner as the judge, with the approval of one of her Majesty's principal secretaries of state shall direct; and the surplus which shall from time to time accumulate, after providing for all the said expenses, shall be paid over to the credit of the Consolidated Fund of the United Kingdom of Great Britain and Ireland; subject, never- theless, to any charge which may arise from any future deficiency of the same fund. LIII. And be it enacted, That, as soon asa court shall have been established in any district under this act, all messuages, lands and tene- ments, and all real estates and effects, vested in or belonging to the commissioners, clerks, treasurers, trustees, or other officers of any of the courts mentioned in the said Schedules (A.) and (B.), which were holden in trust for the purposes of such court, shall vest in or belong to the treasurer of the county court for the time being, and his successors in the said office, in trust for the purposes of this act, for the like estate and interest, and subject to all the covenants, conditions, and agree- ments on which the same were respectively holden; and the said com- missioners, clerks, treasurers, trustees, and other officers, their heirs, executors, and administrators, shall be freed and discharged from all such covenants, conditions, and agreements, and from the consequences of their being unable to fulfil any covenants or agreements into which any of them may have lawfully entered in execution of the provisions of any of the said acts, on or before the repeal of such act, with respect to their estate or interest in such messuages, lands, tenements, real and per- sonal estate and effects, in consequence of the vesting thereof in the said treasurer ; and all monies and securities for money, and other property and effects of any kind whatsoever, in the hands of the commissioners, clerks, treasurers, trustees, or other officers of any such court, shall be paid, transferred, and delivered to the said treasurer, or to such person as he shall appoint to receive the same, and shall be applied in dis- charging all claims and demands to which the same were liable in the hands of such commissioners, clerks, treasurers, trustees, or other officers, and the residue thereof shall be applied to the same purposes to which the general fund is applicable. LIV, And be it enacted, That it shall be lawful for the treasurer of the county court, with the approval of the commissioners of her Ma- 15 Property of courts in Schedules (A.) and (B.) to vest in the trea- surer of the county court, Provisions for out- jesty’s treasury, and upon the certificate of the expediency thereof under Standing the hand of the'judge, to sell and dispose of all messuages, lands, an tenements which may be vested in him under the provisions of this act which shall not be needed for the purposes of this act, or which the treasurer shall think ought to be sold, for the purpose of better enabling him to discharge any just debts on account of any court of which the constitution shall be altered under this act, or to provide other and more convenient buildings for holding a county court; and the pro- ceeds of all such sales, and also all monies and securities for money d liabilities. 16 Clerks to have the charge of the court- houses, &c., and to ap. point and dismiss servants, &c, (a). Appendia to Part I. (9 & 10 Vict. which shall be paid, transferred, or delivered to him on account of any such court as aforesaid, shall be applied towards discharging such debts; and in every case in which at the time of the alteration of the constitution of the court there shall be any just debt owing on account of any such court, or any salaries or annuities legally or equitably chargeable upon or payable out of the fees of such court, or out of any fund to which such fees are payable, over and above what may be dis- charged by the monies and effects so paid, transferred, or delivered to the treasurer on account of such court, and over and above the pro- ceeds of the sale of any such messuages, lands, and tenements, in case the same or any part thereof shall be sold, such debt, salaries, and annuities shall be treated as if they were debts which had beea incurred for the purpose of providing a court house for holding the county court for the district in which the place is included where such court was holden, and shall be liquidated out of the general fund hereinbefore mentioned, if the same shall be sufficient for that purpose, and any deficiency therein shall be paid out of the consolidated fund of the United Kingdom of Great Britain and Ireland. LV. And be it enacted, That the clerk of every court shall have the care of the court-house and offices of the court, and shall appoint and have power to dismiss the necessary servants for taking charge of such court house and offices, at such salaries as shall be from time to time authorized by the judge, with the consent of the commissioners of her Majesty’s treasury ; and the clerk of the court, under the direction of the said commissioners, and subject to such regulations as they may require to be enforced, shal] make all necessary contracts or otherwise provide for repairing and furnishing, and for cleaning, lighting, and warming the said court house and offices, and for supplying the said court and offices with law and office books and stationery, and for defraying all other necessary expenses not otherwise provided for incident to the holding of the said court, and the charge of the court house and offices, and expenses thereby incurred, shall be paid out of the general fund of the court: Provided always, that the treasurer or clerk of any court, or the partner of any such treasurer or clerk, or any person in the service or employment of any such treasurer or clerk, shall not be directly or indirectly concerned or interested in any such contract, or in supplying any articles for the use of the said courts and offices: Provided also, that no payment for any such charge shall ‘be allowed in the clerk’s accounts until allowed under the hand of the Judge to hold the court where her Majesty shall direct. Notices for holding courts to be put upina conspicuous place. Process of the court to be under seal, judge. LVI. And be it enacted, That the judge of each district shall attend and hold the county court at each place where her Majesty shall have ordered that the county court shall be holden within his district at such times as he shall appoint for that purpose, so that a caurt shall be holden in every such place once at least in every calendar month, or such other interval as one of her Majesty’s principal secretaries of state shall in each case order; and notice of the days on which the court will be holden shall be put up in some conspicuous place in the court house and in the office of the clerk of the court, and no other notice thereof shall be needed ; and whenever any day so appointed for holding the court shall be altered, notice of such intended alteration, and of the time when it will take effect, shall be put up in some con- spicuous place in the court house and in the clerk’s office. LVII. And be it enacted, That for every court holden under this act there shall be made a seal of the court, and all summonses and (a) The latter portion of this section is repealed by 12 & 13 Vict. e. 101, s. 8. cap. 95.] County Court Acts. 17 other process issuing out of the said court shall be sealed or stamped with the seal of the court; and every person who shall forge the seal or any process of the court, or who shall serve or enforce any such forged process, knowing the same to be forged, or deliver or cause to be delivered to any person any paper falsely purporting to be a copy of any summons or other process of the said court, knowing the same to be false, or who shall act or profess to act under any false colour or pretence of the process of the said court, shall be guilty of felony. LVIII. And be it enacted, That all pleas of personal actions, where Jurisdiction the debt or damage claimed is not more than twenty pounds, whether of the court. on balance of account or otherwise, may be holden in the county court, without writ; and all such actions brought in the said court shall be heard and determined in a summary way in a court constituted under this act, and according to the provisions of this act: Provided always, that the court shall not have cugnizance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments, or to any toll, fair, market, or franchise, shall be in question, or in which the validity of any devise, bequest, or limitation under any will or settle- ment may be disputed, or for any malicious prosecution, or for any libel or slander, or for criminal conversation, or for seduction, or breach of promise of marriage. LIX. And be it enacted, That on the application of any person Suits to he desirous to bring a suit under this act, the clerk of the court shall by plaint. enter in a book to be kept for this purpose in his office a plaint in writing, stating the names and the last known places of abode of the parties, and the substance of the action intended to be brought, every one of which plaints shall be numbered in every year according to the order in which it shall be entered; and thereupon a summons, stating the substance of the action, and bearing the number of the plaint on the margin thereof, shall be issued under the seal of the court accord- ing to such form, and be served on the defendant so many days before the day on which the court shall be holden at which the cause is to be tried, as shall be directed by the rules made for regulating the practice of the court, as hereinafter provided; and delivery of such summons to the defendant, or in such other manner as shall be specified in the rules of practice, shall be deemed good service ; and no misnomer or inaccurate description of any person or place in any such plaint or summons shall vitiate the same, so that the person or place be therein described so as to be commonly known. LX. And be it enacted, That such summons may issue in any district summons in which the defendant or one of the defendants shall dwell or carry on may issue, his business at the time of the action brought ; or by leave of the court Bees for the district in which the defendant or one of the defendants shall Sction may have dwelt or carried on his business, at some time within six calendar not arise in months next before the time of the action brought, or in which the the district. cause of action arose, such summons may issue in either of such last- mentioned courts, LXI. And be it enacted, That any summons or other process which processes under this act shall be required to be served out of the district of the out of dis- court from which the same shall have issued may be served by the rer coue bailiff of any court holden under this act in any part of England, and eereaa by such service shall be as valid as if the same had been made by the bailiffof any bailiff of the court out of which such summons or other process shall] other court. have issued within the jurisdiction of the court for which he acts. LXII. And be it enacted, That service of any summons or other Proof of ser- vice of pro- 18 cess out of the district, or in the absence of the bailiff. Demands not to be divided for the purpose of bringing two or more suits. Minors may sue for wages, Cases of partnership and intes- tacy. Executors may sue and be sued. No privilege allowed. One of seve- ral persons liable may be sued. Judge alone to determine Appendix to Part I. [9 & 10 Vict. process of the court which shall require to be served ont of the district of the court may be proved by affidavit, purporting to be sworn before any judge of a county court, or before a master extraordinary in chan- cery, or any person now authorized by law to take affidavits; and the fee for taking such affidavit shall not be more than one shilling, and shall be costs in the cause; and in every case of the unavoidable absence of the bailiff by whom any summons or other process of the court shall have been served, the service of such summons or other pro- cess may be proved, if the judge shall think fit, in the same manner as a summons served out of the district of the court, but without additional charge to either of the parties to the suit. LXIII. And be it enacted, That it shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more suits in any of the said courts, but any plaintiff having cause of action for more than twenty pounds, for which a plaint might be entered under this act if not for more than twenty pounds, may aban- don the excess, and thereupon the plaintiff shall, on proving his case, recover to an amount not exceeding twenty pounds; and the judg- ment of the court upon such plaint shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly. LXIV. And be it enacted, That it shall be lawful for any person under the age of twenty-one years to prosecute any suit in any court holden under this act for any sum of money not greater than twenty pounds which may be due to him for wages or piecework, or for work as a servant, in the same manner as if he were of full age. LXV. And be it enacted, That the jurisdiction of the county court under this act shall extend to the recovery of any demand, not exceeding the sum of twenty pounds, which is the whole or part of the unliqui- dated balance of a partnership account, or the amount or part of the a of a distributive share under an intestacy, or of any legacy under a will. LXVI. And be it enacted, That it shall be lawful for any executor or administrator to sue and be sued in any court holden under this act in like manner as if he were a party in his own right, and judgment and execution shall be such as in the like case would be given or issued in any superior court. LXVII. And be it enacted, That no privilege except as hereinafter excepted, shall be allowed to any person to exempt him from the juris- diction of any court holden under this act. LXVIII, And be it enacted, That where any plaintiff shall have any demand recoverable under this act against two or more persons jointly answerable, it shall be sufficient if any of such persons be served with process and judgment may be obtained and execution issued against the person or persons so served, notwithstanding that others jointly liable may not have been served or sued, or may not be within the jurisdiction of the court; and every such person against whom judgment shall have been obtained under this act, and who shall have satisfied such judgment shall be entitled to demand and recover in the county court under this act contribution from any other person jointly liable with him. LXIX. And be it enacted, That the judge of the county court shall be the sole judge in all actions brought in the said court, and shall cap. 95.] County Court Acts. 19 determine all questions as well of fact as of law, unless a jury shall all questions be summoned as hereinafter mentioned; and no suitors shall in any eee: case be summoned to hold or have any jurisdiction in any court holden monea. under this act. LXX. And be it enacted, That in all actions where the amount Actions may claimed shall exceed five pounds, it shall be lawful for the plaintiff or D¢ tried by : : : a a jury when defendant to require a jury to be summoned to try the said action ; and parties re- in all actions where the amount claimed shall not exceed five pounds, it quire it. shall be lawful forthe judge, in his discretion, on the application of either of the parties, to order that such action be tried by a jury; and in every case such jury shall be summoned according to the provisions hereinafter contained: Provided always, that the party requiring a jury to be summoned shall give to the clerk of the court, or leave at his office, such notice thereof as shall be directed by the rules made for regulating the practice of the court as hereinafter provided; and the said clerk shall cause notice of such demand of a jury, made either by the plaintiff or defendant to be communicated to the other party to the said action, either by post, or by causing the same to be delivered at his usual place of abode or business ; but it shall not be necessary for either party to prove on the trial that such notice was communicated to the other party by the clerk. LXXI. And be it enacted, That every party requiring any jury to Party re- be summoned shall at the time of giving the said notice, and before he quiring jury shall be entitled to have such jury summoned, pay to the clerk of the 2 make a court the sum of five shillings for payment of the jury, and such sum shall be considered as costs in the cause, unless otherwise ordered by the judge. LXXII. And be it enacted, That the sheriff of every county, and who shall the high bailiffs of Westminster and Southwark, shall cause to be deli- be jurors. vered to the clerk of the court a list of persons qualified and liable to serve as jurors in the courts of assize and nisi prius for their county, city, and borough respectively, within fourteen days from the receipt of the jury book from the clerk of the peace of the county or other officer, each list containing only the names of persons residing within the jurisdiction of the court, for which lists the said sheriffs and high bailiffs shall be entitled to receive out of the general fund of the court a fee after the rate of two-pence for every folio of seventy-two words; and whenever a jury shall be required the clerk of the court shall cause so many of the persons named in the list as shall be needed in the opinion of the judge to be summoned to attend the court at the time and place to be mentioned in the summons, and shall administer or cause to be administered to such of them as shall be impannelled to try any cause or causes an oath to give true verdicts according to the evidence ; and the persons so sum- moned shall attend at the court at the time mentioned in the summons, and in default of attendance shall forfeit such sum of money as the judge shall direct, not being more than five pounds for each default ; and the delivery of such summons to the person whose attendance is required on such jury, or delivery thereof to his wife or servant, or any inmate at his usual place of abode, trading, or dealing, shall be deemed good service ; Provided always, that no person shall be summoned or com- pelled to serve on such jury more than twice within one year, or who shall have been summoned and shall have attended upon any jury at the assizes or any court of nisi prius, or at the central criminal court for the same county, withia six calendar months next before the delivery of such summons. LXXIII. And be it enacted, That whenever there are any jury trials Nawher of e jury. 20 Proceedings on hearing the plaint. No evidence to be given that is not in sum- mons. Notices to be given to the clerk of special de- fences who shall com- municate the same to the plaintiff. Suits may be settled by arbitration. Forms of procedure in courts to be framed by the judges (a). Appendiz to Part I. [9 § 10 Pact. five jurymen shall be impannelled and sworn, as occasion shall require, to give their verdicts in the causes which shall be brought before them in the said court, and being once sworn shall not need to be re-sworn in each trial; and either of the parties to any such cause shall be entitled to his lawful challenge against all or any of the said jurors in like manner as he would be entitled in any superior court ; and the jurymen so sworn shall be required to give an unanimous verdict. LXXIV. And he it enacted, ‘hat on the day in that behalf named in the summons the plaintiff shall appear, and thereupon the defendant shall be required to appear to answer such plaint ; and on answer being made in court the judge shall proceed in a summary way to try the pice and give judgment, without further pleading or formal joinder of issue. LXXV. And be it enacted, That no evidence shall be given by the plaintiff on the trial of any such cause as aforesaid of any demand or cause of action, except such as shall be stated in the summons hereby directed to be issued. LXXVI. And be it enacted, That no defendant in any court holden under this act shall be allowed to set off any debt or demand claimed or recoverable by him from the plaintiff, or to set up by way of defence and to claim and have the benefit of infancy, coverture, or any statute of limitations, or of his discharge under any statute relating to bankrupts or any act for relief of insolvent debtors, without the consent of the plaintiff, unless such notice thereof as shall be directed by the rules made for regulating the practice of the courtshall have been given to the clerk of the court ; and in every case in which the practice of the court shall require such notice to be given the clerk of the court shall, as soon as conveniently may be, after receiving such notice, communicate the same to the plaintiff by the post, or by causing the same to be delivered at his usual place of abode or business; but it shall not be necessary for the defendant to prove on the trial that such notice was communicated to the plaintiff by the clerk. LXXVII. And be it enacted, That the judge may in any case. with the consent of both parties to the suit, order the same, with or without other matters within the jurisdiction of the court in dispute between such parties to be referred to arbitration, to such person or persons, and in such manner, and on such terms as he shall think reasonable and just ; and such reference shall not be revocable by either party, except by consent of the judge; and the award of the arbitrator or arbitrators or umpire shall be entered as the judgment in the cause, and shall be as binding and effectual to all intents as if given by the judge; provided that the judge may, if he think fit, on application to him at the first court held after the expiration of one week after the entry of such award, set aside any such award so given as aforesaid, or may, with the consent of both parties aforesaid, revoke the reference, or order another reference to be made in the manner aforesaid. LXXVIII. And be it enacted, That five of the judges of the superior courts of common law at Westminster, including the lord chief justice of the Court of Queen’s Bench, the lord chief justice of the Court of Com- mon Pleas,-and the lord chief baron of the Court of Exchequer, or one of the said chiefs at the least, shall have power to make and issue all the general rules for regulating the practice and proceedings of the county courts holden under this act, and also to frame forms for every proceeding (a) See 13 & 14 Vict. ¢, 61, s. 12. cap. 95.) County Court Acts. 21 in the said courts for which they shall think it necessary that a form be provided, and also for keeping all books, entries, and accounts to be kept by the clerks of the said courts, and from time to time to alter any such rule or form ; and the rules so made, and the forms so framed, shall be observed and used in all the courts holden under this act; and in any case not expressly provided for herein, or by the said rules, the general principles of practice in the superior courts of common law may be adopted and applied, at the discretion of the judges, to actions and pro- ceedings in their several courts. LXXIX. And be it enacted, That if upon the day of the return of any Proceedings summons, or at any continuation or adjournment of the said court, or of if plaintiff the cause for which the said summous shall have been issued, the plaintiff does not ap- shall not appear, the cause shall be struck out; and if he shall appear, POA OF but shall not make proof of his demand to the satisfaction of the court, it age shall be lawful for the judge to nonsuit the plaintiff, or to give judgment for the defendant, and in either case, where the defendant shall appear and shall not admit the demand, to award to the defendant, by way of costs and satisfaction for his trouble and attendance, such sum as the judge in his discretion shall think fit, and such sun: shall be recoverable from the plaintiff by such ways and means as any debt or damage ordered to be paid by the same court can be recovered: Provided always, that if the plaintiff shall not appear when called upon, and the defendant, or some one duly authorized on his behalf, shall appear, and admit the cause of action to the full amount claimed, and pay the fees payable in the first instance by the plaintiff, the court, if it shall think fit, may proceed to give judgment as if the plaintiff had appeared. LXXX. And be it enacted, That if on the day so named in the sum- Proceedings tons, orat any continuation or adjournment of the court or cause in if the de- which the summons was issued, the defendant shall not appear, or suffi- sentont doe ciently excuse his absence, or shall neglect to answer when calJed in pia court, the judge, upon due proof of service of the summons, may proceed to the hearing or trial of the cause on the part of the plaintiff only, and the judgment thereupon shall be as valid as if both parties had attended : Provided always, that the judge in any such case, at the same or any sub- sequent court, may set aside any judgment so given in the absence of the defendant, and the execution thereupon, and may grant a new trial of the cause, upon such terms, if any, as to payment of costs, giving security for debt or costs, or such other terms as he may think fit, on sufficient cause shown to him for that purpose. ‘LXXXI. And be it enacted, That the judge may in any case make Judge may orders -for granting time to the plaintiff or defendant to proceed in the grant time. prosecution or defence of the suit, and also may fromtime to time adjourn any court, or the hearing or further hearing of any cause, in such a manner as to the judge may seem fit. LXXXII. And be it enacted, That it shall be lawful for the defendant Defendant in an action brought under this act, within such time as shall be directed May pay by the rules made for regulating the practice of the court, to pay into Doney into court such sum of money as he shall think a full satisfaction for the de- mand of the plaintiff, together with the costs incurred by the plaintiff up to the time of such payment; and notice of such payment shall be com- notice of municated by the clerk of the court to the plaintiff by post, or by causing such pay- the same to be delivered at his usual place of abode or business; and the ment to be said sum of money shall be paid to the plaintiff; but if he shall elect to evutif proceed, and if the plaintiff shall recover no further sum in the action 7 than shall have been so paid into court, the plaintiff shall pay to the defen- dant the costs incurred by him in the said action after such payment ; and 22 Parties and others may be exa- mined. Persons giving false evidence guilty of perjury («). Summonses to wit- nesses. Penalty on witnesses neglecting summons. Fines how to be en- forced and accounted for. Costs to abide the event of the action. Judgments how far final. Appendix to Part I. (9 § 10 Vict. such costs shall be settled by the court, and an order shall thereupon be made by the court for the payment of such costs by the plaintiff. LXXXIII. And be it enacted, That on the hearing or trial of any action or on any other proceeding under this act the parties thereto, their wives and all other persons, may be examined, either on behalf of the plaintiff or defendant, upon oath, or solemn affirmation in those cases in which persons are by law allowed to make affirmation instead of taking an oath, to be administered by the proper officer of the court. LXXXIV. And be it enacted, That every person who in any exami- nation upon oath or solemn affirmation before any judge of the county court shall wilfully and corruptly give false evidence shall be deemed guilty of perjury. LXXXV. And be it enacted, That either of the parties to the suit or any other proceeding under this act may obtain, at the office of the clerk of the court, summonses to witnesses, to be served by one of the bailiffs of the court, with or without a clause requiring the production of books, deeds, papers, and writings in their possession or control, and in any such summons any number of names may be inserted. LXXXVI. And be it enacted, That every person on whom any such summons shall have been served, either personally or in such other manner as shall be directed by the general rules or practice of the courts, and to whom at the same time payment of a tender of payment of his ex- penses shall have been made on such scale of allowance as shall be from time to time settled by the general rules of practice of the court, and who shall refuse or neglect, without sufficient cause, to appear,or to produceany , books, papers, or writings required by such summons to be produced, and also every person present in court shall be required to give evidence, and who shall refuse to be sworn and give evidence, shall forfeit and pay such fine not exceeding ten pounds, as the judge shall set on him; and the whole or any part of such fine, in the discretion of the judge, after de- ducting the costs, shall be applicable toward indemnifying the party injured by such refusal or neglect, and the remainder thereof shall form part of the general fund of the court in which the fine was imposed. LXXXVII. And be it enacted, That payment of any fine imposed by any court under the authority of this act may be enforced upon the order of the judge in like manner as payment of any debt adjudged in the said court, and shall be accounted for as herein provided. LXXXVIII. And be it enacted, That all the costs of any action or proceeding in the court, not herein otherwise provided for, shall be paid by or apportioned between the parties in such manner as the judge shall think fit, and in default of any special direction shall abide the event of the action, and execution may issue for the recovery of any such costs in like manner as for any debt adjudged in the said court. LXXXIX. And be it enacted, That every order and judgment of any court holden under this act, except as herein provided, shall be final and conclusive between the parties, but the judge shall have power to nonsuit the plaintiff in every case in which satisfactory proof shall not be given to him entitling either the plaintiff or defendant to the judgment of the court, and shall also in every case whatever have the power, if he shall think fit, to order a new trial to be had upon such terms as he shall think reasonable, and in the meantime to stay the proceedings. (a) See 14 & 15 Vict. c, 100, s. 19, post, cap. 95.] County Court Acts: 23 XC, And be it enacted, That no plaint entered in any court holden No actions under this act shall be removed or removable from the said court into Oe es any of her Majesty's superior courts of record by any writ or process, superior unless the debt or damage claimed shall exceed five pounds, and then courts but only by leave of a judge of one of the said superior courts, in cases which ©" ean shall appear to the judge fit to be tried in one of the superior courts, and “ORO HONS: upon such terms as to payment of costs, giving security for debtor costs, or such other terms as he shall think fit, XCI. And be it enacted, That no person shall be entitled to appear Who may for any other party to any proceeding in any of the said courts unless appear for he be an attorney of one of her Majesty’s superior courts of record, or any, party a barrister at law instructed by such attorney on behalf of the party, courts (a). or, by leave of the judge, any other person allowed by the judge to appear instead of such party ; but no barrister, attorney, or other person, except by leave of the judge, shall be entitled to be heard to argue any question as counsel for any other person in any proceeding in any court holden under this act ; and no person, not being an attorney admitted to one of her Majesty’s superior courts of record, shall be entitled to have or recover any sum of money for appearing or acting on behalf of any other person in the said court; and no attorney shall be entitled to have or recover therefore any sum of money, unless the debt or damage claimed shall be more than forty shillings, or to have or recover more than ten shillings for his fees and costs, unless the debt or damage claimed shall be more than five pounds, or more than fifteen shillings in any case within the summary jurisdiction given by this act; and in no case shall any fee exceeding one pound three shillings and sixpence be allowed for employing a barrister as counsel in the cause; and the expense of employing a barrister or an attorney, either by plaintiff or defendant, shall not be allowed on taxation of costs in the case of a plaintiff where less than five pounds is recovered, or in the case of a defendant where less than five pounds is claimed, or in any case unless by order of the judge. XCII. And be it enacted, that the judge may make orders concern- court may ing the time or times and by what instalments any debt or damages or make orders costs for which judgment shall be obtained in the said court shall be for payment paid, and all such monies shall be paid into court, unless the judge py,nstal- shall otherwise direct. XCIII. And be it enacted, that if there shall be cross judgments cross judg. between the parties execution shall be taken out by that party only who ments. shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered, as well as satisfaction on the judgment for the smaller sum, and if both sums shall be equal satisfaction shall be entered upon both judgments. XCIV. And be it enacted, That whenever the judge shall have made Court may an order for the payment of money, the amount shall be recoverable, in award exe- case of default or failure of payment thereof forthwith, or at the time eras or times and in the manner thereby directed, by execution against the pecds, goods and chattels of the party against whom such order shall be made ; and the clerk of the said court, at the request of the party prosecuting such order, shall issue under the seal of the court a writ of fieri facias as a warrant of execution to the high bailiff of the court, who by such warrant shall be empowered to levy-or cause to be levied, by distress and sale of the goods and chattels of such party, such sum of money (a) See 13 & 14 Vict. c. 61, s. 6, and 15 & 16 Vict. c. 54, 5, 10. 24 Execution not to issue till after de- fault in pay- ment of some instal- ment, and then it may issue for the whole sum due. What goods may be taken in execution. Securities seized to be held by high bailiff. Parties hav- ing obtained an unsatis- fied judg- ment may obtain a summons on charge of fraud. Appendix to Part I. (9 & 10 Viet. as shall be so ordered, wheresoever they may be found within the district of the court, whether within liberties or without, and also the costs of the execution ; and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such warrant. XCV. And be it enacted, That if the judge shall have made any order for payment of any sum of money by instalments, execution upon such order shall not issue against the party until after default in pay- ment of some instalment according to such order, and execution of successive executions may then issue for the whole of the said sum of money and costs then remaining unpaid, or for such portion thereof as the judge shall order, either at the time of making the original order, or at any subsequent time, under the seal of the court. XCVI. And be it enacted, That every bailiff or officer executing any process of execution issuing out of the said county court, against the goods and chattels of any person, may by virtue thereof seize and take any of the goods and chattels of such person (excepting the wear- ing apparel and bedding of such person or his family, and the tools and implements of his trade to the vaJue of five pounds, which shall to that extent be protected from such seizure), and may also seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities, for money, belonging to any such person against whom any such execution shall have issued as aforesaid. XCVII. And be it enacted, That the high bailiff shall hold any cheques, bills of exchange, promissory notes, bonds, specialities, or, other securities for money which shall have been so seized or taken as aforesaid, as a security or securities for the amount directed to be levied by such execution, or so much thereof as shall not have been otherwise levied or raised for the benefit of the plaintiff; and the plaintiff may sue in the name of the defendant, or in the name of any person in whose name the defendant might have sued, for the recovery of the sum or sums secured or made payable thereby, when the time of payment thereof shall have arrived. XCVIII. And be it enacted, That it shall be lawful for any party who has obtained any unsatisfied jndgment or order in any court beld by virtue of this act, or under any act repealed by this act, for the payment of any debt or damages or costs, to obtain a summons from any county court within the limits of which any other party shall then dwell or carry on his business, such summons to be in such form as shall be directed by the rules made for regulating the practice of the county courts as herein provided, and to be served personally upon the person to whom it is directed, requiring him to appear at such time as shall be directed by the said rules to answer such things as are named in such summons ; and if he shall appear in pursuance of such sum- mons, he may be examined upon oath touching his estate and effects, and the manner and circumstances under which he contracted the debt or incurred the damages or liability which is the subject of the action in which judgment has been obtained against him; and as to the means and expectation he then had, and as to the property and means he still hath, of discharging the said debt or damages or liability, and as to the disposal he may have made of any property; and the person obtaining such summons as aforesaid, and all other witnesses whom the judge shall think requisite, may be examined upon oath touching the inquiries authorized to be made as aforesaid; and the costs of such summons and of all proceedings thereon shall be deemed costs in the cause. cap. 95.) County Court Acts. 25 XCIX, And be it enacted, That if the party so summoned shall not Commit. attend as required by such summons, and shall not allege a sufficient meat a excuse for not attending, or shall, if attending, refuse to be sworn, or. ands; Se: to disclose any of the things aforesaid, or if he shall not make answer touching the same to the satisfaction of such judge, or if it shall appear to such judge, either by the examination of the party or by any other evidence, that such party, if a defendant, in incurring the debt or liability which is the subject of the action in which judgment has been obtained has obtained credit from the plaintiff under false pretences, or by means of fraud or breach of trust, or has wilfully contracted such debt or liability without having had at the same time a reasonable expectation of being able to pay or discharge the same, or shall have made or caused to be made any gift, delivery or transfer of any pro- perty, or shall have charged, removed, or concealed the same, with intent to defraud his creditors or any of them, or if it shall appear to the satisfaction of the judge of the said court that the party so sum- moned has then, or has had since the judgment obtained against him, sufficient means and ability to pay the debt, or damages, or costs so re- covered against him, either altogether or by any instalment or instal- ments which the court in which the judgment was obtained shall have ordered and if he shall refuse or neglect to pay the same as shall have been ordered, or as shall be ordered pursuant to the power hereinafter provided, it shall be lawful for such judge, if he shall think fit, to order that any such party may be committed to the common gaol or house of correction of the county, district, or place in which the party summoned is resident, or to any prison which shall be provided as the prison of the court (a), for any period not exceeding forty days. C. And be it enacted, That it shall be lawful for the judge of any power of court before whom such summons shall be heard, if he shall think fit, judge to whether or not he shall make any order for the committal of the rescind or defendant, to rescind or alter any order that shall have been previously alter orders: made against any defendant so summoned before him for the payment, by instalments or otherwise, of any debt or damages recovered, and to make any further or other order, either for the payment of the whole of such debt or damages and costs forthwith, or by any instalments, or in any other manner as such judge may think reasonable and just. CI. And be it enacted, That in every case where the defendant in any Power to suit brought in any county court shall have been personally served with commit at the summons to appear or shall. personally appear at the trial of the on ee same, the judge at the hearing of the cause, or at any adjournment thereof if judgment shall be given against the defendant, shall have the same power and authority of examining the defendant and the plaintitf and other parties touching the several things hereinbefore mentioned, and of commiting the defendant to prison, and of making an order, as he might have and exercise under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after the judgment obtained as hereinbefore mentioned. CII. And be it enacted, That whenever any order of commitment Mode of is- shall have been made as aforesaid, the clerk of the said court shall issue suing and under the seal of the court a warrant of commitment, directed to one of Sxeculiner.. the bailiffs of any county court, who by such warrant shall be empowered commit. to take the body of the person against whom such order shall be made ; ment. and all constables and other peace officers within their several jurisdic. (a) See 12 & 13 Vict. c. 101, 5. 1, post. Cc Imprison- ment not to operate as a satisfaction for the debt, &e. How execu- tion may be had out of the jurisdic- tion of the court (a). Power to judge to sus- pend execu- tion in cer- tain cases. Appendix to Part I. [9 F 10 Pet. tions shall aid in the execution of every such warrant ; and the gaoler or keeper of every gaol, house of correction, and prison mentioned in any el order shall be bound to receive and keep the defendant therein until discharged under the provisions of this act, or otherwise by due course of law; and no protection, order, or certificate granted by any court of bankruptcy, or for the relief of insolvent debtors, shall be available to discharge any defendant from any commitment under such last-mentioned order, CIII. And be it enacted, That no imprisonment under this act shall in anywise operate as a satisfaction or extinguishment of the debt or other cause of action on which a judgment has been obtained, or protect the defendant from being anew summoned and imprisoned for any new fraud or other default rendering him liable to be imprisoned under this. act, or deprive the plaintiff of any right to take out execution against the goods and chattels of the defendant, in the same manner as if such imprisonment had not taken place. CIV. And be it enacted, That in all cases where a warrant of execu- tion shall have issued against the goods and chattels of any party, or an order for his commitment shall have been made under this act, and such party, or his goods and chattels, shall be out of the jurisdiction of the court, it shall be lawful for the high bailiff of the court to send such warrant of execution or of commitment to the clerk of any other court constituted under this act, within the jurisdiction of which such party, or his goods and chattels, shall then be or be believed to be, with a warrant thereto annexed, under the hand of the high bailiff and seal of the court from which the original warrant issued, requiring execution of the same, and the clerk of the court to which the same shall be sent shall seal or stamp the same with the seal of his court, and issue the same to the high bailiff of his court, and thereupon such last-mentioned high bailiff shall be authorized and required to act in all respects as if the original warrant of execution or commitment had been directed to bim by the court of which he is the high bailiff, and shall within such time as shall be specified in the rules of practice, return to the high bailiff of the court from which the same originally issued, what he shall have done in the execution of such process, and in case a levy shall have been made shall, within such time as shall be specified in the rules of practice, pay over all monies received in pursuance of the warrant to the high bailiff of the court from which the same shall have originally issued, retaining the fees for execution of the process ; and where any order of commitment shall have been made, and the person apprehended, he shall be forthwith conveyed, in custody of the bailiff or officer appre- hending him, to the gaol or house of correction or other prison of the court within the jurisdiction of which he shall have been apprehended and kept therein for the time mentioned in the warrant of commitment, unless sooner discharged under the provisions of this act; and all con- stables and other peace officers shall be aiding and assisting within their respective districts in the execution of such warrant. CV. And be it enacted, That if it shall at any time appear to the satisfaction of the judge, by the oath or affirmation of any person, or otherwise, that any defendant is unable, from sickness or other suffi- cient cause, to pay and discharge the debt or damages recovered against him, or any instalment thereof ordered to be paid as aforesaid, it shall be lawful for the judge, in his discretion, to suspend or stay any judgment, order, or execution given, made, or issued in such action, (a) See 15 & 16 Vict. c. 54, 8. 5, post. cap. 95.) County Court Acts. 27 for such time and on such terms as the judge shall think fit, and so from time to time until it shall appear by the like proof as aforesaid that such temporary cause of disability has ceased. CVI. And be it enacted, That no sale of any goods which shall be Regulating taken in execution as aforegaid shall be until after the end of five days at the sale of least next following the day on which such goods shall have been so 804s se taken, unless such goods be of a perishable nature, or upon the request ™ ““°"H0™ in writing of the party whose goods shall have been taken; and until such sale the goods shall be deposited by the bailiff in some fit place, or they may remain in the custody of a fit person approved by the high bailiff, to be put in possession by the bailiff; and it shall be lawful for the high bailiff, from time to time as he shall think proper, to appoint such and so many persons for keeping possession, and so many sworn brokers and appraisers for the purpose of selling or valuing any goods, chattels, or effects taken in execution under this act, as shall appear to him to be necessary, and to direct security to be taken from each of them, for such sum and in such manner as he shall think fit, for the faithful performance of their duties without injury or oppression ; and the judge or high bailiff may dismiss any person, broker, or appraiser so appointed ; and no goods taken in execution under this act shall be sold for the purpose of satisfying the warrant of execution except by one of the brokers or appraisers so appointed ; and the brokers or appraisers so appointed shall be entitled to have, out of the produce of the goods so distrained or sold, sixpence in the pound on the value of the goods for the appraisement thereof, whether by one broker or more, over and above the stamp duty, and for advertisements, catalogues, sale, and commission, and delivery of goods, one shilling in the pound on the net produce of the sale, CVII. And be it enacted, that so much of an act passed in the As to the eighth year of the reign of Queen Anne, intituled,‘‘ An Act for the pees better Security of Rents, and to prevent Frauds committed by Tenants,” froecanon as relates to the liability of goods taken by virtue of any execution, under 8 shall not be deemed to apply to goods taken in execution under the Anne, c. 77, process of any court holden under this act; but the landlord of any pandoras tenement in which any such goods shall be so taken shall be entitled, may claim by any writing under his hand or under the hand of his agent, to be certain rents delivered to the bailiff or officer making the levy, which writing shall ‘7 *"°*"- state the terms of holding (a), and the rent payable for the same, to claim any rent in arrear then due to him, not exceeding the rent of four weeks where the tenement is let by the week, and not exceeding the rent accruing due in two terms of payment, where the tenement is let for any other term less than a year, and not exceeding in any case the rent accruing due in one year; and in case of any such claim Bailiets being so made the bailiff or officer making the levy shall distrain as making le- well for the amount of the rent so claimed, and the cost of such addi- vies may tional distress, as for the amount of money and costs for which the eu teaa tor warrant of execution issued under this act, and shall not proceed to teat sell the same or any part thereof within five days next after such dis- tress taken; and if any replevin be made of the goods so taken, such of In case of the goods shall be sold under the execution as shall satisfy the money and *¢P!¢vins- costs for which the warrant of execution issued, and the costs of the sale ; and the overplus of such sale (if any), and also the residue of the . goods, shall be returned as in other cases of distress for rent, and teplevin thereof; and for every such additional distress for rent in arrear the high bailiff of the court shall be entitled to have as the costs of the distress, instead of the fees allowed by this act for making such dis- (a) See 13 & 14 Vict. c. 61, s. 20, post. c2 28 Appendix to Part I. (9 F 10 Pict. tress, and keeping possession thereof, the fees allowed by an act passed in the fifty-seventh year of the reign of King George the Third, intituled, 57 Geo.3, “An Act to regulate the Costs of Distress levied for payment of small c, 93. Rents.” No execution CVIII. And be it enacted, That no judgment or execution shall shall be be stayed, delayed, or reversed upon or by any writ of error, or super- eee sedeas thereon, to be sued for the reversing of any judgment given in RE Ok POE: any court holden under the provisions of this act. Lxecution to, CEX. And be it enacted, That in or upon every warrant of execution be super- issued against the goods and chattels of any person whomsoever the seded on clerk of the court shall cause to be inserted or endorsed the sum of ene of money and costs adjudged, with the sums allowed by this act as in- eats: creased costs for the execution of such warrant; and if the party against whom such execution shall be issued shall, before an actual sale of the goods and chattels, pay or cause to be paid or tendered unto the clerk of. the court out of which such warrant of execution has issued, or to the bailiff holding the warrant of execution, such sum of money and costs as aforesaid, or such part thereof, as the person entitled thereto shall agree to accept in full of his debt or damages and costs, together with the fees herein directed to be paid, the execution shall be super- seded, and the goods and chattels of the said party shall be discharged and set at liberty. Debtor tobe CX. And be it enacted, That any person imprisoned under this act discharged who shall have paid or satisfied the debt or demand, or the instalments tien custoy: thereof payable, and costs remaining due at the time of the order of tiene eM ebt imprisonment being made, together with the costs of obtaining such aud costs. order, and all subsequent costs, shall be discharged out of custody, upon the certificate of such payment or satisfaction, signed by the clerk of the court, by leave of the judge of the court in which the ordes of imprisonment was made, Mi CXI. And be it enacted, That the clerk of every court holden under inutes of . : proceedings this act shall cause a note of all plaints and summonses, and of all tobe kept. orders, and of all judgments and executions, and returns thereto, and of ali fines, and of all other proceedings of the court, to be fairly entered from time to time in a book belonging to the court, which shall be kept at the office of the court; and such entries in the said book, or a copy thereof bearing the seal of the court, and purporting to be signed and certified as a true copy by the clerk of the court, shall at all times be admitted in all courts and places whatsoever as evidence of such entries, and of the proceeding referred to by such entry or entries, and of the regularity of such proceeding, without any further proof, Suitors’ CXII. And be it enacted, That the clerk or clerks of every such money un- court shall in the month of March in each year make out a correct list os of all sums of money belonging to suitors in the court which shall have goto gene- been paid into court, and which shall have remained unclaimed for ral fund. five years before the first day of the inonth of January then last past, specifying the names of the parties for whom or on whose account the same were to be paid into court; and acopy of such list shall be put up and remain during court hours in some conspicuous part of the court- house, and at all times in the clerk’s office; and all sums of money which shall have been paid into any such court, to the use of any suitor or suitors thereof, and which shall have remained unclaimed for the period of six years before the passing of this act, and which are now in the hands of any commissioner, trustee, judge, or officer of such court, or otherwise held in trust for such suitors, and all further sums cap. 95.] County Court Acts. 29 of money which shall hereafter be paid into any such court, to the use of any suitor or suitors thereof, shall, if unclaimed for the period of ‘six years after the same shall have been so paid into court, be appli. cable as part of the general fund of the court, and shall be carried to the account of such fund; and no person shall be entitled to claim any sum which shall have remained unclaimed for six years, but no time during which the person entitled to claim such sum shall have been an infant or feme convert, or of unsound mind, or beyond the seas, shall be taken into account in estimating the said period of six years, CXIII. And be it enacted, That if any person shall wilfully insult Power of the judge or any juror, or any bailiff, clerk, or officer of the said court, comma ‘ for the time being, during his sitting or attendance in court, or in” Oem? going to or returning from the court, or shall wilfully interrupt the proceedings of the court, or otherwise misbehave in court, it shall be lawful for any bailiff or officer of the court, with or without the assist. ance of any other person, by the order of the judge, to take such offender into custody, and detain him until the rising of the court; and the judge shall be empowered, if he shall think fit, by a warrant under his hand, and sealed with the seal of the court, to commit any such offender to any prison to which he has power to commit offenders under this act (a) for any time not exceeding seven days, or to impose upon any such offender a fine not exceeding five pounds for every such offence, and in default of payment thereof to commit the offender to any such prison as aforesaid for any time not exceeding seven days, unless the said fine be sooner paid. CXIV. And beit enacted, That if any officer or bailiff of any court Penalty for holden under this act shall be assaulted while in the execution of his #ssaulting duty, or if any rescue shall be made or attempted to be made of any Pailiffs, or Y, 0 Yy e P Y rescuing goods levied under process of the court, the person so offending shall be goods taken _ liable to a fine not exceeding five pounds, to be recovered by order of in execution. the court, or before a justice of the peace, as hereinafter provided ; and it shall be lawful for the bailiff of the court or any peace officer in any such case to take the offender into custody (with or without warrant), and bring him before such court or justice accordingly. CXV. And be it enacted, That in case any bailiff of the said court Bailifts made who shall be employed to levy any execution against goods and chattels ene shall by neglect, or connivance or omission, lose the opportunity of levy- and neglect ing any such execution, then upon complaint of the party aggrieved by to levy exe- reason of such neglect, connivance, or omission, (and the fact alleged cution. being proved to the satisfaction of the court on the oath of any credible witness), the judge shall order any bailiff to pay such damages as it shall appear that the plaintiff has sustained thereby, not exceeding in any case the sum of money for which the said execution issued, and the bailiff shall be liable thereto ; and upon demand made thereof, and on his refusal so to pay and satisfy the same, payment thereof shall be en- forced by such ways and means as are herein provided for enforcing a judgment recovered in the said court, CXVI. And be it enacted, That if any clerk, bailiff, or officer of the Remedies court, acting under colour or pretence of the process of the said court, apa, and shall be charged with extortion or misconduct, or with not duly paying Parites om or accounting for any money levied by him under the authority of this other ofivers act, it shall be lawful for the judge to inquire into such matter ina sum- for miscon- mary way, and for that purpose to summon and enforce the attendance duet. of all necessary parties in like manner as the attendance of witnesses in (a) See 12 & 13 Vict. c. 101, s. 2, post. 30 Penalty on officers taking fees besides those allowed. Claims as to goods taken in execution to be adju- dicated in court. Actions of replevin may be brought without writ. Plaints where to be entered. How actions of replevin may be re- inoved. Appendia to Part I. [9 & 10 Vice. any case may be enforced, and to make such order thereupon for the re- payment of any money extorted, or for the due payment of any money so levied as aforesaid, and for the payment of such damages and costs, as he shall think just ; and also, if he shall think fit, to impose such fine upon the clerk, bailiff, or officer, not exceeding ten pounds for each offence, as he shall deem adequate ; and in default of payment of any money so ordered to be paid payment of the same may be enforced by such ways and means as are herein provided for enforcing a judgment recovered in the same court, CXVII. And be it enacted, That every treasurer, clerk, bailiff, or other officer employed in putting this act or any of the powers thereof in execution, who shall wilfully and corruptly exact, take, or accept any fee or reward whatsoever, other than and except such fees as are or shall be appointed and allowed respectively as aforesaid, for or on account of anything done or to be done by virtue of this act, or on any account whatsoever relative to putting this act into execution, shall, upon proof thereof before the said court, and in the case of a clerk, treasurer, or high bailiff, on allowance of the finding of the court by the Lord Chancellor, be for ever incapable of serving or being employed under this act in any office of profit or emolument, and shall also be liable for damages as herein provided. CXVIII. And be it enacted, That if any claim shall be made to or in respect of any goods or chattels taken in execution under the process of any court holden under this act, or in respect of the process or value thereof, by any landlord for rent, or by any person not being the party against whom such process has issued, it shal] be lawful for the clerk of the court, upon application of the officer charged with the execution of such process, as well before as after any action brought against such officer, to issue a summons calling before the said courtas well the party issuing such process as the party making such claim, and thereupon any action which shall have been brought in any of her Majesty’s superior courts of record, or in any local or inferior court, in respect of such claim, shall be stayed, and the court in which such action shall have been brought, or any judge thereof, on proof of the issue of such summons, and that the goods and chattels were so taken in execution, may order the party bringing such action to pay the costs of all proceed- ings had upon such action after the issue of such summons out of the county court; and the judge of the county court shall adjudicate upon such claim, and make such order between the parties in respect thereof, and of the costs of the proceedings, as to him shall seem fit, and such order shall be enforced in like manner as any order made in any suit brought in such court. _ CXIX, And be it declared and enacted, That all actions of replevin in cases of distress for rent in arrear or damage faisant which shall be brought in the county court shall be brought without writ in a court held under this act. CXX. And be it enacted, That in every such action of replevin the plaint shall be entered in the court holden under this act for the district wherein the distress was taken. CXXI. And be it enacted, That in case either party to any such action of replevin shall declare to the court in which such action shall be brought that the title to any corporeal or incorporeal hereditament, or to any toll, market, fair, or franchise, is in question, or that the rent or damage in respect of which the distress shall have been taken is moie than the sum or twenty pounds, and shall become bound, with two cap. 95.) County Court Acts. 31 sufficient sureties, to be approved by the clerk of the court, in such sums as to the judge shall seem reasonable, regard being had to the nature of the claim, and the alleged value or amount of the property in dispute, or of the rent or damage, to prosecute the suit with effect and without delay, and to prove before the court by which such suit shall be tried that such title as aforesaid is in dispute between the parties, or that there was ground for believing that the said rent or damage was more than twenty pounds, then, and not otherwise, the action may be removed before any court competent to try the same in such manner as hath been accustomed, _ CXXII. And be it enacted, That when and so soon as the term and Possession of interest of the tenant of any house, land, or other corporeal heredita- small tene- ment, where the value of the premises or the rent payable in respect of (ems MAY | such tenancy did not exceed the sum of fifty pounds by the year, and by plaint upon which no fine shal] have been paid, shall have ended, or shall in county have been duly determined by a legal notice to quit, and such tenant, Ct or, if such tenant do not actually occupy the premises, or occupy only a part thereof, any person by whom the same or any part thereof shail be then actually occupied, shall neglect or refuse to quit and deliver up Possession of the premises, or of such part thereof respectively, it shall be lawful for the landlord or his agent to enter a plaint in the county court to be holden under this act, and thereupon a summons shall issue to the person so neglecting or refusing ; and if the tenant or occu- Iftenant, &c. pier shall not thereupon appear at the time and place appointed, and neglect to show cause to the contrary, and shall still neglect or refuse to deliver “pce”, up possession of the premises, or of such part thereof of which he is give posses- then in possession, to the said landlord or his agent, it shall be lawful sion, judge for such landlord or agent to give to the court proof of the holding, and ™2¥" ae z : proof of ser- of the end or other determination of the tenancy, with the time or ‘ice of sum- manner thereof, and, where the title of the landlord has accrued since mons, issue the letting of the premises, the right by which he claims the possession ; # Warrant and upon proof of service of the summons, and of the neglect or refusal {? nforce of the tenant or occupier, as the case may be, it shall be lawful for the = judge to issue a warrant under the seal of the court to any bailiff of the court, requiring and authorising him, within a period to be therein named, not less than seven or more than ten clear days from the date of such warrant, to give possession of the premises to such landlord or ageat ; and such warrant shall be a sutficient warrant to the said bailiff to enter upon the premises, with such assistanis as he shal] deem neces- sary, and to give possession accordingly: Provided always, that entry upon any such warrant shall not be made on a Sunday, Good Friday, or Christmas-day, or at any time except between the hours of nine in the morning and four in the afternoon: provided also, that nothing herein contained shall be deemed to protect any person by whom any such warrant shall be sued out of the county court from any action which may be brought against him by any such tenant or occupier for or in respect of such entry and taking possession where such person had not, at the time of suing out the same as aforesaid, lawful right to the possession of the same premises. CXXIII. And be it enacted, That such summons as last aforesaid The metals may be served either personally or by leaving the same with some i whic Tenth being in and sapareatig tesiding at the place of abode of the ed person or persons so holding over as aforesaid ; provided that if the be served. person or persons so holding over, or any or either of them, cannot be found, and the place of abode of such person or persons shall either not be known, or admission thereto cannot be obtained for serving such summons, the posting of the said summons on some conspicuous part of Judges, clerks, bai- liffs, or other officers not liable to actions on account of proceedings taken. Where land- Jord has a lawful title le shall not be deemed 1 trespasser by reason of inregularity. How execu- tion of war- rant of pos- session may be stayed, Proceedings on the bond for staying warrant of possession, de. Appendix to Part I. (9 f 10 Vict. the premises so held over shall be deemed to be good service upon such Person or persons respectively. CXXIV. And be it enacted, That it shall not be lawful to bring any action or prosecution against the judge or against the clerk of the court by whom such warrant as aforesaid shail have been issued, or against any bailiff or other person by whom such warrant may be executed or summons affixed, for issuing such warrant, or executing the same respectively, or affixing such summons, by reason that the person by whom the same shall be sued out had not lawful right to the possession of the premises. CXXV. And be it enacted, That where the landlord at the time of applying for such warrant as aforesaid had lawful right to the posses- sion of the premises, or of the part thereof so held over as aforesaid, neither the said landlord nor his agent, nor any other person acting in his behalf, shall be deemed to be a trespasser by reason merely of any irregularity or informality in the mode of proceeding for obtaining pos- session under the authority of this act, but the party aggrieved may, if he think fit, bring an action on the case for such irregularity or infor- mality, in which the damage alleged to be sustained thereby shall be specially laid, and may recover full satisfaction for such special damage with costs of suit; provided that if the special damage so laid be not proved, the defendant sliall be entitled to a verdict, and that if proved, but assessed by the jury at any sum not exceeding five shillings, the plaintiff shall recover no more costs and damages, unless the judge before whom the trial shall have been holden shall certify that in his opinion full costs ought to be allowed. CXXVI. And be it enacted, That in every case in which the person by whom any such warrant shall be sued out of the county court had not at the time of suing out the same lawful right to the possession of the premises, the suing out of any such warrant as last aforesaid shall be deemed a trespass by him against the tenant or occupier of the pre- mises, although no entry shall be made by virtue of the warrant; and in case any such tenant or occupier will become hound, with two suffi- cent sureties, to be approved by the clerk of the court, in such sum, as to the judge shall seem reasonable, regard being had to the value af the premises, and to the probable cost of such action, to sue the person by whom such warrant was sued out with effect and without delay, and to pay all the costs of the proceeding in such action in case a verdict shall pass for the defendant, or the plaintiff shall discontinue or not prosecute his action or beeome nonsuit therein, execution upon the warrant shall be stayed until judgment shall have been given in such action of trespass; and if upon the trial of such action of trespass a verdict shall pass for the plaintiff, such verdict and judgment thereupon shall supersede the said warrant, CXXVII. And be it enacted, That every bond given on the removal of any action out of the county court, or upon staying the execution of any such warrant of possession as aforesaid, or on moving for a new trial, or to set aside a verdict, judgment, or nonsuit, shall be made to the other party to the action at the costs of such other party, and shall be approved by the judge, and attested under the seal of the court; and if the bond so taken Le forteited, or if, upon the proceeding for securing which such bond was given, the judge before whom such proceeding shall be had shall not certify upon the record in court that the condi- tion of the bond hath been fulfilled, the party to whom the bond shall have been so made may bring an action of debt, and recover thereon : cap. 95.] County Court Acts. 33 . Provided always, that the court in which such action as last aforesaid shall be brought may by a rule of court give such relief to the parties liable upon such bond as may be agreeable to justice and reason, and such rule shall have the nature and effect of a defeasance to such bond. CXXVIII. And be it enacted, That all actions and proceedings which Conewrent before the passing of this act might have been brought in any of her Jurisdiction Majesty’s i ts of record where the plaintiff dwells more than Yay otro jesty’s superior cour ecord where the plainti e courts. twenty miles from the defendant, or where the cause of action did not arise wholly or in some material point within the jurisdiction of the court within which the defendant dwells or carries on his business at the time of the action brought, or where any officer of the county court shall be a party, except in respect of any claim to any goods and chattels taken in execution of the process of the court, or the proceeds or value thereof, may be brought and determined in any such superior court, at the election of the party suing or proceeding, as if this act had not been passed. CXXIX. And be it enacted, That if any action shall be commenced As to actions after the passing of this act in any of her Majesty’s superior courts of brought for record, for any cause other than those lastly hereinbefore specified, for ae which a plaint might have been entered in any court holden under this courts (a). act, and a verdict shall be found for the plaintiff for a sum less than twenty pounds, if the said action is founded on contract, or less than five pounds if it be founded on tort, the said plaintiff shall have judgment to recover such sum only, and no costs ; and if a verdict shall not be found for the plaintiff the defendant shall be entitled to his costs as between attorney and client, unless in either case the judge who shall try the cause shall certify on the back of the record that the action was fit to be brought in such superior court. CXXX. And be it enacted, That all penalties, fines, and forfeitures Penalties by this act inflicted or authorised to be imposed (the manner of reco- and costs to vering and applying whereof is not hereby otherwise particularly He recuvers directed) shall, upon proof before any justice of the peace having juris- ¢ico, Sa diction within the county or place where the offender shall reside or be, levied by or the offence shall be committed, either by the confession of the party distress. offending, or by the oath of any credible witness, be levied, with the costs attending the summons and conviction, by distress anu sale of the goods and chattels of the party offending, by warrant under the hand of any such justice; and the overplus (if any ), after such penalties, fines, and forfeitures, and the charges of such distress and sale, are deducted, shall be returned, upon demand, unto the owner of such goods and chattels. CXXXI. And be it enacted, That if any such penalties, fines, and In default of forfeitures respectively shall not be paid forthwith upon conviction, it Ferry, of shall be lawful for such justice to order the offender so convicted to be Re aetainel detained in safe custody until return can be conveniently made to such till return of warrant of distress, unless such offender shall give sufficient security to warrant of the satisfaction of such justice for his appearance before him on such day “stress- as shall be appointed for the return of such warrant of distress, such day not being more than eight days from the time of taking any such security, which security such justice shall be empowered to take by way of recog- nizance or otherwise as to him shall seem fit. CXXXII. And be it enacted, That if upon return of such warrant In default it shall appear that no sufficient distress can be had thereupon, or in of distress (a) See 13 & 14 Vict. c. 61, s. 11, post, c3 34 Appendix to Part I. {9 §.10 Vict. offender may case it shall appear to the satisfaction of such justice, either by confes- Ue Comunite sion of the offender or otherwise, that he hath not within the jurisdic- tion of such justice sufficient goods and chattels whereon to levy all such penalties, forfeitures, costs, and charges, such justice may, at his discre- tion, without issuing any warrant of distress, commit the offender to the common gaol or house of correction for any time not exceeding three calendar months, unless such penalties, forfeitures, and fines, and all reasonable charges attending the recovery thereof, shall be sooner paid and satisfied. Penalties not CXXXIII. And be it enacted, That the moneys arising from any eee be Such penalties, forfeitures, and fines as aforesaid, when paid and levied, paid into the Shall (if not by this act directed otherwise to be applied) be from time general fund. to time paid to the clerk of the court, and shall be applied in aid of the general fund thereof. Jnstices may CXXXI1V. And be it enacted, That in all cases in which by this act Vmmonsin any penalty or forfeiture is made recoverable before a justice of the the recovery peace, it shall be lawful for such justice to summon before him the party of penalties. complained against, and on such summons to hear and determine the matter of such complaint, and on proof of the offence to convict the offender, and to adjudge him to pay the penalty or forfeiture incurred, and to proceed to recover the same, although no information in writing shall have been exhibited before him: and all such proceedings by summons without information in writing shall be as valid and effectual to all intents and purposes as if an information in writing had been exhibited. Soar con- CXXXV. And be it enacted, That in all cases where any convic- ° tion shall be had for any offence committed against this act the form of conviction may be in the words or to the effect following ; (that is to say,) “ Be it remembered, That on this —— day of — in the year of our Lord A. B. is convicted before —— of her Majesty’s justices of the peace for the [or before a judge appointed under an act passed in the year of the reign of her Majesty Queen Victoria, intituled, [here insert the title of this act,] of having [state the offence]; and I [or we] the said —— do adjudge the said —— to forfeit and pay for the same the sum of —— or to be committed to ——- for the space of ——. Given under hand and seal the day and year aforesaid.” Proceedings CXXXVI. And be it enacted, That no order, verdict or judement not invalid A 2 » judg ’ for want of 9° other proceeding, made concerning any of the matters aforesaid, shall form. be quashed or vacated for want of form. Distress not =CXXXVII. And be it enacted, That where any distress shall be unlawhl for made for any sum of money to be levied by virtue of this act, the dis- form. tress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser, on account of any defect or want of form in the information, summons, conviction, warrant of distress, or other proceed- ing relating thereto, nor shall the party distraining be deemed a trespasser from the beginning on account of any irregularity which shall afterwards be committed by the party so distraining, but the person aggrieved by such irregularity may recover full satisfaction for the special damage in an action upon the case. : Limitation of _CXXXVIII. And for the protection of persons acting in the execu- actions for tion ol this act, be it enacted, That all actions and prosecutions to be cap. 95.] County Court Acts. 35 commenced against any person for any thing done in pursuance of this proceedings act shall be laid and tried in the county where the fact was committed, a eo coun and shall be commenced within three calendar months alter the fact “ 8° committed and not afterwards, or otherwise; and notice in writing of such action, and of the cause thereof, shall be given to the defendant one calendar month at least before the commencement of the action 3 and no plaintiff shall recover in any such action if tender of sufficient amends shall have been made before such action brought, orif after action brought a sufficient sum of money shall have been paid into court, with costs, by or on behalf of the defendant. CXXXIX. And be it enacted, That if any person shall bring any suit in any of her Majesty’s superior courts of record in respect of any grievance committed by any clerk, bailiff, or officer of any court holden under this act, under colour or pretence of the process of the said cout, and the jury upon the trial of the action shall not find greater damages for the plaintiff than the sum of twenty pounds, no costs shall be awarded to the plaintiff in such action, unless the judge shall certify in court upon the back of the record that the action was fit to be brought in such superior court. CXL. Provided always, and be it enacted, That nothing in this act contained shall be construed to alter or affect the rights or privileges of the chancellor, masters, and scholars of the Universities of Oxford or Cambridge respectively as by law possessed, or the jurisdiction of the courts of the chancellors or vice-chancellors of the said universities, as holden under the respective charters of the said univeisities, or otherwise. CXILL Provided always, and be it declaredand enacted, Thatnothing in this act contained shall be construed to affect the coutts of the lord warden or of the vice-warden of the stannaries of Cornwall; but this provision shall not be deemed to prevent the establishment of any court under this act within the said stannaries, or to limit or affect the jurisdic- tion of any court so established under this act. CXLIL. And be it enacted, That in construing this act all things directed or authorised to be done by or with respect to the lord chancel- lor shall and may be done by or with respect to a lord keeper or the first commissioner for the custody of the great seal of the United Kingdom of Great Britain and Ireland ; and all things directed or authorized to be done by or with respect to the commissioners of her Majesty’s trea- sury shall and may be done by and with respect to three or more of the said commissioners or the lord high treasurer; and the word ‘ person” shall be understood to mean a body politic, corporate, or collegiate, as well as an individual ; and every word importing the singular number shall, where necessary to give full effect to the enactments herein con- tained, be understood to mean several persons or things as well as one person or thing; and every word importing the masculine gender shall, where necessary, be understood to mean a female as well as a male; and the words ‘‘ county court” shall be understood to mean any court holden under this act ; and the term “landlord” shall be understood to mean the person entitled to the immediate reversion of the lands, or, if the property be holden in joint tenancy, coparcenary, or tenancy in common, shall be understood to mean any one of the persons entitled to such reversion; and the word “clerk” shall be understood to mean “chief clerk,” or “ registrar;” and the words “ attorney-at- law” shall be understood to include a solicitor in any court of equity; and the word “agent” shall be understood to mean any Provision for the protec- tion of offi- cers of the court. Act not to affect rights of univer- sities of Oxford or Cambridge. Nothing to affect the courts of the wardens of the stan- naries. Interpreta- tion of act. 36 Act may be amended, &c. Appendix to Part I. (9 & 10 Vict, person usually employed by the landlord in the letting of lands, or in the collection of the rents thereof, or specially authorized to act in any particular matter by writing under the hand of such landlord; and the word “ bailiff’ shall be understood to include high bailiff; unless in any of these cases there be something in the context incon- sistent with such meaning. CXLIII. And be it enacted, That this act shall be amended or repealed by any act to be passed in this session of Parliament. ScHEDULEs to which this Act refers. ScHEDuLE (A.) Acts for the more easy and speedy Recovery of Small Debts within the Towns, Parishes, and Places under written, and other Parishes and Places adjacent; (that is to say,) Ashton- peers Tipe : - 48 Geo. 3. c. xcviii. Bath ri 7 . 45 Geo. 3. ¢. lxvii Beverley . : . . « 46 Geo. 3. c. cxxxv. Birmingham. - - 47 Geo. 3. ¢. xiv, Blackheath : . 47 Geo. 3.c¢. iv. Bolingbroke and Horncastle . 47 Geo. 3. Sess. 2. ¢, lxxviii, Boston. i g ‘ . 47 Geo, 3. Sess. 2, ¢. i. Bradford . . j ‘i . 47 Geo. 3. Sess. 2. c. xxxix. Bristol. . , é - 56 Geo. 3. c. lxxvi, Bristol . 7 é : - 7 Wm. 4. & 1 Vict, ec. lxxxiv. Brixton. F Z é - 46 Geo. 3. c. Ixxxviii. Broseley . ‘i 3 : « 22 Geo. 3. ¢. xxxvii. Canterbury : 7 : - 25 Geo. 2. c. = Chippenham. 5 . 5 Geo. 3.c. Cirencester 3 x : . 82 Geo. 3.¢. iret, Codsheath ‘ . - . 48 Geo. 3. ¢. 1. Deal 7 ‘ ‘ + 26 Geo, 3. c. xviii. Derby . . é + 6 Geo, 3. c, xx. Doncaster 3 3 ‘ - 4Geo. 3. c. xl. Dovor : 2 = i » 24 Geo. 3. c. viii, Ecclesall . ‘ A - 48 Geo. 3. c. ciii. Elloe S : ‘ : . 47 Geo. 3, c. xxxvii. Ely, Isle of —. ‘ : « 18 Geo. 3. c. xxxvi. Exeter. ‘ < i . 13 Geo. 3. c. xxvii. Faversham . 5 F . 25 Geo. 3. c. vii. Folkestone -, ‘ i . 26 Geo. 3. ¢. xeviii. Gloucester : 5 : - 1 Wm. & Mary, c. xviii. Gravesend " , ? . 47 Geo, 3. Sess. 2. c. xl. Grimsby, Great . . « 46 Geo, 3. c. xxxvii. Hagnaby . : 5 18 Geo. 3. ¢. xxxiv. Halesowen : - 47 Geo. 3. c. xxxvi. Ipswich ‘ : ‘ . 47 Geo. 3. Sess. 2. c, Ixxix. Kidderminster . is F - 12 Geo. 3. ¢, Ixvi. King’s Lynn. ‘ s + 10 Geo, 3. c. xx. Kingston-upon-Hull . . 48 Geo. 3. c. cix, Kirkby in Kendal. . 4Geo. 3.c. xli, cap. 95.] Lincoln . Liverpool 1 : Manchester 5 . . Margate . Middlesex 3 . Newcastle-upon- “Tyne Norwich . ‘ . 2 Old Swinford . : 2 Pontefract Honor : Poulton . 3 ‘ Rochester ; 2 Saint Albans Saint Briavels . Sandwich . . 3 Sheffield . z 5 Shrewsbury Southwark and East Brixton Stockport . . : Tower Hamlets ‘ Westbury . Westminster : rs Wight, Isle of . Wolverhampton Wraggoe : Yarmouth, Great 3 County Court Acts. 37 24 Geo. 2. u. xvi. 6&7 Wm. 4, c. exxxv. 48 Geo, 3. c. xliii, 47 Geo. 3. Sess. 2. ¢. vii. 23 Geo. 2. c. xxxiii. 1 Wm. & Mary, c, xvii. 12 &13 Wm. 3. «. vii. 17 Geo. 3. c. xix. 2&3 Vict. c. Ixxxv. 10 Geo. 3. c. xxi. 48 Geo. 3. ¢. li. 25 Geo. 2. c. xxxviii. 5 & 6 Vict. c. Ixxxiii. 47 Geo. 3. c. xxxv. 48 Geo. 3. «. ciii. 23 Geo. 3. c. Ixxiii. 4 Geo. 4. u. exxiii, 46 Geo. 3. ¢, cxiv. 2 Wm. 4. ¢. Ixv. 48 Geo. 3. c. Ixxxviii. 24 Geo. 2. cc. xiii. 46 Geo. 3. c. lxvi. 48 Geo. 3. c. cx. 19 Geo. 3. ¢. xlifi. 31 Geo. 2. ¢. xxiv. yo 09 £9 Go 9 ScHEDULE (B.) Acts for the more easy and speedy Recovery of Small Debts within the Towns, Parishes, and Places under written, and other Parishes and Places adjacent thereto ; (that is to say, ) Aberford . “ a Ashby-de la-Zouch . 2 Barnsley . Z . Belper. . - - Blackburn ‘ ‘ 3 Biackheath z ei Bolton . 3 : . Brighton . . a Og Burnley . 5 ‘ . Bury * 3 a : Chesterfield . y Crediton . 2 3% ‘ East Retford . “ . Eckington = Z . Exeter. 7 ai Gainsburgh 5 . Glossop. ae ‘ Grantham A Halifax. 7 Hatfield . . Hinckley . - . : Hyde . . . . Kingsnorton . . . Launceston é ~~ HOW PP VP ONNAWWEHE APH 2 & 3 Vict. c. Ixxxvi. {3 Vict. c. xxxiii. 1 Vict. c. xv. 1 & 2 Vict. c. xe. & 3 Vict. c. xeviii, & 5 Vict. ¢. xvii, & 7 Wm. 4, c. exx. & 2 Vict. c. na Vi lxxxiii. ci. civ. xxix. Ixxxvii. ciii. 1xxili. Ixxxvi, lxxxviii, Iixxxix. ict. c. evi, ict. c. xxiv. Wm. 4. c. viii. Wn. 4. ¢. cxix. Vict. c. xxv, Vict. c. Ixxvi. ss ct. ct. = mie ag er et 4ssse4 a eR RES EEegeoe’ ow 0 3 S38 5 cap. 61.] County Court Acts. 49 security, to be approved by the clerk of the court, for the costs of the appeal, whatever be the event of the appeal, and for the amount of the judgment, if he be the defendant and the appeal be dismissed ; pro- vided nevertheless, that such security, so far as regards the amount of the judgment, shall not be required in any case where the judge of the county court shall have ordered the party appealing to pay the amount of such judgment into the hands of the clerk of the county court in which such action shall have been tried, and the same shall have been paid accordingly; and the said court of appeal may either order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party, as the case may be, and mav make such order with respect to the costs of the said appeal as such court may think proper ; and such orders shall be final. XV. And be it enacted, That such appeal shall be in the form of a Appeal to be case agreed on by both parties, or their attorneys, and if they cannot mie form agree the judge of the county court, upon being applied to by them or agreed on their attorneys, shall settle the case and sign it; and such case shall be by both transmitted by the repeat to the rule department of the Master's parties, but ‘ ‘ fe ey can- office of the court in which the appeal is to be brought. not aztes, 7 x . _..._ Judge to set- XVI. And be it enacted, That no judgment, order, or determination tle and sign given or made by any judge of a county court, nor any cause or matter it. ; brought before him or pending in his court, shall be removed by appeal, No eeuie- motion, writ of error, certiorari, or otherwise, into any other court what- ha aleewod ever, save and except in the manner and according to the provisions hereinbefore mentioned. XVII. And be it enacted, That if both parties shal] agree, by 2 me- In certain morandum signed by them or by their attorneys, that the county court cases, on shall have power to try any of the actions hereinbefore respectively agreement mentioned in which the sum sought to be recovered shall exceed the ten aoa sum of five pounds(a) by the said recited act of fifty pounds by this act shall have limited in the case of such actions respectively, or any action in which power tole the title to land, whether of freehold, copyhold, Jeasehold, or other though tha tenure, or to any tithe, toll, market, fair or other franchise, shall be in matters be question, then and in such case the said court shall have jurisdiction and beyond its power to try such action: Provided always, that the said parties or their Jurisdiction. attorneys shall state in their said memorandum of agreement, that they know such cause of action to be above the said sums respectively, or that they know such title to come in question in such action, and pro- vided that such memorandum shall be filed with the clerk of the said court at the time of filing the demand of the said plaintiff: Provided also, that all local actions to be tried before any county court with the consent of all parties shall be brought and tried in that jurisdiction only in which the lands, tenements, or hereditaments, or some part thereof, are situated or in respect whereof such actions shall be brought. XVILL And be it enacted, That if any party shall sue another in No second any county court for any debt or other cause of action for which he hath suit in se- already sued him, and obtained judgment in any other court, the proof oa oni : of such former suit having been brought and judgment obtained may be cause. given, and the party so suing shall not be entitled to recover in such second suit, and shall be adjudged to pay three times the costs of such Treble costs. second suit to the opposite party. (a) Twenty pounds must have been here intended, since the county court had, r under the former act, 9 & 10 Vict. c. 95, s. 58, jurisdiction in actions for claims not exceeding twenty pounds, whether of contract or tort, although by sect. 120, a plaintiff suing in a superior court in an action of tort is not deprived of his costs, unless he recovers a verdict for a sum under five pounds. i D 50 Appendix to Part I. [18 & 14 Vict. No action to XIX. And be it enacted, That from and after the passing of this act be brought no action shall be brought against any high bailiff or bailiff, or against against any person or persons acting by the order and in aid of any high bailiff, aan fe for anything done in obedience to any warrant under the hand of the order of the clerk or clerks of the said court and the seal of the said court, until de- court with- mand hath been made or left at the office of such high bailiff by the out notice; party or parties intending to bring such action, or by his, her, or their and clerk of 5 a . the court atlorney or agent, in writing, signed by the party demanding the same, tobe made of the perusal and copy of such warrant, and the same hath been defendant in refused or neglected by the space of six days after such demand; and in the suit. case after such demand and compliance therewith, by shewing the said warrant to and permitting a copy to be taken thereof by the party de- manding the same, any action shall be brought against such high bailiff, bailiff or other pezson or persons acting in his aid for any such cause as aforesaid, without making the clerk or clerks of the said court who signed or sealed the said warrant defendant or defendants, that on producing or proving such warrant at the trial of such action, the jury shall give their verdict for the defendant or defendants, notwithstandiug any defect of jurisdiction or other irregularity in the said warrant; and if such action be brought jointly against such clerk or clerks, and also against suck high bailiff or bailiff, or person or persons acting in his or their aid as aforesaid, then on proof of such warrant the jury shall find for such high bailiff or bailiff, and for such person or persons so acting as aforesaid, notwithstanding such defect or irregularity as aforesaid ; and if the verdict shall be given against the said clerk or clerks, that in such case the plaintiff or plaintiffs shall recover his, her, or their costs against him or them, to be taxed in such manner by the proper officer as to include such costs as such plaintiff or plaintiffs are liable to pay to such de- fendant or defendants for whom such verdict shall be found as aforesaid ; and if any action shall be brought the defendant or defendants shall and may plead the general issue, and give the special matter in evidence at any trial had thereupon. So much of | XX. And whereas by the said act passed in the tenth year of her 8 oe present Majesty, intituled “ An Act for the more easy Recovery of quires a Small Debts and Demands in England;” it is enacted, that in cases of landlord, rent being in arrear in respect of premises wherein goods may have been where rent taken in execution under and by virtue of the said act, it should be for premiaea lawful for the landlord, by writing to be delivered by the bailiff or officer wherein making the levy, which writing should state the terms of holding and rent goods have payable for the same, to claim any rent in arrear as therein mentioned: eae and whereas so much of the said enactment as requires that the claim of to statein ' Tent to be made by writing stating the terms of holding may lead to writing the technical objections and unnecessary prolixity: and whereas also it is ba do, XPSdient to obviate certain ditficulties which have arisen as to the repealed. ’ landlord’s right to priority of payment upon the construction of the said To entitle °02ctment: Be it therefore enacted, That so much of the said act as landlord to Tequires that the said writing and claim should state the terms of holding benefit under shall be and is hereby repealed, and that it shall be a sufficient notice of Teale’ a claim, to entitle the landlord to all the benefit given to landlords under sufficient to the said act, that such writing and claim shall state the amount of the state the rent claimed to be in arrear and unpaid, and the time for and in respect amountof of which such rent is claimed to be due, in like manner as is now rout claimed, required by law in cases of ordinary distress for rent, and no further or ’ otherwise ; and also that no execution creditor under the said act or this act shall be satisfied his debt out of the proceeds of such execution and distress, or execution only where the tenant shall replevy, until the landlord who shall conform to the provisions of the said act as amended by this act shall have been paid the rent in arrear for the periods in the said act limited, cap. 61.] County Court Acts. 51 XXI. And be it enacted, That the enactments contained in the said Enactments act, as altered and amended in this act, relating to the claims of otrecited 4 landlords for rent in arrear where goods on the premises demised have . this act been taken in execution, shall apply and extend to goods taken in as to certain execution under the authority of this act, in as full and beneficial a ‘!aims of : 3 . dl to manner as if the same enactments were re-enacted in the like terms eens in this act.. goods taken in execution. XXII. And be it enacted, That it shall be lawful for any judge of Judges may any of her Majesty’s superior courts of common law at Westminster, as bear appli- well in term time as in vacation, to hear and determine applications for ae writs of prohibition directed to the judges of the said county courts, and hibition to make such rules or orders for the issuing of such writs as might have either in_ been made by the court, and all such rules or orders so made by any fee or a such judge shall have the same force and effect as rules of court for such purposes now have, and such writs shall be issued by virtue of such rules or orders as well in term time as in vacation: Provided always, that any rule or order made by any such judge, or any writ issued by virtue thereof, may be discharged, or varied, or set aside by the court, on application made thereto by any party dissatisfied with such rule or order. XXIII. And be it enacted, That all affidavits to be used in the courts Before whom holden under the said act of the tenth year of her Majesty shall and affidavits b bef judge of the sai y me may be sworn before any judge of t e said courts, or any Master extra- sworn, ordinary in Chancery, or commissioner for taking affidavits in any of : the superior courts of Westminster, or before a magistrate of the county, city, town, or place where any such affidavit may be sworn. XXIV. And be it enacted, That in every town or place where there Town-halls, shall be a court holden under the provisions of the said act of the tenth “e- to be ‘ year of her Majesty, the town-hall, court-house, or other public tate building belonging to any county, city, borough, or town shail be used for sittings for the purposes of holding the courts under the said act, without any of county charge for rent or other payment, save and except the reasonable and Ct necessary charges for lighting, warming, and cleaning when such public building is used for the purpose of the courts, and for all other expenses necessarily incidental to the use of the said building for the purposes of the courts: Provided always, that the necessary arrangements shall be made so that the sittings of the said courts shall not interfere with the business of thé county, city, borough, or town usually transacted in such town-hall, court-house, or other public building, or with any pur- poses for which such town-hall, court-house, or other public building may be used by virtue of any local act in that behalf: Provided also, that this enactment shall not apply to any city, borough, or town in which a building hath previously to the passing of this act been erected for the purposes of holding the courts under the said act, and for the business connected with such courts; nor shall anything in this act contained be held, deemed, or taken to prejudice, affect, or otherwise » interfere with any lease, contract, agreement, or engagement already entered into for the leasing, erection, hiring, or occupation of any build- ing for the purposes of holding such courts therein and transacting therein the business relating to such courts. XXV. And be it enacted, That this act may be amended or repealed Act may be ‘ ei ‘ i amended or by any act to be passed in this session of parliament. repealed. Lord chan- cellor to ap- point five judges of courts held under 9 & 10 Vict. c. 95, to frame a scale of fees, to be sub- mitted to judges of superior courts for approval. Costs to be taxed by clerk of court, sub- iect to re- view. So much of 13 & 14 Vict. c. 61, s. 14, as limits the sitting of court of ap- peal to a time out of Appendix to Part I. [15 & 16 Vict. 15 & 16 VICT. CAP. 54. An Act further to facilitate and arrange Proceedings in the County Courts. [80th June 1852.] Wuerzas it is expedient further to facilitate and arrange proceedings in the county courts: Be it enacted by the Queen’s most Excellent Ma- jesty, by and with the advice and consent of the lords spiritual and tem- poral, and commons, in this present parliament assembled, and by the authority of the same, as follows: I. That it shall be lawful for the lord chancellor from time to time to appoint five of the judges of the courts holden under ar act of the ninth and tenth years of her Majesty, chapter ninety-five, intituled ‘An Act for the more easy Recovery of Small Debts and Demands in England,” from time to time to frame a scale of costs and charges to be paid to attornies in the county courts, to be allowed as between attorney and client and as between party and party; and such scale of costs and charges as shall be certified to the lord chancellor under the hands of the judges so appointed or authorized, or any three of them, shall be submitted by the lord chancellor to three or more of the judges of the superior courts of common law at Westminster, of whom the chief jus- tice of the Court of Queen’s Bench or Common Pleas, or the chief baron of the Court of Exchequer, shall be one, and such judges of the superior courts may approve or disallow or alter or amend such scale of costs and charges, and the scale of costs and charges so approved, altered, or amended shall, from and after a day to be named by such last-men- tioned judges, be in force in every county court; and all costs between party and party and attorney and client shall be taxed by the clerk of the court; but his taxation may be reviewed by the judge upon the application of either party; and in no case, upon the taxation of the costs between attorney and client, shall any charges be allowed, not sanctioned by the aforesaid scale, unless the clerk is satisfied by writing under the hand of the client that he has agreed to pay such further charges, and no attorney shall have a right to recover at law from his client any costs or charges not so allowed on taxation; and the judges of the county courts so appointed shall possess the same powers of making rules for regulating the practice of the courts, and of settling doubts on the construction of any acts relating to county courts, as were conferred on the judges to be appointed by the lord chancellor for that purpose by the twelfth section of the twelfth and thirteenth Victoria, chapter one hundred and one, unless otherwisé specially provided. II. So much of the thirteenth and fourteenth Victoria, chapter sixty- one, section fourteen, as limits the court of appeal to the puisne judges of the superior courts of common Jaw at Westminster, and the sitting of the said court of appeal to a time out of term, is hereby repealed; and all «ppeals now depending or hereafter to be brought before the said superior courts shall be heard and determined in term by the judges thereof, as part of the ordinary business of such courts, or out of term by cap. 54.) County Court Acts. 53 any two or more of the judges of the said superior courts sitting as a term re- court of appeal for that purpose. ee Appeals to III. The judges of the said superior courts, or any five of them, of | pager whom a chief of one of the said superior courts shall be one, may from as out of time to time make general orders for regulating the proceedings on term. appeals, which orders shall be as valid as if included in this act, but Power to shall not be in force until the end of the session of parliament next after ae the promulgation thereot. courts to make orders IV. The thirteenth section of the thirteenth and fourteenth Victoria, Teeulating chapter sixty-one, is hereby repealed; and in any action in which the appeals: plaintiff shall not be entitled to recover his costs by reason of the provi- Powe? to the sions of the eleventh section of such act, whether there be a verdict in judge a such action or not, if the plaintiff shall make it appear to the satisfaction chambers to of the court in which such action was brought, or to the satisfaction of mee em a judge at chambers, upon summons, that such action was brought for a titling the cause in which concurrent jurisdiction is given to the superior courts by plaintiff to the one hundred and twenty-eighth section of the ninth and tenth Vic- Tecover his toria, chapter ninety-five, or for which no plaint could have been °° entered in any such county courts, or that such action was removed from a county court by certiorari, or that there was sufficient reason for bringing such action in the court in which such action was brought, then and in any of such cases the court in which such action is brought, or the said judge at chambers, shall thereupon, by rule or order, direct that the plaintiff shall recover his costs, and thereupon the plaintiff shall shave the same judgment to recover his costs that he would have had if the before mentioned act of the thirteenth and fourteenth Victoria, chapter sixty-one, had not been passed. * V. That in all cases where « warrant of execution shall have been Re issuing issued against the goods and chattels of any person, or an order for his warrants of commitment been made, and such person or his goods and chattels shall distraint. be out of the jurisdiction of the court, and such warrant or order shall have been sealed and stamped by the clerk of another county court, pursuant to the one hundred and fourth section of the act of the ninth and tenth Victoria, chapter ninety-five, it shall he lawful for the said clerk of such other court to re-issue the said warrant or order to the high bailiff of such other court, and thereupon such high bailiff shall be authorized and required to act in all respects in the execution of the said warrant or order within the jurisdiction of the court to which the same shall have been so sent in the same manner, with the same powers, and subject to the same rules as if the district to which the warrant or order shall have been sent were within the limite of the court which originally issued the warrant or order. VI. Ifany action or suit shall be brought against any person for any- Protection to thing done in pursuance of this act, or of any other act relating to county officers. courts, such person may plead the general issue, and give the special matter in evidence; and the warrant under the seal of the county court, being produced in any such action or suit, shall be deemed sufficient proof of the authority of the said county court previous to the issuing of such warrant; and in case the plaintiff in such action shall have a verdict pass against him, be nonsuit, or discontinue the action or suit, the defendant shall in any of the said cases be allowed full costs as between attorney and client. VII. If the council of any city or borough, or a majority of the rate- On petition payers of any parish, within the limits of which a court of local jurisdic- to her Ma- tion other than a county court is established, under the said act of the jesty, the 54 jurisdiction of court of local juris- diction may be excluded from that of the county court in con- current causes. As to audit of clerk’s ac- count. Account of tees to be delivered. Provision of 9 & 10 Vict. c. 95, as to persons qua~ lified to practise be- fore county courts not to extend to this act. Appendix to Part I. [15 & 16 Vict. ninth and tenth Victoria, chapter ninety-five, or into the limits of which the jurisdiction of such court of local jurisdiction shall extend, shall petition the Queen in council that the jurisdiction of such court of local jurisdiction may be excluded in any causes whereof the county court hath cognizance, and if notice of such petition shall be given two months before it is presented, by public advertisement in such city, borough, or parish, and in some newspaper therein circulated, her Ma- jesty, by order in council, may declare such exclusion of the jurisdic tion of such court of local jurisdiction throughout the whole or any part of the district assigned or which may hereafter be assigned to such county court, if no petition against declaring such exclusion be pre- sented, and no caveat be entered at the council office; and if any counter petition be presented, or any caveat be entered, then her Ma- jesty may refer such petition and counter petition to the judicial com- mittee of the privy council, upon whose report her Majesty may make such order in council as she shall be advised touching the matter of the said petitions, in respect of excluding the jurisdiction of such court of local jurisdiction, and may award compensation to any person or persons entitled to the franchise of appointing officers of such court, or to any officers thereof appointed before the passing of this act, to be given by the commissioners of her Majesty’s treasury, who are hereby empowered to pay the same. VIII. The treasurer of the county court in which any insolvent’s estate shall be administered, at the audits of the account of the clerk of such court, shall also audit and examine the books and accounts of the clerk in all matters relating to such estate, and shall make a report to the judge of the court, stating whether a dividend should be made, and the general result of such audit; and the judge shall examine the said clerk on oath as to the correctness of such accounts, and may make such order as he may deem requisite respecting a dividend or other matter relating to such estate and accounts; and the treasurer shall thereafter at his future audit require and examine the receipts of the several creditors for any dividend; and the commissioners of her Ma- jesty’s treasury shall have power to make rules to be observed by the treasurers of county courts respecting the audit of the clerk’s accounts of insolvent estates, and shall have the same power of making rules for securing the balances and other sums of money in the hands of any officer of the county courts under the last-mentioned act, and for the due accounting and application of such balances and other sums, that they have with respect to balances and other sums in the same hands under the act of the ninth and tenth Victoria, chapter ninety-five. IX. The clerk and the high bailiff of every county court shall deliver quarterly to the treasurer, in such form as the treasurer, by direction of the said commissioners, shall require, a full account in writing of the fees from time to time received by them respectively under the act of the ninth and tenth Victoria, chapter ninety-five. X. And whereas by the said act passed in the ninth and tenth years of her present Majesty it was enacted, that no person should be entitled to appear for any other party to any proceeding in any of the said courts “unless he be an attorney of one of her Majesty’s superior courts of record, or a barrister-at-law, instructed by such attorney on behalf of the party, or, by leave of the judge, any other person allowed by the judge to appear instead of such party, but that no barrister, attorney, or other person, except by leave of the judge, should be entitled to be heard to argue any question as counsel for any other person in any pro- ceeding in any court holden under that act:” Be it enacted, That the said last-recited enactment be repealed ; and that it shall be lawful for cap. 54.] County Court Acts. 55 the party to the suit or other proceeding, or for an attorney of one of her Majesty’s superior courts of record being an attorney acting generally in the action for such party, but not an attorney retained as an advocate by such first-mentioned attorney, or for a barrister retained by or on behalf of the party, on either side, but without any right of exclusive or pre- audience, or, by leave of the judge, for any other person allowed by the judge to appear instead of the party, to address the court, but subject to such regulations as the judge may from time to time prescribe for the orderly transaction of the business of the court. XI. Abolishes the hundred courts of Offlow and Hemlingford. XII. Gives compensation to the officers of hundred courts, which are abolished by previous section. 5 XIII. Compensations to be paid out of consolidated fund. XIV. After the passing of this act the greatest salaries to be received Limiting sa- in any case by the judges and clerks of the county courts respectively laries of shall be one thousand five hundred pounds by a judge, and seven hun- Jnages aud dred pounds by a clerk, but in no case shall any judge be paid a less salary than twelve hundred pounds: Provided always, that the salary of any judge or clerk acting in the same capacity before the passing of the act of the ninth and tenth Victoria, chapter ninety-five, in any court mentioned in Schedule (A.) to that act, shall not be limited to any sum less than the average amount of the fees and emoluments of his office during the seven years next before the passing of the said last-mentioned act. XV. That it shall be lawful for the lord chancellor, from time to Lord chan- time, on a petition presented to him for that purpose, to recommend to celle mney. the commissioners of her Majesty’s treasury that there shall be paid jn5 pension quarterly out of the said consolidated fund to such of the judges of the to be paid county courts as shall be afflicted with some permanent infirmity dis- to county abling him from the due execution of his office, and who shall be Cwt Judges. desirous of resigning the same, an annuity or clear yearly sum of money for the term of his life, not exceeding two-thirds of the yearly salary which such judge shall be entitled to as a judge of county court at the time of presenting his petition ; and such annuity or sum shall be paid out of the said consolidated fund quarterly or otherwise, as the said commissioners may direct. XVI. After three months from the passing of this act no judge of the Judges of said county courts shall practise at the bar, or as a special pleader or county courts . ‘ . te - equity draftsman, or be directly or indirectly concerned as a convey- uot aGkns ancer, notary public, solicitor, attorney, or proctor. bar or 8 speci XVII. No clerk of a county court shall henceforth be appointed for pleaders. more than one district in which a court is holden, unless from there Ro clerk to : Ps aaa etl * . appointed. being no attorney resident within the district of the court in which the +088 office of clerk is vacant, or from any other reason, the lord chancellor, than one dis- or, where the whole of the district is within the Duchy of Lancaster, inlet execpt the chancellor of the duchy, shall deem it expedient to order otherwise, naeee ain XVIII. That a registry of every judgment entered in the county 4 registry courts for the sum of ten pounds and upwards shall be formed in such of county manner, in such place, and under such regulations as the commis- renal th sioners of her Mayjesty’s treasury shall appoint, and that for the inspec- ostaplished. tion of the said register when formed such fees shall be charged to persons desirous of inspecting the same as shall be appointed by the said 56 Appendi« to Part I. [15 f 16 Vict. c. 54. commissioners, and the proceeds of such fees shall be applied in such mauner as the said commissioners shall appoint, in paying the expenses incurred in establishing and maintaining the said register, and the surplus of such fees, after providing for the payment of such expenses, shall be paid over to the credit of the consolidated fund of the United Kingdom of Great Britain and Ireland. XIX. Directs that no other persons shall be appointed clerks of the Bris- tol court until all the present clerks shall die, resign, or be removed. 14 § 15 Viet. c. 100.) County Court Acts. 57 14 & 15 VICT. CAP. 100. An Act for further Improving the Administration of Cri- minal Justice. (7th Aug. 1851.] * * * * * XIX. Whereas by an act of parliament passed in England in the Certain pro- twenty-third year of the reign of his late Majesty King George the visions of 23 Second, intituled “An Act to render Prosecutions for Perjury and Geo. 2, eat Subornation of Perjury more easy and effectual,” and by a certain 3 (1) ex- other act of parliament made in Ireland in the thirty-first year of the tended. reign of his late Majesty King George the Third, intituled “An Act to tender Prosecutions for Perjury and Subornation of Perjury more easy and effectual, and for affirming the jurisdiction of the Quarter Sessions in Cases of Perjury,” certain Provisions were made to prevent persons guilty of perjury and subornation of perjury from escaping punishment by reason ot the difficulties attending such prosecutions: And whereas Any court, it is expedient to amend and extend the same: Be it enacted, That it judge, jus- shall and may be lawful for the judges or judge of any of the superior Hee des. ae courts of common law or equity, or tor any of her Majesty’s justices or son guilty of comfuissioners of assize, nisi prius, oyer and terminer, or gaol delivery, perjury in or for any justices of the peace, recorder or deputy recorder, chairman, ie evidence, or other judge, holding any general or quarter sessions of the peace, or poneniitea: for any comimssioner of bankruptcy or insolvency, or for any judge or deputy judge of any county court or any court of record, or for any justices of the peace in special or petty sessions, or for any sheriff or his lawful deputy before whom any writ of inquiry or writ of trial from any of the superior courts shall be executed, in case it shall appear to him or them that any person has been guilty of wilful and corrupt per- jury in any evidence given, or in any affidavit, deposition, examination, answer, or other proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prosecution, and to commit and commit such person so directed to be prosecuted until the@ext session of oyer the party, and terminer or gaol delivery for the county or other district within ba gee ae which such perjury was committed, unless such person shall enter into a recognizance recognizance, with one or more sufficient surety or sureties, conditioned to appear _ for the appearance of auch person at such next session of oyer and ter- and take his : 5 + . rial, and miner or gaol delivery, and that he will then surrender and take his trial, pyrd ersciié and not depart the court without leave, and to require any person he or to give evi- they may think fit to enter into a recognizance, conditioned to prosecute dence ; or give evidence against such person so directed to he prosecuted as gud err cet aforesaid, and to give to the party su bound to prosecute a certificate of prosecution the same being directed, which certificate shall be given without any fee being dircct- or charge, and shall be deemed sufficient proof of such prosecutiun a pwn * having been directed as aforesaid: and upon the production thereof the cient ie ~ costs of such prosecution shall and are hereby required to be allowed by dence of the the court before which any person shall be prosecuted or tried in pur- same. suance of such directions as aforesaid, unless such last-mentioned court shall specially otherwise direct. v3 58 Appendia to Part L. TABLE of the DISTRICTS into which the Counties are divided for the purpose of the County Court, and Parishes, &c. within those Districts; also the Towns in which the Courts are holden, in pursuance of an Order in Council, dated the 9th March 1847, as Amended and Altered by Orders in Council, dated the 16th December 1848, the 14th April 1851, the 25th June 1851, the 7th August 1851, and the 2nd February 1852. N.B. The Names of the Towns are printed in Small Capitals, and the Names of the Parishes, Townships, &c. forming the District of each Court Town, in ordinary type. The above Orders in Council are published in the Gazettes of the 10th March 1847, the 29th December 1848, the 29th April 1851, the 27th June 1851, the 8th August 1851, and the 3rd February 1852, respectively. BEDFORDSHIRE. Amrruitt, Ampthill—Berprorp, Bedford.—Biccreswape, Big- gleswade.—Leicuton Buzzarp, Leighton Buzzard, Woburn:—Luzon, Luton. , BERKSHIRE. Azrncpon, Abingdon, including the parish or chapelry of Wootton and parish of Besselsleigh, but excepting all the rest of the sub-district of Cumner (see Oaford).—Farrixcpon, Farringdon.—Hunoerrorp, Hungerford.—Newsury, Newbury, Kingsclere——Reapinc and HEn-~ Ley-on-Tuames, Reading, Wokingham, Bradteld, except the parishes of Ipsden and Nuffield (see Wallingford). Henley, the sub-district of Watlington and parishes of Fawley, Hambleden, Medmenham, Hurley, Bix, Pishill, Pirton, Swincombe,, and Watlington (see Wallingford and Great Marlow).—Watutncrorr, Wallingford, and the parishes of Ipsden and Nuffield. Thesub-district of Watlington, in Henley, consisting of the parishes of Brightwell Baldwin, Britwell Salome, Cuxham, and chapelry of Britwell Prior —Wantacz, Wantage.—Winpsor, Windsor, except the sub-district of Egham (see Chertsey). Eton, except the sub- district of Iver (see Uxbridge), Easthampstead, Cookham, except the parishes of Bisham and Hurley (see High Wycombe). BUCKINGHAMSHIRE. Avueszury, Aylesbury, except the parishes of Choulesbury and Hawridge, and hamlet of Saint Leonard’s (see Chesham), and the parishes of Haddenham and Illmire (see Thame). The parishes of Wendover, Ellesborough, Great and Little Kimble, and Stoke Mande- ville. The sub-district of Tring in Berkhampstead, consisting of the parishes of ‘liing, Wigginton, Marsworth, Puttenham, Aldbury, and Pitstone.—Bucxincuam, Buckingham, Winslow.—Cursnam, Amer- sham, except the sub-district of Beaconsfield (see Great Marlow). The chapelries of Bovindon and Flaunden, in the parish of Hemel Hempstead. The parishes of Choulesbury, Hawridge, and Little Missenden, and the hamlet of Saint Leonard’s, Berkhampstead, except the sub-district of Districts in which County Courts are holden. Tring (see Aylesbury).—HicuWycomsr. The sub-district of Beacons- field, in Amersham, consisting of the parishes of Beaconsfield and Penn, and the hamlet of Seer Green, in the parish of Farnham Royal. Wy- combe, except the parishes of Wendover, Ellesborough, Great and Little Kimble, Little Missenden, Stoke Mandeville, Illmire, Chinnor, and the liberty of Henton (see Aylesbury and Thame). The parish of Bisham. Newport Pacnett. Newport Pagnell. The parishes of Calverton, Stoney Stratford, and Wolverton. CAMBRIDGESHIRE. Cameripce, Cambridge, Caxton and Arrington, Chesterton.—Ety, Ely.—Mancu, North Whichford.—Newmanxetr, Newmarket, except the parishes of Soham, Fordham, Isleham, and Wicken (see Soham). —Souam. The parishes of Soham, Fordham, Isleham, and Wicken, —Wiszeacn, Wisheach, except the parishes of Clenchwarton, Terring- ton St. Clement, Terrington St. John, Tilney All Saints, Tilney St. Lawrence, Tilney-cum-Islington (see King’s Lynn). CHESHIRE. Atrrincyam, Altrincham, except the sub-districts of Knutsford and Wimslow and parish of Lymm (see Knutsford and Warrington).— Brrgenaeap, Wirrall.—Cuester, Great Boughton.—Concteton, Con- gleton.—Hype. The sub-districts of Denton and Haughton, Newton and Godley, and Mottram, in Ashton and Oldham, consisting of the townships of Denton and Haughton, in the parish of Manchester, and the townships of Godley, Hattersley, Hollingworth, Mottram, Newton, and Tintwistle, except the hamlet of Micklehurst, in the parish of Mot- tram in Longdendale. The sub-district of Hyde, in Stockport consist- ing of the chapelry of Hyde and the townships of Bredbury and Werneth, in the parish of Stockport—Knursrorp. The sub-districts of Knutsford and Wilmslow, in Altrincham, consisting of the parishes of Mobberley, Knutsford, Northen; the townships of Peover Inferior ; Pickmere; Plumbley and Tabley Inferior in the parish of Great Bud- worth; Marthall with Little Warford, Mere, Peover Superior, Ros- therne, Tabley Superior, and Tatton, in the parish of Rostherne ; Bollinfee, Fulshaw, and Pownall-Fee, in the parish of Wimslow.— Maccirsrretp, Macclesfield, except the townships of Taxall, Whaley- cum-Yeardsley, and Kettleshulme (see Chapel-en-le-Frith ).—Nant- wicu, Nantwich, except the townships of Audlem, Bickley, Buerton, Dodcott with Wilkesley, Hampton, Macefen, Marbury with Quoisley, Norbury,,Tushingham with Grindley and Wirswall (see Whitchurch). —Norruwicu, Northwich. The township of Great Budworth, in Runcorn.—Runcorn, Runcorn, except the sub-districts of Grappenhall and Great Budworth (see Warrington and Northwich).—Srocxrorr, Stockport, except the sub-district of Hyde (see Hyde). CORN WALL. Bopmiw, Bodmin.—Cametrorp, Camelford.—Fatmourn, Falmouth. —Hertston, Helston.—Launceston, Launceston. —Lisxearv, Liskeard. —Pernzance, Penzance, Scilly Islands.— Reprvtu, Redruth.— Sr. Ausrrit, St. Austell.—Sr. Corums Masor, St. Columb.—Tauro, Truro, CUMBERLAND. Arsrox, Alston. The parishes of Kirkhaugh and Knaresdale.— Brampron, Brampton. —Caruiste, Carlisle, Longtown. — Cockgr- 59 60 Appendia to Part £. moutu, Cockermouth, except the sub-district of Keswick and chapelries of Newlands and Buttermere (see Keswick).—Kuswicx. The sub- district of Keswick, in Cockermouth, consisting of the parish of Bas- senthwaite ; the townships of Borrowdale, Keswick, Underskiddaw, St. John’s Castlerigg, and Wythburn, in the parish of Crosthwaite; the chapelry of Wythop, in the parish of Lamplugh; the chapelry of Embleton, in the parish of Brigham: and the township of Bewaldeth, in the parish of Torpenhow. The chapelries of Newlands, Buttermere, and Threlkeld.—Penrits. West Ward, Penrith, except the parish of Crosby Ravensworth, and the townships of Bolton, King’s Meaburn, Morland, Newby, and Sleagill, and the chapelry of Threlkeld (see Keswick and Appleby),.—WuitEHaveN, Bootle, Whitehaven.—Wicron, Wigton. DERBYSHIRE. Atrreton. The sub-district of Alfreton, in Belper, consisting of the parish of Alfreton. The sub-district of Ripley, in Belper, except the township of Heage, consisting of the parishes of South Wingfield, Pen- trich, including the chapelry of Ripley, and the parish or township of Crich (see Belper). The sub-district of Ashover, in Chesterfield, except the townships of Claylane and Woodthorpe, consisting of the parishes, townships, and hamlets of Ashover, Brackenfield, Higham, Morton, Pilsley, Shirland, Stretton, and Wessington (see Chesterfield). The sub-district of Blackwell in Mansfield, consisting of the parishes of Blackwell, Tibshelf, Pinxton, and South Normanton. The parishes of Annesley, with Felly, Kirkby in Ashfield, and Selston, the hamlet of Codnor and precinct of. Codnor-park.—Asaporne, Ashborne, except the sub-district of Brassington (see Wirksworth).—BakEwELt, Bake- well, including the townships of Birchover and Gratton, but excepting all the rest of the sub-district of Matlock (see Wirksworth).—BEtrer, Belper, including the townships of Duffield, Hazlewood, Heage, Shottle, Turnditch, and Windley, but excepting all the rest of the sub-districts of Alfreton, Duffield, Ripley, and Wirksworth (see Alfreton, Derby, and Worksworth). The townships of Heanor and Shipley, and hamlet of Loscoe. The parish of Ilkeston.—Cuare.-En-Le-F Ritu, Chapel-en- le-Frith. The hamlet of Beard, Ollersett, Whittle, and Thornsett, and chapelry of Disley. The townships of Taxall, Whaley-cum-Yeardsley, and Kettleshulme.— Cuesrerrietp, Chesterfield, including the town- ships of Woodthorpe and Claylane, but excepting all the rest of the sub-district of Ashover (see Alfreton).—Dersy, Derby, Shardlow, ex- cept the sub-district of Castle Donington, and parish of Breedon, and the parishes of Attenborough, Bramcote, Stapleford (see Nottingham and Loughborough). The sub-district of Repton, in Burton, except the parishes of Newton, Solney, and Repton, and the chapelries of Milton and Bretby (see Burton-on-Trent), The sub-district of Duffield in Belper, except the townships of Duffield, Hazlewood, Turnditch, and Windley, consisting of the parishes of Allestree, Kirklangley, Ked- leston, Mackworth, Quarndon, and the townships of Mugginton, Ravens- dale-park, and Weston-under-wood (see Belper).—Guossop, Hayfield and Glossop, except the chapelry of Disley and hamlets of Beard, Ollersett, Whittle, and Thornsett (see Chapel-en-le-Frith).—Wunks- wortH. The sub-district of Brassington in Ashborne, consisting of the parishes of Bonsall, Carsington, Hognaston, and the townships, hamlets, and chapelries of Bradborne, Brassington, Callow, Hopton, Ible, Kirk, Ireton, and Middleton by Wirksworth. The sub-district of Matlock, in Bakewell, except the townships of Birchover and Gratton, consisting of the parishes of ‘Dirlay, Matlock, and the townships and chapelries uf Aldwark, Cromford, Elton, Gratton, Tansley, Wensley, and Snitterton, and Winster (see Bakewell), The sub-district of Wirksworth in Belper, Districts in which County Courts are holden. except the township of Shottle, consisting of the townships, hamlets, and chapelries of Alderwasley, Ashley, Hay, Dethwick Lea, Holloway, Ideridgehay and Allton, Ireton Wood, and Wirksworth (see Belper). DEVONSHIRE. Axminstrr, Axminster. The parishes of Catherston Lewston, and Wootton Fitzpaine.—BanrnstaPue, Barnstaple, except the parishes of Horwood, Instow, and West Leizh (see Bideford).—Brperorp, Bide- ford. The parishes of Horwood, Instow, and West Leigh—Crenrron, Crediton. —Exerer, Exeter, St. Thomas.—Hotsworruy, Holsworthy Stratton.—How1ton, Honiton.—Kinespripce, Kingsbridge.—NewrTon Aszort, Newton Abbott.—Oaxuamproy, Oakhampton.—Piymourn, Plymouth, Plympton St. Mary, East Stonehouse, Stoke Damerel, St. Germains, including the Hamoaze and Catwater, and so much of the Sound as is within the body of any county.—Sovrn Moxron, South Molton, except the parish of Rackenford (see Tiverton).—T avistocs, Tavistock.—Tiverton, Tiverton and Dulverton. The parish of Racken- ford.—Toxriycroy, Torrington.—Tornes, Totnes. DORSETSHIRE. Branprorp, Blandford. The parishes of Bellchalwell, Child Oke- ford, Haselbury-Bryan, Fifehead Neville, Ibberton, Okeford-Fitzpaine, Shilling-Okeford, Stoke- Wake, Wooland, Chettle, Farnham, Handley- and the township of Farnham Tolland.—Bnripporr, Bridport, except the parishes of Catherston Lewston, and Wootton Fitzpaine (see Ar- minster ).—Beaminster, except the sub-distict of Misterton (see Crews kerne).—Dorcuesten, Dorchester and Cerne —Poote, Poole, except the parish of Canford Magna, as now constituted for ecclesiastical pur- poses (see Wimborne Minster ),—Suarressury, Mere, Tisbury, Shaftes- bury, Sturminster, except the parishes of Bellchalwell, Child Okeford, Haselbury-Bryan, Fifehead Neville, Ibberton, Okxeford-Fitzpaine, Shil- ling-Okeford, Stoke- Wake, Wooland, Kilmington, Monkton-Deverill, and Maiden-Bradley, with the hamlet of Yarnfield (see Blandford and Frome). The chapelry of Farringdon in the parish of Iverne Courtnay. —Warenam, Wareham and Purbeck.—Weymourn, Weymouth.— Wimporne Minster, Wimborne and Cranborne, except the parishes of Chettle, Farnham, and Handley, and the township of Farnham Tol- land (see Blandford). The parish of Canford Magna, exclusive of the parishes which have been separated from it for ecclesiastical purposes. DURHAM. Barnxarp Castiz, Teesdale. — Bisnops Auckuanp, Auckland. — Dartineron, Darlington.— Duran, Chester-le-Street, _ Durham and Lanchester, except the townships of Benfieldside, Billingside, Butsfield, Conside and Knitsley, Greencroft, Healyfield, Ivestone, Medomsley, and the chapelries of Ebchester, Muggleswick, and Cold Rowley, in the parish of Lanchester (see Shotley Bridge). Houghton, Easington, except the parishes of Castle Eden an¢ Monk Hesleton, and the town- ship of Shotton (see Hartlepool ).—GatxsHEap, Gateshead —Hartis- poor. The sub-district of Hartlepool, except the parish of Billingham, in Stockton and Sedgefield, consisting of the parishes of Hartlepool, Greatham, Hart, Stranton, and Elwick Hall (see Stockton). The parishes of Castle Eden and Monk Hesleton, and township of Shotton.— Suottey Burpee, parish of Shotley. The chapelry of Whittonstall, in the parish of Bywell St. Peter’s. he townships of Benfieldside, Bil- lingside, Butsfield, Conside and Kanitsley, Greencroft, Healyheld, Ivestone, Medomsley, and the chapelries of Ebchester, Muggleswick, 61 62 Appendix to Part I. and Cold Rowley, in the parishes of Lanchester, The parish of Ed- mondbyers, including the chapelries of Huntonsworth and Ruffside.— Sourn Suretps, South Shields. — Srocxron-on-Texzs, Stockton and Sedgefield, including the parish of Billingham, but excepting all the rest of the sub-district of Hartlepool (see Hartlepool). —SunpeRtann, Sunderland.—Woxsincnam, Weardale, except the parish of Edmond- byers, including the chapelries of Huntonsworth and Ruffside (see Shotley Bridge). ESSEX. Brarnrrez, Braintree. The parishes of Great Coggleshall, Little Coggleshall, Fairstead, Faulkbourne, Great Leighs (including the hamlet of Chatley), Little Leighs, and Rivenhall._ Brewrwoop, Ongar, except the parishes of Abbots Roothing, Beauchamp Roothing, Little Laver, Stapleford Tawney, Lambourne, Stapleford Abbots (see Dunmow and Romford). Pitsea, Wickford (see Rochford). Willingale Doe, Willingale Spain, Shellow Bowels, and Berners Roothing (see Chelms- ford). Billericay, except the parishes of Bowersgifford, North and South Benfleet, and Thundersley (see Rochford). The parishes of Bulpham, Corringham, Fobbing, Horndon on the Hill, Laindon Hills, Orsett, Stanford-le-Hope, and Great Warley.—Cuetmsrorp, Chelms- ford, Witham, except the parishes of Markshall (see Halstead). Feer- ing, Kelvedon, Meesing (see Colchester). Great Braxted, Little Braxted, Hatfield Peverel, Bishops Wickham, Inworth, Ulting, Witham, Wood- ham Ferris (see Muldon), Great Coggleshall, Little Cogeleshall, Fair- stead, Faulkbourne, Great Leighs (including the hamlet of Chatley), Little Leighs, and Rivenhall (see Braintree).- The parishes of Wil- lingale Doe, Willingale Spain, Shellow Bowels and Berners Roothing. —Cotcusster, Colchester, Lexden, and Winstree. The parishes of Feering, Kelvedon, Messing, and Nayland. Tendring, including the parish of Manningtree, but excepting the sub-districts of Harwick and Thorpe, and all the rest of the sub-district of Manningtree (see Har- wick), — Dunmow, Dunmow. The parishes of Abbots Roothing, Beauchamp Roothing, and Little Laver.—Hatsteap, Halstead, except the parishes of Ridgewell and Stambourne (see Haverhill). The parish of Markshall.—Harwics, the sub-districts of Harwick, Thorpe and Manningtree, except the parish of Manningtree, in Tendring, together consisting of the parishes of St. Nicholas Harwich, Dover Court, Beau- mont, Bradfield, Frinton, Great and Little Holland, Kirby, Mistley, Great Oakley, Little Oakley, Ramsey, Tendring, Thorpe-le-Soken, Walton, and Wix (see Colchester).—Matpon, Maldon. The parishes of Great Braxted, Little Braxted, Hatfield, Peverell, Bishops Wickham, Inworth, Ulting, Witham, and Woodham Ferris.—Rocurorp, Roch- ford. The parishes of Bowersgifford, North and South Benfleet, Thundersley, Pitsea, Wickford, and the Island of Canvey.—Romrorn, Romford. Orsett, except the parishes of West Thurrock, Gray’s Thur- tock, Little Thurrock, Chadwell, West Tilbury, East Tilbury, Muckinge (see Gravesend). Bulpham, Corringham, Fobbing, Horndon on the Hill, Laindon Hills, Orsett, Stanford-le- Hope, and Great Warley, (see Brentwood).—Sarrron Wacpen, Linton, Saffron Walden.— Watruam, Epping, except the parish of Chigwell (see Romsey), and the parishes of Harlow and Shearing (see Bishop Stortford), The sub-districts of Cheshunt and Waltham Abbey, in Edmonton, consisting of the parishes of Cheshunt and Waltham Abbey. GLOUCESTERSHIRE, Buistot, Bristol, Clifton, Bedminster, and the parish of Wrington with Broadfield. Keynsham, except the sub-district of Newtoa (see Districts in which County Courts are holden. Bath).—Cuettennam, Cheltenham.—Curprinc-Sonsury, Chipping- Sodbury.—Crnenczsrer, Cirencester.—Dunstry, Dursley. The sub- district of Berkeley, in Thornbury, consisting of the parishes of Berkeley, Charfield, Hill, and Tortworth. The parish of Cromhall. The pa- rishes of Kingscote, Newington Bagpath, and Ozleworth.—_Gtoucesrer, Gloucester, Wheatenhurst. The sub-district of Huntley, in Westbury- on-Severn, except the parish of Westbury, consisting of the parishes of Bulley, Minsterworth, Huntley, Longhope, Blaisdon, and Churcham (see Newenham).—Newent, Newent.—N Ewnuam, Westbury-on-Se- vern, including the parish of Westbury, but excepting all the rest of the sub-district of Huntley (see Gloucester ).—Noertuteacn, Northleach.— Stow, Stow-in-the- Wold. — Stroup, Stroud. — Tewxessury, Tewkes- bury.—Taornzury, Thornbury, except the sub-district of Berkeley and patish of Cromhall (see Dursley).—Wincacoms, Winchcomb. HAMPSHIRE, Anpover, Andover, Whitchurch.—Atron, Alton.—Bastnesroxe, Basingstoke, Hartley Wintney—Biswor’s Wattuam, Droxford.— Curistcuvecn, Christchurch. —For pincprince, Fordingbridge, Ring- wood.—Lymineroy, Lymington.—Newrorr, Isle of Wight.—Prrers- rieLD, Petersfield, Catherington, and the parish of Bramshott.—Porrs- moutH, Alverstoke, Fareham, Havant, Portsea.—Romsey, Romsey, Stockbridge.—Sournampton, Southampton, South Stoneham, New Forest.—W incuesrer, Alresford, Winchester, Hursley. HEREFORDSHIRE. Bromyarp, Bromyard.—Hererorp, Hereford, Weobley, except the parishes of Almeley, Birley, Dilwyn, Eardisland, Stretford, Weobley (see Kington and Leominster).—Kincron, Presteigne and Kington, except the sub-district of Presteigne (see Presteigne). The parish of Almeley.—Lepevury, Ledbury.—l.comixsrer, Leominster. ‘fhe pa- rishes of Birley, Dilwyn, Eardisland, Stretford, and Weobley.—Ross, Ross. HERTFORDSHIRE. Barner, Barnet. The parish of Hendon.—Bisnor Srorrrorp, Bishop Stortford, and the parishes of Harlow and Sheering—Herrrorp, Hertford, Ware. The sub-district of Welwyn, in Hatfield and Wel- wyn, consisting of the parishes of Welwyn, Digswell, Ayot Saint Law- rence, and Ayot Saint Peter.—Hrrcnix, Hitchin.—Roysron, Royston and Buntingford.—Sr. Aceans, St. Albans. Hatfield and Welwyn, except the sub-district of Welwyn (see Hertford), Hemel Hempstead, except the sub-district of King’s Langley (see Chesham and Watford).— Warrorp, Watford. Hendon, except the parishes of Hendon and Willesden, the precinct of Twyford Abbey (see Barnet and Marylebone). The parish of King’s Langley, HUNTINGDONSHIRE. “Huntixepon, Huntingdon, St. Ives.—Sr. Nzot’s, St. Neot's, except the parishes of Shelton, Dean, Tilbrook, Great Catworth, and Long Stow (see Thrapstone). KENT. Asurorp, West Ashford, East Ashford, except the parishes of Ald- ington, Bonington, and Hurst (see Hythe).—Bromery, Bromley.— 63 64 Appendix to Part I. Caytersury, Blean Bridge, Canterbury.—Dartrorp, Dartford — Dear and Saxpwicu, Eastry.—Dover, Dover.—Favrrsuam, Faver- sham.—Forkesrong, the town and parish of Folkestone, the parishes of Cheriton, Hawkinge, Paddleworth, Swingfield, and Acrise—Graves- END, Gravesend. The sub-district of Northfleet, in North Aylesford, consisting of the parishes of Chalk, Cobham, Denton. Ifield, Luddes- down, Meopham, Niorthfleet, Nursted, and Shorne. The parishes of West Thurrock, Gray’s Thurrock, Little Thurrock, Chadwell, West Tilbury, East Tilbury, and Muckinge, in Orsett.—Grrexwicn and Wootwicu, Lewisham, Greenwich, except so much as lies west of the croydon Railway (see Lambeth).—Hytur, Elham, except the town and parish of Folkestone, and parishes of Cheriton, Hawkinge, Paddle~ worth, Swingfield, and Acrise (see Folkestone). he parishes of West Hythe, Hurst, Bonington, and Aldington.—Marpsrove, Hollingbourne, Maidstone. Malling, except the parishes of Burham, Ightham, Ship- borne, Wouldham, and Wrotham (see Rochester and Seven Oaks).— Marearr, the parishes of Saint John the Baptist, Saint Peter the Apostle, and Birchington, and the.vill of Wood.—Ramscarte, Thanet, except the parishes of St. John the Baptist, St. Peter the Apostle, and Birchington, and the vill of Wood (see Margate).—Rocurster, Med- way, Hoo, North Aylesford, except the sub-district of Northfleet (see Gravesend). The parishes of Burham, Wouldham, Hartlip, Rainham, and Upchurch. Romy, Romney Marsh, except the parish of West Hythe (see Hythe).—Srven Oaxs, Seven Oaks, except the sub-district of Penshurst (see Tonbridge). The parishes of Ightham, Shipborne, and Wrotham.—Sueernese, Sheppey.—Sitrinczourne, Milton, except the parishes of Hartlip, Rainham, and Upchurch (see Rochester),— Texrerpen, Cranbrook, Tenterden.—Tonsripce. The sub-district of Penshurst, in Seven Oaks, consisting of the parishes of Chiddingstone, Edenbridge, Hever, Leigh, and Penshurst. The parishes of Capel, Tudeley, and Hadlow, and so much of the parishes of Bidborough and Tonbridge as lies north of a line drawn from the point where the eastern boundary of the parish of Penshurst crosses the Bidborough turnpike road, along the said road to Bound Corner, thence toward Tonbridge, along the Tonbridge Road, to a lane leading by St. Thomas’s Farm, to the Hastings Road, thence along the Hastings Road to Fairthorne thence along the lane leading to Pellet Gate, till it crosses the boundary of Pembury parish.—Tonzripce Wexts. The parishes of Ashurst, Brenchley, Horsemonden, Pembury, Speldhurst. So much of the parishes of Bidborough and Tonbridge as is not in the district of the court holden at Tonbridge. Ticehurst. The parishes of Mayfield and Rotherfield. LANCASHIRE, AsuTon-unper-Lyxg, Ashton-under-Lyne and Oldham, except the sub-districts of Denton and Haughton, Newton and Godley, Mottram, Oldham above:'Town, Oldham below Town, Middleton, Royton, Chad- derton, and Crompton (see Hyde and Oldham).—Buacxsurn, Black- burn.—Bo ron, Bolton.—Burntey, Burnley, except the sub-districts of Colne and Pendle (see Colne).—Bury, Bury.—Cuortey, Chorley.— Curruenog, Clitheroe.—Cotne. The sub-districts of Colne and Pendle, in Burnley, consisting of the townships of Colne, Trawden, Great Mars- den, Little Marsden, Foulridge, Barrowford, Goldshaw, Barley with Wheatly, Old Laund, Rough Lea, and Wheatley Carr, in the parish of Whalley.—Poutron. The parishes of Poulton le Fylde and Bispham, and chapelry of Singleton, in the parish of Kirkham. The chapelry of Hambleton, in the parish of Kirkham, The township of Preesall with Hackensall and chapelry of Stalmire with Staynal, in the parish of Lancaster.—Garsiaxe, Garstang, except the townships of Preesall Districts in which Cownty Oourts are holden. with Hackensall and chapelries of Hambleton and Stalmire with Staynal (see Poulton).—Hastincpen, Haslingden.—Kirxuam, Fylde, except the parishes of Poulton le Fylde and Bispham, and chapelry of Single- ton (see Poulton ).—Lancaster, Lancaster, except the chapelry of Arkholme with Cawood, the townships of Melling with Wravton and Weirnington, and the parish of. Whittington (see Kirkby Lonsdale), except the parish of Tunstall, and the townships of Dalton and Treby (see Kirkby Lonsdale).—Leicu, Leigh.—Liverroot,: Liverpool, West Derby.—Mancnester, Manchester, Chorlton. —Otpnam, the sub-dis- tricts of Oldham above Town, Oldham below Town, Middleton, Royton, Chadderton, and Crompton, in Ashton and Oldham, together consisting of the townships of Oldham, Alkrington, Royton, Tonge, Chadderton, and Crompton, in the parish of Prestwich-cum-Oldham ; and the town- ships of Middleton and Thornham, in the parish of Middleton. —Orms- kirk, Ormskirk.—Preston, Preston. —Rocupate, Rochdale, — Saint Hexen’s, Prescot.—Satrorp, Salford, Worsley.—Uverstone, Ulver- stone, except the sub-district of Hawkshead (see Ambleside),—War- Rincton, Warrington. The sub-districts of Grappenhall and Great Budworth, in Runcorn, except the township of Great Budworth ; con- sisting of the townships of Acton Grange, Daresbury, Hatton, Keke- wich, Moore, Newton, Preston, Walton Superior and Inferior, in the parish of Runcorn; and the townships of Antrobus, Appleton and Hull, Bartington, Crowley, Dutton, Seven Oaks, Stretton, Whitley Inferior and Superior, in the parish of Great Budworth (see North- wich). The parish of Lymm.—Wican, Wigan. LEICESTERSHIRE, Asupy-pe-ta-Zoucu, Ashby-de-la-Zouch. — Hincxtzy, Hinckley. The parish of Wolvey.—Leicesrer, Barrow-upon-Soar, including the parish of Switland and precinct of Ulverscroft, but excepting the rest of the sub-district of Quorndon, and excepting also the parishes of Barrow- upon-Soar, Seagrave, Sileby, and Walton-on-the- Wolds (see Lough- borough). Blaby, Leicester. Billesden, except the parishes of Alexton, Tugby, Loddington, Skefington, Owston, and Withcote, and the paro- chial chapelry of East Norton, the chapelry of Goadby, in the parish of Billesden, and the hamlet of Whatborough, in the parish of Tilton (see Oakhum and Uppingham).—Lovcusoroves, Loughborough. The arishes of Barrow-upon-Soar, Seagrave, Sileby, and Walton-on-the- Wolds 3 the sub-district of Quorndon, in Barrow-upon-Soar, except the parish of Swithland and precinct of Ulverscroft, consisting of the cha- pelries of Quorndon, Mount Sorrel North and South, Woodhouse, including Mapplewell, Woodhouse Eaves, and Beaumanor (see Leices- ter). The sub-district of Castle Donington in Shardlow, consisting of the parishes of Castle Donington, Kegworth, Ratcliffe, Kingston, Lockington, and Diseworth, and chapelry of Isley Walton. The parish of Breedon.—LuUTTERWoRTH, Lutterworthhk— MARKET Boswortu, Market Bosworth.—Market HargporovucH, Market Harborough.— MeEtton Mowsray, Melton Mowbray. LINCOLNSHIRE. Barton-on-Humser. The sub-district of Barton-upon-Humber, in Glanford Brigg, consisting of the parishes of East Halton, Killing- holme North and South, Barrow, Barton St. Mary and St. Peter, Bonby, Ferriby South, Goxhill, Horkstow, Saxby, Thornton Curtis, Ulceby, and Wootton, in Lincolnshire. The parishes of Alkborough, Roxby-cum-Risby, West Halton, Whitton, Winteringham, aud Win- terton, the chapelry of Gunhouse, and the hamlet of Coleby.—Boston, Boston. —Bournez, Bourne.—Brics, Glanford-Brigg, except the sub- 65 66 Appendia to Part L. district of Barton-upon-Humber (see Hull), and the parishes of Alkbo- rough, Roxby-cum-Risby, West Halton, Whitton, Winteringham, and Winterton, the chapelry of Gunhouse, and the hamlet of Coleby (see Barton-on-Humber).—Caiston. The sub-district of Caistor, in Caistor, consisting of the parishes of Cabourn, Cuxwold, Rothwell, Swallow, Swinhope, Caistor, Holton-le-Moor, Claxby, Kelsey South and North, Normanby-le-Wold, Croxby, Thoresway, Thorganby, Brocklesby, Keelby, Limba Magna, Riby, Bigby, Grasby, Searby-with-Owmby, Somerby, and Nettleton, and chapelry of Clixby.—Gatnszonouca, Gainsborough.—GrantHam, Grantham. The parishes of Barkston, Foston, Haugham, Marston, Allington East and West, Sedgebrook, and Syston.—G reat Grimssy, the sub-district of Great Grimsby, in Caistor, consisting of the parishes of Great Grimsby, Ashby-cum-Fenby, Bar- noldby-le-Beck, Ayleshy, Bradley, Beelsby, Brigsley, Clee, Coates (Great and Little), Hatcliffe, Hawerby-with-Beesby, Healing, Umber. stone, Laceby, Irby, Ravendale (East and West), Scartho, Waltham, Immingham, Haburgh, Stallingborough, Cleethorpes, and Newton Wold. The parishes of Grainsby, Holton-le-Clay, Tetney, and Waith. —Horzeacn, Holbeach. — Horncastie, Horncastle, except the parishes of East Barkwith, West Barkwith, West Torrington, and Wragby (see Market Rusen).—LIncotn, Lincoln, except the parishes of Holton, Beckering, Wickenby, Cold Hanworth, Snarford, Friesthorpe, Faldingworth, Snelland, Normanby by Spital, Owmby, Caenby, and Loxby (see Market Rasen).—Louru, Louth, except the parishes of Grainsby, Holton-le-Clay, etney, Waith, Ludford, Hainton, and South Willingham (see Great Grimsby and Market Rasen).—MarkeT Rasryn. The sub-district of Market Rasen, in Caistor, consisting of the parishes of Glentham, Kingerby, Kirby-cum-Osgodby, Newton by Toft, Toft next Newton, Owersby (North and South), Linwood, Mar- ket Rasen, Rasen (Middle), Rasen ( West), Stainton-le-Vale, Tealby, Thornton-le-Moor, Usselby, Walesby, Willingham (North), Snitterby, Waddingham, Lissington, Legsby, Sixhills, Kirkmond-le-Mire, Tor- rington (East), Bishop Norton, and Buslingthorpe. The parishes of Ludford, Hainton, South Willingham, East Barkwith, West Barkwith, West Torrington, Wragby, Holton Beckering, Wickenby, Cold Han- worth, Snarford, Friesthorpe, Faldingworth, Snelland, Normanby by Spital, Owmby, Caenby, and Loxby.—SLrarorp, Sleaford.—Spatp- 1nG, Spalding. The parish of Crowland.—Spitspy, Spilsby.—Sram- FORD, Stamford. MIDDLESEX. BrentTrorD, Brentford.—EpMoNnTON. The sub-districts of Edmon- ton, Enfield, and Tottenham in Edmonton, consisting of the parishes of Edmonton, Enfield, and Tottenham.—UxsripcE, Uxbridge. The sub- district of Iver, in Eton, consisting of the parishes of Iver, Fulmer, Langley Marish, Denham, Hedgerley, and the hamlet of Hedgerley Dean, in the parish of Farnham Royal. The parishes of Cranford, Harlington, and Harmondsworth, in Staines. MIDDLESEX METROPOLITAN DISTRICTS. 1. Westminster. The district of the Westminster County Court of Middlesex shall include all within a line drawn from the point where the cities of London and Westminster meet on the river Thames along the boundary of the City of London to Holborn-bars, thence along the middle of Holborn, Oxford-street, and the Uxbridge-road until the Uxbridge-road crosses the Serpentine River, thence along the Serpentine River to Rotten-row, thence along the middle of the road through Albert-gate to the Knightsbridge-road, thence along the middle of the Knightsbridge-road to Sloane-street, thence along the middle of Districts in which County Courts are holden. Sloane-street, across Sloane-square, along the middle of Lower Sloane- street, Turk’s-row, and Franklin’s-row, to the gate leading into the road which divides the Kitchen Gardens of Chelsea Hospital from the Go- vernor’s Garden and Garden Meadow, thence along the said road and the boundary of the said Hospital Kitchen Garden tothe River Thames, thence along the Thames to the point first described.—2. Bromrron. The district of the Brompton County Court of Middlesex shall include all within a line drawn from the point on the River Thames where the parishes of Acton and Hammersmith meet, along the common boun- dary of the parishes of Acton and Hammersmith till it crosses the Ux- bridge-road, thence along the middle of the Uxbridge-road till it crosses the Serpentine River, thence along the western boundary of the Westminster County Court of Middlesex hereinbefore described, to the River Thames, and along the Thames to the point first described.— 3. MaRYLEBONE. The district of the Marylebone County Court of Middlesex shall include all within a line drawn from the point where the common boundary of the parishes of Hammersmith and Acton crosses the Uxbridge-road, along the middle of the Uxbridge-road and Oxford-street to Portman-street, thence along the middle of Portman- street, the street on the west side of Portman-square, Gloucester-street, Gloucester-place, across the New-road, Upper Gloucester-place, the street on the east side of Dorset-square, Dorset-place, Upper Glouces- ter-place, Taunton-place, Park-road, and Primrose Hill-road, till it meets the Avenue-road, thence along the middle of the Avenue-road and the New-road to Finchley to the northern boundary of the parish of Saint John Hampstead, thence westward along the boundary of the parish of Saint John Hampstead to the Edgeware-road near Crickle- woods, thence along the Edgeware-road to the boundary of the parish of Willesden at Brent-bridge, thence along the northern and western boundary of the parish of Willesden, including the whole parish of Willesden and precinct of Twyford Abbey, till it meets the common boundary of the parishes of Acton and Hammersmith in the point first described.—4. BLoomssury. The district of the Bloomsbury County Court of Middlesex shall include all within a line drawn from the point where the boundary of the parish of Saint John Hampstead crosses the New-road to Finchley, along the eastern boundary line of the Maryle- bone County Court of Middlesex hereinbefore described to Oxford-street, thence along the middle of Oxford-street and Holborn to King-street, thence along the middle of King-street, Upper King-street, Southamp- ton-row, the street on the east side of Russell-square, Woburn-place, the street on the east side of Tavistock-square, Upper Woburn-place, to the New-road, thence along the middle of the New-road to the boun~ dary of the parish of Saint Pancras at King’s Cross, thence along the eastern and northern boundary of the parish of Saint Pancras till it meets the boundary of the parish of Saint John Hampstead, thence west- ward along the northern boundary of the parish of Saint John Hamp- stead to the point first described. 5. CLERKENWELL(@). The dis~ trict of the Clerkenwell County Court of Middlesex shall include all within a line drawn from the point where the boundary of the City of London crosses Finsbury-place, along the middle of Finsbury-place, the street on the west side of Finsbury-square, the City-road, Wink. worth-buildings, East-road, Brudenell-place, and the New North-road, to the Regent’s Canal, thence along the middle of the Regent’s Canal until it is crossed by the Kingsland-road, thence along the middle of the Kingsland-road to the southern boundary of the parish of Totten- ham, thence westward along the boundary of the parish of Tottenham to the boundary of the parish of Hornsea, thence along the boundary of the parish of Hornsea and chapelry of Highgate, including the whole (a) See alterations in this district, post, p. 78. 67 68 Appendia to Part I. of the said parish and chapelry, to the boundary of the district of the Bloomsbury County Court of Middlesex, thence along the eastern boundary of the last-mentioned district to the point where King-street meets Holborn, thence along the middle of Hoiborn to Holborn-bars, thence along the northern boundary of the City of London to the point first described. 6. SHOREDITCH («). The district of the Shoreditch County Court of Middlesex shall include all within a line drawn from the point where the boundary of the City of London crosses Finsbury- place, along the eastern boundary of the district of the Clerkenwell County Court of Middlesex to the southern boundary of the parish of Tottenham, thence eastward along the said boundary to the boundary of the county of Middlesex, thence southward along the boundary of the said county to the northern boundary of the parish of Stratford-le- Bow, thence westward along the boundary of the said parish until it is crossed by the southernside of the Eastern Counties Railway, theace westward along the southern side of the Eastern Counties Railway till it crosses Brick-lane, thence along the middle of Brick-lane, Pheenix- street, Wheeler-street, and White Lion-street to Norton-folgate, thence along: the middle of Norton-folgate to the boundary of the City of London, thence westward along the boundary of the City of Lon- don to the point first described.—7. Bow. The district of the Bow County Court of Middlesex shall include the parishes of Bromley- and Stratford-le-Bow, and the Superintendent Registrar’s district of West Ham.—8,. WHITECHAPEL (a). ‘he district of the Whitechapel County Court of Middlesex shall include all within a line drawn from the point where the eastern boundary of the City of London leaves the River Thames, along the said boundary until it is crossed by Norton-folgate, thence along the middle of Norton-folgate, White Lion-street, Wheeler-street, Phoenix-street, and Brick-lane, until it is crossed by the southern side of the Eastern Counties Railway, thence eastward along the southern side of the said railway until it crosses the boundary of the parish of Stratford-le-Bow, thence southward along the western boundary of the parishes of Stratford-le-Bow aad Bromley to the boundary of the parish of Poplar, thence along the common boundary of the parishes of Bromley and Poplar to the boundary of the . county of Middlesex, thence southward along the boundary of the said county to the River Thames, thence along the River Thames to the point first described. MONMOUTHSHIRE. ABERGAVENNY, Abergavenny, except the parishes of Aberystruth Bedwelty, Bettws Newyd, Bryngwyn, and hamlet of Clytha, (see Tredegar and Usk.)—CuerstTow Chepstow, except the parishes of Llansoy and Llangwn, Llanvihangel-Tor-y-mynydd, Wolvesnewton, and the western division of Newchurch (see Usk),..MonmouTu, Monmouth, except the parishes of Llandenny, Llanishen, and Ragland (see Usk).—Newrort, Newport, except the parishes of Llanhennock, Kemeys Inferior, and Tredunnoch (see Usk), and the hamlet of Pen- maer (see Pontypool).—PonTyPooL, Pontypool, and the hamlet of Penmaer, except the sub-district of Usk, and the parishes of Glascoed, Llandergoeth, and Llaugibby (see Usk).—TRepeGar. Parishes of Aberystruth and Bedwelty in Abvergavenny—Usx. ‘lhe sub-district of Usk, in Pontypool, consisting of the parishes of Usk, Trostrey, Liangeview, Gwernesney, Clanilowel, Llanbadoch, Llantrissent, Ke- meys Commander, and Goytrey, with the hamlet of Gwehellog and precinct of Monkswood. ‘The parishes of Bettws Newydd, Bryng- (a) See alterations in this district, post, p. 79. Districts in which County Courts are holden. wyn, Glascoed, Kemeys Inferior, Llandegoeth, Llangwn, Llansoy, Llanvihangel-Tor-y-mynydd, Llanishen, Llandenny, Llanhennock, Llangibby, the western division of Newchurch, Ragland, Tredunnoch, Wolvesneston, and the hamlet of Clythia. NORFOLK. Arrtesorovcu, Guiltcross, Wayland.—Ayisaam, Aylsham.— Downuam Manxer, Downham Market, except the parishes of Holme next Runcton, Tottenhill, Wormegay, Watlington, Wiggenhall St. Mary Magdalene, Wiggenhall St. Germains, and Wiggenhall St. Peter (see King’s Lynn),—Easr Derrnam, Mitford and Launditch.— Harteston, Depwade, except the sub-district of Forncett, and the parishes of Diss, Scole, Thorpe Parva, Frenze, and Thelverton, in the sub-district of Diss (see Wymondham and Eye). The parishes of Flixton, Homersfield, All Saints South Elmham, St. Cross South Elmham, St. James South Elmham, St. Margaret South Elmham, St. Michael] South Elmham, St. Nicholas South Elmham, and St. Peter South Elmham, in Wangford. The parishes of Fressingfield, Mendham, Metfeld, Syleham, Weybread, Wingfield, and Withersdale, in the sub- district of Stradbroke, in Hoxne.—Hotr, Erpingham, except the sub-district of North Walsham, in Erpingham (see North Walsham). —Krxeo’s Lywn, King’s Lynn, Freebridge Lynn. The parishes of Anmer, Clenchwarton, Dersingham, Heacham, Holme next Runcton, Ingoldesthorpe, Sedgeford, Shernborne, Snettisham, Terrington St. Clement, Terrington St. John, Tilney All Saints, Tilney St. Lawrence, Tilney cum Islington, Tottenhill, Watlington, Wiggenhall St. Mary Magdalen, Wiggenhall St. Germains, Wiggenhall St. Peter, and Wor- megay.— Lirrte Watsincuam, Walsingham, Docking, except the parishes of Anmer, Dersingham, Heacham, Ingoldesthorpe, Sedgeford, Shernborne, and Snettisham (see King’s Lynn).—Nortru Watsnam, Tunstead and Happing. The sub-district of North Walsham, in Erpingham, consisting of the parishes of North Walsham, Antingham, Gimingham, Gunton, Knapton, Repps North and South, Sidestrand, Suffield, Thorpe Market, Trimingham, Trunch, and Mundsley.—Nor- wicu, Blofield, Henstead, Norwich, St. Faith. The sub-district of Loddon, in Loddon and Clavering, consisting of the parishes of Brooke, Burgh Apton, Heckingham, Howe, Yelverton, Alpington, Ashby, Carle- ton, Chedgrave, Claxton, Hardley, Hillington, Langley, Loddon, Sisland and Thurton. The sub-district of Costessy, in Forehoe, consisting of the parishes of Barford, Barnham-Broom, Bawburgh, Bowthorpe, Brandon Parva, Carleton Forehoe, Colton, Costessy, Coston, Easton, Marlingford, Runhall, Weilborne, and Wramplingham.—Swarriam, Swaffham. — Tuerrorp, Thetford. —Wymonpuam, Forehoe, except the sub-district of Costessy (see Norwich). The sub-district of Forncett, in Depwade, consisting of the parishes of Ashwelthorpe, Aslacton, Bunwell, Carleton Rode, Forncett St. Mary and St. Peter, Fundenhall, Hapton, Moulton Great, Tacolneston, and Tibbenham.— Great Yarmovurn. East and West Flegg. Yarmouth. The sub- district of Gorlestone, in Mutford and Lothingland, consisting of the parishes of Hopton, Gorlestone with South Town, Fritton, Burgh Castle, Bradwell, and Belton NORTHAMPTONSHIRE. Bracgiey, Brackley—Daventry, Daventry.—Kerreninc, Ket- tering. —NorruaMPion, Brixworth, Hardingstone, Northampton.— Ounpte, Oundle. —PETERBOROUGH, Whittlesea, Peterborough, except the parish of Crowland (see Spalding).—Tuararstone, Thrapstone, the parishes of Shelton, Dean, Tillbrook, Great Catworth, and Long Stow. 69 70 Appendix to Part I. —Towcesren, Potterspury, except the parishes of Calverton, Wolver- ton, and Stoney Stratford (see Newport Pagnell). Towcaster—Wet- Lincporovcn, Wellingborough. NORTHUMBERLAND. Auywerm, Alnwick.—Betrorp, Belford.—Bzrttincuam, Belling- ham.—Berwicx, Berwick.—Hatrwmistte, Haltwhistle, except the arishes of Kirkhaugh and Knaresdale (see Alston),—Hexuam, Hex- Laci except the parish of Shotley and chapelry of Whitstonstall (see Shotley Bridge).—Monpetu, Morpeth.—Newcastie, Castle Ward, Newcastle —Norta Suretps, Tynemouth.—Rotuuvury, Rothbury.— Woo er, Glendale. NOTTINGHAMSHIRE. Bincuam, Bingham, except the parishes of Edwalton, Keyworth, Plumtree, and Tollerton (see Nottingham) —Easr Retrorp, East Retford.—Mansrietp, Mansfield, except the sub-district of Blackwell (see Alfreton).—Nuwark, Newark, except the parishes of Barkston, Foston, Haugham, Marston, Allington East and West, Sedgebrook, and Syston, (see Grantham). Southwell, except the parishes of Boughton, Edwinstow, Kirton, Rufford, Welluw, and Walesby, (see Worksop).— Norrincuam, Nottingham, Radford. Basford, except the parishes of Annesley with Felley, Heanor, Ilkestone, Kirkby in Ashfield, and Sel- stone (see Alfreton and Belper), The parishes of Attenborough, Brancote, Stapleford, Edwalton, Keyworth, Plumtree, and Tollerton. —Worksop, Woiksop. The parishes of Boughton, Edwinstow, Kirton, Rufford, Wellow, and Walesby. OXFORDSHIRE. Bansury, Banbury.—Bicrsrrr, Bicester.—Cuirrine Norton, Chip- ping Norton.—Oxrorpv, Oxford, Headington. The sub-district of Cumner, in Abingdon, except the parish of Besselsleigh and parish or chapelry of Wootton, consisting of the parishes of Cumner, Binsey, North Hincksey, South Hincksey, and Wytham, and precinct of Sea- court, (see Abingdon).—Tuamr, Thame. The parishes of Illmire, Haddenham, Chinnor, and the liberty of Henton.— Witney, Witney. —Woonstocx, Woodstock. — Oaxuam, Oakham. The parishes of Owston, Withcote, and the hamlet of Whatborough, in the parish of Tilton.—Urrincuam, Uppingham. The parishes of Alexton, Tugby, Loddington, Skeffington. ‘The chapelry of Goadby, in the parish of Billesden. The parochial chapelry of East Norton. SHROPSHIRE. Bisnors Casrtz, Clun. The parish of Church Stoke and township of Aston.—Brincrxoutu, Bridgenorth.—Crieonury, Cleobury Morti- mer.—Drayton, Drayton Market.—Luptow, Ludlow. ‘The parishes of Acton Scott, Sibdon Carwooi, and Wistanstow.—Manetey, Madeley, Shiffnall.—_Nrwrort, Newport.— Oswestry, Oswestry, except the parish of Chirk (see Ruabon). The sub-district of Ellesmere, in Elles- mere, consisting of the parishes of Hordley, Welshampton and Elles- mere, except the township of Penley (see Wrerham).—Surewspury, Atcham, Shrewsbury, Church Stretton, except the parishes of Acton Scott, Sibdon Carwood, and Wistanstow (see Ludlow). ‘The sub- district of Baschurch, in Ellesmere, consisting of the parishes of Petton, Baschurch, including chapelry of Little Ness, Middle, including the chapelry of Hadnall Ease, and parish of Great Ness; —Wem, Wem and Districts in which County Courts are holden. Whitchurch, except the parishes of Ightfield and Whitchurch (see Whitchurch),—W exuxoton, Wellington. —Wurrcuuncn, the parishes of Whitchurch and Ightfield. The parish of Hanmer, and chapelry of Iscoyd. The townships of Agden, Bradley, Chidlow, Chorlton, Cud- dington, Malpas, Newton by Malpas, Oldcastle, Overton, Shocklach Church, Shocklach Oviatt, ‘Stockton, Whichaugh, Wigland, and the chapelry of Threapwood. The townships of Audlem, Bickley, Buerton, Dodcot with Wilkesley, Hampton, Macefen, Marbury with Quoisley, Norbury, Tushingham with Grindley, and Wirswall. SOMERSETSHIRE. Baru, Bath. The sub-district of Newton, in Keynsham, consisting of the parishes of Burnett, Compton-Dando, Corston, Matksbury, New- ton St. Loe, Priston, Saltford, and Stanton Prior.—BripcEwaTER, Bridgewater.—Cuarp, Chard, except the sub-district of Crewkerne and the parishes of Kingstone, Seavington St. Michael, Seavington St. Mary, Shepton Beauchamp, Stocklinch Ottersey, Stocklinch St. Magdalen, and West Dawlish (see Crewkerne).— CLurron, Clutton.—Crew- KERNE. The sub-district of Crewkerne, in Chard consisting of the parishes of Chillington, Crewkerne, Cudworth, Dinnington, Hinton St. George, Lopen, Merriott, and Wayford. The parishes of Chisel- borough, Middle Chinnock, West Chinnock, Haselbury Plucknett, Kingstone, North Perrott, Seavington St. Michael, Seavington St. Mary, South Petherton, Shepton Beauchamp, Stocklinch Ottersey, Stocklinch St. Magdalen, and West Dawlish. The sub-district of Misterton, in Beaminster, consisting of the parishes of Cheddington, Misterton, Mosterton, Seaborough, and South Perrott.—FRoME, Frome. The parishes of Batcombe, Downhead, East Cranmore, Stoke Lane, Upton Noble, Kilmington, Monkton Deverill, and Maiden Bradley, with the hamlet of Yarnfield.—Lanerort, Langport. The parish of Stoke St. Gregory and chapelry of Longload, in the parish of Martock. —TaunTon, Taunton, except the parish of Stoke St. Gregory (see Langport).— WE LINGTON, Wellington.—WELLs, Wells. Shepton Mallett, except the parishes of Batcombe, Downhead, East Cranmore, Stoke Lane, and Upton Noble (see Frome),—WESTON-SUPER-MaRE and AxBRIDGE, Axbridge, the sub-districts of Axbridge and Wins- combe, Wedmore and Mark, except Wrington with Broadfield (see Bristol), consisting of the parishes of Wedmore, Mark, Chapel Alterton, Weare, Badgworth, Biddisham, Christon, Loxton, Compton Bishop, Winscombe, Rowberrow, Shipham, Axbridge, Cheddar, and Nyland.— WILtIToN, Williton.— Wincanton, Wincanton.— YEOVIL, Sherborne. Yeovil, except the parishes of Chiselborongh, Middle Chinnock, West Chinnock, Haselbury Plunknett, North Perrott, South Petherton, and chapelry of Longload (see Crewkerne and Langport). STAFFORDSHIRE. Burton-on-Trent, Burton, except the sub-district of Repton (see Derby). The parishes of Newton Solney and Repton, and the chapel- ries of Milton and Bretby.—CHEADLE, Cheadle. The parish of Crox- den with Grear Yate.-——Han.ry, Stoke-on-Trent, except the townships of Clayton and Seabridge (see Newcustle-wnder-Lyme). Woolstanton and Burslem, except the township of Knutton (see Newcustle-under- Lyme). The parishes of Norton-on-the-Moors and Trentham.—LeEx, Leek and Longnor, except the parish of Norton-on-the-Moors (see Hanley),—LicuFre.p, Lichfield, except the parishes of Rugeley, Long- don, Colton, Armitage-with-Hansacre, Pipe-Ridware, Hamstall-Rid- ware, and Mavesyn-Ridware (see Rugeley). NEwcasTLE-UNDER- 71 72 Appendix to Part I. Lyme, Newcastle-under-Lyme., The townships of Clayton, Seabridge, and Knutton.—O.Lpzury, West Bromwich, except the sub-district of Handsworth and Perry Bar, and the parish of Wednesbury (see Bir- mingham and Walsall). The chapelry of Smethwick, in the parish of Harborne.x—RucELey. The parishes of Rugeley, Longdon, Colton, Armitage-with-Hansacre, Pipe-Ridware, Hamstall-Ridware, and Ma- veysn-Ridware.—StTaFrorD, Stafford. The sub-district of Penkridge, in Penkridge, consisting of the parish of Penkridge (excepting the chapelry of Stretton), the parish of Church Eaton, the chapelry of Baswich, in the parish of Baswich, the extra-parochial precinct of Ted- desley-Hay, and the township of Kinvaston, in the parish of Wolver- hampton (see Wolverhampton).—SToNE, Stone, except the parish of Trentham (see Hanley).—UTToxETER, Uttoxeter, except the parish of Croxden with Great Yate, (see Cheadle).—WatsatL, Walsall.— WoLvERHAMPTON, Wolverhampton and Seisdon, except the parish of Kinver (see Stourbridge). The sub-districts of Breewood and Cannock, in Penkridge, consisting of the parishes of Breewood, Lapley, Bushbury, Cannock, Shareshill, Norton Canes; the townships of Featherstone, Hatherton, and Hilton, in the parish of Wolverhampton, the chapelry. of Stretton, in the parish of Penkridge, and the extra-parochial precinct of Cheslyn Hay. SUFFOLK. Becc.es, Loddon and Clavering, except the sub-district of Loddon (see Norwich). Wangford, except the parishes of Flixton, Homers- field, All Saints South Elmham, St. Cross South Elmham, St. James South Elmham, St. Margaret South Elmham, St. Michael South Elmham, St. Nichulas South Elmham, St. Peter South Elmham, (see Harleston).—_Bury St. Epmunps, Bury, Thingoe. The sub-districts of Waltham-le- Willows in Stow, except the parish of Elmswell, con- sisting of Ashfield, Badwell Ash, Hunston, Hinderclay, Langham, Nor- ton, Rickinghall Inferior, Stowlangtoft, Walsham-le- Willows, and Wat- tisfield (see Stow Market), The parish of Thurston.—Eye, Hartismere, except the parishes of Bacton, Cotton, Finningham, Mendlesham. Westhorpe, and Wyverstone (see Stow Market). The parishes of Diss, Scole, Thorpe, Parva, Frenze, Thelveton, in the sub-district of Diss, in Depwade. The parishes of Denham, Stradbroke, and Hoxne, in the sub-district of Stradbroke in Hoxne.—FraMLincHam, Hoxne, except the sub-district of Stradbroke (see Eye and Hurleston). Plomesgate, except the sub-district of Orford and Wickham Market (see Woodbridge). —Haonteicu, Cosford, except the parishes of Brettenham, Cockfield, Lavenham, Preston, and Thorpe Morieux (see Sudbury). The parishes of East Bergholt, Higham, Holton Saint Mary, Raydon, Shelley, Strat- ford Saint Mary, Great Wenham, Kettlebaston, and Stoke by Nayland. —Hateswortu, Blything—Haveruit, Risbridge. The parishes of Ridgewell and Stambourne.—Ipswicn, Bosmere and Claydon, Ipswich, Sampford, except the parishes of East Bergholt, Higham, Holton Saint Mary, Raydon, Shelley, Stratford Saint Mary, Great Wenham (see Hadleigh and Stow Market).—Lowrstort, Mutford and Lothingland, except the sub-district of Gorlestone (see Great Yarmouth).—MILDEN- HALL, Mildenhall._-Srow Market, Stow, including the parish of Elmswell, but excepting all the rest of the sub-district of Walsham-le- Willows and the parish of Thurston (see Bury St. Edmunds) —Sup- bury, Sudbury, except the parishes of Nayland (see Colchester ), Kettle- baston, and Stoke by Nayland (see Hadleigh). ‘The parishes of Bret- tenham, Cockfield, Lavenham, Preston, Thorpe Morieux, Badley, Bat- tisford, Barking, Creeting All Saints, Creeting St. Mary, Creeting St. Olive, Earl Stonham, Great Bricett, Little Stonham, Mickfeld, Ston- ham, Aspall, Ringshall, and the hamlets of Needham Market and Districts in which County Courts are holden. Darmsden. The parishes of Bacton, Cotton, Finningham, Mendlesham, Westhorpe, and Wyverstone.— WoopsRIDGE, Woodbridge. The sub- districts of Orford and Wickham Market, in Plomesgate, consisting of the parishes of Wickham Market, Blaxhall, Chillesford, Iken, Orford, Sudbourne, Tunstall, Wantisden, Butley, Campsey-Ash, Eyke, Haches- ton, Marlesford, and Rendlesham. SURREY. Cuertsey, Chertsey. Staines, except the parishes of Cranford, Harlington, and Harmondsworth (see Unbridge). The sub-district of Egham, in Windsor, comprising such parts of the parishes of Egham and Old Windsor as lie south and West of the road leading from the Thames, near Leatherlake House, up Priest Hull, through Bishopsgate and Hardimans, to the twenty-third milestone on the Reading Road, and the whole of the parishes of Sunning Hill and Thorpe.—Croypoy, Croydon.—Dorxine, Dorking.—Ersom, Epsom.—Farnuam, Farn- borough, Farnham, except the parish of Bramshott (see Midhurst). Gopatminc. The parish of Godalming. Hambleton, except the parishes of Shalford, St. Martha on the Hill, and Wonersh (see Guild. ford). GurtprorD, Guildford, except the parish of Godalming (see Godalming). The parishes of Shalford, St. Martha-on-the-Hill, and Wonersh.—Kineston, Kingston.—ReicaTE, Godstone, Reigate.— Wanpsworru, Wandsworth and Clapham. Richmond. SURREY METROPOLITAN DISTRICTS. 1. Soutnwark, the district of the Southwark County Court of Surrey shall include the Superintendent Registrar’s Districts of Roth- erhithe, Bermondsey, Saint George Southwark, Saint Olave, and Saint Saviour, and so much of the Superintendent Registrar’s Districts of Newington and Lambeth as lies north of a line drawn from the River Thames at Lambeth Stairs, along the middle of Church-street, and Lambeth-road, to the Westminster-road, thence along the middle of the Westminster-road to Brook-street, thence along the middle of Brook- street, and Lambeth-place and Garden-place, by the south side of the Fishmongers’ Almshouses, to the high road, Newington Butts, thence along the middle of the high road, Newington Butts, to Cross-street, thence along the middle of Cross-street to the Walworth-road, thence along the middle of the Walworth-road to East-street, thence along the middle of East-street, Richmond-terrace, Apollo-buildings, Prior-place, Sion-place, and East-lane, until it is cut by the boundary of Saint George Southwark.—2. Lamsetu. The district of the Lambeth County Court of Surrey shall include the Superintendent Registrar’s district of Camberwell, and so much of the Superintendent Registrar’s districts of Lambeth and Newington as is not in the district of the Southwark County Court of Surrey, and so much of the Superintendent Registrar’s district of Greenwich as lies west of the Croydon Railway. SUSSEX. ARUNDEL, Worthing, except the sub-district of Broadwater, and excepting also the parishes of Clapham, East Preston, Goring, Kingston, Patching, and West Ferring (see Worthing). The parishes of Ang- mering, Slindon, Walberton, Yapton, Binsted, and Madehurst, — Bricuton, Brighton, Steyning, except the parishes of Buttolphs, Coombs, and Sompting (see Worthing). The parishes of Ovingdean and Rottingdean.—CuIcHESTER, Westbourne, West Hampnett, except the parishes of Graffham, Binstead, Slindon, Walberton, Yapton, and Madehurst (see Arundel and Midhurst). Chichester, including the z 73 74 Appendia te Part L. parish of Slindon, but excepting all the rest of the sub-district of Sutton (see Petworth).—CucKFIELD, Cuckfield. The parishes of Wivelsfeld. —East GrinsTEaD, East Grinstead, and the parish of Cowden.— Hastines, Hastings, Battle, and the parishes of Hooe, Herstmonceur, Pevensey, Minfield, and Wartling.—HorsHam, Horsham.—Lewes, Eastbourne, Hailsham, Lewes, except the parishes of Wivelsfield, Ovingdean, Rottingdean, Hooe, Herstmonceux, Pevensey, Minfield, and Wartling (see Cuckfield, Brighton, and Hastings). Uckfield, except the parishes of Mayfield and Rotherfield (see Tonbridge Welis), —Mipuurst, Midhurst, except the parishes of Selham, Tillington, Lodsworth, Lurgashall, and North Chapel (see Petworth), The parishes of Heyshott and Graffham.—PEtwortH, Petworth, Thakeham, except the parishes of Finden (see Worthing), and Heyshott (see Midhurst). Washington, Warminghurst, Wiston, Ashington (see Worthing). The sub-district of Sutton, in Chichester, except the parish of Slindon, con- sisting of the parishes of Egdean, Fittleworth, Coates, Duncton, Burton, Barlavington, Sutton, Bignor, Bury, Greatham, and tithing of West Burton (see Chichester), The parishes of Selham, Tillington, Lods- worth, Lurgashall, and North Chapel.—Ryz, Rye.—Worruine, the sub-district of Broadwater, in Worthing, consisting of the parishes of Broadwater, Durrington, Heene, Lancing, and West Tarrmg. The parishes of Buttolphs, Coombs, and Sompting. The parishes of Clapham, East Preston, Findon, Goring, Kingston, Patching, West Ferring, Washington, Warminghurst, Wiston, and Ashington. WARWICKSHIRE, AtcesrTer, Alcester, except the parishes of Ipsley and Feckenham (see Redditch).—ATHERSTONE, Atherstone, except the parish of Ansley (see Nuneaton).—BinmincuaM, Aston, Birmingham. King’s Norton, except the parish of Beoley and chapelry of Smethwick (see West Bromwich and Redditch). The sub-district of Coleshill, in Meriden, except the parish of Church Bickenhill, consisting of the parishes of Coleshill, Lea Marston, Maxstoke, Shustoke, Sheldon, Upper Whitacre, and Lower Whitacre (see Solihull). The sub-district of Handsworth and Perry Bar, in West Bromwich, consisting of the parish of Hands- worth. Coventry, Coventry, Foleshill, except the parishes of Bed- worth and Wolvey (see Hinckley and Nuneaton), The sub-district of Meriden, in Meriden, except the parish of Hampton in Arden, con- sisting of the parishes of Berkeswell, Meriden, Packington Great and Little, Corley, Fillongley, and Allesley, and the chapelry of Coundon in the parish of Holy Trinity (see Solihull).—NunEaton, Nuneaton. The parishes of Ansley and Bedworth.—Rucsy, Rugby.—SoLiHuL., Solihull, The parishes of Church Bickenhill, and Hampton in Arden. —Soutuam, Southam,—SrratrorpD, Stratford, except the sub-district of Wootton Wawen (see Warwick). The parishes of Wootton Wawen, Bearley, and the townships of Henley, in Arden, and Ullenhall.— Tamwortu, Tamworth.— Warwick, Warwick, except the townships of Henley, in Harden, and Ullenhall (see Stratford-on-Avon). The sub-district of Wootton Wawen, in Stratford, except the parishes of Wootton Wawen, and Bearley (see Stratford-on-Avon). WESTMORELAND. AMBLESIDE. The sub-district of Ambleside, in Kendal, consisting of the parishes of Grasmere and Windermere, the townships of Crook and Hugil, and the chapelries of Kentmere, Stavelynether and Over, in the parish of Kendal. The sub-district of Hawkshead, in Ulverstone, con- sisting of the parish of Hawkshead, and the chapelries of Church Conistong and Torver, in the parish of Ulverstone.—APPLEBY, East Districts in which County Courts are holden. Ward, the parish of Crosby Ravenscroft, and townships of Bolton, King’s Meaburn, Morland, Newby, and Sleagill.—Kirksy KENDAL, Kendal, except the sub-districts of Ambleside and Kirkby Lonsdale (see Ambleside and Kirkby Lonsdale)—Kiaxsy Lonspae, Sedbergh. The sub-district of Kirkby Lonsdale, in Kendal, consisting of the parish of Kirkby Lonsdale, except the chapelry of Firbank, the town- ships of Holme, Burton in Kendal, and Preston Patrick, in the parish of Burton in Kendal, the township of Farleton, in the parish of Beetham, and the township of Preston Richard, in the parishes of Heversham. The sub-district of Bentham in Settle, consisting of the parishes of Bentham, and Thornton in Lonsdale, and the township of Clapham- cum-Newby, in the parish of Clapham, The chapelry of Arkholme with Cawood, the townships of Melling with Wrayton and Wennington, the parish of Whittington. The parish of Tunstall, and townships of Dalton and Ireby. WILTSHIRE, BraprorD, Bradford, except the parish of Broughton Gifford and chapelry of Atworth (see Melksham).—Catne, Calne, and the parish of: Lyneham. — CHIPPENHAM, Chippenham.— Devizes, Devizes. — Matmessuey, Malmesbury, ‘'edbury, except the parishes of Kingscote, Newington Bagpath, and Ozleworth (see Dursley ).—MaRLBOROUGH, Marlborough, Pewsey.—MzLksHamM, Melksham, except the parishes of Hilperton and Trowbridge (see Trowbridge). The parish of Broughton Gifford and chapelry of Atworth—Satispury, Alderbury, Amesbury, Salisbury, Wilton.—Swinpon, Cricklade and Wootton Bassett, High- worth and Swindon, except the parish of Lyneham (see Calne),—Trow- BRIDGE, the parishes of Hilperton, Trowbridge, North Bradley, Keevil, and Steeple Ashton._ WARMINSTER, Warminster, WEsTBURY, West- bury and Whorwelsdon, except the parishes of North Bradley, Keevil, and Steeple Ashton (see Trowbridge). WORCESTERSHIRE. BromscroveE, Bromsgrove, except the parishes of Alvechurch, Coston Hackett, and Tardebigg (see Redditch).— Drorrwicu, Droitwich, except the parish of Hartlebury and hamlet of Upper Mitton (see Kid- derminster). — Duptey, Dudley. —Evrsuam, Evesham. — KippER- MINSTER, Kidderminster. The parish of Hartlebury and hamlet of Upper Mitton.—Prrswore, Pershore.—Reppitcu. The parishes of Tardebigg, Ipsley, Beoley, Alvechursh, Coston Hackett and Feckenham. —Surrston, Shipston.—Srourgripce, Stourbridge. The parish of Kimer.—Trnsury, Tenbury. The parish of Stockton and chapelry of Pensax.—Urron, Upton-on-Severn.— Worcester, Worcester, Mart- ley, except the parish of Stockton and the chapelry of Pensax (see Tenbury.) YORKSHIRE (East Riding). BrveR.ey, Beverley. The sub-districts of Brandsburton and Horn- sea, in Skirlaugh, consisting of the parishes of Atwick, Catwick, Goxhill, Hornsea, Brandsburton, Mappleton (except the township of Great Cowden), Bewholme, and Sigglesthorne, the townships of Dunnington, in the parish of Beeford, of Hempholme, in the parish of Leven, and of Bonwick, in the parish of Skipsea. Also the parishes of Rise and Long Riston, and the township of Arnold, and the hamlet of Rawton.— Bawiineton, Bridlington,—Great Dairriexp, Dritfield.—Hepon, Patrington. The parish of Hedon and township of Preston. The sub- district of Humbleton, in Skirlaugh, consisting of the parishes of Humble- a zn 75 76 Appendix to Part I. ton and Sproatley, and the townships of Garton-with:Grimston, . Lelley and Wyton. The parishes of Withernwick, Aldborough, the townships of Great Cowden, Thirtleby, Coniston, Ganstead, Swine, Benningholme and Grange, Ellerby, Marton, and North Skirlaugh and the chapelries of Bilton and South Skirlaugh—HowpEn,Howden.—Kineston-on-Hvtt, Kingston-on-Hull, except the parishes of Withernwick, Aldborough, the township of Great Cowden, Thirtleby, Coniston, Garnstead, Swine, Ben- ningholme and Grange, Ellerby, Marton, and North Skirlaugh, and the chapelries of Bilton and South Skirlaugh (see Hedon ). Saulcoates, except the parishes of Hedon, Rise and Long Riston, the townships of Preston and Arnold, and the bamlet of Rawton (see Hedon and Beverley). Skir- laugh, except the sub-districts of Brandsburton, Humbleton, and Horn- sea, (see Beverley and Hedon).—PockLINcTon, Pocklington, YORKSHIRE (West Riding). Barwstey, Ecclesfield. The sub-districts of Penistone and Wortley, in Wortley, consisting of the townships of Gunthwaite, Ingbirchworth, Langsett, Hunshelf, Hoylandswayne, Penistone, Oxspring, Thurlstone, Thurgoland, Wortley, Tankersley,—Boston, Tadcaster. The town- ships of Linton and Wetherby,—Braprorp, Bradford.—Dewsguny, Dewsbury.— Doncaster, Doncaster.—GooLE, Goole— Hauirax, Halifax.—Hotmrietu. The townships of Austonley, Holme, Honley, Nether Thong and Upper Thong, in the parish of Almondbury. The parish of Kirkburton, except the townships of Kirkburton and Shelley (see Huddersfield). —HupDERSFIFLD, Huddersfield, including the townships of Kirkburton and Shelley, but excepting the rest of the arish of Kirkburton, and excepting also the townsbips of Austonley, olme, Honley, Nether Thong, Upper Thong, in the parish of Atmondbury (see Holmfirth).— KricHiry, Keighley. — Knarxs- BorouGH, Knaresborough, except the townships of Linton and Wetherby (see Boston).—Lerps, Leeds, Hunslet.—OTLEY, Otley.— Ponterract, Pontefract.—Ruron, Pateley Bridge, Ripon. The town- ships of Snape, Well, Masham, Swinton with Warthermask, Ilton cum Pott, Kirklington with Upsland, and Burneston. — RoTHER- HAM, Rotherham.—SapDLEwortTH, Saddleworth.—SeELBy, Selby.— Serie, Settle, except the sub-district of Bentham, (see Kirkby Lons- dale).—Sxtpton, Skipton.—TuHornez, Thorne. —TopmMoagpEN, Tod- morden.— WAKEFIELD, Wakefield, YORKSHIRE (North Riding). Easinewotp, Easingwold. — Hetmstey, Helmsley.— LEysurn, Askrigg, Bedale, Leyburn, except the parishes of Seruton and Kirkby Fleetham, and the townships of Killerby, Hackforth, Ainderby Myers with Holtby, Bedale, Firby, Crakehall, Aiskew, Langthorne, Exelby, Leeming and Newton, Gatenby, Theakstone, Swainey with Aller thorpe, Thornton, Watlass, and the hamlet of Rands Grange (see Northallerton). The townships of Snape, Well, Masham, Swinton with Warthermask, Ilton-cum-Pott, Kirklington-with-Upsland, and Burneston (see Ripon)—_New Matron, Malton, Pickering.—NortH- ALLERTON, Northallerton, The parishes of Scruton and Kirkby Fleetham, and the townships of Killerby, Hackforth, Ainderby Myers- with-Holtby, Bedale, Firby, Crakehall, Aiskew, Langthorne, Exelby, Leeming and Newton, Gatenby, Theakstone, Swainby-with-Aller- thorpe, Thornton Watlass, and the hamlet of Rands Grange-—Ricu- MOND, Reeth, Richmond.—ScarsoroucH, Scarborough.—SToKEs- LEY, Stokesley, Guisborough, except the parishes of Danby, Loft- house, Easington, the chapelry of Liverton, and the township of Districts in which County Courts are holden. Moorsholm-cum-Girrick (see Whitby).—Turtrsk, Thirsk. —Wurtsy, Whitby. The parishes of Danby, Lofthouse, Easington, including the chapelry of Liverton, and the township of Moorsholm-cum-Girrick.— Yorx, York. ANGLESEY. LuanceEFnt, Anglesey. The sub-district of Beaumaris, in Bangor and Beaumaris, being all the remaining part of the Isle of Anglesey. BRECKNOCKSHIRE, Brecknock, Brecknock.—Buitru, Builth.—CrickHowELL, Crick- howell.—Hay, Hay. CAERMARTHENSHIRE, CaERMARTHEN, Caermarthen.—LLANDEILoFawR, Llandeilofawr.— Lianpovery. Llandovery.—LianeLty, Llanelly— NewcastLe-1n- Emiyn, Newcastle-in-Emlyn. CARNARVONSHIRE. Bancor, Bangor and Beaumaris, except the sub-district of Beaumaris (see Llangefni).—CarNnarvon, Carnarvon.— Conway, Conway.— Porrmapoc, Festiniog— PwLLHELI, Pwilheli. CARDIGANSHIRE. AzERayron, Aberayron. — AperystwitH, Aberystwith. — Car- DIGAN, Cardigan, except the parishes of Dinas, Newport, and Llany- ahlwydog (see Haverfordwest).—LameETER, Lampeter, Tregaron. DENBIGHSHIRE, Denstcu, the sub-district of Denbigh, in St. Asaph, consisting of the parishes of Denbigh, Hewllan, Liansannan, and Llanefydd. The arishes of Rodfarry and Llanfairtalhaiarn. The parishes of Nantglyn, lanrhaiadr, Llandyrnog, and Llangwyfan. Lianawst, Llanrwst.— Ruazon, the sub-district of Ruabon, in Wrexham, consisting of the parishes of Ruabon and Erbestock. The parish of Chirk, in Oswestry. The parish of Llangollen, in Corwen.—Ruruin, Ruthin except the parishes of Nantglyn, Llanrhaiadr, Llandyrnog and Langwyfan (see Denbigh ).— WREXHAM, Wrexham, except the sub-district of Ruabon, and the townships of Agden, Bradley Chidlow, Chorlton, Cuddington, Malpas, Newton by Malpas, Oldcastle, Overton, Shocklach Church, Chocklach Oviatt, Stockton, Whichaugh, Wigland, and the chapelry of Threapwood (see Ruabon and Whitchurch). The sub-district of Overton, in Ellesmere, consisting of the parish of Overton and township of Penley. FLINTSHIRE. Hotywett, Holywell, except the sub-districts of Mold and Flint (see Mold ).—MOo b, the sub-distiicts of Mold and Flint, in Holywell, consisting of the parishes of Mold, Cilcen, Flint, Halkin, Northop, and the chapelry of Nerquis.—St. Asapu, St. Asaph, except the sub-dis- trict of Denbigh, and the parishes of Bodfarry and Llantairtalhaiarn (see Denbigh). 77 78 Appendix to Part I. GLAMORGANSHIRE, BripcEND, Bridgend and Cowbridge.—Carpirr, Cardiff,—Men- THYR TipFIL, Merthyr.—Neatu, Neath.—Swansra, Swansea. MERIONETHSHIRE. Bata, Bala.—Corwen, Corwen, except the parish of Llangollen (see Ruabon).—DoLcELLy, Dolgelly. MONTGOMERYSHIRE, LianryYLuin, Llanfyllin, except the parishes of Llanfaircaereinion and Llangyniew (see Welchpool),—LLANIDLOES, the sub-districts of Upper and Lower Llanidloes in Newtown and Llavidloes, consisting of the parishes of Llanidloes, Llangirrigg, and Tref Eglwys.—Macnyn- LLETH, Machynlleth Nerwrown, Newtown and Llanidloes, except the sub-districts of Upper and Lower Llanidloes (see Llanidloes). The parishes of Llandyssil and Llanmerewig.— WELCHPOOL, Montgomery, except the parishes of Llandyssil, Llanmerewig, and Church Stoke and township of Aston (see Newtown and Bishopscastle). The parishes of Llanfaircaereinion and Llangyniew. PEMBROKESHIRE. HaveRFoRDWESt and FisHcvaRD, Haverfordwest, and the parishes of Dinas Newport, Llanyahlwydog, Burton, Rosemarket, and Llan- stadwell.—_NaRBERTH, Narberth.— PEMBROKE, Pembroke, except the parishes of Burton, Rosemarket, and Llanstadtwell (see Haverfordwest). RADNOR. PRESTEIGNE and Knicuton, Knighton. The sub-district of Pres- teigne, in Presteigne and Kington, consisting of the parishes of Byton, Cascob, Upper Kinsham, Knill, Lingen, Norton, Pilleth, Presteigne, and Whitton. Ruatrapr, Rhaiadr. By an Order in Council, dated 25th June, 1851, and published in the Gazette of the 27th June, it is ordered (a )— “ That so much of the district of the Clerkenwell county court of Middlesex as is included within a line drawn from the point where the south boundary of the district of the said court crosses W hitecross-street, along the middle of Whitecross-street to Old-street; thence along the middle of Old-street to Bath-street ; thence along the middle of Bath- street to the City-road ; thence across the City-road to Shepherdess- walk; thence along the middle of Shepherdess-walk, and the road oppo-ite Vaughan’s-terrace, Ashley-crescent, and Ashley-terrace, to the Regent’s-canal ; thence along the middle of the Regent’s-canal to the New North-road ; thence along the eastern and sovthern boundary of the district of the said court, to the point where the said southern boundary crosses Whitecross-street, as first described; and that so (a) So much of the order as relates to the Metropolitan districts has been inserted here separately ; since from the form in which it is framed the former table of dis- tricts cannot be corrected by it. Districts in which County Courts are holden. much of the district of the said court as is included within a line drawn from the point where the Regent’s-canal is crossed by a bridge called the Rosemary Branch Bridge, leading to Southgate-road, in the parish of St. John’s, Hackney, along the middle of the Southgate-road to Ball’s Pond-road; thence along the middle of Ball’s Pond-road and Paul's- road to the New River; thence along the middle of the New River, until it crosses by Green Lanes turnpike-road, south of Paradise-place, in such road; thence along the middle of the Green Lanes turnpike- road to the northern boundary of the district of the said court ; thence eastward along the said boundary of the Kingsland-road ; thence along the middle of the Kingsland-road to the Regent’s-canal; thence west- ward along the Regent’s-canal to the puint where the said Rosemary Branch Bridge crosses the said canal, as first described, shall be within and form part of the district of the Shoreditch county court of Mid- dlesex, “ That so much of the district of the Shoreditch county court of Middlesex as is included within a line drawn from the point where the southern boundary of the said court crosses Brick-lane, along the middle of Brick-lane to Church-street; thence along the middle of Church-street and the Bethnal-green-road to Bethnal-green; thence along the middle of the road on the west and north sides of Bethnal- green to the road opposite Gretton-place, leading to the Old Ford-road ; thence along the middle of such road and the Old Ford-road to the Regent’s-canal ; thence southward along the middle of the Regent’s- canal to the southern boundary of the said court; thence along such boundary to the point where the said boundary crosses Brick-lane, as first described, shall be within and form part of the district of the White-: chapel county court of Middlesex. ‘©That so much of the district of the Shoreditch county court of Middlesex as is included within a line drawn from the point where the southern boundary of the district of the said court crosses the Regent’s- canal, along the middle of the Regent’s-canal to the northern boundary of the parish'of St. Martha, Bethnal-green ; thence eastward along the boundary of the said parish to the eastern boundary of the district of the said court; thence along such boundary to the point where the southern boundary crosses the Regent’s-canal, as first described, shall be within and form part of the district of the Bow county court of Middlesex. “That so much of the district of the Whitechapel county court of Middlesex as is included in a line drawn southward from the point where the northern boundary of the district of the said court crosses the Regent’s-canal, along the middle of the Regent’s-canal, to the southern boundary of the district of the said court; thence southward along the said boundary to the eastern boundary of the district of the said court; thence along the eastern boundary and northern boundary of the district of the said court, to the point where the said northern boundary crosses the Regent’s-canal, as first described, shall be within and form part of the district of the Bow county court of Middlesex.” 79 80 9 & 10 Vict. c. 95, 8. 64. Appendix to Part I. RULES OF PRACTICE, Made in pursuance of 12 & 18 Vict. c. 101, s. 12 (a). 1. Tue rules of practice and the forms made in pursuance of sect* 78, of 9 & 10 Vict. c. 95, shall, from and after the rules and forms hereinafter set forth come into operation, cease to be used in the said last-mentioned courts, and in lieu thereof the following shall be the tules of practice and forms adopted and used in the county courts in England. Sittings of the Court. 2. On or before the Ist day of January 1852, the judges shall ap- point the days and hours for holding each of their courts, during the months of January, February, and March in the said year, and on or before the first day of every month after the said month of January, the judges shall appoint the days and hours for holding each of their courts during the month next following the three months previously ap- pointed ; and a notice of such appointments shall forthwith be put up by the clerk in some conspicuous place in the court-house and in the office of the clerk ; and whenever any day so appvinted for holding the court shall be altered, notice of such alteration and the time when it will take effect, shall be put up in some conspicuous place in the court- house and clerk’s office; provided that the judge may from time to time hold additional courts besides those hereinbefore required to be appointed. 3. Two courts shall not be held before the same judge on one day. Interpretation. 4. In these rules the words ‘“‘home court” shall be understood to mean the court from which process originally issued: and the words “ foreign court” shall be understood to mean the court of the district into which process is issued from another court: and the words “ home district” shall be understood to mean the district of the hame court : and the words “ foreign district” shall be understood to mean the dis- trict of the foreign court : and the word ‘‘district” shall be understood to mean the locality over which a court has jurisdiction: and the words “on oath” shall be understood to mean ‘‘on oath vivd voce or by affi- davit;” and unless there be something in the contract inconsistent there- with, the provisions of s, 142 of the 9 & 10 Vict. c. 95, shall apply to the interpretation of these rules. Infant. 5. Where an infant applies to enter a plaint for any cause of action (other than for wages or piecework, or for work as a servant) he must (a) These Rules were laid before both Houses of Parliament on the 22nd May 1851, and came into operation on the 3rd July. See 12 & 13 Vict. c. 101, 8. 12, ante, App, p. 48. Rules of Practice. 81 procure the attendance of a next friend, at the office of the clerk at the time of entering the plaint, and no plaint shall be entered until the next friend has undertaken, in the form in the Schedule, to be respon- sible for costs, and on entering into such undertaking, he shall be liable in the same manner and to the same extent as if he were a party in an ordinary suit, and the cause shall proceed in the name of the infant by such next friend, and such undertaking shall be filed by the clerk, and no order of the court shall be necessary for the appointment of such next friend. If the plaintiff fail in, or discontinue his suit, and shall not pay the amount of costs awarded by the court to be paid by him to the defendant, such proceedings may be taken for the recovery of such amount from the next friend as for the recovery of any debt or damage ordered to be paid by the same court. Clerks’ Duties. 6. The clerk of every court shall keep an office at each place where the court of which he is clerk is held, and such office shall be kept open every day from ten o’clock in the morning until four o’clock in the after- noon, except Sundays, Christmas-day, Good Friday, or any day ap- pointed by royal proclamation for a public fast or thanksgiving. 7. The clerk of every court shall keep the books, in the schedule 9 & 10 Vict. mentioned in the forms there given, and every entry in such books shall ¢- %, s. 27. have a number prefixed corresponding with the number of the plaint to which the entry relates (a). 8. Whenever the clerk, or his lawful deputy is absent from the court, 9 & 10 Vict. the judge shall appoint a deputy to act on behalf of the clerk, and an © % 8. 26. entry of such appointment and the cause of such absence (if known) shall be made on the minutes of the court. 9. Whenever a clerk appoint, a deputy, the reason of such appoint- 9 & 10 Vict. ment shall be entered on the minutes of each court for which such ¢ 9%, s. 26. deputy acts. 10. All duties required to be performed by the clerk, except that of 9 & 10 Vict. acting in court as clerk or signing the minute book, may be performed c. 95, s. 27. by the clerk, or by the assistant clerk or clerks provided by him. 11, The money to which suitors are entitled, shall be paid out upon 9 & 10 Vict. demand (in cash if required ), at any time when the clerks’ office is open, ¢. 95, s. 82. 12, Whenever money is paid into or deposited in court, whether 9 & 10 Vict. before or after judgment, an acknowledgment in writing of such pay- ¢- 9, 8. 92. ment or deposit shall be given by the clerk. 13. All the books of the court, including the banker’s book and cash 9 & 10 Vict. book, shall at all times be open to the inspection of the treasurer. —¢. 95, 8. 92. 14, The clerk shall, whenever required by the treasurer, make out an account of the receipts and disbursements of the court, and of cash still in hand, and shall produce the same to the treasurer, and shall pay over the balance to the treasurer, and if such account be correct, the treasurer shall certify that he has received such balance, and shall sign the account: 6). ‘ ae 15. Rule 14 shall apply to receipts and disbursements in protection cases, under the Acts 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96. 16. No clerk, deputy clerk, assistant clerk, bailiff, or other officer of the court, shall sign the ledger, or any other book, or receive money on account of suitors, or otherwise act as an agent for that purpose. 17. No clerk, deputy clerk, assistant clerk, bailiff, or other officer of the court, or any practising attorney, or clerk of such attorney, shall (a) The Schedule containing the forms for these books has been omitted in the present work, as they are used only by the officers of the courts, aud are of no service to the suitors. (6) See 15 & 16 Vict. c. 54, 5. 9, ante, a p. 54, E 82 Appendia to Part I. become surety in any case where, by the practice of the court, security is required. Bailiff’s Duties (a). 18, Whenever the high bailiff shall not attend any sitting of the court, the cause of his absence shall be entered on the minutes of the next succeeding court. 19, The high bailiff or a bailiff of the court shall attend, for the pur- pose of receiving summonses, or for the performance of other duties, at the office of the clerk once every day. 20. Eight days before the day of holding any court, the high hailiff of that court shall deliver to the clerk a return of all summonses on plaints before judgment, issued to him ten days before the holding of such court, returnable at such court, and such return shall state the mode of service of each summons, and the high bailiff shall, at the same time, deliver to the clerk the copy of every such summons, indorsed as re- quired by Rule 52. 21. The high bailiff shall enter in a book to be kept by him for that purpose the particulars of all orders for the payment of money or costs, ot both, which he shall have received, and of the mode in which he shall have served the same ; and once in every calendar month at least, he shall lay the same before the judge of the court, who shall sign the same and attest its having been duly laid before him. 22. Once in every calendar month, or oftener if the judge shall so order, the high bailiff shall deliver a return to the clerk of the court pursuant to the form in the Schedule(b), of what shall have been done since his last return under every process of execution or commitment which he has been required to execute, whether originally issued from such court or from any other court; and at the court held next after the delivery of every such return, the clerk shall lay the same before the judge of the court, who shall sign the same and attest its having been duly laid before him. : 23. Every bailiff levying or receiving any money by virtue of any Process issuing out of the court of which he is bailiff, shall, within twenty-four hours from the receipt thereof, pay over the same to the clerk of such court, and shall file and retain such process in his custody. 24, Whenever a warrant of execution required to be executed in a foreign district cannot be executed in due time according to the exigency of these rules by the bailiff of the foreign court, he shall return such warrant to the clerk of the home court within twenty-four hours from the expiration of such time, and shall indorse on such warrant the reason why the same could not be executed, and he shall sign such indorsement, Plaint. 25. Every plaint shall, upon application at the office of the clerk, be entered in the form in the Schedule, and all particulars required by such form shall be entered by the clerk before issuing the summons: Pro- vided, that if the plaintiff is unacquaintedjwith the defendant’s Christian name, the defendant may be described by his surname, or by his surname and the initial of his Christian name, or by such name as he is generally known by, and the defendant may be so described in the summons, and (a) As to bailiff's duties to deliver, account of fees quarterly to the treasurer, See 15 & 16 Vict. c. 54, 5. 9, (8) Ante, note (a), p. 81. Rules of Practice. 83 in the event of the plaintiff or defendant not appearing, the proceedings under sects, 79 and 80 of the 9 & 10 Vict. c. 95, may be taken as if 9 & 10 Vict. the true Christian name and surname had been stated in the summons, © % 8. 59- and all subsequent proceedings thereon may be taken in conformity with such description. 26. Claims by husbands, in their own right, may be joined with claims in respect of which the wife must be joined as a party. Particulars. 27. On entering the plaint, the plaintiff shall, in all cases, if the sum sought to be recovered shall exceed forty shillings, deliver at the office of the clerk as many copies of a statement of the particulars of his demand or cause of action, as there are defendants, and an additional copy to be filed, and all such copies shail be sealed with the seal of the court; and such particulars shall be taken to be and be treated as part of the summons. ; 28. In actions for penalties to secure the performance of covenants, within the meaning of the 8 & 9 Wm. 3, c. 11, the plaintiff shall g deliver particulars of the breaches on which he relies, in the. same 3, c. manner as required by the last rule, which when delivered shall be taken to be, and treated as, part of the summons, and if the court shall be of opinion that the plaintiff is entitled to recover, judgment shall be entered for the penalty, not exceeding the amount over which the court has jurisdiction, and an entry shall be made on the minutes, of the damages awarded to the plaintiff, and execution may issue for the amount of such damages; and in case of subsequent breaches, the plaintiff may enter a‘plaint and sue out a summons in the nature of a scire facias on such judgment, and shall deliver particulars of such subsequent breaches in the manner before mentioned, and which shalb be taken to be and treated as part of such summons. : Plaint Note. 29, At the time of entering the plaint, the clerk of the court shalt give to the plaintiff or his agent, a note under the seal of the court, according to the form in the schedule ; and no money shall be paid out of court to the plaintiff or his agent, unless on production of such note, or by order of the judge. General Fund. 30, The general fund fee shall in no case be taken more than once 9 & 10 Vict. in respect of the same demand in the same court, except in the case of ¢. 95, s. 52. a fresh action after a nonsuit, and a proceeding in the nature of a scire facias shall, for the purposes of this rule, be deemed a proceeding in -respect of the original demand. 2 : 31. On application to recover possession of tenements, in pursuance of the 9 & 10 Vict. c. 95, s. 122, the general fund fee shall be calcu- lated and taken on the yearly rent or value of the premises sought to be recovered. Mileage. 32, The mileage in foreign districts shall be determined according to. the table of distances to these rules annexed, but must be calculated on 4 9 & 10 Vict. c. 95, 8. 59. 9 & 10 Vict. ce, 95, 8. 60. Appendiz to Part I. a distance less by two miles than the distances there stated, and in home districts the mileage may be ascertained by the clerk, by such means as he shall think proper, and his determination thereon shall be final : Provided always, that the commissioners of her Majesty’s treasury may from time to time make such alterations in the said table as to them shall seem fit, and such alterations, when communicated to the clerks of the county courts respectively, shall have the same force and effect, and shall be applicable in the same manner as the table of distances to these rules annexed. Postage. 33. Postage necessary for the transmission of any process, order, notice, or other matter by the clerk or high bailiff, shall be paid in the first instance by the party on whose behalf the proceeding required to be notified is taken, and shall be costs in the cause, and all letters sent by the parties or the officers of the court concerning the business of the court shall be prepaid; but this rule, except as to the prepayment of letters shall not apply to notices of payment into court. Parties to Actions. [See Amendment.— Rules, Nos, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, and 105.] Summons to appear to a Plaint. 34. The summons to appear to a plaint shall be in the form in the schedule, and shall be dated of the day on which the plaint was entered, and shall correspond in substance with the plaint, and the date thereof shall be the commencement of the suit. 35. Such summons may be returnable either at the next court after the cary of the plaint, or at any subsequent court within three months. 36. The clerk of the court shall issue the summons to the bailiff forthwith after the plaint is entered. 37. The clerk shall in cases where, by these rules, particulars are required, annex to the summons a copy of the plaintiff’s particulars, sealed with the seal of the court; and shall also make and deliver to the bailiff a true copy of the summons for indorsement, as hereafter re- quired, and it shall be the duty of the bailiff to ascertain, by examination and comparison with the summons, the correctness of the copy. 38. Leave to issue a summons out of the district shall be granted if the judge is satisfied by statement on oath, that the party applying has a cause of action, and not otherwise, but it shall not be necessary to enter a plaint before applying for such leave. 39. Where a summons issues by leave of the court, it shall be in the form in the schedule, and no written order of the court for such leave shall be necessary. 40. Concurrent summonses, grounded on the same plaint, may, by leave of the court, be issued into different districts on payment of the additional fees on such increased number of summonses; and where a previous summons or summonses have not been served, successive con- current summonses may issue in like manner and on the same terms as successive summonses may be issued: provided that the costs of more than one summons shall not be allowed against the other party, unless by order of the judge. Rules of Practice. 4], Where a summons has not been served, successive summonses may be issued by the clerk on the application of the plaintiff, under the circumstances and on the conditions following, unless the judge shall otherwise order; if the nonservice has been caused by the de- fective description given by the plaintiff of the defendant, or of his place of business or residence, or by any other act or neglect of the plaintiff, successive summonses shall be issued only on payment of the poundage for a summons and the bailiff’s fee for serving the same; if the nonservice has not been so caused, and has not been caused by the neglect of the bailiff, successive summonses shall be issued only on payment by the plaintiff of the bailiffs fee for serving the same ; if the nonservice has been caused by the neglect of the bailiff, the poundage for such summons shall be paid by the bailiff, and such successive summons shall be served by him without further fee; and the suc- cessive summons or summonses shall bear the same date and number as the summons first issued, and shall be a continuance of the first summons: provided that the costs of such successive summons or sum- monses shall not be allowed against the defendant unless the judge shall otherwise order. Service of a Summons to appear to a Plaint. 42. A summons to appear toa plaint must be issued and served at least ten clear days before the holding of the court at which it is return- able ; provided that a summons may be issued at any time before the holding of any court, on production by the plaintiff of an affidavit showing that the defendant is about to remove out of the jurisdiction of the court, and service of such summons at any time before the return day may be deemed good service, if at the hearing it shall be proved on oath to the satisfaction of the judge that such party was about to remove out of the jurisdiction of the court, but in every such case the judge may, in his discretibn, and on such terms as he shall think fit, adjourn the hearing. 43. The service of the summons, except in the cases hereinafter specially provided for, must be either personal, or by delivering the same to some person, apparently of sixteen years of age at least, at the house or place of dwelling, or place of business, of the defendant, but no place of business shall be deemed the place of business of the de- fendant unless he shall be the master, or one of the masters thereof. 44, Where a defendant is living or serving on board of any ship or vessel, it shall be sufficient service to deliver the summons to the per- son on board who has, at the time of such service, charge of such ship or vessel. 45. Where a defendant is residing or quartered in any barracks, and serving her Majesty as a soldier, or marine, it shall be sufficient service to deliver at such barracks the summons to the adjutant of the corps, or any officer or sergeant of the company to which such soldier or marine belongs. : 46. Where a defendant is a prisoner in a gaol, it shall be sufficient service to deliver the summons at such gaol to the governor, or any head officer in charge thereof. 47. Where a defendant is working in any mine or other works under- ground, it shall be sufficient service to deliver the summons at such mine or works to the engine-man, banks-man, or other person in charge of the mine or works. 48. Service of the summons may be effected on a railway company or other corporation by delivering the summons at any station or office of the defendant within the district of the court in which the summons is to be served, to a secretary or clerk of the defendant, 85 9 & 10 Vict. c. 95, 5. 59. 86 Appendiz to Part I. 49. Where a defendant keeps his house or place of dwelling or place . of business closed, in order to prevent a bailiff from serving the sum- mons, and such summons shall have been affixed on the door of such house or place of dwelling, or place of business, such affixing shall be good service. 50. Where a bailiff is prevented by the violence or threats of the - defendant, or of any other person or persons in concert with him, from 9 Vict. . , 8. 61, 9 c. oe a 9 & 10 Vict, c. 95, 8, 61. personally serving such summons, and the bailiff leaves the same as near to the defendant as practicable, such leaving shall be good service. 51, Where the summons has not been served personally, and the defendant does not appear, in person or by his attorney or agent, at the return day, it must be proved on oath to the satisfaction of the judge, that the service of such*summons has come to the knowledge of the defendant before the return day, except in the cases specially mentioned in the rules 48, 49, and 50. : 52. If the service of the summons has been personal, the bailiff who served the same shall indorse on the copy of the summons hereinbefore directed to be delivered to him by the clerk, the fact of such service ; and if the service has not been personal, he shall indorse on the copy of the summons the statement which has been made by the person to whom the summons was delivered, or other circumstances from which it may be inferred that the service of ‘the summons has come to the knowledge of the defendant, and if the summons has not been served, the reason of such non-service shall be indorsed on such copy; and the bailiff shall deliver such copy so indorsed to the clerk at the time of making the return required by rule 20; and such copy shall be produced at the time of the trial by the clerk, and shall be filed by the clerk. 53. Whenever a summons has been served in one of the modes here- inbefore mentioned, but it appears that it has come to the knowledge of the defendant less than ten clear days before the day of hearing, the cause may, at the discretion of the judge,‘proceed or be adjourned, whether the defendant appears or not. 54. The summons where required to be served in a foreign district, shall be transmitted by the clerk to the bailiff of the foreign court, and such bailiff is authorized and required to serve the same (a). : _ 55. The summons, where required to be served in a foreign district, shall be served by the bailiff of that district, unless by special order of the judge of the home court, the bailiff of the home court shall be directed to serve it: provided that in the latter case, in taxing costs between party and party, the costs of such service shall not be allowed to an amount greater than if the same had been effected by the bailiff of the foreign court, unless the judge shall otherwise order. 56. Where the summons is required to be served in a foreign district by the bailiff of that district, he shall forthwith, after serving the sum- mons, transmit the copy thereof, with an affidavit of such service, to the clerk of the home court, which affidavit shall state the same particulars as are required by rule 52, to be indorsed on a summons which has been served; and if such affidavit be defective, it shall be amended by such bailiff at his own expense, in conformity with the direction of the home court, and if such bailiff fail so to do, the judge of the home court may direct the treasurer of the foreign court to withhold from the bailiff his fees in respect of such summons, and in such case, the treasurer shall not pay the same without the authority in writing of the judge of the home court for that purpose. 57. Where the summons is required to be served in a foreign district, but cannot be served in due time according to the exigency of these rules, bythe bailiff of that district, he shall forthwith transmit the sum- (a) See 14 & 15 Vict. c, 54, 5. 5. Rules of Practice. mons to the clerk of the home court, with the reason indorsed thereon why the same could not be served. 58. Where the summons is required to be served in a foreign district, the clerk of the home court shall in all cases demand and receive from the plaintiff the fee to be paid to the person before whom the affidavit is 87 sworn, as well as the fee to the bailiff for swearing such affidavit, and in 9 & 10 Vict. case the summons is not served, such fees shall be returned to the plain- c. 95, s. 62. tiff, if demanded, and if not so demanded within one calendar month shall be paid over to the treasurer, and shall become part of the general fund of the home court. 59. Where an affidavit of service is sworn before a judge of a county court, the fee on such affidavit shall be taken by the clerk, and accounted for to the treasurer at his audit ; and shall be applied as the judges’ fees are applicable. 60. The above rules as to the mode, but not as to the time, of service of summons to appear to a plaint, shall apply to the mode of service of all notices and processes whatsoever, except where otherwise directed by statute or by these rules. 61. No summons, order, or other process, or notice, shall be served on Sunday, Christmas-day, or Good Friday, or any day appointed by royal proclamation for a public fast or thanksgiving; but such days shall be counted in the computation of the time required by these rules. Payment into Court, whether before or after Judgment. 62. Where the defendant is desirous of paying money into court, it must be so paid five clear days before the return day of the summons, with costs proportionate to the amount paid in, together with the fee for paying in and for notice of payment to the plaintiff: and the. clerk shall within twenty-four hours from the time of such payment send to 9 & 10 Vict the plaintiff notice thereof by prepaid post letter: Provided, that at ° % s. 82 any time before the hearing of the cause, the defendant may pay money into court, with such costs as aforesaid, and the clerk shall give notice thereof to the plaintiff as aforesaid: but where money is so paid in less than five clear days before the return day of the summons, it shall be lawful for the court to order the defendant to pay such costs as the plaintiff shall have incurred in preparing for trial, before the notice of such payment was received by him, or in attending the court. 63. If the plaintiff elect to aecept in full satisfaction of his claim, 9 g 19 vict, such money as:shall have been paid into court by the defendant, and c. 95, s. 28, shall send to the defendant by prepaid post letter, or leave at the de- fendant’s place of dwelling or.place of business, a written notice, stating such acceptance, two clear days, or within such reasonable time as the _ time of payment by the defendant has permitted, before the return day of the summons, the action shall abate, and the plaintiff shall not be liable to any further costs. But in default of such notice of the plaintiff the cause may proceed. : 64. The fee, on paying money into court, shall be paid by the party paying the same; and the fee, on paying money out of court, shall be paid by the party receiving the same. Inspection of Documents. 65. Where in any action, the defendant is desirous of inspecting any ‘deed, bond, or other instrument under seal, or any written contract: or other instrument, in which he has an interest, and which shall be in the possession, power, or control of the plaintiff, the defendant ‘may, within five days from the service of the summons to appear, give notice } 88 9 & 10 Vict. c. 95, ss. 76 and 81. 9 & 10 Vict. ¢. 95, 8. 76. 9 & 10 Vict. c. 95, s. 76. ao fo 5, 8. 76, 9 & 10 Vict. c. 95, 8. 76. 9 & 10 Vict. c. 95, 8. 76. & 10 Vict. Appendix to Part I. by prepaid post letter or otherwise, that he desires to inspect such in- strument at any place to be appointed by the plaintiff, and the plaintiff shall appoint a place accordingly, and if the plaintiff shall neglect or refuse to appoint such place, or to allow the defendant or his attorney to inspect it within three days after receiving such notice, the judge may, in his discretion, on the day of hearing, adjourn the cause for the purpose of such inspection, and make such order as to costs as he shall think fit. Withdrawal by Plaintiff. 66. If the plaintiff be desirous of not proceeding in the cause, he may give notice thereof to the clerk and to the defendant, by prepaid post letter, and after the receipt of such notice the defendant shal! not be entitled to any further costs than those incurred up to the receipt of such notice, unless the judge shall otherwise order. Defences. 67. Where the defendant intends to rely on a set-off, infancy, cover- ture, statute of limitations, or discharge under a bankrupt or insolvent act, his notice shall contain the particulars hereinafter mentioned: Pro- vided, that in case of non-appearance with this rule, or those rules ap- plying to such six grounds of defence, and the plaintiff will not consent at the hearing to permit the defendant to avail himself of such defence, the judge may, on such terms as he shall think fit, adjourn the hearing of the cause to enable the defendant to give such notice. 68. Where a defendant intends to set off any debt or demand alleged to be due to him by the plaintiff, he must give notice thereof in writing to the clerk of the court, and deliver to such clerk a particular of such set-off, at least five clear days before the return day of the summons. 69. Where a defendant intends to rely on the defence of infancy, he must give notice thereof in writing to the clerk of the court, at least five clear days before the return day of the summons, setting forth in such notice the supposed place and date of his birth. 70. Where a defendant intends to rely on the defence of coverture, she shall give notice thereof in writing to the clerk, at least five clear days before the return days of the summons, setting forth in such notice the place and date of marriage, together with the Christian name and surname of her husband. 71. Where a defendant intends to rely on the defence of any statute of limitations, he shall give notice thereof in writing to the clerk of the court, at least five clear days before the return day of the summons. 72, Where a defendant intends to rely on the defence of a discharge under any statute relating to bankrupts, or any act for the relief of in- solvent debtors, he shall give notice in writing to the clerk of the court, at least five clear days before the return day of the summons, setting forth in such notice the date of his certificate, discharge, or final order, and the court by which such certificate, discharge, or final order was granted or made, 73. In all cases, unless otherwise expressly ordered, when any notice or statement is required to be given by any party, such party shall, at least five clear days before the day of hearing, deliver to the clerk as many copies thereof as there are opposite parties, and an additional copy to be filed, and all the said copies shall be signed by the party giving such notice, his attorney or agent; and the clerk shall within, twenty-four hours from the time of receiving the same, transmit by pre- paid post letter, one copy of such notice to each of the said parties. 74, Where the delence is a tender, such defence shall not be available Rules of Practice. unless, before or at the hearing of the cause, the defendant pays into court (which may be without costs) the amount alleged to have been tendered, Evidence. 75. Witnesses may be summoned without leave of the court either in the home or foreign district, and the clerk shall forthwith on issuing the summons deliver it to the bailiff. 76. It shall be sufficient if a summons to a witness be served a rea- sonable time before the actual hearing. 77. Where either party proposes to give a judgment of a superior court, or any other document, whether printed or written, in evidence, he may, by a demand in writing made a reasonable time before the hearing, require the other party to admit (saving all just exceptions to the admissibility of such document in evidence) the document to be read in evidence without proof; and if such demand be not made, no costs of proving such document shall be allowed, unless the judge shall otherwise order. If such demand be not complied with, and the judge think it reasonable that the admission should have been made, the party refusing shall bear the expense of proving such document, whatever may be the event of the cause. 78, Either party may call the other or the wife of the other party as @ witness, and appearance may be enforced by summons as in the case of any other witness. Jury. 79. Every notice of a demand of a jury, must be made in writing to the clerk of the court two clear days before the day of hearing, and the summonses to the intended jurors shall be delivered to the bailiff forthwith. 80. Where notice of a demand of a jury has not been given in due time, or if at the hearing, both parties desire to try by a jury, the judge may, on such terms as he shall think fit, adjourn the cause in order that the necessary steps for such trial may be taken, and the trial shall take place accordingly. 81. Cases of interpleader, and of replevin, may, at the instance of either party, be tried by a jury, and in the same manner as ordinary actions. 82. The poundage fee upon summonses shall not be payable upon any summons to a jury or juryman, but the bailiff’s fees for service on each juryman shall be payable as upon the service of a summons to appear to a plaint. ‘ 83. In all cases to be tried by a jury, the number of jurymen sum- moned shall be ten, unless the judge shall otherwise order. Adjourment of Cause. 84. Where a summons has been served, the parties may by consent, at any time before the cause is called ou, on payment to the clerk of the fee on an adjournment, postpone the hearing to such subsequent court as the judge shall direct, but, where a cause is called on, the hearing fee shall be forthwith payable, and if the plaintiff on being reqaired thereto do not pay such fees, he shall be deemed not to have appeared: and if the cause be adjourned after being called on, and the hearing fees paid, the fee on an adjournment shall then be paid by the party requiring the 89 9 & 10 Vict. c. 95, 8. 85. 9 & 10 Vict. c. 95, 8. 83. 9 & 10 Vict. c. 95, 8. 70. 9 & 10 Vict. c. 95, 8. 70. .90 9 & 10 Vict. 9 & 10 Vict. c, 95, 8. 81. 9 & 10 Vict. c. 95, 8. 795 13 & 14 Vict. ¢. 61, s. 80. Appendix to Part I. adjournment, and at the adjourned hearing or hearings of such cause, no further hearing fee shall be payable, but the cause may from time to time be adjourned, on payment of the fees on an adjournment. 85. Where a cause is adjourned, no order of adjournment shall be served on either party, unless by direction of the judge. 86. When anything required by the practice of the court to be done by either party, before or during the hearing, has not been done, the judge may in his discretion, and on such terms as he shall think fit, ad- journ the hearing to enable the party to comply with the practice. Hearing. 87. Where a cause is struck out in consequence of the non-appear- ance of both parties no hearing fee shall be payable. 88. If at the return day of the summons, or at any continuation or adjournment of the court at which it is returnable, the plaintiff does not appear, the judge may in his discretion award to the defendant costs, in the same manner, and to the same amount, as to counsel, attorney, wit- nesses, and other matters, as if the cause had been tried, but no hearing fee shall be charged. 89. No attorney shall be allowed to appear for any person in a county court, until he has signed a roll or book to be kept by the clerk for that purpose, but no fee shall be payable for that purpose. 90. It shall not be necessary for either party previous to the hearing, to give notice to the other, or to the court, of his intention to employ a barrister or attorney to act as his advocate at the hearing, and the allowance of costs for such barrister or attorney shall not be affected by such want of notice. : 91. The provisions of the statute 9 & 10 Vict. c. 95,8. 91, as to the ersons who shall be allowed to appear for any party in any proceeding in the county courts shall apply to all proceedings in insolvency and for protection (a). 92. Where an infant defendant appears at the hearing, and names a person willing to act as a guardian, and who then assents so to act, such person shall be appointed guardian accordingly ; but if the defendant do not name a guardian, the judge may appoint any person in court willing to, become guardian, or in default of such person, the judge shall appoint the clerk of the court to be guardian, and the cause shall proceed thereupon as if another person had been appointed guardian, and the name of the guardian appointed shall be entered in the form in the schedule, and no responsibility shall attach to the person so appointed guardian. 93. Where a plaintiff avails himself of the provisions of section 68, of 9 & 10 Vict. ¢.95, and proceeds against only one or more of several persons jointly answerable, the defendant or defendants sued may avail himself or themselves of any set-off or other defence to which he or they would be entitled if all the persons liable were made defendants, Amendment. 94. Where a person, other than the defendant, appears at the hear- ing, and admits tat he is the person whom the plaintiff intended to charge, his name may be substituted for that of the defendant, if the plaintiff consents, and thereupon the cause shall proceed as if such person had been onginally named in the summons, and, if necessary, the hearing (a) See 15 & 16 Vict. c. 54, 8. 10, ante, App. p. 54. Rules of Practice. may be adjourned on such terms as the judge shall think fit, and the costs of the person originally named as defendant shall be in the discretion of the judge. 95. Where a party sues or is sued in a representative: character, but at the hearing it appears that he ought to have sued or been sued in his own right, the judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly, and the case shall then proceed in all respects, as to set-off and other matters, as if the proper description of the party had been given in the summons, 96. Where a party sues or is sued in his own right, and it appears at the hearing that he should have sued or been sued in a representative character, the judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly, and the case shall then proceed in all respects, as to set-off and other matters, as if the proper description of the party had been given in the summons, 91 97. Where the name or description of a plaintiff in the summons 9 & 10 Vict. is insufficient or incorrect, it may at the hearing be amended at the ©: 9%, 8. 59. instance of either party by order of the judge, on such terms as he shall think fit, and the cause may then proceed, as to set off and other matters, as if the name or description had been originally such as it appears after the amendment has been made. 98. Where the name or description of a defendant in the summons is 9 4 10 Vict, insufficient or incorrect, and the defendant appears and objects to the c. 95, 3. 59. description, it may be amended at the instance of either party by order of the judge, on such terms as he shall think fit, and the cause may pro- ceed, as to set-off and other matters, as if the name or description had been originally such as it appears after the amendment has been made; but if no such objection is taken, the cause may proceed, and in the judgment, and all subsequent proceedings founded thereon, the defendant shall be described in the same manner. 99. In actions by or against a husband, if the wife is improperly joined or omitted as a party, the summons may at the hearing be ‘amended at the instance of either party by order of the judge, on such terms as he shall think fit, and the cause may proceed, as to set-off and other matters, as if the proper person had been made party. to the suit. 100. Where it appears, at the hearing, that-a greater number of persons have been made plaintiffs than by law required, the name of the person improperly joined may, at the instance of either party, be struck out by order of the judge, on such terms as he shall think fit, and the cause may proceed, as to set-off and other matters, as if the proper party or parties only had been made plaintiffs. 101. Where it appears, at the hearing, that a less number of persons have been made plaintiffs than by law required, the name of the omitted person may, at the instance of either party, be added by order of the judge, on such terms as he shall think fit, and the cause shall proceed, ‘as to set-off and other matters, and judgment shall be pronounced, as if the proper persons had been originally made parties, and unless the person whose name is so added shall assent thereto, either at the hearing or some adjournment thereof, personally or by writing signed by him, or his attorney, proceedings on the judgment shall be stayed, until the court next after five clear days from the day of hearing, and if the person whose name is added shal! at the hearing, or an adjournment thereof, consent to become a plaintiff (such consent being in writing, signed by him or his attorney), execution shall issue as the judge shall think fit; but if sach party shall not consent to become a plaintiff in manner afore- said, either at the bearing or at an adjournment thereof, judgment of nonsuit may be entered. 92 9 & 10 Vict. c. 95, 8. 88. 9 & 10 Vict. c. 95, 8. 88. 9 & 10 Vict. c. 95, 88. 83, 85. 9 & 10 Vict. ce. 95, 5. 94, Appendix to Part I. 102. When it appears, at the hearing, that more persons have been made defendants than by law required, the name of the party improperly joined may, at the instance of either party, be struck out by order of the judge, on such terms as he shall think fit, and the cause shall proceed as to set-off and other matters, as if the party or parties liable had been sued, and judgment shall be given for the party impro- perly joined. 103. Where several persons are made defendants, and all of them have not been served, the name or names of the defendant or defendants who have not been served, may at the instance of either party be struck out by order of the judge on such terms as he shall think fit, and the cause shall then proceed in all respects as to set-off and other matters, asif all the defendants had been served. 104. Where at the hearing a variance appears between the evidence and the matters stated in any of the proceedings in the county court, such proceedings may, at the discretion of the judge, and on such terms as he shall think fit, be amended, and such amendment, as well as amendments as to parties, when ordered shall be made in open court, and during the sitting of the court. 105. In all cases of amendment, a corresponding amendment shall be made in the presence of the judge, in the proceedings of the court ante- cedent to such amendment, and the subsequent proceedings shall be in conformity therewith. Costs. 106. All costs between party and patty shall. be taxed by the clerk of the court, but his taxation may be reviewed by the judge upon the apphieation of either party ; and it shall not be necessary that the costs shall be taxed in court, or during the sitting of the court at which judgment is given, 107. The judge shall in each case direct what number of wit- nesses are to be allowed on taxation of costs, and their allowance for attendance shall be according to the scale in the Schedule (a), uuless otherwise ordered, but shall in no case exceed the allowances therein mentioned, 108. The costs of witnesses, whether they have been examined or not may, in the discretion of the judge, be allowed, though they have not been summoned. 109. Money paid into court on a judgment shall be appropriated, first in satisfaction of the costs, and afterwards in satisfaction of the original demand. 110. The calculation of fees payable for the issuing and execution of warrants shall be governed by the direction given in the table of fees, that where the sum demanded is above twenty pounds, the poundage shall be taken on twenty pounds only. Provided, that this rule shall not apply to cases in which jurisdiction is given by consent, under section 17 of 18 & 14 Viet. c. 61. 111. Costs of unexecuted or unproductive warrants against the goods shall not be allowed against the defendant, unless the judge shall otherwise direct. 112. Costs of warrants of commitment on which the defendant has not been taken shall not be allowed against the defendant, unless the Judge shall otherwise direct. 113. Costs of executed warrants, whether of commitment or against the goods, shall be allowed, unless the judge shall otherwise direct. (a) See this Schedule, post, at the end of the forms. Rules of Practice. Orders. 14, Orders for payment of money or costs, or both, and orders of adjournment, when directed by rule 86 to be served, shall in all cases be served by the bailiff of the home court, or be sent by him in a pree paid post letter to the party ordered to pay the same. Provided, that in no case shall any mileage be allowed, but the bailiff shall be entitled to be paid only as upon a service within two miles of the court-house, and if the bailiff elect to serve by post he shall, at his own expense, prepay the letter. Provided always, that it shall not be necessary for the party in whose favour such order was made to prove that it was served previous to taking proceedings thereon. 115. Where the court gives leave to take any proceeding, it shall not. be necessary to draw up any order, nor shall any order be drawn up to warrant such proceeding. Instalments (Payment by). 116. Where an order is made for the payment of any debt, damages, costs, or other sum of money by instalments, such instalments shall be payable at such periods as the court shall order; and if no period be mentioned, the first shall become due on the twenty-eighth day from 93 9 & 10 Vict. the day of making the order, and every successive instalment shall ¢'g5,', 92. become due at a like period of twenty-eight days from the day of the previous instalment becoming due; and such instalments shall be paid at the office of the clerk, and not to the party in whose favour such order was made. ‘ 117. When an order is made for payment by instalments or other- wise, the clerk shall give notice to the plaintiff by prepaid post letter, according to the form in the Schedule, of every payment made, and the fee allowed for such notice may be deducted from the amount paid in, whether such sum is paid out to the plaintiff or not and such fee shall not be paid by the defendant: provided that such notice shall not be given, nor the fee taken, where the instalment does not amount to ten shillings, unless the plaintiff shall, by writing under his hand, require the clerk to give him such notice. Proceeding on a Judgment more than a Year old. 118. No warrant of execution, or summons for commitment, shall without leave of the judge, issue on a judgment more than a year old (unless an instalment has been paid on such judgment, or a warrant of execution against the goods, or a warrant of commitment, has been issued within a year from the time of obtaining such judgment), or if more than a year has elapsed since an instalment has been paid, or since the expiration of the warrant against the goods, or of the last warrant of commitment; but no notice to the defendant, previous to applying for such leave, shall be necessary, and such leave shall be expressed on the warrant under the seal of the court. Execution. 119. Warrants of execution shal] bear date on the day on which they are issued, and shall continue in force for three calendar months from such date, and no longer. 94 9 c. 0 Vict. , 8. 95. wok Fo 9 & 10 Vict. c, 95, 8. 95. 9 0 Vict. , 8. 9B. of Ses 9 & 10 Vict. c, 95, 8. 100, Appendix to Part I. 120. Where a defendant has made default in payment of the whole amount awarded by the judgment or of an instalment thereof, execution may issue against his goods without leave of the court, and such execu- tion shall be for the whole amount of the judgment and costs then remaining unsatisfied, unless in the case of instalments the judge other- wise direct at the time of giving judgment. 121, The clerk shall, on issuing a warrant of execution, indorse on such warrant the amount to be levied, distinguishing the amount of the debt or damages and costs adjudged to be paid, the amount of the fees for issuing the warrant, and the bailiff’s fees for its execution, including mileage, to the place in which the bailiff is directed to take the goods, and no further mileage shall be taken by the bailiff. “122, Successive warrants of execution against the goods may be issued without leave of the court, and they may also be issued under the same circumstances, and on the same conditions as in the case of successive summonses to appear to a plaint, except that the fee for issuing such warrants shall in all cases be paid, and such successive warrants shall bear date of the day on which they are issued. See Rule 41. 123. Successive warrants against the goods may be issued when only a part of the judgment is satisfied, on payment of fees proportioned to the amount of the judgment remaining unsatisfied. 124, Warrants of execution against the goods may be issued concur- rently into one or more districts, provided that the costs of more than one warrant shall not be allowed against the other party, unless by order of the judge. Summons for Commitment. 125, Every summons for a party to appear, pursuant to the 98th section of the 9 & 10 Vict. c. 95, may issue at any time without leave of the court, except in cases provided for by Rule 119, and shall be forthwith issued by the clerk to the bailiff, and shall be served per- sonally not less than three clear days before the day on which the party is required to appear to such summons, unless it be proved on oath at the hearing, to the satisfaction of the judge, that such party was about to remove out of the jurisdiction of the court, or was keeping out of the way to avoid service, in which case, service upon the party at any time before the time appointed for the appearance of such party shall be sufficient. 126. Where a summons for commitment is heard in a court other than that in which judgment was obtained, and the order of such last- mentioned court is altered by the judge of such other court, all pay- meuts under such order shall be made into, and execution thereupon against the goods shall be issued by, the court which alters the order. 127, Where a certified copy of a judgment is obtained, the clerk shall make a memorandum of having given such certificate on the mioute of the judgment, and no execution against the goods or sum- mons for commitment shall issue upon such judgment, from the court in which the judgment was obtained, until itis shown to the court whether any and what proceedings have been taken thereon in any other court. 128. Successive summonses for commitment may be issued without leave ofthe court, and they may also be issued under the same circum- stances, and on the same conditions as in the case of successive sum- monses to appear to a plaint. See Rule 41. _ 129. Concurrent or successive summonses for commitment may be issued in the same district or in different districts by the several courts Rules of Practice. thereof, provided that in no case shall a summons for commitment be issued except by the court of the district wherein the party summoned then dwells or carries on business; and the costs of more than one summons shall not be allowed against the other party unless by order of the judge. * Commitment. 130. When a defendant does not dwell or carry on business in the district of the court to which he has been summoned to appear to a plaint, he shall not be liable to be committed at the hearing of such summons, whether he appears to such summons or not. 131. Warrants for commitment whenever issued shall bear date on the day on which the order for commitment was made, and shall con- tinue in force for three calendar months from such date, and no longer ; but no order for commitment shall be drawn up or served. 132. In cases of commitment under sections 99 or 101 of the 9 & 10 Vict. c. 95, the amount of the judgment, and all costs payable by the defendant, shall be indorsed on the warrant, and the amount due to the bailiff for execution shall be stated separately. 133. Where an order is made for commitment for non-payment of money, the defendant may, at any time before his body is delivered to the custody of the gaoler, pay to the bailiff the total amount indorsed on the warrant, and on receiving such amount, the bailiff shall discharge the defendant out of custody, and shall within twenty-four hours from receiving the same, pay over the amount of the judgment and costs to the clerk. 134, In all cases of commitment for non-payment, it may be made part of the order, that on production of the clerk’s certificate, stating that payment or satisfaction of the sum and costs remaining due at the time of making the order for imprisonment, together with the costs of obtaining such order and all subsequent costs, has been made, the defendant shall be discharged. 135, Successive warrants of commitment may, by leave of the judge (without issuing a fresh summons when no previous warrant has been executed), be issued under the same circumstances, and on the same conditions as in the case of summonses to appear to a plaint, except that the fee for issuing such warrant shall in all cases be ‘paid, and such suc- cessive warrants shall bear date of the day on which leave was given. 136. Warrants of commitment may be issued concurrently against the same party into the same or different districts; provided that the costs of more than one warrant shall not be allowed against the other party unless by order of the judge. Transmission of Fees and Proceeds of Executions to and from Foreign Districts. 137. Where a summons is required to be served in a foreign district, the clerk of the home court shall transmit such summons to the bailiff of the foreign court in a letter, according to the form in the schedule, stating therein the amount of fees due to the bailiff of the foreign court, and the clerk of the home court shall account for and pay to the trea- surer of his court, at the time of making his monthly return of fees, &c., to such treasurer, the bailiff’s fees received by him for the service of the summons in the foreign district, and the bailiff of the foreign court shall serve such summons, and shall produce to the treasurer of his court, at the time of audit, the letter from the clerk of the home court transmitting 9 & 10 Vict. c. 95, 8s. 99 and 100. 9 & 10 Vict. c. 95, s. 110. 9 & 10 Vict. ¢. 95, s. 61. 9 & 10,Vict. c. 95, 8. 104, 9 & 10 Vict. c. 95, s. 104. 9 & 10 Vict. c. 95, 8. 106, 9 & 10 Vict. c. 96, ss. 80, 89, Appendia to Part I. the summons, and thereupon such treasurer shall pay to the said bailiff the amount of the fees therein stated, unless the judge of the foreign court or the judge of the home court shall, by writing, have signified to the treasurer that such fees shall not be paid, and in such case the amount of such fees shall be placed to the credit of the general fund of the foreign court. 138. In all cases of executions issued into a foreign district, whether against the goods or the person, the fees due to the clerk and bailiff of the foreign court, for the issuing and execution thereof, shall be paid and accounted for-by the clerk of the home court to the treasurer of his court at the time of making his monthly return of fees, &c., to such treasurer, and the clerk of the foreign court shall immediately, on the receipt of the said warrant, make an entry in the form prescribed in the Schedule, in a book to be called “The Foreign Execution Book ;” and after the bailiff shall have made his return as directed, the amount of fees therein mentioned shall be, at the time of audit, divided and applied by the trea- surer of his court, as directed by the order of the secretary of state of the 15th November 1850, unless the judge of the foreign court or the judge of the home court shall, by writing, have signified to the treasurer that the bailiff’s fees shall not be paid, and in such case the last-mentioned fees shall become part of the general fund of the foreign court. 139. Where, by virtue of any process issued into a foreign district, any money shall have been received by the bailiff of the foreign court, such bailiff shall, within twenty-four hours from the receiving of such money, pay over the same to the clerk of the foreign court, and shall make a return in writing of the amount received ; and in the case of a levy having been made, the bailiff shall state in the return the gross amount produced by such levy, the particulars of the appraiser’s and broker’s charges, and the fees allowed for keeping possession, and pay over to the clerk of the foreign court the amount levied, less such charges and fees, and the clerk of the foreign court shall certify in the said return the amount paid into court, and the correctness of the said charges, and in all the above cases shall account for and pay over such amount to the treasurer of his court, at the time of making his monthly return of fees to such treasurer, or at such time as the treasurer shall require, and the high bailiff shall thereupon transmit such return to the high bailiff of the home court as directed by the 104th section of 9 & 10 Vict. c. 95, and such latter bailiff shall, within twenty-four hours from the receipt of such return, deliver the same to the clerk of his court, who shall thereupon pay out of any money in his hands, to the plaintiff in the cause, the amount certified in such return to have been received by the clerk of the foreign court, as the proceeds of the execution, and shall “enter in a book the amount so certified in the form given in the Sche- dule, and the clerk of the home court shall file such return, and the clerk shall be allowed by the treasurer of his court, at his audit, the amount so paid. 140. Where any money is paid or received by any treasurer as the proceeds of fees or executions in respect of process issuing into a foreign district, an account thereof shall be kept by the treasurer, and an account of the sums so paid and received shall be transmitted by him to the commissioners of her Majesty’s treasury, at such times and in such manner as they shall direct. New Trial. 141. An application for a new trial or to set aside proceedings may be made and determined on the day of hearing, if both parties are pre- sent, or may be made at the first court held next after the expiration of twelve clear days from such day of hearing, and the party intending to Rules of Practice. make such application shall, seven clear days before the holding of such court, deliver a notice in writing, signed by himself, his attorney, or agent, stating the grounds of his intended application, and also the court at which such application is proposed to be made, to the clerk at his office, and give a similar notice to the opposite party by service of the same personally on such party, or by leaving the same at his place of abode or business, and such notice shall not operate as a stay of pro- ceedings, unless the judge shall otherwise order; and if money be paid into court under any execution or order in the suit, the clerk shall retain the same to abide the event of the application aforesaid, and if no such application be made, the money shall, if required, be paid over to the party in whose favour the order was made, unless the judge shall otherwise order; and if such application be not made at the court mentioned in the notice, no subsequent application for a new trial or to set aside proceedings sha]l be made, unless by leave of the judge, and on such terms as he shall think fit. 142. The fee payable for an application for a new trial, or to set aside proceedings, shall be paid by the party intending to make such application, at the time of giving notice of his intention so to apply. 143. Where a new trial is-granted, the judge may in his discretion make it a condition of granting such new trial, that it shall take place before a jury, although the former trial did not take place before a ury. _ Lia, In all cases where security is required to be given in any pro- ceeding in the county court, whether under section 127 of 9 & 10 Vict. c. 95, or in any other case, such security shall be at the expense of the party giving it. Interpleader. 145. Where any claim is made to or in respect of any goods or chattels taken in execution under the process of any county court, or in respect of the proceeds or value thereof, by any landlord for rent, or by any person not being the party against whom suth process has issued, and summonses have been issued on the application of the officer charged with the execution of such process, such summonses shall be served in such time and mode as hereinbefore directed for a summons to appear to a plaint, and the claimant shall be deemed the plaintiff, and the execu- tion creditor, the defendant; and the claimant shall, five clear days before the day on which the summonses are returnable, deliver to the said officer, or leave at the office of the clerk of the court, a particular of any goods or chattels alleged to be the property of the claimant, and the grounds of his claim, or in case of a claim for rent, of the amount thereof, and for what period, and in respect of what premises, the same is claimed to be due, and the name and description and address of the claimant shall be fully set forth in such particular, and any money paid into court under the execution shall be retained by the clerk until the claim shall have been adjudicated upon: Provided that, by consent, an interpleader claim may be tried, although the above rule has not been complied with. 146. Interpleader summonses may be issued by the clerk, on the application of the bailiff, without leave of the court. 147. Interpleader summonses shall be issued from the court of the district in which the levy was made, and the execution creditor and claimant may be summoned to such court, without leave of such court. 148. Where the claim to any goods or chattels taken in execution, or the proceeds or value thereof, shall be dismissed, the costs of the bailiff shall be retained by him out of the amount levied, unless the judge shal] otherwise order. F 97 9 & 10 Vict. c. 95, s. 113, 98 12 & 14 Vict. c. 61, 8.14, Appendix to Part I. Appeal. 149, Any party dissatisfied with the determination or direction of the court, in point of law, or upon the admission or rejection of any evidence, may, before the rising of the court on the day of the trial, deliver to the clerk a statement in writing, signed by him, his counsel or attorney, containing the grounds of his dissatisfaction; and in default of such statement being delivered as aforesaid, the successful party may proceed on the judgment unless the judge shall otherwise order ; but it shall be competent for the judge to direct proceedings to be taken on the judg- ment notwithstanding such statement has been delivered: Provided always, that the party so dissatisfied may appeal, on grounds different from those contained in such statement, and although he shall not have delivered any such statement. 150. The ten days, within which notice of appeal may be given, shall be reckoned exclusive of the day of trial. 151. The notice of appeal shall be in writing, and shall state the grounds on which the party appeals, and shall be signed by the appel- Jant, his attorney or agent, and such notice must be served on the clerk as well as on the successful party, by prepaid post letter, or otherwise. 152. If before notice of appeal as aforesaid is served upon the clerk, execution shall have issued and the amount of the judgment and costs of execution shall have been paid into the hands of the bailiff, or levied and not paid over to the successful party, the same shall remain in court to abide the order of the court. 1538. If before an appealing party shall have given the required secu- rity, execution shall have issued, the clerk shall, upon the appealing party giving such security, forthwith send notice thereof by prepaid post letter or otherwise to the bailiff, and proceedings on such execution shall forthwith be stayed. 154. The security on appeal, required under s. 14 of the 13 & 14 Vict. c, 61, may in all cases be either a deposit of money or a bond executed by the appellant and two sureties, conditional m conformity with the provisions of the statute, and which shall be substantially in the form in the schedule. 155. In all cases of appeal, where the appellant proposes to give a bond, he shall serve by prepaid post letter, or otherwise, on the opposite party and the clerk, at his office, notice of the sureties whom he proposes to submit for the approval of the clerk ; and such notice shall contain the matters stated in the form in the schedule. 156. The sureties shall, unless by consent of the successful party, make an affidavit of their sufficiency in the form in the schedule. 157. The bond shall be executed in the presence of the clerk, or some one of the persons mentioned in s. 28 of 13 & 14 Vict. c. 61: Provided always, that if it be executed in the presence of the clerk, it shall not be necessary for him to attést the same. 158. At the time of giving security, the appellant shall deliver to the clerk a statement in writing, showing to which of the courts of common law at Westminster he proposes to appeal. 159. The successful party shall be the obligee of the bond, and it shall be deposited with ibe clerk, until the cause is finally disposed of. 160. Where the appellant makes a deposit of money in lieu of giving a bond, he shall forthwith give notice to the opposite party, by prepaid post letter or otherwise, of such deposit having been made. 161. Where money is paid into court to abide the event of an appeal, whether by way of security or in pursuance of an order of the judge, the clerk shall give the party paying it a written acknowledgment of such payment. Rules of Practice. _ 162. All cases shall be signed by the judge, and shall be presented to him for signature, unless he shall otherwise order, at the court next after twelve clear days from the giving such determination or direction, and sealed with the seal of the court; and when signed and sealed, one copy thereof shall be deposited with the clerk, and another sent by prepaid post letter or otherwise, by the appellant, to the successful party within three days next after the time of signing and sealing the same ; and if the appellant does not comply with this rule, the successful party may proceed on the judgment, unless the judge shall otherwise order. 163. The appellant shall, within three clear days next after the case is signed and sealed, transmit two copies thereof, by post or otherwise, in conformity with the provisions of section 15 of the 13 and 14 Vict. c. 61; and notice of such transmission shall forthwith be served by the appellant on the successful party, by prepaid post letter or other- wise ; in default whereof the successful party may proceed on the judg- ment, and shall, on application to the court, be entitled to such costs as he shall have incurred in consequence of the appellant’s proceedings : Provided that instead of proceeding on such judgment, the respondent, if he thinks fit, may, within twenty-eight clear days from the signing of the case, transmit it in the manner prescribed, and give the like notice to the appellant of such transmission. 164, If after the case has been transmitted, the appellant does not prosecute his appeal with due diligence, according to the practice of the court of appeal, the party successful in the county court may apply to the judge thereof for leave to proceed on the judgment, and leave for that purpose may be granted accordingly, if the judge shall think fit; and the successful party shall also be entitled to such costs as he shall have incurred in consequence of the appeilant’s proceedings, which costs shall be added to the judgment. 165. When the court of appeal has pronounced judgment, either party may deposit the original order of the court of appeal, or an office copy thereof, with the clerk of the county court, and within forty-eight hours from the time of such deposit, give notice thereof in writing to the other party, by prepaid post letter, or otherwise. 166. A new trial in pursuance of the order of the court of appeal ‘shall be entered for trial at the county court which shall be held next after twelve clear days from the time when such order or office copy thereof shall have been deposited as aforesaid, unless the parties agree that it shall take place sooner, or the judge shall otherwise order, and it shall be conducted in the same manner as any new trial granted by the county court itself. 167. If the order of the court of appeal be that judgment shall be entered for either party, then such judgment shall be entered accordingly, and the successful party shall be at liberty to proceed on such judgment as upon a judgment of the county court. Abatement. 168. Where one or more of several plaintiffs or defendants dies before judgment, the suit shall not abate, if the cause of action survive to or against such parties. ule ¥ 169. Where one or more of several plaintiffs or defendants shall die after judgment, proceedings thereon may be taken by the survivors or survivor, or against the survivors or survivor, without leave of the court, 170. Where a married woman is sued as a feme sole, and she obtains judgment on the ground of Cyrene proceedings may be taken thereon, F 99 100 Proceedings in nature of a scire tacias. 9 & 10 Vict. ce. 95, 8. 66. Appendix to Part I. in the name of the wife, at the instance of the husband, without leave of the court. 171. Where the plaintiff has become bankrupt or insolvent before judgment, the cause may proceed to judgment, at the instance of the assignee, in the name of the plaintiff. Applications or Proceedings in the nature of a Scire Facias. 172, Execution on a judgment shall not issue by or against any person not a party to such suit, without a plaint and summons upon the judgment, the proceedings in which shall be the same, and shall be subject to the payment of the same fees, except the general fund fee, as in ordinary cases. 173. Where a judgment has been given for or against a person deceased, his executors or administrators may in the same manner sue or be sued upon the judgment. 174, In all proceedings in the nature of a scire facias, a jury may be summoned in the same manner and under the like restrictions as are pro- vided by sections 70, 71, 72, and 73 of 9 & 10 Vict. c. 95. [For proceeding on judgments for penalties under the 8 & 9 Wm. 3, c. 11, see Rule 28.] Proceedings by and against Executors and Administrators. 175. In actions by executors or administrators, if the plaintiff fail, the costs shall, unless the court shall otherwise order, be awarded in favour of the defendant, and shall be levied de bonis propriis. 176. Where an executor or administrator, plaintiff or defendant, shall not appear on the day of hearing, the provisions of sections 79 and 80 of the 9 & 10 Vict. c. 95, and of sect. 1U of the 13 & 14 Vict. c. 61, shall apply respectively, subject to the rules applicable to executors or administrators suing or being sued. 177. A party suing an executor or administrator, may charge in the summons in the form in the Schedule, that the defendant has assets, and has wasted them. 178. In all cases, if the court shall be of opinion that the defendant has wasted the assets, the judgment shall then be, that the debt or damage and costs shall be levied de bonis testatoris, si, &c., et si non, de bonis pro~ priis, and the non-payment of the amount of the demand immediately, on the court finding such demand to be correct, and that the defendant is chargeable in respect of assets, shall be conclusive evidence of wastiag to the amount with whiclf he is so chargeable. 179. Where an executor or administrator denies his representative character, or alleges a release to himself of the demand, whether he insists on any other ground of defence or not, and the judgment of the court is in favour of the plaintiff, it shall be that the amount found to be due and costs shall be levied de bonis westatoris, si, &c., et sinon de bonis propriis. 180, Where an executor or administrator admits his representative character, and only denies the demand, if the plaintiff prove it, the judgment shall be that the demand and costs shall be levied de bonis testatoris, si, &c., et si non, as to the costs, de bonis propriis. 181. Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, and the defendant proves the ad- Rules of Practice. ministration alleged, the judginent shall be to levy the costs of proving the demand de bonis testatoris, si, &c., et si non, de bonis propriis ; and as to the whole or residue of the demand, judgment of assets, quando acci- derint, and the plaintiff shall pay the defendant’s costs of proving the administration of assets. 182. Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, but the defendant does not prove the administration alleged, the judgment shall be to levy the amount of the demand, if such amount of assets is shown to have come to the hands of the defendant, or such amount as is shown to have come to them, and costs de bonis testutoris, si, &c., et si non, as to the costs, de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando acciderint. 183. Where a defendant admits his representative character and the plaintif’s demand, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment shall be for assets quando acciderint, and the plaintiff shall pay the defendant’s costs of proving the administration of assets. 184, Where a defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, but does not prove the administration alleged, the judgment shall be to levy the amount of the demand, if so much assets is shown to have come to the defendant’s hands, or so much as is shown to have come to them, and costs, de bonis testatoris, ‘si, &c., et si non, as to the costs, de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando acciderint. 185. Where judgment has been given against an executor or admi- nistrator, that the amount be levied upon assets of the deceased quando acciderint, the plaintiff or his personal representative may issue a summons in the form in the schedule, and if it shall appear that assets have come to the hands of the executor or administrator since the judgment, the court may order that the debt, damages, and costs be levied de bonis testatoris, si, §c., et si non, as to the costs, de bonis propriis. Provided that it shall be €ompetent for the party applying to charge in the summons that the executor or administrator has wasted the assets of the testator or intestate, in the same manner asin Rule 177, and the provisions of Rule 178 shall apply to such inquiry, andthe court. may, if it appears that the party charged has wasted the assets, direct a levy to be made as to the debt and costs, de bonis testatoris, si, &c., et si non, de bonis propriis. 186. Where a defendant admits his representative character, and the plaintiff ’s demand, and that he is chargeable with any sum in respect of assets, he shall pay such sum into court, subject to the rules relating to payment into court in other cases. a . = 187, In actions against executors or administrators for which provision’ is not hereinbefore specially made, if the defendant fails as to any of his defences, the judgment shall be for the plaintiff as to his costs of dis- proving such defence, and such costs shall be*levied de bonis testatoris, si, &e., et si non, de bonis propriis. Notices. 188. Where by these rules any party is required to give notice accord- ing to a form mentioned in the schedule, it shall be sufficient if the notice given complies substantially with such form. — : 189, In all cases where any notice or thing is required by these rules to be given or done within a period of twenty-four hours, such period shall be understood to mean forty-eight hours if any part of Sunday, 101 102 Appendix to Part L. Good Friday, or Christmas-day, or any day appointed by roya pro- clamation for a public fast or thanksgiving, is included in such twenty~ four hours. Statute of Limitations. 190. Successive summonses may be issued without leave of the court for the purpose of preventing the operation of any statute whereby the time for the commencement of any action is or may be limited, and such summonses shall be in force for four calendar months from the time of issuing the same, including the day of such issuing ; and shall be issued before the expiration of the previous summons and entered in the plaint book of the court: provided, that on entering the plaint in the first instance, the usual fees shall be paid, as if the defendant resided within two miles of the court; but for every successive summons no further fee shall be paid, nor shall it be necessary that any attempt be made to serve such summons, unless the plaintiff requires the same, when the proper bailiff’s fees for such service shall be paid, in addition to those already received; and such successive summonses, when so entered, shall be a continuance of the action from and inclusive of the day on which the first summons was issued. Removal of Cause. [See New Trial, Rule 141, and Replevin, Rules 197, 198.] Arbitration. 9 & 10 Viet 191. Where a plaint is entered, the judge may, with the consent of ¢.95, 8.77, the parties, as well in cases within the ordinary jurisdiction of the court as in cases of consent undgg sect. 17 of the 13 & 14 Vict. c. 61, make an order for a reference under the provision of sect. 77 of the 9 & 10 Vict. c. 95, without awaiting the return of the summons, and all the provisions in the said last-mentioned act contained and all rules of practice of the court as to references shall apply to a reference pro- ceeding under such an order; provided, that the same fees shall be paid as on the hearing of the cause, Replevin. 192. In actions of replevin no other cause of action shall be joined in the summons, 9 & 10 Vict, , 193- On entering a plaint in replevin, the plaintiff must specify and c. 95, . 119, describe in a statement of particulars, the cattle or the several goods and chattels taken under the distress, and of the taking of which he complains. 194. All actions of replevin in cases of distress for rent in arrear, or damage faisant, shall be tried in a summary way as other actions in the courts held under the authority of the said act, and of the 9 & 10 Vict. c. 95, and the judgment therein, in ordinary cases, whether for plaintiff or defendant, shall be according to the forms in the Schedule. 195. Where the distress has been for rent, and the defendant succeeds in the action, if the defendant require, the judge shall, if the cause is tried without a jury, and the jury shall, if the cause be tried with a jury, find the value of the goods distrained, and if the value is less than the amount of rent in arrear, judgment shall be given for the Rules of Practice. 103 amount of such value; but if the amount of the rent in arrear is less than the value so found, judgment shall be given for the amount of such rent, and may be enforced in the same manner as any other judgment of the court. _ 196. Where the distress was for damage faisant and the defendant is entitled to judgment for a return, if the plaintiff require, the judge shall, if the cause is tried without a jury, and the jury shall, if the Cause is tried with a jury, find the amount of the damage sustained by the defendant, and judgment shall then be given in favour of the defendant, in the alternative, for a return, or for the amount of the damage so found. : 197. Where either party is desirous of removing any plaint in re- 9 & 10 Vict. plevin, in pursuance of section 121 of the 9 & 10 Vict. c. 95, he shall, ¢- 95, s. 121. at least five clear days before the return day of the summons, deliver to the clerk two copies of a notice, signed by himself, his attorney, or agent, Stating the ground of such removal, together with the names of the two sureties whom he proposes to become bound with him, in the form in the schedule, and the clerk shall forthwith transmit one of the said copies of the said notice to the opposite party or parties, by prepaid post letter, and unless such notice is given, the party removing shall pay all the expenses to which the opposite party has been put in consequence of such noncompliance with this rule, unless the judge shall otherwise order; and in case a reasonable time has not been allowed to enable the clerk to ascertain the sufficiency of the sureties, the cause shall be post- poned at the expense of the party seeking to remove, or upon such terms as the judge shall think fit. 198. The amount of the sum for which the security is taken shall, 9 & 10 Vict. unless the judge shall otherwise order, be the same as that of the security ° 95, 8. 121, given to the sheriff, and such security shall be given at the expense of the party seeking to remove. Recovery of Tenements. 199, All plaints for the recovery of the possession of tenements shall oO Mick be brought in the district wherein the tenements are situated. 200. Warrants for giving possession of tenements, shall bear date of 9 & 10 Vict. the day named by the judge for the issuing thereof, and shall issue of & 9: 8. 12. the bailiff, requiring and authorizing him to give possession of the pre~ mises, within a period therein named, which shall be a period com- mencing with the date of such warrant, and ending at a time not less than seven or more than ten days from such date; and the bailiff may execute such warrant forthwith on the receipt thereof, or at any time during the period therein named. 201. Upon application of a tenant who seeks under section 126 of 9 & 10 Vict. the 9 & 10 Vict. c. 95, to stay execution of a warrant of possession, he ¢- 95, s. 126. must apply for that purpose in person or by his attorney or agent, to the court, and the judge shall then fix the sum for which secutity is to be given, and the names and description of the securities shall be given to the clerk within such time as the judge shall direct, and the giving such security shall be at the expense of the party applying. Confessions under 13 & 14 Vict. ¢. 61, s. 8. 202. All confessions to be made under section 8 of the 13 & 14 Vict. c. 61, shall be delivered to the clerk five clear days before the return of the summons : provided that at any time before the return day of the summons the defendant may make a confession and deliver the same to the clerk, subject, however, to an order by the judge to pay such costs 104 Appendia to Part I. as the plaintiff has incurred in consequence of the defendant not having delivered such confession as hereinbefore required. Consent to Judgments under 13 & 14 Vict. ¢. 61, 8. 9. 203. In all cases of consent under section 9 of the 13 & 14 Vict. c. 61, it shall be competent for the defendant to confess the amount of the plaintiff’s costs besides the court fees, and the judgment may be entered accordingly, and the amount of the plaintiff’s costs shall be stated separately. \ Consent Cases under 18 & 14 Vict. ec. 61, 8. 17. 204. Where the parties, in pursuance of 13 & 14 Vict. c. 61, 8. 17, agree to try any of the questions therein mentioned, a plaint shall be entered, and a summons issued thereon, as in other cases, and all the rules and practice of the court shall be adopted in such cases so far as the same are applicable. Proceedings under the Friendly Societies Act. 205. In cases of reference to the county court under 13 & 14 Vict. c. 115, s. 22, the party proposing to refer shal] enter a plaint, and a summons shall issue thereon, and for the purpose of determining the amount of the subject of the reference the case shall be treated as a debt, or demand, for the trial of which the consent of both parties is necessary under section 17 of the 13 & 14 Vict. c. 61, and all the rules and prac- tice of the court shall be adopted with respect to such matter of reference so far as the same are applicable. Proceedings under 12 & 18 Vict. c. 108. 206. In cases of reference to the county courts, under 12 & 13 Vict. c. 108, s. 22, to take or receive evidence under the said act, or under the 11 & 12 Vict. c. 35, the same fees shall be payable on such reference as on the entering and trial of a plaint for the trial of which the consent of both parties is necessary, under section 17 of the 13 & 14 Vict. c. 61: and all the rules and practice of the court shal] be adopted with respect to such examinations, so far as the same are applicable. Forms. 207. In proceedings for which forms are not provided in the schedule the clerk of the court shall use, as guides in framing the forms required, those which are prescribed in the schedule. Registration of Judgments. 208. The clerk of every court shall, if at any future time the commis- sioners of her Majesty’s treasury shall require, transmit to such place and in such form as the said commissioners may appvint, a statement of the judgments, whether by consent or otherwise, which have been entered for the sum of ten pounds and upwards at every court, or between that court and the court next preceding ; and such statement shall be trans- Rules of Practice. mitted within three days from the holding of each court, and the said clerk shall when required by the said commissioners also transmit a similar return of all judgments of like amount which have been entered by consent or otherwise, since the 14th of August 1850 (a). 20% The clerk shall in every such case certify the correctness of the return, and the remuneration for making the same shall be such as the commissioners of her Majesty’s treasury shall be pleased to appoint and award, to be paid-out of the fund produced by fees to be appointed to be taken for searches in the said register (a). Insolvency. 210. The rules of practice and orders in insolvency and protection cases as used by the court for the relief of insolvent debtors in London, shall be adopted and used as the rules of practice and orders in insolvency and protection cases in the county courts, so far as the same are appli- cable to the said courts. A. S. Dowling, s. 1. Rob. Brandt. James ’Espinasse. C. J. Gale. Wn. Furner. We approve of these rules. JOHN JERVIS. W. ERLE. SAMUEL MARTIN. (a) See 15 & 16 Vict. c. 54, s. 18. F3 105 Rule 5. Rule 29. 106 SCHEDULE OF FORMS TO THE RULES OF PRACTICE FOR THE COUNTY COURTS OF EN GLAND. ‘ Undertaking by next Friend of Infant to be responsible for Defendant's Costs. No. . In the county court of holden at I, the undersigned being the next friend of A, B. who is an infant, and who is desirous of entering a plaint in this court, hereby undertake and agree to be responsible for the costs of the said C. D. in such cause, and that if the said A. B. fails to pay to the said C. D., when and in such manner as the court shall order, all such costs of such cause as the court shall direct him to pay to the said C. D., I will forthwith pay the same to the clerk of the court. (signed ) Dated this day of Plaintiff’s Note on Entering Plaint (a). In the county court of holden at (Seal. ) No. of plaint. A. B., plaintiff, against C. D., defendant. Fees paid. a 5. d. The above cause will be tried at on the day of at o’clock in the forenoon. Clerk of the court. Office at Hours of attendance at the office of the clerk from 10 till 4, N.B.—Bring this note when you come to court, or to the office of the clerk, for any purpose connected with this cause. (a) One note specifying the different plaints will suffice for any number entered at the same time. Forms in Proceedings in Plaints. 107 Na money will be paid out of court except on production of this note, Summonses for witnesses may be obtained at the office of the clerk. Summons to appear to Plaint. No. of plaint. In'the county court of holden at ' Rule 34. (Seal.) ‘ Between A. B., plaintiff, and C. D., defendant. [Issued by leave of the court (a),] (a) Insert {Name, description, and address of defendant], you are hereby Ee summoned to appéar at a county court, to be holden at out of dis- on the day of at the hour of wit ee in the forenoon, to answer [name, description, and address of plaintiff] to a claim, the particulars of which are hereunto annexed. [Where the amount of the claim does not exceed forty shillings, after “claim” strike out the words “the particulars of which are hereunto annexed,” and state shortly the substance of the claim.] Dated the day of Clerk of the court. £ & ad Debt orclaim - - - : é Costs of summons and service - : : Paying in - - s = ¢ Total amount of debt and costs £ N.B.—See notice at back. [To be endorsed on the Summons. ] If you are desirous of confessing the plaintiff’s claim, you must deliver your confession to the clerk of the court five clear days before the day of appearing to this summons; but you may enter your confession at any time before the day of appearing, subject to the payment of further costs. Tf you and the plaintiff can agree as to the amount due and the mode of payment, judgment may at any time before the court day be entered by the clerk of the court. In which case you and the plaintiff must attend at the clerk’s office for that purpose, and no attendance by either of you will be necessary at the court. If you admit the whole or any part of the plaintiff’s demand, by pay- ing into the office of the clerk of the court at the amount so admitted, together with the costs, proportionate to the amount you pay in, five clear days before the day of appearance, you will avoid any further costs, unless in case of part payment, the plaintiff, at the hearing, shall prove a demand against you exceeding the sum so paid into court. . If you intend to rely on as a defence, a set-off, infancy, coverture, a statute of limitations, or a discharge under a bankrupt or insolvent act, you must give notice thereof to the clerk of the court five clear days before the day of hearing, and your notice must contain the particulars required by the rules of the court. You must also, in any of the above cases, then deliver to the clerk as many copies, as there are opposite 108 Appendix to Part L. parties, of the notice and particulars, and an additional one for the use of the court. If your defence be a set-off, you must, within the same time, also deliver to the clerk a statement of the particulars thereof. If your defence be a tender, you must pay into court, before or at the hearing of the cause, the amount you allege to have been tendered. Notices of defence cannot be received unless the fees for entering and transmitting the same be paid at the time the notices are given. If the debt or claim exceed five pounds, you may have the cause tried by a jury, on giving notice thereof in writing at the said office of the clerk, two clear days at least before the day of trial, and on payment of the fees for summoning, and payable to such jury. Summonses for witnesses and the production of documents may be obtained at the office of the clerk, Hours of attendance at the office of the clerk from ten till four. Affidavit of Service of Summons out of the District, or where the Bailiff is unavoidably absent. Rule 56, No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. one of the bailiffs of the county court of at maketh oath and saith that he did, on the day of 18 — duly serve the abovenamed : with a summons, a true copy whereof is hereunto annexed, marked at by delivering the same personally to the defendant [or as the case may be]. Sworn before me at the day of 1’. i (Indorse the summons or other process. This Paper marked ” is the paper referred to in the annexed affidavit). Notice of Payment into Court of whole Claim, Rule 62. No. of Plaint. (Seal.) In the county court of holden at Between A. B., plaintiff, and C. D., defendant. T hereby give you notice that the abovenamed defendant has paid into court the sum of £ being the full amount of your demand in this action, together with the costs incurred by you therein. Dated this day of one thousand eight hundred and fifty ; Clerk of the court. To the plaintiff, Hours of attendance at the office of the clerk from ten till four. Forms in Proceedings in Plaints. 109 Notice of Payment of Part of Claim into Court. No. of plaint. Rule 62. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Take notice that the sum of £ has been paid into court by the above-named defendant, together with £ for costs proportionate to that sum. If you elect to accept the same in full satisfaction of the debt [or damage] claimed, and send to the defendant a written notice forthwith, by leaving the same at the defendant's place of abode or business, or by pre-paid post letter to that effect, the action will be discontinued, and you will be liable to no further cost. In de- fault of such notice the action may proceed, and if you do not appear at the hearing, you will be liable to pay to the defendant such costs as he may incur in appearing to try the cause, or such other sum of money as the judge may order for expenses subsequent to the payment into court. Dated this day of 185. Clerk of the court. To the plaintiff. Hours of attendance at the office of the clerk from ten till four. Notice of Set-off. No. Rule 68. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. I, the above-named defendant, do hereby give notice that I intend at the hearing of this cause to claim a set-off agaiast any debt or demand to be proved against me by the plaintiff, the particulars of which set-off are annexed hereto. 4 : Dated this day of 185. The above-named defendant. To the clerk of the said court. (The clerk is to annex to this notice the particulars of set-off, as fur- nished by defendant, sealed with the seal of the court.) Notice of Special Defence. No. Rules 69, 70 (Seal. ) 71, 72. In the county court of holden at A. B., plaintiff, and C. D., defendant. Take notice, that upon the hearing of this cause, I, the above-named defendant, intend to give in evidence, and reply upon the following ground of defence, in answer to the action. Dated this day of 185 The above-named defendant. To the clerk of the court. 110 Infancy. Coverture. Statute of Limitations. Bankruptcy. Insolvency. Rule 75. Appendia to Part I. That I was an infant, within the age of twenty-one years, when the supposed claim arose [or the supposed PontTaet or agreement was made], and that I was born as I believe at on the day of That I was, at the time when the supposed claim arose [or, the HPAEs contract or agreement was made], the wife of - And that I was married to him at in ae county of on the day of That the claim for which I am summoned is barred by the statute of limitations. That I am a certificated bankrupt, and obtained my certificate from the court [or district court] of bankruptcy, on the day of That I was duly discharged, under an Act for the Relief of Insolvent Debtors [or, obtained a final order under the Protection Acts, 5 & 6 Vict. u 116, and 7 & 8 Vict. c. 96], on the day of at the court of held at Summons to Witness. No. In the county court of » holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. You are hereby required to attend at [the court house in on the day of at the hour of in the forenoon, to give evidence in the above cause on behalf of the above named and then and there to have and produce [state any particular documents required] and all other books, papers, writings, and other documents relating to the said action, which may be in your custody, possession, or power. In default of your attendance you will be liable to a penalty of ten pounds, under the statute of 9 & 10 Vict. c. 95. Given under the seal of the court, this day of one thousand eight hundred and fifty Clerk of the court. To of Order fining a Witness for non-attendance. No. In the county of holden at (Seal.) A. B., plaintiff, and C. D., defendant, Whereas was duly summoned to appear as a witness in this cause at a county court, to be holden at on the day of and at the time when so summoned payment [or a tender of payment] of his expenses was made, according to the scale of allowance settled by the rules of practice of the court; and whereas the said neglected forms in Proceedings in Plaints. without sufficient cause then to appear at the said court [or to produce (here describe what he was required by such summons to produce); or, * Whereas being present in court this day of and being required by the court to give evidence, refused to be sworn and give evidence.] It is hereby ordered that the said shall forthwith [or on the day of ] pay a fine of £ for such neglect [or refusal] to the clerk of this court. Given under the seal of this court, this day of By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. * Where witness is present in court, commence form here. Execution against a Witness for Fine. No. of execution. In the county court of holden at A. B., plaintiff, and C. D., defendant. Whereas was duly summoned to appear as a witness in this cause, at a county court to be holden at on the day of and at the time when so summoned, payment (or, a tender of payment) of his expenses was made, according to the scale of allowance settled by the rules of prac- tice of the court, and whereas the said neglected, without sufficient cause, then to appear at the said court, [or to produce (here describe what he was required by such summons to produce) ; or,* Whereas being present in court on the day of 185 —_ and being required by the court to give evidence refused to be sworn or, being sworn, refused to give evidence], it was on the said day of 185, ordered by the said court that the said : should forthwith pay a fine of £ ; for such neglect [or, refusal] to the clerk of this court; and whereas the said sum of £ has not been paid pursuant to the said order, these are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the said wheresoever they may be found, within the district of this court (except the wearing apparel and bedding of the said or his family, and the tools and implements of his trade, if any, to the value of £5) the said sum of £ , and also the costs of this execution, and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money of the said which may there be found, or such part, or so much thereof as may be sufficient to satisfy this execution, and the costs of making and executing the same, and to pay what you shall have * Where witness was present in court, commence form here. 111 112 Rules 79 and 82. Appendia to Part I. levied under this writ to the clerk of this court, and make return of what you have done under this writ immediately upon the execution thereof. Given under the seal of the court, this day of 185 By the court, Clerk of the court. To High bailiff of the said court, and others the bailiffs thereof. 4 Clerk’s Notice to Jury. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Take notice, that the above-named cause will be tried by a jury, the above-named * having demanded a jury therein. Clerk of the court. To the plaintiff [or defendant. ] Summons to Jurors. In the county court of holden at (Seal. ) You are hereby summoned to appear and serve as a juror in this court, at the on the day of at the hour of in the forenoon, upon the trial of the several causes to be then and there tried by juries, and in default of attendance you will be liable to a penalty of five pounds, by the statute of 9 & 10 Vict. v. 95. Given under the seal of the court, this day of 185. j Clerk of the court. To of Order fining a Juror for Non-attendance. In the county court of holden at Whereas was duly summoned to appear and serve as a juror in this court at the on the day of at the hour in the forenoon, upon the trial of the several causes to be then and there tried by juries: and whereas the said neglected, without sufficient cause, then to appear and serve at the said court. It is hereby ordered, that the said shall forthwith (or on Forms in Proceedings in Plaints. 113 the day of ) pay a fine of £ for such neglect to the clerk of this court. Given under the seal of the court, this day of By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. Order to adjourn Proceedings. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D. defendant. It is ordered that the trial of this action be adjourned until the day of 185 at o’clock in the forenoon. Given under the seal of the court, this day of 8 By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. Order Appointing Guardian of Infant Defendant. No. Rule 92. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Whereas, now, at the hearing of this cause, the defendant, being an infant, appears here in court, and names to act as his guardian, and the said now assents to act as such guardian, I do therefore hereby appoint the said to be guardian of the defendant in this cause. Given under the seal of the court, this day of Judge of the court, Order appointing Guardian of Infant Defendant where Defendant does not name a Guardian, No. In the county court of at (Seal.) Between A. B., plaintiff, against C. D., defendant. Whereas, now, at the hearing of this cause, the defendant, being an infant, appears here in court, and does not name a guardian, I do there- fore hereby appoint to be guardian of the defendant in this cause. : Given under the seal of the court, this day of Judge of the court. 114 Appendia to Part L. Order for Costs to Defendant where Plaintiff does not appear. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Whereas the plaintiff in this cause has not now appeared, either by himself or his attorney at a court, holden on the day of being the day appointed for the trial thereof, to pro- secute the same against the defendant, and the defendant has appeared in person [or, by his attorney], it is awarded that the plaintiff pay the sum of by way of costs and satisfaction for the trouble and attendance of the defendant in that behalf, and it is ordered that the plaintiff do pay the same to the clerk of the court, at his office, on the day of 185. Given under the seal of the court, this day of 85 By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made into court under this order, not exceeding J0s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Judgment against Defendant for Payment of Debt or Damages. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Upon hearing this cause, at a court holden at on the day of it is adjudged that the plaintiff do recover against the defendant the sum of £ for his debt [or damages by him sustained], and £ for costs of suit, amounting together to the sum of £ And it is ordered, that the defendant do pay the same to the clerk of the court, at his office, in on or before the day of Given under the seal of the court, this day of 185 By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four o’clock. Judgment against Plaintiff for Costs and Satisfaction to Defendant, and for his Costs of Suit, No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Upon hearing this cause, at a court holden at on the day of it is adjudged that judgment Forms in Proceedings in Plaints. 115 should be entered for the defendant, and that the plaintiff pay the sum of by way of costs and satisfaction for the trouble and attendance of the defendant in that behalf, and for the costs and charges by the defendant about his suit in that behalf expended, It is therefore ordered, that the plaintiff do pay the same to the clerk of the court, at his office, at on or before the : day of pte under the seal of the court, this day of By the court, Clerk of the court. Hours of attendance at the office of the clerk, from ten till four. Judgment against Defendant, when the Debt or Damages are made payable by Instalments. No. In the county court of holden at (Seal. ) Between A. B., plaintiff, and C. D., defendant. Acknowledgment of Payment into Court. Upon the hearing of this cause, at a court £\s.{d.| Received by holden at on the day of 18 , it is adjudged that the plaintiff do recover against the defendent the sum of £ for his debt, and £- for the costs of suit, amounting together to the sum of £ a It is therefore ordered, that the defendant do pay the same to the clerk of the court at his office at by instalments of for every days; the first instalment to be paid upon the day of 18 . In case of default in payment of any one of such instalments, and execution issue, it shall be for the whole of the amount then remaining due. Given under the seal of the court, this day of 18 By the court, Clerk of the court. Note.—Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Warrant of Commitment where Defendant appears and is examined at the time of hearing. No. of plaint. No. of execution. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. 116 Appendia to Part I. To the high bailiff and others the bailiffs of the said court, and all con- stables and peace officers within the jurisdiction of the said court, and to the governor or keeper of Whereas at a court duly holden at 2 on the day of in 185, the above named plaintiff by the judgment of the said court, in a certain suit wherein the said court had jurisdiction, recovered against the above-named defendant the sum of £ for his debt [or damages|, and the sum of £ the costs of the said suit, amounting together to the sum of £ and thereupon it was then and there ordered by the court, that the defendant should pay the same to the clerk of the court at his office, on or before the day of 18 _, [or by instal- ments of for every days]. And whereas the defendant having personally appeared to the sum- mons in this action, and being present in court, was then and there examined touching his estate and effects, and the manner and circum- stances under which he contracted the said debt [or incurred the said damages] which was [were] the subject of the action in which the said judgment was obtained against him, and as to the means and expectation he then had, and as to the property and means he still had of discharg- ing the said debt [or damages], and as to the disposal he had made of any property. And whereas it appeared upon such examination, to the satisfaction of the judge of the said court, that [here insert the particular ground of commitment] and thereupon the said judge of the said court, did order and adjudge the defendant to be committed for the term of days to the in the according to the form of the statute in that case made and provided, or until he should be discharged by due course of law: These are therefore to require you, the said high bailiff, bailiffs, and others, to take the defendant and to deliver him to the governor [or keeper] of and you, the said governor [or keeper] are hereby required to receive the defendant, and him safely to keep in the for the term of days, from the arrest under this warrant, or until he shall be sooner discharged by due course of law. For which this shall be your sufficient warrant. Given under the seal of the court, this day of 18. (Seal.) Clerk of the court. £ 3 d, Debt or damage adjudged - - - Costs - -— = a Paid - - - - . S Remaining due - - - Poundage for issuing this warrant - Bailiff’s tee for execution - - = Bailiff’s fee for conveying defendant to gaol Paying money into court =~ - - Total amount due is S Forins in Proceedings in Plaints. 117 Order to suspend Order or Judgment. No. Sect. 100. In the county court of holden at (Seal. ) Between A. B., plaintiff, and C. D., defendant. It is ordered, that an order of this court in this action, bearing date be suspended until Given under the seal of the court, this day of one thousand eight hundred and fifty By the court, Clerk. Notice to Plaintiff of payment of Instalment. No. Rule 123. In the county court of holden at I hereby give you notice, that has paid into court the sum of , under the judgment obtained by you against him at this court. Clerk of the court. To the plaintiff. Hours of attendance at the office of the clerk from ten till four. Execution against the Goods of Defendant. No. of plaint. Sects. 94, 96. No. of execution. In the county court of holden at (Seal.) Between A. B, plaintiff, and C. D., defendant. Whereas at a court holden at on the day of 185, the above-named plaintiff, by the judgment of the said court, in a certain suit, in which the said court had juris- diction, recovered against the above-named defendant, £ for a certain debt due and owing from the defendant to the plaintiff [or, for certain damages then awarded to the plaintiff by the said court,] and £ the costs of suit by the plaintiff in that behalf ex- pended ; amounting together to the sum of £ and thereupon it was then and there ordered by the said court, that the defendant should pay the same to the clerk of the court at his office, on the day of [or by instalments of for every days] ; and whereas the said sum of £ {or the sum of £ : being part of the said sum ], has not been paid pursuant to 118 Rule 126, Appendia to Part I. the said order: these are, therefore, to require and order you forthwith to meke and levy by distress and sale of the goods and chattels of the defendant, wheresoever they may be found, within the district of this court (except the wearing apparel and bedding of the defendant or his family, and the tools and implements of his trade, if any, to the value of five pounds), the said sum of £ , and also the costs of this execution; and also to seize and take any money or bank-notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or secu- rities for money, of the defendant, which may there be found, or such part, or so much thereof as may be sufficient for the satisfying of this execution, and the costs of making and executing the same, and to pay what you shall have levied under this writ to the clerk of this court, and make return of what you have done under this writ, immediately upon the execution thereof. Given under the seal of the court, this day of 18 By thé court, Clerk. To the high bailiff, and and other bailiffs thereof. Where issued under Rule 122, insert “Issued by leave of the judge.” £ a d, Debt or damage adjudged Costs - ce Paid - - - - - - - Remaining due - - - - Poundage for issuing this warrant - = Bailiff’s fees for sending warrant to foreign court Poundage for issuing warrant in foreign court - Bailiff’s fees for execution, including mileage - Paying money into court - - - - Total amount to be levied = - = s Execution against the Goods of Plaintiff. No. of plaint. No. of execution. In the county court of ‘ holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Whereas at a county court holden at on the day of it was adjudged and ordered by the said court, that judgment should be entered for the defendant, and that the plaintiff should pay to the clerk of the court, on or before the day of , the sum of £ by way of costs and satisfaction for the trouble and attendance of the Forms in Proceedings in Plaints. defendant in that behalf, and for the costs and charges, by the defendant about the said suit, in that behalf expended, amount- ing together to the sum of £ _ And whereas the said sum has not been paid, pursuant to the said judgment and order: these are therefore to require and order you forth- with to make and levy by distress and sale of the goods and chattels of the plaintiff, wheresoever they may be found within the district of this court (excepting the wearing apparel and bedding of the plaintiff or his family, and the tools and implements of his trade, if any, to the value of five pounds) the said sum of £ and also the costs of this execution; and also to seize and take any money or bank-notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or secu- rities for money, of the plaintiff, which may there be found, or such part or so much thereof as may be sufficient for the satisfying of this execu- tion, and the costs of making and executing the same, and to pay what you shall have levied under this writ to the clerk of the court, and make return of what you have done under this writ immediately upon the execution thereof. Given under the seal of the court, this day of By the court, Clerk. To the high bailiff, and others the bailiffs of the said court. £ 3 d, Costs adjudged - - Paid - a 2 Remainingdue - - - - Poundage for issuing this warrant - - Bailiff’s fee for sending warrant to foreign court Poundage for issuing warrant in foreign court - Bailiff’s fees of execution, including mileage - Paying money into court - = - - Total amount to be levied - - Summons for Commitment. No. In the county court of » holden at . (Seal.) Between A. B., plaintiff, and C. D., defendant. Whereas at a county court, holden at , , on the day of 18, the above- named plaintiff obtained a judgment [or order] against you for the payment of » for and £ for costs , which said judgment [or order] still remains unsatisfied, you are therefore hereby summoned to appear at the county court to be holden at , on the day of one thousand eight hundred and fifty , at the hour of in the forenoon, to be then and there examined by the judge of the said court, touching your estate and éffects, and the manner and circumstances under which you contracted the said debt {or, incurred the damages or liability] which was the subject of the action in which the said judgment was ob- 119 Rule 107. Sects. 98, 99. 120 Appendix to Part I. tained against you, and as to the means and expectation you thea had, and as to the property and means you still have of discharging the said debt [or damages, or liability], and as to the disposal you may have made of any property. And take notice, that if you do not appear in obedience to this summons, you may, by order of this court, be committed to the common gaol [or other prison of the court]. Given under the seal of the court, this day of one thousand eight hundred and fifty By the court, Clerk. To the above-named defendant. £ ns dd Amount remaining due on judgment or order - - 4 Costs of this summons - - - - - £ ES Hours of attendance at the office of the clerk from ten till four. Where issued under Rule 129, insert “Issued by leave of the judge.” Warrant of Commitment in Default of Appearance. No. of plaint. No. of execution. In the county court of , holden at Between » plaintiff and defendant. To the high bailiff and others the bailiffs of the said court, and all*con- stables and peace officers within the jurisdiction of the said court, and to the governor or keeper of . Whereas at a court duly holden at , oD the day of , the above-named plaintiff, by the judgment of the said court, in a certain suit wherein the said court had jurisdiction, recovered against the above-named defendant the sum of £ for his debt [or damages, as the case may be], together with the sum of £ the costs of the said suit, amounting together to the sum of Fi And thereupon it was then and there ordered by the said court, that the defendant should pay the same to the clerk of the court at his office, on or before the day [or by instalments of for every days]. And whereas the defendant not having paid the said sum, pursuant to the said order, a summons was, upon the application of the plaintiff, duly issued from and out of the said court against the defendant, by which said summons the defendant was required to appear at the said county court of > at » on the day of » to answer such questions as might be put to him touching his estate and effects, and the manner and circumstances under which he contracted the said debt [or incurred the said damages] which was [or, were] the subject of the action in which the said judg- ment was obtained against him, and as to the means and expectation he then had, and as to the property and means he still had of discharg- ing the said debt [or, damages], and as to the disposal he had made of any property. , Forms in Proceedings in Plaints. And whereas it was duly proved upon oath at the said last-mentioned court, that the defendant was personally served with the said summons: And whereas the defendant did not attend as required by such summons, or allege any sufficient excuse for not so attending, and thereupon it was ordered by the judge of the said court, that the defendant should be committed for the term of days, to the » in : , according to the form of the statute in that case made and provided, or until he should be dis- charged by due course of law: These are therefore to require you, the said high bailiff, bailiffs, and others, to take the defendant, and to deliver him to the governor [or keeper] of , and you the said governor [or keeper] are hereby required to receive the defendant, and him safely to keep in the said for the term of days, from the arrest under this warrant, or until he shall be sooner discharged by due course of law. For which this shall be your sufficient warrant, Given under the seal of the court, this day of 185 . (Seal.) Clerk of the court. £ Se d. Debt or damage adjudged - = es . Costs - - - = a = Paid - - - - = - - Remaining due - - - - - Costs of summons for commitment and its hearing - - - = = S Poundage for issuing this warrant - - - Bailiff 's fee for sending warrant to foreign court Poundage for issuing warrant in foreign court - Bailiff’s fee for execution - = - Bailiff’s fee for conveying defendant - - Paying money into court = - - - - Total amountdue - - - - £& N.B.—This warrant remains in force three calendar months from the date. Warrant of Commitment after Examination. No. of plaint. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. To the high bailiff and bailiffs of the said court, and all constables and peace officers within the jurisdiction of the said court, and to the governor or keeper of . Whereas at a court duly holden at on the day of , the above-named plaintiff by the judgment of the said court, in a certain suit wherein the said court had jurisdiction, recovered against the above-named defendant the sum of £ for his debt [or damage, as the case may be], and the sum of the costs of the said suit, amounting together to the sum of £ and thereupon it was then and there G 121 122 Appendix to Part I. ordered by the said court, that the defendant should pay the same to the clerk of the court at his office on or before the day of 18, [or by instalments of for every days]. y : And whereas the defendant not having paid the said sum, pursuant to the said order, a summons was, upon the application of the plaintiff, duly issued from and out of the said court against the defendant, by which said summons the defendant was required to appear at the said county court of at on the day of one thousand eight hundred and fifty to answer such questions as might be put to him touching his estate and effects, and the manner and circumstances under which he contracted the said debt (or, incurred the said damages] which was [or were] the subject of the action in which the said judgment was obtained against him, and as to the means and expectation he then had, and as to the property and means he still had, of discharging the said debt [or damages], and as to the disposal he had made of any property. And whereas the defendant having duly appeared at the said court pursuant to the said summons, was examined touching the above matters. And whereas it appeared upon such examination, to the satisfaction of the judge of the said court, that [here insert the particular ground of commitment], and thereupon it was ordered by the said judge, that the defendant sliould be committed for the term of days to the according to the form of the statute in that case made and provided, or until he should be discharged by the course of law. These are therefore to require you, the said high bailiff, bailiffs and others, to take the defendant and to deliver him to the governor [or keeper] of the . and you the said governor [or keeper] are hereby required to receive the defendant, and him safely to keep in the said for the term of days from the arrest under this warrant, or until he shall be sooner discharged by due course of law. For which this shall be your sufficient warrant. Given under the seal of the court this day of 18 (Séal.) ; Clerk of the court. N.B.—This warrant remains in force three calendar months from the date thereof. ae Se. da. Debt or damage adjudged - - - - Costs - - - - Paid - - = = ws 2 = Remaining due ~ - - - - Costs of summons for commitment and its hearing - - - - - - Poundage for issuing this warrant- - = - Bailiff’s fee for sending warrant to foreign court Poundage for issuing warrant in foreign court - Bailiff’s fee for conveying defendant to gaol - Bailiff’s fee for execution including mileage - Paying money intocourt - - - = Total amountdue - - - Forms in Proceedings in Plaints. 123 Order for Payment by Instalments on Summons for Commitment. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Whereas at a county court duly holden at Acknowledgment of on the 7 18 , the areal note plaintiff obtained a judgment against the above- Date. |£/s.]d.] Received by named defendant for the payment of £ > for his debt [or damages] in a certain action, and £ » the costs of suit, amounting together to the sum of £ » and thereupon it was then and there ordered by the said court, that —— the defendant should pay the same to the clerk of the court by instalments of £ , for every days. —— | — —_] -] ——____ And whereas the above named defendant having refused or neglected to pay the said instalments so adjudged and ordered to be paid by him, a summons was, upon the application of the plaintiff, duly issued from and out of the said court, being a county court within the limits of which the defendant at the time of the issuing of the same dwelt, directed to the defendant, by which said summons the defendant was required to appear at the said court on the day of 185, to answer such questions as might be put to him touching his estate and effects, and the manner and circumstances under which he contracted the said debt [or damages] which was the subject of the action in which the said judgment was obtained against him, and as to the means and expectations he then had, and as to the property and means he still had, of discharging the said debt, and as to the disposal he had made of any property. Now it is, at such last-mentioned court, ordered, that the defendant do pay the amount due on the said judgment, and also the costs of this order, amounting together to the sum of £ to the clerk of this court, at his office at by instalments of £ for every days. The first payment to be made on the day of 1 . In case of default in payment of any one of such instalments, and execution issue, it shall be for the whole of the above amount then remaining due. Given under the seal of the court, this day of 185. By the court, Clerk. £& s dad, Amount remaining due on judgment, or order : : Costs of summons for commitment and its hearing £ N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d, in the pound on the amount of the payment. Hours of attendance at the office of the clerk from ten till four, : G2 124 Sect. 110. Appendi« to Part I. Certificate for the Discharge of a Defendant from Custody. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. I hereby certify that the above-named defendant, who was committed to your custody under and by virtue of a certain warrant of commitment under my hand and the seal of the said court, and bearing date the day of for the space of days, has, since the issuing of the said warrant of commitment, to wit, on the day of paid and satisfied the debt [or damages, or the instalment of the debt or damages], for the . non-payment whereof he was so committed as aforesaid, together with all fees, costs, and charges due and payable by him in respect thereof ; and that the defendant may, in respect of such warrant of commitment, be forthwith discharged from and out of your custody. By leave of the judge of the said court. Clerk of the said court. Given under the seal of the said court, this dav of 185. To the governor or keeper of, &c. Letter to be sent with Summons out of District. Sir, No. v. I have to request that you will serve the accompanying summons immediately, and return the enclosed copy of the same to me, with the affidavit of service required by the 62nd sect. of 9 & 10 Vict. c. 95, and by rule 36. Your obedient servant, Clerk. Service of summons . . . : 3 Mileage o 8 8 Hom OR : Affidavit and postage . . -« : 2:2 £ To the high bailiff of the county court of at Order for a New Triul. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. It is ordered, that the judgment in this case, and all subsequent proceedings thereon, be set aside, and a new trial had between the | on [set out the terms or conditions, if any, on which the order is made]. ouien under the seal of the court, this day of By the court, Clerk. Forms in Proceedings in Plaints. 125 Order to rescind a former Order. No. Tn the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. It is ordered, that a certain order of this court in this action, bearing date the day of be rescinded. Given ines the seal of the court, this day of By the court, Clerk. Interpleader Summons to Execution Creditor. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. [Name, occupation, and address of execution creditor.] Whereas 0 hath made a claim to certain goods and chattels [or money, &c., or for certain rent due, &c.] which have been seized and taken in execution under and by virtue of process issuing out of this court, at your instance, in this action. You are therefore hereby summoned and required to be and appear before the judge of the said court, at on : at the hour of in the forenoon, when the said claim will be adjudicated upon, and such order made thereupon as to the judge shall seem fit. Given under the seal of the court, this day of 185 Clerk of the court. To the above-named plaintiff. Hours of attendance at the office of the clerk from ten till four. Note.—The claimant is called upon to give the particulars of his claim, which you may inspect on application at the office of the clerk of the court, four days before the day of hearing. Interpleader Summons to Claimant. No. Tn the county court of holden at (Seal. ) Between A. B., plaintiff, and C. D., defendant. [Name, description, and address of claimant], you are hereby sum- Sect. 118. moned and required to appear at a court to be holden at in on the day of : 185 at the hour of in the forenoon, touching a claim made by you to certain goods and chattels [or monies, &c., or for certain rent due on, &c.], seized and taken in execution under process issued out of this court, in this action, and in default of your then establishing such claim, the said goods and chattels will be sold [or the said monies, &c. paid over], according to the exigency of the said process ; and take 126 Sect. 118. Appendia to Part I. notice that you are hereby required, five days before the said day of to deliver to the officer in charge of the said process, and to leave at my office at » a particular of the goods or chattels so claimed by you, and of the grounds of your claim for of the amount of rent claimed and for what period due, and in respect of what premises the same is claimed], and in such particular you are to fully set forth your name, description, and address. Given under the seal of the court this day of Clerk of the court. To , of Hours of attendance at the office of the clerk from ten till four. Order on an Interpleader Summons. No. In the county court of holden at (Seal.) : Between A. B. plaintiff and C. D. defendant. It is hereby ordered, touching the claim of E. F. to certain goods and chattels, [or monies, &c.] seized and taken in execu- tion in this action, which said E. F. has been duly summoned to support his claim at this court, that the said goods and chattels [or money, &c., or part thereof, to wit, &c., specifying them} are the property of the said E. F. or (of the defendant C. 1., as the case may be], or [that rent to the amount of £ is due to the said E. F.]. And it is further ordered, that the costs of this proceeding, amount- ing to be paid by the said to the clerk of the court, at his office in for the use of the said on or before the day of Given under the seal of the court, this day of 185 By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of Id. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Execution against the Goods of Claimant. Folio in ledger. No. of plaint. No. of execution. In the county court of at Between » plaintiff, and , defendant, claimant. Whereas at a county court duly holden at the on the day of 18, at the above-named plaintiff, by the judgment of the said court, in a certain suit in which the said court had jurisdiction, recovered against the above-named defendant the Forms in Proceedings in Plaints. sum of £ for a certain debt due and owing from the defendant to the above named plaintiff, and £ the costs of suit by the said plaintiff in that behalf expended, amounting together to the sum of £ . And whereas the said defendant, by an order of the said court, bearing date the day and year aforesaid, was ordered to pay the same to the clerk of the court at his office, on the said day of 185 . And whereas the said sum not being paid pursuant to the said order, an execution issued against the goods of the said defendant, under which certain goods and chattels were seized, to which the above-named made claim, and which claim came on to be heard and decided upon inter- pleader summonses for that purpose issued, at a court held at on the day of 185 and at such last- mentioned court it was adjudged touching the said claim that the goods so seized under the said execution were the property of the said de- fendant . And it was ordered that the costs of that proceeding, amounting to the sum of £ should be paid by the said to the clerk of the said court, for the use of the said plaintiff, on or before the day of 185 . And whereas the said sum of £ has not been paid pursuant .to the said order, these are therefore to require and order you forthwith to make and levy, by distress and sale of the goods and chattels of the said wheresoever they may be found within the district of this court (excepting the wearing apparel and bedding of the said or his family, and the tools and implements of his trade (if any) to the value of tive pounds) the said sum of £ and also the costs of this execu- tion, and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money of the said which may there be found, or such part or so much thereof as may be sufficient for the satisfying of this execu- tion, and the costs of making and executing the same, and to pay what you shall have levied under this writ to the clerk of the court, and make return of what you have done under this writ immediately on the execu- tion thereof. Given under the seal of the court this day of 185 By the court. Clerk of the said court. To i eye High bailiff of the said court, and other the bailiffs thereof. £Lox d, Costs - - - - - - - Poundage for issuing this warrant - =. 5 Bailiff’s fee for sending warrant to foreign court - - - - felt eae Poundage for issuing this warrant in foreign court - - - - = = - Bailiff’s fee for execution, including mileage ~- Paying money into court = - - - 2 Total amount to be levied - - ~- £ a Notice.—The goods and chattels ere not to be. sold uutil after the end of five days next following the day on which they may have been taken, unless they be of a perishable nature, or at the request of the said 12 128 Rule 155. Rule 157. Appendia to Part L. Certificate of Deposit. In the county court of holden at (Seal.) oy Between A. B., plaintiff, and C. D., defendant. I do hereby certify that in the above cause, has paid into my hands the sum of £ to abide the event of an appeal, of which the said has given notice in the above cause, to be determined by the court of Clerk of the court. Hours of attendance at the office of the clerk from ten till four. Notice of Sureties. In the county court of holden at Between A. B., plaintiff, and C. D., defendant, Take notice that the sureties whom I propose as my securities on the appeal in the above cause are fhere state the full names and additions of the sureties, whether housekeepers or freeholders, and their residence, for the last six months, therein mentioning the county or city, places, streets, and numbers, if any. | Affidavit of Justification. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. B. B., of one of the sureties for the above-named defendant, maketh oath and saith, that he is a housekeeper [or freeholder, as the case may be], residing [describing particularly the county or city, the street or place, and the number of the house, if any], that he is worth property to the amount of £ [the amount required by the practice of the court] over and above what will pay his just debts [if security in any other action, add, and every other sum for which he is now security]; that he is not bail or security in any other action or proceeding, [or if security in any other action or actions, add except for C. D., at the suit of E. B., in the court of in the sum of £ ; for G. H., at the suit of I. K., in the court of in the sum of £ , specifying the several actions, with the courts in which they are brought, and the sums in which the deponent is security]; that this deponent’s property, to the amount of the said sum of £ [and if security in any other action or actions, over and above all other sums for which he is now security as aforesaid], consists of [here specify the nature and value of the property in respect of which the deponent proposes to become bondsman, as follows, stock-in-trade in his business of carried on by him at of the value of £ of good book debts owing to him to the amount of £ furniture in his house at of the value of £ of a freehold (or leasehold) farm of the value of £ situate at occupied by , or of a dwelling-house of the value of £ situate at occupied by » or of other property, particularizing each descriptio of pro- > Forms in Proceedings in Plaints. 129 perty, with the value thereof]; and that this deponent hath for the last six months resided at [describing the place of such resi- dence, or if he has had more than one residence during that period, state it in the same manner as above directed]. Form of Bond where the Plaintiff is Appellant. Rule 154. Know all men by these presents, that we, A. B., of, &c., and C. D., Asum suffi- of, &c., and E, F., of, &e., are jointly and severally held and firmly cient to cover bound to G. H., of, &c., in £ of good and lawful money ae of Great Britain, to be paid to the said G. H., or his certain attorney, 201, being executors, administrators, or assigns. For which payment to be made, double the we bind ourselves, and each and every of us, in the whole, our, and each aes of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of one thousand eight hundred and fifty Whereas an action is now depending in the county court of holden at wherein the above-bounden E, F. is plaintiff and the above-named G. H. is defend- ant. And whereas the said action came on to be tried in the said court on the day of when a judgment was given for the said G, H. And whereas the said E. F., being dissatisfied with such judgment, gave due notice to the said G. H. of his the said E. F,’s intention to appeal from the same to her Majesty’s court of at Westminster, in the manner provided by an act of the 13th and 14th years of her present Majesty’s reign, c. 61,s. 14. And whereas it is by the same sectibn of the same act provided, that the party who shall appeal as aforesaid shall give security, to be approved by the clerk of the court aforesaid, for the costs of the appeal, whatever be the event thereof. And whereas the above-named A. B. and C. D., at the request of the said E. F., have agreed to enter into the above-written obligation for the purposes aforesaid, and the security intended to be hereby given has been approved of by the clerk I approve of of the said county court, as appears by his allowance in the margin this pont. hereof. Now the condition of this obligation is such, that if the above- jess bounden A. B., C. D., and E.F., any or either of them, shall pay ~~ unto the said G. H., his executors, administrators, or assigns, the costs of the said appeal, as the said court of appeal shall order, then this present obligation shall be void, otherwise to remain in full force and virtue. A. B. (t, 8.) C.D. (1. 5.) E. F. (Ls 8.). Signed, sealed, ard delivered by the above-bounden in the presence of Form of Bond where the Defendant is Appellant. Rule 154. Know all men by these presents, that we, A. B., of, &c., and C, D., A sum sufli- of, &c., and E. F., of mela jointly and severally held and firmly Sena eae bound to G. H., of, &c., in £ of good and lawful money appeal, say of Great Britain, to be paid to the said G. H., or his certain attorney, 200., bein; aie . . double the executors, administrators, or es For which payment to be made saanated 130 amount, and also double the amount of judgment. I approve of this bond, Sd HE, (1. 8.) To be omit- ted if amount previously paid into court. Role 162. Rule 202. Appendix to Part I. we bind ourselves, and each and every of us, in the whole, our, and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of one thousand eight hundred and fifty Whereas an action ‘is now depending in the county court of ‘ holden at wherein the above-named G. H. is plaintiff, and the above-bounden E. F. is defend- ant. And whereas the said action came on to be tried in the said court on the day of last, when a judgment was piven for the said G. H. in the sum of £ And whereas the said E. F., being dissatisfied with such judgment, gave due notice to the said G. H. of his the said E. F.’s intention to appeal from the same to her Majesty’s court of at Westminster, in the manner provided by an act of the 13th and 14th years of her present Majesty’s reign, c. 61,s, 14. And whereas it is by the same section of the said act provided, that the party who shall appeal as aforesaid shall give security, to be approved by the clerk of the court aforesaid, for the costs of the appeal, whatever be the event thereof, and also for the amount of the judgment if such party be the defendant, and the appeal be dismissed. And whereas the above-named A. B.and C. D., at the request of the said E. F., have agreed to enter into the above-written obligation for the purposes aforesaid, and the security intended to be hereby given has been approved of by the clerk of the said county court, as appears by his “allowance in the margin hereof. Now the condition of this obligation is such, that if the above-bounden A. B., C. D., and E. F., any or either of them, shall pay unto the said G. H., his executors, adminis- trators, or assigns, the costs of the said appeal, as the said court of appeal shall order (and shall also, in case the said appeal shall be dis- missed, pay to the said G. H., his executors, administrators, or assigns, the said sum of £ [amount of the judgment]), then this obligation shall be void, otherwise to remain in full force and virtue. A. B. (1. 8.) C.D. (ue s.) E. F. (tu. s.) Signed, sealed, and delivered by the above-bounden in the presence of Form of Case. In the county court of holden at (Seal. ) On appeal to the court of between A. B., plain- tif, and . D., defendant. uF This is an action [here state the cause of action and the facts]. The question for the opinion of the court of is— First. [Here state the question for the opinion of the court.] [Signature of judge.] Form of Admission of Debt, or part of Debt, under s. 8,13 & 14 Vict. c. 61. (A.) No. of plaint. In the county court of holden at Between A. B., plaintiff, and C, D., defendant. I, the above-named defendant, do hereby confess and admit that Forms in Proceedings in Plaints. 131 the sum of £ ; the amount claimed* by the plaintiff in this action, is due to him from me. Dated this day of 185. Signed in the presence of the aboveenamed defendant, * Or part of the amount claimed, This paper, marked (A.), is the statement referred to in the annexed affidavit, * Affidavit of Signature to Admission, s. 8. Rule 202. No. of plaint. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. E. F., of gentleman, an attorney of her Majesty’s court of at Westminster, maketh oath and saith, that he was present on the day of one thousand eight hundred and fifty , and did see the above-named defendant sign the statement hereunto annexed, marked with the letter (A. },.and that the name set to the said statement is in the hand- writing of the defendant and that the name set to the said statement as the witness attesting the same is in the hand- writing of him this deponent. Sworn at in the county’) of this day | of 185 | Before me, J Notice to Plaintiff of Admission of Claim under s. 8. Rule 202. No. of plaint. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. I do hereby give you notice, that the above-named defendant has filed a statement confessing and adinitting the amount claimed by you, and that it will not be necessary for you to prove the debt on the day of hear- ing; but you must attend the court to apply to the judge for an order for payment. Dated this day of 185 Clerk of the court. Hours of attendance at the office of the clerk from ten till four. To the above-named plaintiff, Notice to Plaintiff, under s. 8, of Admission of Part of Claim, Rule 202. No. of plaint. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. I do hereby give you notice that the above-named defendant has filed 1382 Rule 203. Rule 203. Appendix to Part L. a statement confessing and admitting £ part of the amount claimed by you, and that it will not be necessary for you to prove that art of your claim which the defendant has so admitted, on the day of hear: Jf, however, you do not consent to accept the sum so admitted in satisfaction of your demand, you must be prepared to prove the excess ; but at all events you must attend the court to apply to the judge for an order for payment. Dated this day of 185 Clerk of the court. Hours of attendance at the office of the clerk from ten till four., To the above-named plaintiff. Form of Admission under s. 9, 18 & 14 Vict. c. 61. No. of plaint. In the county court of holden at Between A. B. plaintiff, and C. D. defendant. We, the above-named A. B. and C. D. do hereby agree that the amount of the debt or demand due from the defendant to the plaintiff is pounds . shillings and pence, and that the same, with £ _ tor the plaintiff’s costs, and £ the court fees, amounting together to [here insert'the total amount of debt and costs], shal] be paid to the clerk of the court at his office, in manner following, viz. Signatures of plaintiff and defendant. Dated this day of 185 Signed in the presence of This paper, marked (A.), is the statement referred to in the annexed affidavit. —s Affidavit of Signature under s. 9, 13 & 14 Vict. c. 61. No. of plaint. In the county court of holden at Between A. B., plaintiff, and C. D. defendant. E. F., of gentleman, an attorney of her Majesty’s court of at Westminster, maketh oath and saith, that he was present on the day of one thousand eight hundred and fifty and did see the above- named plaintiff and defendant respectively sign the statement hereunto annexed, marked with the letter (A.), and that the name wed set to the said statement is in the handwriting of the plaintiff and that the name set to the said statement is in the handwriting Forms in Proceedings in Plaints. 133 of the defendant and that the name : fa set to the said statement as the witness attesting the same is in the handwriting of him the deponent. Sworn at in the county } of this day { of 185 > Before me, J Judgment against Defendant for Payment of Debt or Damages, under Rule 203. 13 & 14 Vict. ¢. 61, s. 9. No. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. By virtue of a statement in writing signed by ang above-named plaintiff and defendant respectively on the ay of one thousand eight hundred and fifty in pursuance of the pro- visions of an act of the 13 & 14 Vict.c. 61, it is adjudged that the plaintiff do recover against the defendant the sum of £ Debt. for his debt, and £ for costs of suit, amounting together to Cos*s- the sum of . And it is ordered that the defendant do pay the same to the clerk of the court at his office, on or before the day of 185. Given under the seal of the court, this day of ? By the court, Clerk. Hours of attendance at the office from ten till four o’clock. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Judgment against Defendant when the Debt or Damages are made payable pyie 203. by Instalments, under 13 & 14 Vict. c. 61, s. 9. No. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. By virtue of a statement in writing, signed by Acknowledgment of Payment into Court. the above-named plaintiff and defendant respec- tively, on the day of onethou- Date. |£Js.[|d.| Received by sand eight hundred and fifty , in pursuance of the provisions of an act of the 13 & 14 Vict. c. 61, it is adjudged, that the plaintiff do recover against the defendant the sum of for his debt, and £ for costs of suit, amounting together to the sum of It is therefore ordered that the defendant do —— pay the same to the clerk of the court at his 134 Rule 203. Appendia to Part I. office, by instalments of for every days, the first instalment to be paid upon the day of one thousand eight hundred and . In case of default in payment of any one of such instalments, and execution issue, it shall be for the whole of the above amount then remaining due. Given under the seal of the court, this day of one thousand eight hundred and fifty By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of Id. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. : Summons for Commitment under s. 9 of 13 & 14 Vict. c. 61. No. In the county court of holden at Between A. B., plaintiff, and C. D., defendant. Whereas by virtue of a statement in writing, signed by the above- named plaintiff and defendant respectively, on the day of one thousand eight hundred and fifty in pursuance of the provisions of an act of the 13 & 14 Vict. c. 61, the above-named plaintiff obtained a judgment against you for the payment of £ for and £ for costs which said judgment still remains unsatisfied ; you are therefore hereby summoned to appear at the county court to be holden at in on the day of one thousand eight hundred and fifty at the hour of in the forenoon, to be then and there examined by the judge of the said court touching your estate and effects, and the manner and circumstances under which you contracted the debt [or incurred the damages or liability] which was the subject of the action in which the said judg- ment was obtained against you, and as to the means and expectation you then had, and as to the property and means you still have, of discharging the said debt [or damages or liability], and as to the dis- posal you may have made of any property. And take notice, that if you do not appear in obedience to this summons, you may, by order of this ak be committed to the common gaol [or other prison of the court]. Given under the seal of the court, this day of one thousand eight hundred and fifty By the court, Clerk. To the above-named defendant. £ ss ad. Amount of judgment or order 3 : Costs of this summons ‘ a £ Hours of attendance at the office of the clerk from ten till fonr. Forms in Proceedings in Plaints. 135 Warrant of Commitment after Examination upon Judgment under s.9 Rule 203. of 13 & 14 Vict. «. 61. Execution No. Plaint No. In the county court of holden at Between A. B. plaintiff, and C. D., defendant. To the high bailiff and the other bailiffs of the said court, and all con- stables and peace officers within, the jurisdiction of the said court, and to the governor or keeper of the common gaol for the county of at in the said county. Whereas by virtue of a statement in writing, signed by the above- named plaintiff and defendant respectively, on the day of ° one thousand eight hundred and fifty in pursuance of the provisions of an act of the 13 & 14 Vict. c. 61, the above-named plaintiff, by the judgment of the said court in a certain suit wherein the said court had jurisdiction, recovered against the above-named defendant the sum of pounds "shillings and pence for his debt, and the sum of pounds shillings and pence, the costs of the said suit, amounting together to the sum of : pounds shillings and pence, and thereupon it was then and there ordered the defendant should pay the same to the clerk of the court at his office, on or before the day of - 18 [or by instalments of £ for every days]. And whereas the defendant not having paid the said sum pursuant to the said judgment, a summons was, upon the application of the plain- tiff, duly issued from and out of the said court against the defendant, by which said summons the defendant was required to appear at the said county court of at on the day of one thousand eight hundred and fifty ; to answer such questions as might be put to him touching his estate and effects, and the manner and circumstances under which he contracted the said debt which was the subject of the action in which the said judgment was obtained against him, and as to the means and expectation he then had, and as to the property and means he still had, of discharging the said debt, and as to the disposal he had made of any property. And whereas the defendant, having duly appeared at the said court pursuant to the said summons, was examined touching the above matters. And whereas it appeared, upon such examination, to the satisfaction of the judge of the said court, that [here insert the ground of commit- ment], and thereupon it was ordered by the said judge, that the de- fendant should be committed for the term of days to the for the county of at aforesaid, according to the form of the statute in that case made and provided, or until he should be discharged by due course of law. These are therefore to require you;,the said high bailiff, bailiffs, and others, to take the defendant, and to deliver him to the governor [or keeper] of the ; and you the said governor [or keeper] are hon ean to receive the defendant, and him safely to keep in the said for the term of days from the arrest under this warrant, or until he shall be sooner discharged by due course of law. For which this shall be your sufficient warrant. 136 Rule 203. Appendix to Part I. Given under the seal of the court this day of one thousand eight hundred and fifty : Clerk of the said court. £ s. Debt or damage adjudged - - - = Costs - + - - - 7 = Paid - = © = = - as — Remaining due - = - - - ei Cost of summons for commitment and _ its hearing - - ~ = = a Poundage for issuing this warrant - Bailiff’s fee for sending warrant to foreign court Poundage for issuing warrant in foreign court - Bailiff’s fee for conveying defendant to gaol - Bailiff’s fee for execution, including mileage Paying money intocourt - - - = - Total amountdue - - - -£ N.B. This warrant remains in force for three calendar months from the date thereof. Execution against the Goods of Defendant under 13 & 14 Vict. c. 61, x 9 Execution No, Plaint No. In the county court of holden at Between A.B., plaintiff, and C. D., defendant. Whereas by virtue of a statement in writing signed by the above- named plaintiff and defendant respectively on the day of one thousand eight hundred and fifty in pursuance of the provisions of an act of the 13 & 14 Vict. c. 61, the above-named plaintiff by the judgment of the said court, in a certain suit in which the said court had jurisdiction, thereupon re- covered against the defendant pounds shillings and ence, for a certain debt due and owing from the defendant to the plaintiff, and pounds shillings and pence, the costs of suit by the plaintiff in that behalf expended, amounting together to the sum of pounds shillings and pence, and thereupon it was then and there ordered by the said court that the defendant should pay the same to the clerk of the court, at his office, on or before the day of 18, [or by instalments of for every days. ] And whereas the said snm of pounds shillings and pence, [or the sum of , being part of the said sum], has not been paid pursuant to the said judgment. These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the defendant, wheresoever they may be found within the district of this court (excepting the wearing apparel and bedding of the defendant or his family, and the tools and impiements of his trade, if any, to the value of five pounds), the said Forms in Proceedings in Plaints. sum of pounds shillings and pence, and also the costs of this execution ; and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any checks, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the defendant, which may there be found, or such part or so much thereof as may be sufficient for the satisfying of this execution, and the costs of making and executing the same, and to pay what you shall have levied under this writ to the clerk of this court, and make return of what you have done under this writ immediately upon the execution hereof. Given under the seal of the court, this day of one thousand eight hundred and fifty By the court, Clerk of the court. To High bailiff of the said court, and other the bailiffs thereof. £ a d, Debt or damages adjudgedg- - - Costs - - - - - = Paid - = = ee a 2 Remaining due - - - - “ Poundage for issuing this warrant - - Bailiff ’s fee for sending warrant to foreign court Poundage for issuing warrant in foreign court - Bailiff’s fee for execution, including mileage - Paying money intocourt - - - = Total amount to be levied - - - £ ————— Notice.—The goods and chattels are not to be suld until after the end of five days next following the day on which they may have been taken, unless they be of a perishable nature, or at the request of the defendant. [In cases of cross judgments, the execution must be stated to be for the balance. ] 137 Summons in Nature of a Scire Facias where any Change of Plaintiff, Rule 173. No. of plaint. In the county court of holden at (Seal.) Between E. F., plaintiff, and C. D., defendant. [Name, description, and address of defendant. ] Whereas A. B., at a county court holden at : on the day of 185 __, obtained a judgment against you for the payment of £ for debt, and £ : for costs, on the day of 185, which said judgment now remains unsatisfied, and whereas the said A. B. has since died [or state circumstances requiring revival of judgment], and the said E. F. is his executor [or state representative character. ] 138 Rule 173. Appendix to Part I. You are hereby summoned to appear at a county court to be holden at on the day of 185 at the hour of in the forenoon, to show cause why judgment should not be entered up at the suit of E. F. on the said judgment so obtained against you as aforesaid, and why execution should not issue thereon. Dated this day of 185 Clerk of the court. Lud Due on judgment - - : : Costs of this summons - 4 £ N.R.—Where the judgment in the original cause was tor the defend- ant, the above form must be altered accordihgly. Summons in Nature of Scire Facias, where any Change of Defendant. No. of plaint. In the county court of holden at (Seal.) Between A. B., plaintiff, and E. F., defendant. [Name, description, and address of defendant. ] Whereas the above-named plaintiff, at a county court holden at on the day of 185 , obtained a judgment against C. D., of [name, description, and residence of C. D.] tor payment of £ for debt, and £ for costs, on the day of 185 , which said judgment now remains unsatisfied. And whereas the said C. D. has since died [or state cause of revival being necessary], and you are his executor, [or state other representative character]. You are hereby summoned to appear at a county court to be holden at on the day of 185 at o’clock in the forenoon, to show cause why judgment should not be entered up against you, at the suit of the said A. B., on the said judge so obtained as aforesaid, and why execution should not issue thereon. Dated this day of 185 Clerk of the court. £ os d. Due on judgment = - - : : Costs of this summons - : £ N.B.—Where the judgment in the original cause was for the defend- ant, the above form must be altered accordingly. Forms in Proceedings in Plaints. 189 Judgment on Scire Fucias Summons on Change of Plaintiff. Rule 173. No. of plaint. Io the county court of holden at (Seal. } Between E. F., plaintiff, and C. D., defendant. Whereas A. B., at a county court holden at on the day of 185, obtained a judgment against the above-named defendant for payment of £ for debt, and £ for costs, on the day of 185, and which said judgment now remains unsatis- fied. And whereas the said A. B. has since died [or state circumstances requiring revival of judgment], and that the said E. F. is his executor [or state other representative character]. Wherefore it is ordered that the said E. F. be at liberty to issue execution on the said judgment against the said defendant ; and it is further ordered that the said de- fendant shall pay to the clerk of the court at his office the sum of £ for costs, on or before the day of 18 Given under the seal of the court, this day of 3 By the court, Clerk. £s. d Due on judgment : . : : Costs of this order. é £ N.B.—Where the judgment in the original cause was for the defend= ant, the above form must be altered accordingly. Judgment on Scire Facias on Change of Defendant. Rule 173. No. of plaint. In the county court of holden at (Seal.) Between A. B., plaintiff, and E. F., defendant. Whereas the above-named plaintiff, at a county court holden at on the day of 185, obtained a judgment against C. D. for payment of £ for debt, and £ for costs, on the : day of 185 ,and which said judgment now remains unsatisfied. And whereas the said C. D. has since died, [or state other circumstances requiring revival of judgment], and the above-named defendant is his executor 140 Rule 182. Rule 184. Appendix to Part I. [or state other representative character]. [Conclude according to the tules and forms as to executors and the defence made]. Given under the seal of the court, this day of 5 By the court, Clerk, £ » da Due on judgment fordebt 5 f Due on judgment for costs Costs of this order . . . £ N.B.—Where the judgment in the original cause was for the defend- ant, the above form must be altered accordingly. Suggestion of Devastavit in original Summons. [Commence with Form of Summons the same as Form No. 2, but naming defendant as executor or administrator, and adding ;] And the plaintiff alleges that you the defendant have money, goods, and chattels which were the property of deceased, at the time of his death, and which came to your hands as executor [or administrator] of the said to be administered, and if you have not, that you have withheld and wasted the same, whereby you have become liable to satisfy the plaintiff’s claim and his costs herein out of your own goods. Judgment against an Executor who has wasted Assets. No. In the county court of holden at (Seal. ) Between A, B., plaintiff, and C. D., executor [or administrator] of defendant. Upon hearing this cause at a court holden at on the day of it is adjudged the plaintiff do recover against the defendant the sum of £ for and £ for costs, amounting together to the sum of £ and it is ordered that the defendant do pay the same to the clerk of the court at his office at on or before the day of It is also adjudged that the defendant, being the executor [or admi- nistrator] of deceased, has made away with, wasted. and put to his own use divers goods and chattels [or moneys, as the case may be],to the amount of the said sum [the total of the claim and costs], which were the property of the said deceased, and whicn came to the hands of the defendant as executor [or administrator] as aforesaid, to be administered. Wherefore it is ordered that if the defendant make default in the pay- ment of the sums of £ and £ respectively, the Forms in Proceedings in Plaints. same shall be levied by distress and sale of the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator] as aforesaid, if the defendant bas so much thereof in his hands to be administered ; and if he has not, then that the said sums shall be levied of the proper goods and chattels of the defendant. By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N. B.—For each payment made under this order, not exceeding 10s., the fee of Id. will be charged, and for each payment above 10s., 2d, in the pound on the amount of the payment. Judgment against an Executor who has denied his Representative Character. No. In the county court of holden at (Seal.)} Between A. B., plaintiff, and C. D., executor [or administrator] of defendant, Upon hearing this cause at a court holden at in on the day of 185 it is adjudged that the plaintiff do recover against the defendant the sum of £ for and £ for costs of suit, amounting together to £ And it is ordered that the defendant do pay the same to the clerk of the court at his office at on or before the day of 185 And the defendant having denied that he is executor [or administra- tor] of the said deceased, it appears to the court that he is executor [or administrator] of the said deceased. Wherefore it is ordered that if the defendant make default in the pay- ment of the said sums of £ and £ respectively, the same shall be levied by distress and sale of the goods and chattels which were of the said deceased, and which came to the hands of the defendants as executor [or administrator] aforesaid, if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the said sums shall be levied of the proper goods and chattels of the defendant. By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s,, 2d. in the pound on the amount of the payment. 141 Part of Rule 185. 142 Appendix to Part I. Part of Rule Judgment against an Executor who has pleaded a Release to the Claim to 185. Rule.186. himself. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., executor [or administrator] of defendant. Upon hearing this cause at a court holden at on the day of 185 _ it is adjudged that the plaintiff do recover against the defendant the sum of £ for and £ for costs of suit, amounting together to £ ‘And it is ordered that the defendant do pay the same to the clerk of the court at his office at on or before the day of 185 ‘And the defendant having alleged that the plaintiff’s claim had been released to him, it appears to the court that he has failed to prove such release. Wherefore it is ordered that if the defendant make default in his pay- meat of the said sums of £ and £ respectively, the same shall be levied by distress and sale of the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator] aforesaid, if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the said sums shall be levied of the proper goods and chattels of the defendant. By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Judgment against Executor or Administrator who admits his Representa- tive Character, and denies the Demand. No. Tn the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., executor [or administrator] of defendant. Upon hearing this cause at a court holden at on the day of 185 __ it is adjudged that the plaintiff do recover against the defendant the sum of £ for and £ the costs of suit, amounting together to the sum of £ Forms in Proceedings in Plaints. And it is ordered that the defendant do pay the same to the clerk of the court at his office at on or before the day of 185 And the defendant having admitted his representative character, but denied the plaintiff’s demand, and the plaintiff having proved the same, it is further ordered that if the defendant shall make default in payment of the said sums of £ and £ respectively, the same shall be levied as follows: the sum of £ (the debt and costs) of the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator] as aforesaid, if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the sum of £ (the costs) be levied upon the proper goods of the defendant. By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d, in the pound on the amount of the payment. Judgment against Executor or Administrator where he admits his repre- sentative character, but denies the demand, and alleges total or partial Administration of Assets, and the Plaintiff proves his Demand, and the Defendant proves Administration. No. In the county court of holden at (Seal. ) Between A. B., plaintiff, and C. D., executor [or administrator] of defendant. Upon hearing this cause at a court holden at in on the day of 185 it is adjudged that the plaintiff do recover against the defendant the sum of £ and £ for costs of suit, amaunting together to £ And it is ordered that the defendant do pay the same to the clerk of the court, at his office at on or before the day of And the defendant having admitted his representative character, but denied the demand, and having also alleged a total (or partial) admi- nistration of the goods of the said deceased, which came to the hands of the defendant as executor [or administrator] to be administered, it appears to the court that the plaintiff has proved to the court his demand, and also that the defendant has proved the ad- ministration alleged. Wherefore it is ordered that in default of such payment the sum of being the costs incurred by the plaintiff in proving his 148 Rule 187. 144 Rule 188. Appendix to Part . demand, shall be levied on the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator] as aforesaid, if the defendant has so much thereof in his hands; and if he has not, then that it shall be levied of the proper goods and chattels of the defendant ; and as to the sum of £ the plaintiff’s demand, that it be levied of the goods and chattels of the said deceased which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered. And it is further ordered that the plaintiff do pay to the clerk of the court at his office at on or before the day of the sum of £ being the costs incurred by the defendant in proving the administration alleged. By the court, Clerk. N.B.—If the defendant is shown to have some assets, the judgment must be for that amount, de bonis testatoris, and for the residue quando acciderint, Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of payment. Judgment against Executor or Administrator where the Defendant admits his Representative Character, but denies the Demand, and alleges total or partial Administration of Assets, and the Plaintiff proves his Demand, and the Defendant does not prove the Adminis- tration. . No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D. executor [or administrator] of defendant. _ Upon hearing this cause at a court holden at in on the day of 185 it is adjudged that the plaintiff do recover against the defendant the sum of £ and £ for costs of suit, amounting together to the sum of £ And it is ordered that the defendant do pay the same to the clerk of the court at his office at on or before the day of 185 And the defendant having admitted his representative character, but denied the plaintiff's demand, and having ale alleged a total (or par- Forms in Proceedings in Plaints. tial) administration of the goods of the said deceased which came to the hands of the defendant to be administered, it ap- pears to the court that the plaintiff has proved to the court his demand, and also that the defendant has not proved the said administration alleged. And it is further ordered that if the defendant shall make default in payment of the said sums of £ and respectively, the same shall be levied as follows: the sum of £ _(debt and costs) of the goods and chattels which were of the said deceased, and which came to the defendant as aforesaid, if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the residue of the said sum of £ (debt) be levied of the goods and chattels of the said deceased, which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered ; and that the sum of £ (the costs) be levied upon the proper goods of the defendant. By the court, Clerk. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Judgment against an Executor or Administrator who admits his Repre- sentative Character and the Plaintiff’s Demand, but alleges a total or partial Administration of Assets, and proves the Administration. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., executor [or administrator] of defendant. ‘ Upon hearing this cause at a court holden at on the . day of 185 itis adjudged that the plaintiff do recover against the defendant the sum of £ And it is ordered that the defendant do pay the same to the clerk of the court, at his office at on or before the . 3 : day of . And the defendant having admitted his representative character and also the plaintiff’s demand, and having alleged a total [or partial]. administration of the goods of the said deceased, which came to the hands of the defendant to be administered, it appears to the ‘court that the defendant has proved to the court the administration alleged. H Rule 189. 146 Rule 185. Appendix to Part I. Wherefore it is ordered that in default of such payment the said sum of £ shall be levied of the goods and chattels of the said deceased, which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered. And it is further ordered that the plaintiff do pay to the clerk of the court, at his office at on or before the day of the sum of £ being the costs incurred by the defendant in proving the administration alleged. By the court, Clerk of the court, Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Judgment against an Executor or Administrator who admits his Repre- sentative Character and the Plaintiff’s Demand, but alleges a total or partial Administration of Assets, and does not prove the Administration. No. In the county court of holden at (Seal. ) Between A. B,, plaintiff, and C. D., executor [or administrator] of defendant. Upon hearing this cause at a court holden at on the day of 185 itis adjudged that the plaintiff do recover against the defendant the sum of £ and £ amounting together to And it is ordered that the defendant do pay the same to the clerk, at his office at on or before the day of . And the defendant having admitted his representative character, and also the plaintiff's demand, and having alleged a total [or partial] administration of the goods of the said deceased, which came to the hands of the defendant to be administered, it appears to the court that the defendant has not proved to the court the administration alleged. And it is further ordered that if the defendant shall make default in payment of the said sums of £ and £ respectively, the same shall be levied as follows: the sum of £ (debt and costs) of the goods and chattels which were of the said deceased, and which came to the defendant as aforesaid, if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the residue of the said sum of £ (debt) be levied of the goods and chattels of Forms in Proceedings in Plaints. 147 the said deceased which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be adminis- tered, and that the sum of £ (the costs) be levied upon the proper goods of the defendant. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 103., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Notice toan Executor of Plaintiff's Intention to apply to the Court where Rule 190. Assets have come to Defendant’s Hands since Judgment. No. In the county court of holden at § (Seal.) fs: Between A. B., plaintiff, and C. D., executor [or administrator ] of defendant. [The name, description, and address of defendant], the above plaintiff, having learned that property of ot deceased, has come to your hands, as executor {or administrator], since the judgment herein, to be administered [and that you have withheld and wasted the same], intends to apply to the court to be holden on the day of 185 at for an order that the debt (or damages), and costs shall be levied of the goods and chattels of the said deceased, if you have so tauch thereof to be administered [and that if you have not, then that it shall be levied of your proper goods and chattels], and that the costs be 2 levied of your proper goods and chattels. You are therefore hereby summoned to appear at the said court, at the time and place aforesaid, to answer touching the matters aforesaid. Dated this day of 185 Clerk of the court. Hours of attendance at the office of the clerk from ten till four, Execution against the Goods of a Testator. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., executor [or administrator] of defendant, Whereas at a court duly holden at . on the © day of 185 the plaintiff, by the consideration and judgment of the said court, in an action in which the court had juris- a's 148 Rule 126. Appendix to Part I. diction, recovered against the defendant, as executor [or administrator} of deceased, the sum of £ fora certain debt [or damages] before that time due and owing to the plaintiff by the said in his lifetime, and the sum of £ for his costs of suit by the plaintiff in that behalf expended, amounting together to the sum of pounds shillings and pence: And hereupon it was then and there ordered that the defendant should pay the same to the clerk of the court at his office on or before the day of 185, [or by instalments of for every days. ] And whereas the said sum of £ (or £ part of the same sum of £ ) has not been paid to the clerk of the court pursuant to the said order. These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels, which were the pro- perty of the said in his lifetime, in the hands of the defendant to be administered, wheresoever they may be found within the district of this court, the said sum of together with the costs of this execution ; and also to seize and take any money or bank notes, (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, which were the property of the said in his lifetime, which may there be found, or such part or so much thereof as may be sufficient for the satisfying of this execution, and the costs of making and exe- cuting the same, if the defendant hath so much thereof in his hands to be administered ; and if he hath not so much thereof in his hands to be administered, then that you make and levy of the proper goods and chattels, money, or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money of the defendant, the sum of for the costs and charges first above- mentioned, and the costs of this execution and of levying the same, and to pay what you shall have levied under this writ to the clerk of the court, and make return of what you have dune under this writ imme- diately upon the execution thereof. Given under the seal of the court this day of one thousand eight hundred and By the court, Clerk of the court. To The high bailiff of the said court, and others the bailiffs thereof. Notice-—The goods and chattels are not to be sold until after the end of five days next following the day on which they may have been taken, unless they be of a perishable nature, or at the request of the defendant. [In cases of cross-judgments the execution must be stated to be for the balance. ] (Warrants of execution upon the judgments given in forms may be drawn from this form, altered accordingly from those forms.) Forms in Proceedings in Plaints. £ 8 d. Debt or damage adjudged Costs - - - Paid - - = = = = = Remaining due - - - - - Poundage for issuing this warrant - - Bailiff’s fee for sending warrant to foreign cour Poundage for issuing warrant to foreign court - Bailiff’s fees for execution, including mileage Paying money into court = - - - - Total amount to belevied - = Judgment against an Executor on a Devastavit. No. In the county court of at (Seal.) Between A. B., plaintiff, and C. D., executor [or administrator] of deceased, defendant. Upon hearing the plaintiff’s application in this cause, at a court holden at on the day of it is adjudged that property of deceased, has come to the hands of the defendant, as his executor [or administrator], since the judgment recovered herein, to be administered, and that the defendant has wasted the same divers goods and chattels [or monies, as the case may be], which were the property of deceased, whereby the judgment recovered herein [or ‘“ remaining due upon”] remains unsatisfied, and that the defendant do pay the sum of £ recovered by the judgment, together with the sum of £ the costs of this order, to the clerk of the court, at his office, on or before {as the case may be]. And it is further adjudged, that if the defendant make default in payment thereof, an execution shall issue to make and levy the said several sums of £ and £ of the goods and chattels of the said deceased, if the defendant has so much thereof in his hands to be administered ; and if he has not, then to be made and levied of the proper goods and chattels of the de- fendant. By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s. the fee of ld. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Order of Reference. In the county court of holden at (Seal.) Between plaintiff, and defendant. By the consent of the above-named plaintiff and defendant, it is, at a court holden at onthe day of 185 ordered that all matters in difference in this cause [and all 149 150 Rule 203. Appendia to Part I. other matters within the jurisdiction of this court, in difference between the said parties] be referred to of whose certificate, to be made or given before the day of 185, shall be entered as the judgment in this cause; and by the like consent it is further ordered that the time for making or giving such certificate may be from time to time enlarged by the judge of the court in his discretion, for such time as he shall, by indorsement to be by him made on this order, direct; and that the said certificate, when made or given, may be referred back again to the said arbitrator at the like discretion of the said judge, without the further consent of the said parties, and in case either of the said parties shall neglect or refuse to attend any appointment to be made by the said arbi- trator for proceeding under this order, after two days’ notice thereof in writing shall have been given to him by serving the same per- sonally, or by leaving it at his last or usual place of abode, the said arbitrator shall be at liberty to proceed ex parte on the matters of the said reference, and his certificate shall be as valid as if both the said parties had duly attended before him. And it is further ordered that the costs of the said reference shall be in the discretion of the arbitrator, and that the costs of the action shall abide the event ; and it is lastly ordered that the submission to arbitration shall not be revocable by either party. Given under the seal of the court this day of Clerk of the court. Judgment for Defendant in Replevin for Rent. No. In the county court of holden at (Seal.) Between A. B., plaintiff, and C. D., defendant. Upon hearing this action of replevin at a court holden at on the day of 185 it is adjudged that the plaintiff do return to the defendant the cattle [or the goods and chattels, as the case may be, stating the particulars thereof}, and pay to the clerk of the court, at his office, forthwith [or on the day of ] the sum of £ costs of suit. [Or, it is adjudged, that the amount due for rent in arrear from the plaintiff to the defendant is £ and that the said cattle [or gcods and chattels] were of the value of £ and that the plainuff do forthwith [or on the day of ] pay to the clerk of the court, at his office, the said sum of £ and also the sum of £ costs of suit.] By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Forms in Proceedings in Plaints. 151 Judgment for Defendant in Replevin for Cattle damage feasant. Rule 206. No. In the county court of holden at (Seal. ) Between A. B., plaintiff, and C. D., defendant. Upon hearing this action of replevin, at a court holden at on the day of it is adjudged that the plaintiff do return to the defendant the cattle or do pay to the clerk of the court, at his office, forthwith be on the day of J, the sum of . which is now adjudged to be the amount of damage sustained by the defendant. It is also adjudged that the plaintiff do pay to the clerk of the court, at his office, on the day and year aforesaid, the sum of £ costs of suit. By the court, Clerk of the court. Hours of attendance at the office of the clerk from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Statement of Grounds of Removal and Sureties, in Replevin. 9 & 10 Viet. ce. 95, 8. 121. No. Rule 204. In the county court of at Between A. B., plaintiff, and C. D., defendant. Take notice, that I am desirous of removing this plaint in replevin into the [court into which the replevin is to be removed], upon the ground that [state ground under s, 121]; and that the two persons whom I propose to become bound with me as sureties, according to the statute, are E. F., of and G. H., of Dated this day of 18 (signed) To the clerk of the court. Bond on removing Plaint in Replevin. Sect. 121. Know all men by these presen that we, C. D., of ani E. F., of H., of : are jointly and severally held and firmly bound to A. B, in the sum of 152 Sect. 122. Appendix to Part I. pounds of lawful money of Great Britain, to be paid to the said A. B., his certain attorney, executors, or administrators ; for which payment well and truly to be made we bind ourselves, and each and every of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated this day of one thousand eight hundred and fifty Whereas a certain action of replevin was on the day of commenced in the county court of holden at wherein A. B. was plaintiff, and C. D. the defendant. And whereas the said [C. D.] hath declared to the said court that [the title to a certain corporeal [or incorporeal] here- ditament, or to any toll, market, fair, or franchise, is in question in the said suit, or that the rent [or damage], in respect of which the distress in this behalf was taken, amounts to more than fifty pounds}. Now the condition of this obligation is such, that if the above-bounden C. D. shall prosecute the said suit with effect and without delay in the court into which it is now about to be removed, and shall prove before the said last-mentioned court that such title as aforesaid is in dispute between the said parties [or there was ground for believing that the said rent or damage was of greater amount than fifty pounds], then this present obligation shall be void, otherwise to remain in full force and virtue. Cc. D. (Seal.) E. F. (Seal. ) G.H. (Seal.) Signed, sealed, and delivered by the above-bounden : in the presence of Summons to a Tenant holding over. No. In the county court of at (Seal. ) Between A. B., plaintiff, and C. D., defendant. [ Name, residence, and description of defendant. ] You are hereby summoned to appear at a county court to be holden at on the day of at the hour of in the forenoon, to answer [name, residence, and description of plaintiff] wherefore you neglect to deliver up to him possession of a certain [messuage with appurtenances, or part of a house, &c., as the case may be], situate at And take notice, if you do not appear at the said court, and show cause why you do not quit and deliver up possession as aforesaid, you may, by order of the court, be turned out of the possession held by you. By the court, Clerk of the court. To Cost of this summons and service - - - £ Hours of attendance at the office of the clerk of the court from ten ull tour, Forms in Proceedings in Plaints. 153 Judgment for Recovery of Tenement. Sect. 122. Rule 210. No. In the county court of at (Seal.) Between A. B., plaintiff, and C. D., defendant. Upon the hearing of this cause, at a court holden at in on the day of it is adjudged, that the plaintiff do recover against the defendant, possession of a certain house [or land or part of a certain house] at together with the costs of suit, amounting to the sum of £ And it is ordered, that the defendant do forthwith quit and deliver up possession of the said house [or &c.] to the plaintiff, and that a warrant do forthwith [or on the day of issue to enforce this adjudication, and to require and authorize the bailiff of the said court to give possession of the said house [or &c.] to the Rule 210. said plaintiff within ten days from the date of such warrant. And it is further ordered, that the defendant do pay to the clerk of the court, at his office, the sum of £ tor the plaintift’s costs. By the court, Clerk of the court. Hours of attendance at the office of the clerk of the court from ten till four. N.B.—For each payment made under this order, not exceeding 10s., the fee of 1d. will be charged, and for each payment above 10s., 2d. in the pound on the amount of the payment. Warrant of Possession. Sect. 132. No. In the county court of at (Seal.) Between A. B., plaintiff, and C. D. defendant, Whereas at a court holden at on the day of it was adjudged, in a certain suit wherein the said court had jurisdiction, that the plaintiff should recover against the defendant possession of a certain [as in summons] at : : together with the sum of £ the costs of suit, amounting in all to the sum of and it was ordered, that the de- fendant do forthwith quit and deliver up possession of the said [as in summons] to the plaintiff, and pay to the clerk of the court the said sum of on or before the day of 185, And whereas the defendant has not quitted and delivered up possession of the said to the plaintiff, nor paid the said sum pur- suant to the said order. These are therefore to require and order you to give possession of the said to the plaintiff within ten days from the date thereof. And these are therefore further to require and order you forthwith to make and levy of the goods and chattels of the defendant wherever they may be found within the dis- trict of this court (excepting the wearing apparel and bedding of the defendant or his family, and the tools and implements of his trade, if any, to the value of five pounds), the said on of £ together with H 154 9 & 10 Vict. c. 95, 8. 126. Rule 211. Appendix to Part I. the costs of this warrant and execution; and also to seize and take any money or bank notes (whether of the Bank of England or any other bank), and any cheques, bills of exchange, promissory notes, bonds specialties, or securities for money, of the defendant which may be there found, or such part or so much thereof as may be sufficient for the satisfying of this execution and the costs of making and executing the same. Given under the seal of the court, this day of one thousand eight hundred and fifty By the court, Clerk of the court. To the high bailiff of the court, and the other bailiffs thereof. Notice.—The goods and chattels are not to be sold until after the end of five days next following the day on which they may have been taken, unless they be of a perishable nature, or at the request of the defendant. Possession under this warrant may be given immediately, or at any time within ten days from its date. £ 3 d, Costs = - - - - - - Poundage fees for issuing this warrant - Bailiff’s fees on execution, including mileage Paying money into court - . - Total amount due to plaintiff - - - Notice of stay of Proceedings. Bond to stay Warrant of Possession. Know all men by these presents, that we [tenant and two sureties] are jointly and severally held and firmly bound to of in the sum of £ of lawful British money, to be paid to the said or to his certain attorney, executors, administrators, or assigns. For which pay- ment to be well and truly made we bind ourselves, and each and every of us, in the whole, and the heirs, executors, and adminis- trators of us, and of each and every of us, jointly and severally, firmly by these presents. Sealed with our seals. Dated this 185 day of Whereas the above-named did, on the [date of warrant] day of 185 sue out of the county court of holden at a warrant dated on that day, and under the seal of the said court, to one then being a bailiff of the said court, requiring and authorizing the said within the period of days from the date of such warrant, to give possession of [describe premises as in warrant] situate at in the county of to the said [plaintiff] and which said warrant was so sued Forms in Proceedings in Plaints. out under and by virtue of a certain judgment and order of the said county court made at a court holden on the day of av. 18. Now the condition of the above-written obligation is such, that if the said [tenant] do and shall, according to the statute in such case made and provided, sue the said [plaintiff] in an action of trespass with effect and without delay, and do and shall pay all the costs of the proceeding in such action, in case a verdict shall pass therein for the said [plaintiff] [or ‘‘ any or either of them,” if more than one], or the said [tenant] shall discontinue or not prosecute his said action, or become nonsuit therein, then this present obligation shall be void, otherwise to remain in full force and virtue. Signed, sealed, &c. Warrant of Commitment for Contempt. (Seal.) ; In the county court of holden at To the high bailiff and the other bailiffs of the said court, and all the constables and peace officers within the jurisdiction of the said court, and to the governor and keeper of Whereas at a county court holden on the day of 185 before me the judge of the said court, A. B. wilfully insulted me, the said judge, during my sitting in court [or C. D., a clerk, bailiff, or officer (as the case may be) of the said court, during his attendance in court, or wilfully interrupted the pro- ceedings of the said court, or wilfully misbehaved in the said court. ] These are therefore to require you, the said high bailiff, bailiffs, and others, to take the said defendant, and to deliver him to the governor (or keeper, &c.): and you, the said governor (or keeper, &c.), are hereby required to receive the said defendant, and him safely to keep in the for the term of days from the arrest under this warrant, or until he shall be sooner discharged by due course of law. For which this shall be your sufficient warrant. Given under the seal of the court, this day of 185 Judge of the said court. Allowance to Witnesses, . te he Gentlemen, merchants, bankers, and professional men - 76 Tradesmen, auctioneers, accountants, clerks, and yeomen ae as Journeymen, labourers, and the like - - - - ee Eos Travelling expenses, per mile, one way - = -~ - |- 6 A. S. Dowling, s. 1. R. Brant. James ’Espinasse, C. J. Gale. Wm, Furner, 155 9 & 10 Vict, ¢. 95, s. 113. 156 Appendix to Part I. SCALE OF FEES. - - -— - . Payable on Proceedings in the County Court, under the Orders of the Secretary APPLICATIONS FOR SUMMONSES OUT OF THE DISTRICT. - Where the Debt does not exceed - - £2. | £3. £A. | £5. | £6. £7. £8. £9. £10. 5s. djs. d.|s. d.ja d.|s. d, 8. aif 8. d/£ 5. ds £8. dl£ 8. d. Poundage i Ndi eceiec atic (caeio esas redioae (ula Pilea (aac tat FEES ON ENTERING PLAINTS. Where the Debt does not exceed - -| £1. | £2. | £3. | £4. | £5. | £6. £7. £8. £9. £10. General Fund - Jooloslzoj2s[s als ofossosqoedocs Poundage -}0 7/1 2/1 9/2 4/211/8 6/0 4 ro 4 80 5 ae 5 10) Bailiff's Fee* -|0 1/0 2/0 3);0 4/0 5/0 630 070 0 80 0 90 0 10 0 8 110)4 0/5 4/6 8 8 0;0 9 4010 8 012 oa * If the defendant resides beyond two miles from court: house, then extra for every additional the above fees, 2s. 4d. in every case, for affidavit, oath, and postage, 2s. 2d. of which only need be need not be entered anywhere. s SUBP@NA Where Debt does not exceed - - -{ £1. | £2. | £3. | £4. | £5, | £6. £7. £8. £9. £10. Subpoena — each witness -S|2 9/2 0/2 O72 0/2 O12 0/0 2 00 2 OO 2 Do 2 o Bailiff's Fee* -}0 1/0 2/0 8)0 4;0 5}/0 6/0 0 70 0 80 0 90 010 21/2 2/2 83/2 4/2 5/2 6/0 2 70 2 80 2 90 2109 lo e | * If witness resides beyond two miles from the court house, then extra for every additional the same place or neighbourhood, mileage is to be charged once only for the actual distance to be tor affidavit, oath, and postage. Scale of Fees in Proceedings in Plaints. 157 : - - - - SCALE OF FEES. of State, with the consent of the Treasury, issued on the 15th November, 1850. APPLICATION FOR SUMMONSES OUT OF THE: DISTRICT. Exceed- €1l. | £12. | £13. | £14. | £15. | £16. | £17. | £18. | £19. | £50. en Es. d/£sda/£5. d\£5.d£ 5. d\£s5. a\£s. dl\£s. dé: a 5. dl£ 5. d. 02408 403 303 G03 Jo 4 do 4 lo 4 G04 a05 ow FEES ON ENTERING PLAINTS. Exceed- £1. | £12. | £13. | £14. | £15. | £16. | £17. | £18. | £19. | £50. | jp8 | 07 4:0 8 0:0 8 8/0 9 4/010 0f010 8 O11 4/012 of o12 slo13 4}o1s 4 Ca Oh one Gee aoe ua se 911/010 6011 1]o11 8i1 9 2 0011/0 1 0/0 1 1]/0 1 201 38/0 1 4/0 1 5J0 1 60 1 701 slo 4 2 014 8016 0017 4/018 S10 1141 2 814 1 5 41 6 sla 6 8 mile, 6d. N.B.—Where defendant resides out of the district of the court, charge in addition to entered in the Fee Book. The remaining 2d. being paid by the clerk of home court for postage, - SUBPENA. £il. £12. £13. £14, £15. £16. £17. £18. £19 Exceed- £50. 02 0:0 20 0 011/010 0200 2 0 01101 2 02 00 2 0 oa 013 H re | 016501 6 0 2 070 2 oO 01701 8 o 0211/0 3 0 eae Ss 03 3 03 4 0 3 50 38 6 03 7/0 8 8 wi te mile, travelled beyond 6d. Where more than one witness is summoned at the same time, in the same cause, from the two first miles. Where witness is resident out of the district, charge 2s. 4d. (continued) 158 Appendix to Part L HEARING WITHOUT A JURY, AND “JUDGMENT BY Where the Debt does 5 not exceed - -| £1. | £2. | £3. | £4. | £5. | £6. £7. £8. £9. £10. s djs dls. d.jad|sd)ad)/£5d/£ 5. d/£ 5. 8/£ s. di Poundage -|2 2/4 4/6 6/8 8/1010 |13 0;/015 2/017 4/019 61 1 8 Bailiff serving Order*|}0 1/0 2/0°3/0 4/0 5/0 6;0 0 7/0 0 80 0 90 O10 23/4 6/6 9/9 O}11 3/18 6/015 91018 OF 1 0 31 2 6 * No fee for mileage payable. (See Rule 114.) N.B.—Where defendant resides out of ON REQUIRING JURY. tie ds Where debt does not exceed - - £1. | £2. | £3. | £4. | £5. | £6. £7. £8. £9. £10. Deposit for Jury -|5 0/5 015 0)5 0/5 cle eaten ean ete see OL 10 | |e 8 |e a) 4 510|6 8/7 6|8 4]9 2 solo suo s sor goss 10 0/01010/011 8/012 6] 013 4] IX) wo * Add Mileage at 6d. for each additional mile beyond two miles. Where jurors are summoned- to be actually travelled beyond the two first miles. HEARING WITH A JURY. Where the debt does not exceed -. £1. | £2. | £3. | £4. | £5. | £6. £7. £8. £9, £10. Poundage -|3 2/6 9 612 8/1510 |19 0; 1 2 21 5 41 8 G1n 8 Bailiff serving Order*| 0 02/0 3/0 4/0 5/0 6/0 0 7/0 0 80 0 90 010 3.316 6/9 9/13 0/16 3j19 6/1 2 91 601 9 3122 * No fee for mileage payable. (See Rule 114.) Where defendant resides ADJOURNMENT, WHERE NO ORDERS ‘Where the Debt does notexceed - -| £1. | £2. |] £3. | £4. | £5. | £6. £7. £8. £9. £10. Poundage - -|/0 3/0 6/0 9/1 0/1 8)/1 6/0 1 90 2 4 0 2 30 2 6 Scale of Fees in Proceedings in Plaints. 159 CONSENT,” OR IN “NATURE OF SCI-FA.” Exceed- ing £1. £12. £13. £14, £15. | 16. £17. £18. £19. £50. £50. Es.dl/£udj/£x.d/Ludl/£sd/£ 5. d/£ s. dl£ x dl/£ x d/£ 8.da)/£ 8. d. 1 310) 1 o)2 8 2/110 4/112 6114 81116101119 012 1 22 3 4/5 8 4 Oo onj;o 1 00 1 1/0 1 BO 1 30 1 40 1 50 1 GO 2 70 1 80 4 2 14 91 7 O}2 9 3/111 6113 9116 01118 3/2 0 62 2 92 5 0512 6 the district of the court, the bailiff of the home court will serve the order by post. ON REQUIRING JURY. Exceed- | £11. | £12 | £13. | £14. | £15. | £16. | £17, | £18. | £19. | £50. | £50. I ses a1 Hee aL eee. aloes ae ' 0 9 2/010 0/010 10}011 1/021 6 013 4014 2/015 0/0 15 10) 0 16 3 18 014 21015 0/015 10)016 8 017 6 01s 4019 21 0 Of1 010/1 1 8 2 6 8 from the same place or neighbourhood mileage to be charged once only, and only for the distance HEARING WITH A JURY. Exceed- £11. £12. £13. £14. £15. £16. £17. £18, £19. £50. £50. 0 01/0 1 Oo 1 1fo 1 20 1 80 1 40 1 5/0 1 6 1 14 10) 1 18 Jarda cde r dav dawelan oe das dre 9 1 70 1 80 4 2 115 9119 O12 2 32 5 62 8 92 120/215 3218 6 3 1 98 5 8 2 — out of the district, bailiff of home court will serve order by post. OF ADJOURNMENT TO BE SERVED. Exceed- en. | giz. | aia. | £14. | £15. | £16. | £17. | £18. | £19. | £50. | £50. 0 2 90 3 0/0 8 BJ0 8 GO 38 90 4 0 4 30 4 GO 4 90 5 OI G (continued) 160 Appendix to Part I. ADJOURNMENTS, WHERE ORDERS OF Where the Debt does not exceed - -| £1. | £2. | £3. | £4. | £5. | £6. £7, £8. £9. £10. s. d.|s8. d.|s. d.|s. d. d.\s. d.|£ 3. d. sx. a) £ d)£ 8. d, Poundage -|0 8/0 6 911 0 3/1 6/0 9 0}0 2 3/0 2 & Bailiff's Fee* -|0 2}0 4/0 6/0 8}010/1 0/0 1 2 140 1 601 8) 0 5/010/1 3/1 8/2 14/2 6/0 211 3.440 3 9/0 4 Q * No mileage payable. APPLICATION FOR NEW TRIAL i 1 Where Debt does no | | exceed - - -| Al. £2. | £3. | £4. | £5. | £6. £7. £8. £9. £10. | | | Poundage ree re de ee en ee Bailiff's Fee* SORE Oi) 816110 BO LOL OO ae BOL 4 OT GO 28 { f Soar ee ae ine eae eee * No mileage payable for service FOR EVERY WARRANT AGAINST THE Where the amount to be levied does not exceed ~| £1. | £2. | £3. | £4. | £5. | £6. £7. £8. £9. £10. Poundage -]0 2/0 4/0 6/0 8/010/12 Of]0 1 Q 1401601 8 Bailitit -|}1 0/2 0/38 0)4 0)5 O06 0/0 7 0 8 010 9 010 0 12)2 4/38 6/4 8)/510}7 0/0 8 2 9 4.010 6 O11 § * On issuing warrants against the body there will be payable the bailiff’s fee for conveying defendant + Where the defendant lives beyond two miles from court Scale of Fees in Proceedings in Plaints. ADJOURNMENT DIRECTED TO BE SERVED—(continued). 161 £ll. £12. £13. £14, £15. £16. Excecd- ing £50. £50. o & 3 x £ s.d, Q12 6 0 8 4 (See Rule 114.) 0 7 APPLICATION FOR NEW TRIAL. 1 010 £11. £12, £13. £14. £15. £16. £17. £18. £19, Exceed- £50. 5 640 6 0110/0 2 ojo 6 0] 0 2 6} 0 7 2.0 2 0.0 7 440 2 6] 0 8 6,0 2 o}o0 8 8} 0 2 6) 0 9 10 3 o}0 9 6 oqo 3 010 0 0 15 3 40 8 7 440 8 0} 0 8 810 9 4] 0 10 0] 0 10 8] 0 11 4) 0 12 0} 012 8 013 4 113 4 of orders. (See Rule 114.) GOODS OR BODY IN THE DISTRICT.* il. £12. £13. £14. £15. £16. £17. £18. £19. Exceed- £50. 0 110)0 2 011 0] 0 12 0} 0 2 0] 0 13 2.0 2 0) 0 14 0 2 0] 0 15 6) 0 2 0} 0 16 810 2 0) 0 17 10} 0 3 0] 0 18 010 3 20 0} 019 0 3 410 8 0 0}210 0 0 12 10) 0 14 0) 0 15 2) 0 16 4,017 6; 0 18 8 0 19 10 1 12 21 3 4/218 4 to gaol at 1s. a mile, and which mast be returned to plaintiff if defendant does not go to gaol. house, then extra for every additional mile, 6d, (continued) 162 Appendix to Part I. FOR EVERY WARRANT AGAINST GOODS OR BODY, OUT OF Where the amount to be levied does not exceed - -| £1. | £2. | £3. | £4. | £5. | £6. £7, £8. £9. £10, s. djs. d.|s. dls. d.js. dls. d|£ 8. d)/£ 8. dl£ was 8. d, Poundage for issuing in Home Court -|0 2/0 4/0 6/0 8{/010/1 0/0 1 20 1 401601 8 Poundage for re-is- suing in Foreign Court - - -{0 2/0 4/0 6/0 8/010/1 0/0 1 2}0 1 4,0 1 6 Bailiff issuing war- | rant to Foreign 018 Court - - 2 6|2 6}2 6/2 6/2 6/2 6/0 2 60 2 60 260 2 Bailiff’s Fee* and Postage - -{1 2/2 2/3 2/4 2]/5 2)}6 2/0 7 2:0 8 2:0 9 2010 2 | 40/5 41/6 8|/8 0/9 4/10 8 01 013 dou s016 0 * Where the defendant lives beyond two miles from the On issuing warrants against the body, there will be payable the bailiff's fee for conveying the not go to gaol. The above fee of 2d. for postage is payable to the bailiff of the foreign court for postage ot his” of his fee of 2s. 6d. for issuing the warrant to the clerk. SUMMONS FOR COMMITMENT. - Where the amount remaining due does not exceed - -| £1. | £2. | £3. | £4. |] £5. | £6. £7. £8. £9. £10. Poundage - -10 6/1 O11 6/2 0/2 6/3 O]0 8 60 4 OO 4 GO 5 O Bailiff's Fee* -|0 1/0 2}0 8/0 4/0 5/0 6/0 0 70 0 80 0 90 010 O 7/1 2/1 9/2 4/211)/38 6/0 4 110 4 80 5 30 510 * Ifthe defendant resides more than two miles from HEARING ON SUMMONS FOR COMMITMENT. - Where amount re- |" maining due does notexceed - -| £1, | £2, | £3. | £4. | £5. | £6. £7. £8. £9, £10. Poundage - -11 0/2 0/38 0/4 0/5 O0]6 0/0 7 00 8 0 9 0010 0 | No orders need be drawn up or served where an order for commitment is made; but where he charged, but no mileage, Scale of Fees in Proceedings in Plaints. 168 THE DISTRICT, TO BE PAID ON TAKING OUT WARRANT—(continued.) Exceed- ing €ll. £12. £13. £14. £15. £16. £17. £18. £19. £50. £50. Exd/£ s.d)/£ a d)/£ s. & ee eee 110}0 2 0}0 2 20 2 440 2 6 0 2 8/0 210/0 8 OO 38 20° 8 40 8 4 0 110}0 2 O}0 2 20 2 40 2 60 1 wo 0210/0 8 0}0 3 20 8 4/0 8 4 cr dor des des des des desde s dos qos dos | \ O11 2}012 2/013 2)014 2}015 6016 2)017 2)018 2/019 2)1 0 21210 2 Oly 47018 81 0 1 1 41 282 4 1 5 41 6 81 8 O11 9 43 9 4 foreign court house, then extra for each additional mile, 6d. defendant to gaol, at 1s. a mile, and which must be returned to the plaintiff if defendant does return. The bailiff of the home court will pay the postage of the warrant to the foreign court out 5 SUMMONS FOR COMMITMENT. Exceed- £11. £12. £13. £14. £15. £16. £17. £18. £19. £50. £50. 05 60600 6 60 7 OO 7 G0 8 O10 8 GF 0 9 OO 9 6010 O11 5 0 OL ee ae a8 he ee Oe eee ae eee ae ee 06507007 708 20 8 90 9 410 911/010 Goi Joi s}1 9 2 = the court, then extra for each additional mile, 6d. - HEARING ON SUMMONS FOR COMMITMENT. Exceed- ing £11. £12. £13. £14. £15. £16. £17. £18. £19. | £50. | £50. 011 of 012 0/013 of 014 01015 0/016 0/017 0/018 01019 01 0 0210 0 . former order is altered, a fresh order must be drawn up, and the bailiff’s fee of 1d. in the pound 164 Appendix ;—Scale of Fees. Special Defence : £sd. Inall cases - 7 - - -}0 1 6 Paying Money into Court: On each payment not exceeding 10s. - 001 Exceeding 10s. on the amount paid, in the Payable by pound = 3 x -10 0 Q | defendant. Paying Money out of Court: On each payment not exceeding 10s. - -{0 01 Exceeding 10s., on the amount paid, in the Payable by pound - - - : - -}9 O 2( plaintiff. Notice of payment into court = - - 0 0 2 Taking recognizance, bond or security for costs on amount claimed, in the pound -/|/0 0 4 Inquiring into sufficiency of sureties on amount claimed, in the pound - -|.0 0 6 GENERAL DIRECTIONS IN SECRETARY OF STATE'S ORDER. In calculating the poundage all fractions of a pound to be treated as an entire pound, ; Where the plaintiff recovers less than the amount of his claim, so as to reduce the scale of costs, the plaintiff to pay the difference. The several fees payable on proceedings in replevin to be regulated on the foregoing scale, by the amount distrained tor; and on proceed- ings for the recovery of tenements, by the yearly rent or value of the tenements sought to be recovered ; but in neither case to exceed the fees payable on a demand of 201. In cases of interpleader, summons to high bailiff to be issued gratis ; poundage for hearing to be estimated on value of goods claimed, which, in case of dispute, is to be assessed by judge. The costs of the summons, estimated on the above-mentioned value, to be included in the general costs, which may, in the discretion of the judge, be awarded at the hearing. In cases of extraordinary jurisdiction under the 13 & 14 Vict. c, 61, s. 17, the poundage to be taken on 50/., as shown in the preceding tables. APPENDIX TO PART IV. 1 & 2 VICT. CAP. 110. An Act for abolishing Arrest on Mesne Process in Owil Actions, except im certain cases; for extending the Remedies of Oreditors against the Property of Debtors ; and for amending the Laws for the Relief of Insolvent Debtors in England. [16th August 1838.] Wuereas the present power of arrest upon mesne process is unneces- sarily extensive and severe, and ought to be relaxed: Be it therefore enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, That from and after the time appointed for the commencement of this Arrest on act no person shall be arrested upon mesne process in any civil action in CeeaBee any inferior court whatsoever, or (except in the cases and in the manner lished, ex- hereinafter provided for) in any superior court. cept in cer- tain cases. * * * * * [Sections from II. to XXII. relate to the practice of the superior courts and other matters, and ure therefore omitted.] * * * * * XXIII. And whereas it is expedient to continue, for the Purposes Powors now hereinafter mentioned, the laws now in force for the relief of insolvent vested in the debtors in England, and to make further provision for the relief of court for the insolvent debtors: Be it therefore further enacted, That from and after ee the passing of this act the powers vested in the court now established debtors con- for the relief of insolvent debtors in England shall be and the same tinued for are hereby continued and vested in the court to be continued by virtue = Purposes of this act, as hereinafter provided, in so far as the same relate to or snag ne may be exercised in the matters of the petitions of any persons who, before the time appointed for the commencement of this act, shall have petitioned the said court now established for relief, under the pro- visions of any act or acts for the relief of insolvent debtors in Eng- land, or of any persons who have obtained their discharge by virtue of any act for the relief of insolvent debtors in England ; and that all things shall and may be done by all persons relating to the matters of all such petitions which such persons might have done if the laws now in force witi respect to insolvent debtors in England had been continued by this act. 166 Court to be a court of record. Seal of the court. Powers of court and commis- sioners. Comimis- sioners to | make circuit. Powor of Appendix to Part IV. [1 & 2 Viet. XXIV. The court now established, and the commissioners and officers to be continued. XXV. Commissioners to hold their offices during good behaviour. XXVI. But may be removed upon address. XXVII. And be it enacted, That the said court for the relief of insolvent debtors in England shall be a court of record for the pur- poses of this act; and shall cause to be sealed with the seal of the said court all such records, proceedings, documents, and copies of the same as are hereinafter expressly required to be so sealed, and such other records, proceedings, documents, and copies of the same as the said court shall at any time direct; and that the said court, or any com- missioner thereof acting under the powers of this act, may adjourn any sitting of the said court or commissioner as may be requisite, and may administer oaths, and examine all parties and witnesses upon oath, for the purposes of this act, and shal] have such, like, and the same powers of compelling the attendance of witnesses, both before the said court and before any commissioner thereof acting as aforesaid, and before an officer of the court or examiner, as hereinafter mentioned, and before such justices as are hereinafter mentioned, and of requiring and compelling the production of books and writings, as are now pos- sessed by any of the superior courts at Westminster, and to order any prisoner whose estate shall, by an order to be made under this act as hereinafter mentioned, have been vested in the provisional assignee of the said court, or any prisoner who shall be a necessary and material witness in any matter pending in the said court, to be brought before the said court or commissioner, or officer or examirer, or justices, as often as shall be requisite; and that the said court, or any commissioner thereof acting as aforesaid, shall have the power of committing all per- sons guilty of any contempt of the said court to the prison of the Queen’s Bench, or to the common gaol of any county in which such person shall be or shall usually reside ; and that the said court shall have the power of fining in a summary way, or removing, any of the officers of the said court who shall be guilty of any negligence, wilful or unnecessary delay, or other misconduct whatsoever: Provided always, that the said court, or any commissioner thereof, shall not have the power of awarding costs against any person or persons whom- soever, except in such cases only where such costs are hereinafter expressly mentioned and permitted to be awarded by this act; and that nothing herein contained shall extend to the compelling the attendance of any witness, unless the party on whose behalf such witness shall be required to attend shall have previously tendered to such witness such allowance for expenses for his attendance as in the judgment of the said court, or of a commissioner thereof, shall appear to be reasonable. XXVIII. The court to sit at the court-house in Portugul-street, and elsewhere necessary, and enabling one commissioner to hear matters out of court upon summons. XXIX. The court is to sit twice a week, giving also apower to the court to regulate sittings otherwise during vacation. XXX. And be it enacted, That three of the said commissioners shall from time to time severally make circuits, and give their attendance at the several assize or other towns or places at which any prisoner or prisoners shall be ordered to appear, as hereinafter provided ; and that upon such prisoner’s appearance before such commissioner on his circuit cap. 110.] Insolvent Acts. 167 it shall be lawful for such commissioner to make all such orders, and to commis- give all such directions, and to do all such matters and things requisite sioner on for the discharging or remanding of such prisoner, and otherwise respect. “cuit. ing such prisoner, and his schedule, and his creditors and assignees, as the said court for the relief of insolvent debtors may make, give, or do in the matters of petitions heard by the said court, according to this act ; and that in each and every matter to be heard and inquired into by such commissioner, according to the provisions of this act, such commissioner shall have the same power as the said court would have therein if the same were heard and inquired into by the said court; and that all judgments, rules, orders, directions, and proceedings pronounced, made, and done in all and every the matters aforesaid by such commissioners, shall be transmitted to the said court, signed by such commissioner, to be a record of the said court, and to be kept as such among the records thereof, * * * * * Sections XXXI., XXXII. and XXXITI. relate to the time, manner, and expenses of holding circuits, and the appointment of a deputy during the illness of a commissioner. XXXIV. And be it enacted, That no fee or gratuity shall be received No fees to or taken by the said court for the relief of insolvent debtors, or any e taken ‘i officer thereof, of or from any person whomsoever, on any pretence Se a be whatsoever, except such fees as shall at any time be specified in a list established. thereof to be signed by the commissioners of the said court, a copy of which list shall always be exposed to view in the office of the said court. XXXV. And be it enacted, That from and after the time appointed Persons im- for the commencement of this act it shall be lawful for any person who ee for shall be in actual custody within the walls of any prison in that part of foi tortie the United Kingdom called England, upon any process whatsoever, for court in a or by reason of any debt, damages, costs, sum or sums of money, or for summary or by reason of any contempt of any court whatsoever for nonpayment ioe of any sum or sums of money, or of costs taxed or untaxed, either : ordered to be paid, or to the payment of which such person would be liable in purging such contempt, or in any manner in consequence or by reason of such contempt, at any time within the space of fourteen days next after the commencement of the actual custody of such prisoner, Time of peti- whether such commencement shall have been in the same piison, or in tioning. any other prison, or the rules or liberties of any prison, or afterwards, if the said court shall in any case think reasonable to permit the same, to apply by petition in a summary way to the said court for the relief of insolvent debtors for his discharge from such custody, according to the provisions of this act; and in such petition shall be stated the time and What shall lace of the first arrest of such prisoner in the cause or causes wherein te ee he shall then be detained, and the time of his commitment to the prison cP : where he shall then be confined ; and if such prisoner shall not have been in the same custody from the time of such first arrest, then the means and manner by which the change of custody of such prisoner has taken place, and also the name or names of the person or persons at whose suit or prosecution such prisoner shall at the time of presenting such petition be detained in custody, and the amount of the debt or debts, sum or sums of money, and of such costs as aforesaid, so far as the amount of such costs is ascertained, for which he shall be so de- tained ; and such prisoner shall in such petition state whether such pri- soner has given notice to the keeper of the gaol or prison in which he shall be confined of his intention to present the said petition, which notice the said prisoner is hereby required to give in writing to the 168 Petition to be signed and filed. Prisoner's estate and effects, ex- cept wearing apparel, &c. not exceed- ing 201., and future estate, to be vested Appendia to Part IV. (1 g 2 Vict: keeper of such gaol or prison; and such prisoner shall in such petition state that he is willing that all his real and personal estate and effects shall be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England, according to the pro- visions of this act, and shall pray te be discharged from custody, and to have future liberty of his person, against the demands for which such prisoner shall be then in custody, and against the demands of all other persons who shall be or claim to be creditors of such prisoner at the time of presenting such petition; which petition shall be subscribed by the said prisoner, and shall forthwith be filed in the said court. XXXVI. This section enables detaining creditors of prisoners in execu- tion to apply by petition to the insolvent debtors’ court for an order to vest the debtor’s estate in the provisional assignee of the court. As, however, the jurisdiction of the county cowrts does not apply to these cases, but only where petition is made by the insolvent himsel, it is omitted. XXXVII. And be it enacted, That upon the filing of such petition by such prisoner, or on the filing of such petition by such creditor or creditors as aforesaid, and the evidence in support thereof, as the case may be, it shall be lawful for the said court for the relief of insolvent debtors, and such court is hereby authorized and required, to order that all the real and personal estate and effects of such prisoner, both within this realm and abroad, except the wearing apparel, bedding, and other inprovisional such necessaries of such person and his family, and the working tools assignee by order of the court. and implements of such prisoner, not exceeding in the whole the value of twenty pounds, and all the future estate, right, title, interest, and trust of such prisoner in or to any real and personal estate and effects within this realm or abroad which such prisoner may purchase, or which may revert, descend, be devised or bequeathed, or come to him, before he shall become entitled to his final discharge in pursuance of this act, according to the adjudication made in that behalf; or in case such pri- soner shall obtain his full discharge from custody without any adjudica- tion being made by the said court, then before such prisoner shall be so fully discharged from custody ; and all debts due or growing due to such prisoner, or to be due to him or her before such discharge as aforesaid, shall be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England, and such ordcr shall be entered of record in the same court, and such notice thereof shall be published as the said court shall direct; and such order when so made shall, without any conveyance or assignment, vest all the real and personal estate and effects of such prisoner, and all such future real and personal estate and effects as aforesaid, of every nature and kind whatsoever, and all such debts as aforesaid, in the said provisional assignee: Provided always, that in case the petition of any such pri- soner shall be dismissed by the said court, such vesting order made in pursuance of such petition shall from and after such dismission be null and void to all intents and purposes: Provided also, that in case any such vesting order as aforesaid shall become null and void by the dis- mission of the prisoner’s petition, all the acts theretofore done by the said provisional assignee, or any person or persons acting under his authority, according to the provisions of this act, shall be good and valid ; and no action or suit shall be commenced against such provisional assignee, nor against any person duly acting under his authority, except to recover any property, estate, money, or effects of such prisoner detained after an order made by the said court for the delivery thereof, and demand made thereupon: Provided also, that when such vesting order shall have been made on the petition of a creditor as aforesaid, it shall be lawful for the said court, if it shall seem just and right, but not without proof made to the satisfaction of the said court of the consent of ‘ cap. 110,] Insolvent Acts. 169 the petitioning creditor, to make order declaring such vesting order to be null and void, and the same shall thereupon be null and void to all intents and purposes, XXXVIII. And be it enacted, That no prisoner shall upon his own prisoners petition be entitled to the benefit of this act who shall not be at the within the time of filing his petition, and during all the proceedings thereon, in a only to actual custody within the walls of the prison, without any intermis- pew sion of such imprisonment by leave of any court or otherwise: Pro- except in vided always, that if, after any such prisoner shall have obtained an certain order to be brought up in order to be dealt with according to the pro- SBBEB visions of this act, it shall appear to the satisfaction of the said court, by the oath or affidavit of a physician, surgeon, or apothecary, and such other evidence as the said court, may require, that such prisoner cannot continue to reside within the walls of any such prison without serious injury to the health of such prisoner, or that, for the sake of the health of the prisoners in general, it is necessary that the number thereof within the walls of any such prison should be reduced, it shall be lawful for the said court to dispense with such actual custody of any such prisoner within the walls as is hereinbefore mentioned 3 provided that if any such prisoner, having obtained such dispensation, shall go beyond the rules and liberties in which he shall in pursuance thereof be confined, such prisoner shall thereby be deprived of all benefit of 5 ' this act: provided also, that after any order shall have been made Guneene under this act directing any insolvent to be brought up in order to be debtors’ dealt with according to the provisions of this act, it shall be lawful court to for the said court for the relief of insolvent debtors, if such court eee Pr shall think fit so to do, and on such notice to the detaining creditor or discharged creditors of such insolvent as the said court shall deem proper, to direct on his find- such insolvent to be discharged out of custody, on his finding two had surcuies * . ° 3 2. attend at sufficient sureties to enter into a recognizance to the fe the time and assignee of the said court in such sum as the said court shall think fit, place of hear- with a condition that such insolvent shall duly appear at the time and ing (a). place fixed for the hearing of such insolvent, and on every adjourned hearing, and shall abide by the final judgment of the said court or a commissioner thereof on his circuit, or such justices as hereinafter mentioned, and on such other terms (if any) as the said court shall thiok fit to impose, and to issue a warrant directed to the gaoler, ordering the discharge of such insolvent from custody accordingly, and that after such discharge such insolvent shall be free from arrest or imprison- ment by any creditor whose debt shall be specified in the schedule filed by such insolvent as hereinafter mentioned until the time appointed for the hearing of such insolvent, and for such further time (if any) as the said court shall by endorsement on such order from time to time appoint: Provided always nevertheless, that in case any insolvent so discharged out of custody shall not duly appear at the time and place fixed for the hearing or any adjourned hearing of such insolvent (not being prevented by illness or other lawful impediment, to be allowed of by the said court) the recognizance so entered into shall be forfeited, and the amount secured thereby shall be recoverable in a summary way by a distress and sale of the goods and chattels of such sureties as the said court shall by their order direct; and the amount so recovered shall be applied for the benefit of the creditors of such insolvent in like manner as if the same were part of his estate and effects; and the said court may also issue a warrant authorizing any person or persons to be therein named to apprehend and arrest such insolvent, and deliver him into the custody of the gaoler or keeper in whose custody such prisoner was at the time when he was so discharged as aforesaid and such (a) See 2 & 3 Vict. c. 39, post. I 170 Appendia to Part IV. [1 & 2 Viet. aoler or keeper is hereby required to receive such prisoner again into Ris custody ; and all detainers which were in force against him at the time of such discharge, or which shall have since been duly lodged against him, shall thereupon be deemed to be in force: Provided further, that any insolvent so discharged out of custody as aforesaid shall on his appearing before the said court or commissioner or justices, be deemed and considered, for all the purposes of this act, in the custody in which he was at the time he was so discharged. Filing peti- XXXIX. And be it enacted, That the filing of the petition of every ton ee person in actual custody, who shall be subject to the laws concerning cy, if acted bankrupts, and who shall apply by petition to the said court for his upon within discharge from custody, according to this act, shall be accounted and ee adjudged an act of bankruptcy from the time of filing such petition ; ‘ime; in fs Sus 3 which case nd that any fiat in bankruptcy issuing against such person and under order avoid- which he shall be declared bankrupt before the time appointed by the ed. said court, and advertised in the London Gazette, for such prisoner to be brought up to be dealt with according to this act, or at any time within two calendar months from the time of making any such order as aforesaid, whether upon the petition of such prisoner or the petition of any such creditor as aforesaid, shall have the effect of divesting the said real and personal estate and effects of such person out of the said provisional assignee; Provided always, that the filing of such petition shall not be deemed an act of bankruptcy unless such person be so declared bankrupt before the time so advertised as aforesaid ; or within such two calendar months as aforesaid: but that every such order as aforesaid shall be good and valid notwithstanding any fiat in bankruptcy under which such person shall be declared bankrupt after the time so adver- tised as aforesaid, and after the expiration of such two calendar months as aforesaid. Order to XL. Provided always, and be it enacted, That where the order et vesting the estate and effects of any such prisoner in the provisional assignee of the said court, in pursuance of the provisions of this act, avoided b: 2 I : commission shall be or become void by reason of such prisoner being declared of bank- bankrupt within such period as above-mentioned, or being an uncer- Tuptey 3 tificated bankrupt at the time of such order, the said order shall never- theless, together with the petition of such prisoner, if any, remain of and court _ record in the said court; and the said court shall and may require such le Proceed prisoner to file his schedule, and shall and may cause such prisoner to ear and . . A z adjudicate be brought up to be dealt with according to this act, and all things to asin other be done thereupon or preparatory thereto, as in other cases, according Ganes: to this act; and the said court shall and may, at any time when it shall seem fit, appoint other assignee or assignees in such case in the same If insolvent manner asin other cases; and that if, at any time after such vesting obtains his order shall have been made, such prisoner shall obtain his certificate nee under any such fiat in bankruytey, the rights, powers, title, and interest of assignees Of the provisional assignee and other assignee or assignees appointed afterwards under this act, in, over, and respecting any property, real or personal, 9 be the whatsoever, remaining to such prisoner after the obtaining of such cer- other cases, tificate, or thereafter in any way coming to him, and under or in pursuance of the warrant of attorney to be executed by such prisoner under the provisions of this act, shall from and after the obtaining of such certificate be the same as if the vesting order made under this act Not to affect had been valid at the time of the making thereof: Provided always, that title of as- he . : : signees of Dothing herein contained shall be construed to affect the title, rights, and bankrupt, or interests of the assignees under any such fiat in bankruptcy, or to alter operation of or diminish the effect of any such certificate as aforesaid, but that the certificate. title, rights, and interests of such last-mentioned assignees, and the cap. 110.) Insolvent Acts. 171 benefit of such certificate to such prisoner, shall be the same to all intents and purposes as if this act had not been made. XLI. And be it enacted, That no prisoner whose estate shall by Prisoner not an order under this act have been vested in the said provisional assignee to be dis- shall, after the making of such order, be discharged out of custody, as charged for to any action, suit, or process for or concerning any debt, sum of money, Eade bt: damages, or claim, with respect to which an adjudication can, under the ceeding in Provisions of this act, be made by or by virtue of any supersedeas, his action. Judgment of non-pros, or judgment’as in the case of a nonsuit, for want the plaintiff or plaintiffs in such action, suit, or process proceeding therein, XLII. And be it enacted, That it shall be lawful for the provisional Provisional assignee of the said court for the relief of insolvent debtors to take pos- assignee to session himself, or by means of a messenger of the court, or other person ake ara or persons appointed by him, of all the real and personal estate and tates, dc. effects of every such prisoner, vested in such provisional assignee by vested in virtue of any such order as aforesaid; and if the said court shall so him, and sell order, to sell or otherwise dispose of such goods, chattels, and personal ae Sout ui estate, or any part thereof, and of the real estate of such prisoner, ac- directs; cording to the provisions hereinafter made with regard to the sale of paying the such real estate, and out of the proceeds of such real and personal expenses out estate to defray, in the first place, all such costs and expenses of taking f Proceeds ; possession or of seizing and selling the same, as shall be allowed by the said court, and to account for the produce of such sale or disposition to the said court; and it shall be lawful for the said provisional assignee to sue in his own name, if the said court shall so order, for the recover- to sue in his ing, obtaining, and enforcing of any estates, debts, effects, or rights of om name, . the court any such prisoner; and all and every the real and personal estate, Girrcts, money, and effects, vested in or possessed by such provisional assignee Property by virtue of such order as aforesaid, shall not remain in him if he shall vested in resign or be removed from his office, nor in his heirs, executors, or ad- itn £0 60) ministrators in case of his death, but shall in every such case go to cessor in and be vested in his successor in office appointed by the said court as office. aforesaid. XLII. And be it further enacted, That the said court for the relief Court may of insolvent debtors may order aad direct such provisional assignee as onder. an oe aforesaid, or such assignee or assignees as are hereinafter mentioned, to prisoner pay to any such prisoner, out of his or her estate and effects, such allow- during his ance for his or her support and maintenance during such prisonei’s im- a inement, prisonment, and previous to the adjudication in the matter of his petition, pence ee or for the expense of making out and filing his schedule, as to the said a hcduie, court shall seem reasonable and fit. XLIV. Provided always, and be it enacted, That in case any pri- where pri- soner as to whose estate and effects any such vesting order as aforesaid soner is dis- shall have been made shall by the consent or default of his detaining crac out creditor or creditors be discharged out of custody without any adjudi- gots of dy, cation being made in that behalf by the said court for the relief of signees to insolvent debtors, all the acts done before such discharge by the said pro- be valid. visional assignee, or other assignee or assignees appointed as hereinafter provided, or other person or persons acting under his or their authority, according to the provisions of this act, shall be good and valid; and wy, o4io, ‘6 that in such case, or in case such vesting order as aforesaid shall be be brought avoided by any fiat in bankruptcy thereafter issuing against such pri- aula them soner, as hereinbefore provided, no action or suit shall be commenced ¥ aeons against such provisional assignee, or against any assignee or assignees gyoided, appointed under this act, nor pee ‘any person duly acting under his 1 172 Power of insolvent debtors’ court to appoint as- signees, Certified copy of or- der and ap- pointment to he evi- dence. Proviso for registry. Appendia to Part IV. [1 §.2 Vict. or their authority, except to recover any property, estate, money, or effects of such prisoner, detained after an order made by the said court for the delivery thereof, and demand made thereupon. XLY. And be it enacted, That it shall be lawful for the said court for the relief of insolvent debtors, at any time after the making any such vesting order as aforesaid as to the same court shall seem expedient, to appoint a proper person or persons to be assignee or assignees of the estate and effects of such prisoner for the purposes of this act ; and when such assignee or assignees shall have signified to the said court his or their acceptance of the said appointment, the estate, effects, rights, and powers of such prisoner vested in such provisional assignee as aforesaid shall immediately, by virtue of such appointment, and without any con- veyance or assignment, vest in the said assignee or assignees, in trust for the benefit of the creditors of such prisoner, in respect of or in propor- tion to their respective debts, according to the provisions of this act ; and every such appointment shall after such acceptance thereof be entered of record of the said court, and such notice thereof shall be published as the said court shall direct; and every person so appointed assignee shall be deemed to be an officer of the said court, and shall be liable as such to the control thereof: Provided always, that it shall be lawful for the said court to direct any fee or remuneration for the performance of duties in getting in and distributing the estate of any insolvent debtor, whether by any assignee or by the provisional assignee, in case of such distri- bution being effected without the appointment of any other assignee, which shall not exceed the rate of five per centum on the sum received as produce of such estate. XLVI. And be it enacted, That a copy of any order under this act vesting the estate and effects of any prisoner in the provisional assignee of the estates and effects of insolvent debtors, or of the appointment, under the provision last hereinbefore contained, of an assignee or as- signees of such estate and effects, such copy being made upon parch- ment, and purporting to have the certificate of the provisional assignee of the said court, or his deputy appointed for that purpose, endorsed thereon, and to be sealed with the seal of the said court, shall in all courts and places, and without further proof, be recognised and received as sufficient evidence of such order and appointment respectively having been made, and of the title of the provisional assignee, and of such other assignee or assignees respectively,-under the same: Provided always, that where, according to any laws now in force, any conveyance or as- signment of any real or personal pee of an insolvent debtor would be required to be registered, enrolled, or recorded in any registry office in England, Wales, or Ireland, or in any registry office, court, or other lace in Scotland, or any of the dominions, plantations, or colonies be- onging to her Majesty, then and in every such case such certified copy as hereinbefore is described of such order under this act, vesting the estate and effects of any prisoner in the provisional assignee of the said insolvent debtors’ court, and a like certified copy of the appointment of an assignee or assignees under this act (if any such appointment shall have been made), shall be registered in the registry office, court, or place wherein such conveyance or assignment as last aforesaid would Tequire to be registered, enrolled, or recorded ; and the registry hereby directed shall have the like effect, to all intents and purposes, as the registry, enrolment, or recording of such conveyance or assignment as last aforesaid would have had; and the title of any purchaser of any such property as last aforesaid for valuable consideration, without notice of any such order or appointment as aforesaid, who shall have duly re- gistered, enrolled, or recorded his purchase deed previously to the registry hereby directed, shall not be invalidated by reason of such order cap. 110.} Insolvent Acts. 173 * as aforesaid, or the appointment of an assignee or assignees as aforesaid, or the vesting of such property in him or them consequent thereupon respectively, unless a certified copy of such orders and a certified copy of such appointment, if any, shall be registered as aforesaid within the times following; (that is to say,) as regards the United Kingdom of Great Britain and Ireland, within two months after the date of such order and appointment respectively, and as regards all other places within twelve months from the date thereof respectively. XLVII. And be it further enacted, That the assignee or assignees of Sale of estate the estate and effects of any such prisoner shall, with all convenient and effects to speed after his or their appointment, use his or their best endeavours P¢ aoa to receive and get in the estate and effects of such prisoner, and shall mae: with all convenient speed make sale of all such estate and effects; and if such prisoner'shall be interested in or entitled to any real estate, either in possession, reversion, or expectancy, such real estate, within the space of six months after the appointment of such assignee or assignees, or within such other time as the said court shall direct, shall be sold by public auction, in such manner, and at such place or places, Creditors to as shall thirty days before any such sale be approved, in writing under meet 80 days their hands, by the major part in value of the creditors of such pri- Lees os soner entitled to the benefit thereof, who shall meet together on notice eee of such meeting, published fourteen days previous thereto in the London Meeting to Gazette, and also in some daily newspaper printed and published in be adver- London or within the bills of mortality, if the prisoner before his or her “8°4- going to prison resided in London or within the bills of mortality, and if such prisoner resided elsewhere within the United Kingdom, then in some printed newspaper which shall be generally circulated in or near the place where such prisoner resided at the time aforesaid ; and in case such prisoner shall be entitled to any copyhold or customary estate, a certified copy of such vesting order as aforesaid, and a like certified copy Assignee of the appointment of such assignee or assignees as aforesaid, shall be may surren- entered on the court rolls of the manor of which such copyhold or cus- ae oF eons : y_copy- tomary estate shall be holden, and thereupon it shall be lawful for such hold or cus- assignee or assignees to surrender or convey such copyhold or customary tomary es- estate to any purchaser or purchasers of the same from such assignee or tate- assignees, as the said court shall direct ; and the rents and profits thereof shall be in the meantime received by such assignee or assignees for the benefit of the creditors of such prisoner, without prejudice nevertheless to the lord er lords of the manor of which any such copyhold or customary estate shall be holden. XLVIII. And whereas persons whose estates may by an order under Discretion in this act have been vested in the said provisional assignee may be entitled font 2s '® iti on'C . Cae e disposal to annuities for their own lives, or other uncertain interests, or to rever- of property sionary or contingent interests, or to property under such circumstances jn certain that the immediate sale thereof for payment of their debts may be very cases. prejudicial to them, and deprive them of the means of subsistence which they might otherwise have, after payment of their debts; and it may be proper in some cases to authorize the raising of money by way of mort- gage for payment of the debts or part of the debts of such person, instead of selling the property of such person for that purpose: Be it enacted, That in all such cases it shall be lawful for the said court to take into consideration all circumstances affecting the property of any such person ; and if it shall appear to the said court that it would be reasonable to make any special order touching the same, it shall be lawful for the said court se to do, and to direct. that such property as it may be expedient not to sell, or not to sell immediately, according to the provisions of this act, shall not be so sold, and from time to time to order and direct in what manner such property shall be managed for the benefit of the cre- 174 Appendix to Part IV. [1 & 2 Vict. ditors of such person, until the same can be properly sold, or until payment of all such creditors, according to the provisions of this act, shall have been made, and to make such orders touching the sale or dis- position of such property as to the said court shall seem reasonable, considering the rights of the creditors of such person to payment of their demands, and the future benefit of such person after payment of his debts, and upon such terms and conditions with respect to the allow- ance of interest on debts not bearing interest, or other circumstances, as Property __ to the said court shall seem just; and if it shall appear to the said court ae that the debts of such person can be discharged by means of money ee iene. vaised by way of mortgage on any property of such person, instead ficial. of raising the same by sale, it shall be lawful for the said court so to order, and to give all necessary directions for such purpose, and generally to direct all things which may be proper for the discharge of the debts of such person in such manner as may be most consistent with the interests of such person in any surplus of his or her effects after payment of such debts. Assignees XLIX. And be it enacted, That all powers vested in any such prisoner may execute whose estate shall by an order under this act have been vested in the Pchthe provisional assignee which such prisoner might legally execute for his insolvent | own benefit, (except the right of nomination to any vacant ecclesiastical might have benefice, ) shall be and are hereby vested in the assignee or assignees of Sapeeate the real and personal estate of such prisoner by virtue of this act, to be nefit. by such assignee or assignees executed for the benefit of all and every the creditors of such prisoner under this act, in such manner as such prisoner might have executed the same. Where lease 1, And be it enacted, That in all cases in which any such prisoner aa shall be entitled to any lease or agreement for a lease, and his assignee the insolvent oF assignees shall accept the same, and the benefit thereof, as part of not liable for such prisoner’s estate and effects, the said prisoner shall not be or be the rent. deemed to be liable to pay any subsequent rent to which his discharge; adjudicated according to this act, may not apply, nor be in any manner sued, after such acceptance in respect or by reason of any subsequent nonobservance or nonperformance of the conditions, covenants, or agree- Assignees ments therein contained: Provided that in all such cases as aforesaid it not deter- shall be lawful for the lessor, or person agreeing to make such lease, his ener ts ne heirs, executors, administrators, or assigns, if the said assignee or assignees cept the shall decline, upon his or their being required so to do,; to determine lease, the — whether he or they will or will not accept such lease or agreement for a sesso totre lease, to apply to the said court, praying that he or they may either so ee accept the same, or deliver up such lease or agreement for a lease, and the possession of the premises demised or intended to be demised ; and the said court shall thereupon make such order as in all the cireum- stances of the case shall seem meet and just, and such order shall be binding on all parties. Assignees LJ. And be it enacted, That it shall be lawful for the assignee or thee ona assignees of any such prisoner, and such assignee or assignees is and mamés's are hereby empowered, to sue from time to time as there may be occa- sion, in his or their own name or names, for the recovery, obtaining and enforcing of any estate, effects, or rights of such prisoner, but in trust for the benefit of the creditors of such prisoner, according to the provisions of this act, and to give such discharge and discharges to any _ person or persons who shall be respectively indebted to such prisoner as may make may be requisite; and to make compositions with any debtors or eee accountants to such prisoner, where the same shall appear necessary, * and to take such reasonable part of any such debts as can upon such composition be gotten in full discharge of such debts and accounts; and cap. 110.] Insolvent Acts. 175 to submit to arbitration any difference or dispute between such assignee may submit or assignees, and any person or persons for or on account or by reason differences of any matter, cause, or thing relating to the estate and effects of such arbitra- prisoner: Provided nevertheless, that no such composition or submission |. ‘i to arbitration, shall be made, nor any suit in equity be commenced, by a of any such assignee or assignees, without the consent in writing of the creditors to major part in value of the creditors of such prisoner, who shall meet compositions together pursuant to a notice of such meeting, to be published at least ae arbi fourteen days before such meeting in the London Gazette, and also in’ some newspaper most usually circulated in the neighbourhood of the place where such prisoner had his or her last usual residence before his or her imprisonment as aforesaid, nor without the approbation of the said court, or of one of the commissioners thereof. LII. And be it enacted, That all matters wherein creditors shall vote, Creditors to or wherein the assent or dissent of creditors shall be exercised'in pur- vote accord- suance of or in carrying into effect this act, every creditor shall be 77S vac accounted such in respect of such amount only as upon an account them, on ae. fairly stated between the parties, after allowing the valué of mortgaged count fairly property, and other such available securities and liens, shall appear to stated, be the balance due ; and that all disputes arising in such matters con- cerning any such amount shall upon application duly made in that behalf be examined into by the said court, or any commissioner thereof on his circuit, who shall have power to determine the same, and, if it seem fit, to refer the examination thereof to an officer of the said court, or to an examiner duly appointed in pursuance of this act: Provided always, that the amount in respect of which any such creditor shall vote in any such matter shall not be conclusive of the amount of his or her debt for any ulterior purposes, in pursuance of the provisions of this act. LII. And be it enacted, That whenever any such assignee or assig- Suits not to nees shall die or be removed, or a new assignee or assignees shall be be abated : - i eae * . by death or appointed in pursuance of the provisions of this act, no action at law yoCu or suit in equity shall be thereby abated, but the court in which any assignces. action or suit is depending may, upon the suggestion of such death or removal and new appointment, allow the name or names of the sur- viving or new assignee or assignees to be substituted in the place of the former; and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or assignees, in the same manner as if he or they had originally commenced the same. LIV. And be it enacted, That if any such prisoner shall at the time Where the of filing such petition as aforesaid, whether such petitions shall have prisoner is been preferred by himself or by any such creditor as aforesaid, or at entitled i any time before such prisoner shall become entitled to his final discharge stock, the according to this act, have any government stocks, funds, or’ annuities, court may or any of the stock of any public company, either in England, Scotland, eg or Ireland, standing in his own name in his own right, it shall be lawful for the said court for the relief of insolvent debtors, whenever it shall deem fit so to do, to order all persons whose act or consent is thereto necessary to transfer the same into the name of such assignee or assig- nees as aforesaid; and all such persons whose act or consent is so necessary as aforesaid are hereby indemnified for all things done or per- mitted pursuant to such order. LV. And be it enacted, That nothing in this act contained shall Assignees’ extend to entitle the assignee or assignees of the estate and effects of any power eee such prisoner, being a beneficed clergyman or curate, to the income of income of a such benefice or curacy, for the purposes of this act; Provided always, 176° Appendix to Part IV. [1 & 2 Viet. benefice or that it shall be lawful for such assignee or assignees to apply for and curacy. obtain a sequestration of the profits of any such benefice, for the Sequestration payment of the debts of such prisoner; and the order appointing an of profit of assignee or assignees of such prisoner, in pursuance of this act, shall be pea a sufficient warrant for the granting of such sequestration, without any writ or other proceedings to authorize the same ; and such sequestration shall accordingly be issued, as the same might have been issued upon any writ of levari facias, founded upon any judgment against such ~prisoner. Assignees’ LVI. And be it enacted, That nothing in this act contained shall power not to extend to entitle the assignee or assignees of the estate and effects of extend to the any such prisoner, being or having been an officer of the a a cay or pen-, @uy such prisoner, being or having been an officer of the army or navy, sion of naval, OF an officer or clerk, or otherwise employed or engaged in the service military, or of her Majesty, in the customs or excise, or any civil office, or other civil officers. department whatsoever, or being or having been in the naval or military service of the East India Company, or an officer or clerk or otherwise employed or engaged in the service of the court of directors of the said company, or being otherwise in the enjoyment of any pension whatever under any department of her Majesty’s government, or from the said court of directors, to the pay, half-pay, salary, emoluments, or pension of any such prigoner, for the purposes of this act: Provided always, Portion of _ that it shall be lawful for the said court to order such portion of the pay, pay or pen- half-pay, salary, emoluments, or pension of any such prisoner, as on ue me communication from the said court to the secretary at war, or the lords application. commissioners of the admiralty, or the commissioners of the customs or excise, or the chief officer of the department to which such prisoner may belong or have belonged, or under which such pay, half-pay, salary, emoluments, or pension may be enjoyed by such prisoner, or the, said court of directors, he or they may respectively, under his or their hands or under the hand of his or their chief secretary, or other chief officer for the time being, consent to in writing, to be paid to such assig- nee or assignees, in order that the same may be applied in payment of the debts of such prisoner ; and such order and consent being lodged in the office of her Majesty’s paymaster-general, or of the secretary of the said court of directors, or of any other officer or person appointed to pay, or paying, any such pay, half-pay, salary, emoluments, or pension, such portion of the said pay, half-pay, salary, emoluments, or pension as shall be specified in such order and consent shall be paid to the said assignee or assignees, until the said court shall make order to the contrary. Goods inpos- _ LVII. And be it enacted, That if any such prisoner shall, at the session of —_ time of his arrest, or other commencement of his imprisonment, by the prisoner, consent and permission of the true owner thereof, have in his possession, whereof he i is J was reputed Tder, or disposition any goods or chattels whereof such prisoner was owner, to be reputed owner, or whereof he had taken upon him the sale, alteration, deemed his or disposition as owner, the same shall be deemed to be the property of Property. —_ such prisoner, so as to become vested in the provisional assignee of the No assign- Said court by the order made in pursuance of this act; provided that no ment of ves- transfer or assignment of any ship or vessel, or any share thereof, made sels under as a security for any debt or debts, either by way of mortgage or assign- 3 oe im 4, ment, duly registered according to the provisions of an act made in the affected. session of parliament held in the third and fourth years of the reign of his late Majesty King William the Fourth, intituled, ‘‘ An Act for the registeriug of British Vessels,” shall be invalidated or affected by reason of such possession, order, or disposition of the same as aforesaid. Distress not LVIII. And be it enacted, That no distress or distresses for rent to be avail- made and levied after the arrest or other commencement of the impri- vup. 110.4 insowent Acts. 177 sonment of any person whose estate shall, by any such order as afore- able for more said, have been vested in the provisional assignee, upon the goods or than one effects of any such person, shall be available tor more than one year’s Year's rent. rent accrued prior to the making of such order, but that the landlord or party to whom the rent shall be due shall and may be a creditor for the overplus of the rent due, and for which the distress shall not be avail- able, and entitled to all the provisions made for creditors by this act. _LIX. And be it enacted, That if any prisoner shall, before or after yotuntary his or her imprisonment, being in insolvent circumstances, voluntarily preference convey, assign, transfer, charge, deliver, or make over any estate, real fraudulent or personal, security for money, bond, bill, note, money, property, Sree goods, or effects whatsoever, to any creditor or creditors, or to any per- aoises ‘son or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such conveyance, assignment, transfer, charge, delivery, and making over shall be deemed and is hereby declared to be fraudulent and void as against the provisional or other assignee or assignees of such prisoner appointed under this act: Pro- vided always, that no such conveyance, assignment, transfer, charge, delivery, or making over shall be so deemed fraudulent and void unless made within three months before the commencement of such imprison- ment, or with the view or intention, by the party so conveying, assign- ing, transferring, charging, delivering, or making over, of petitioning the said court for his discharge from custody under this act. LX. And whereas an act passed in the third year of the reign of his provisions late Majesty King George the Fourth, intituled, “‘ An Act for preventing of 3 Geo. 4, Frauds upon Creditors by secret Warrants of Attorney, to confess ©. 39, ex- Judgment:” And whereas it is expedient to extend the provisions of nee ihe such act: Be it therefore enacted, That the last-mentioned act shall insoivents. extend to the provisional or other assignee or assignees of every prisoner whose estate shall after the expiration of twenty-one days next after his execution of such, warrant of attorney, or giving of such cognovit actionem as therein mentioned, be vested in the provisional assignee of the said court for the relief of insolvent debtors by virtue of this act, as if the last-mentioned act had been expressly herein enacted; and every such warrant of attorney, and judgment and execution thereon, and every such cognovit actionem, and judgment entered up thereon, and execution taken out on such judgment, as are declared by the last- mentioned act to be fraudulent and void against the assignees mentioned therein, shall be deemed equally fraudulent and void against the provi- sional or other assignee or assignees of such prisoner, appointed under this act, and such provisional or other assignee or assignees shall be entitled to recover back and receive; for the use of the creditor of such prisoner, all and every the moneys levied and effects seized under or by virtue of any such judgment or execution. LXI. And be it further enacted, That in all cases where any prisoner warrant of whose estate shall have been vested in the said provisional assignee attorney and under this act shall have executed any warrant of attorney to confess coenonbiae judgment, or shall have given any cognovit actionem, or bill of sale, t6 he acted whether for a valuable consideration or otherwise, no person shall, after upon against the commencement of the imprisonment of such prisoner, avail himself erode ae or herself of any execution issued or to be issued upon any judgment Ber nis cae obtained or to be obtained upon such warrant of attorney or cognovit prisonment. actionem, or of such bill of sale, either by seizure and sale of the pro- perty of such prisoner, or any part thereof, or by sale of such property theretofore seized, or any part thereof, but that any person or persons to whom any sum or sums of money ae be due in respect of any such I 178 Assignees to Appendix to Part IV. (1 & 2 Vict. warrant of attorney or cognovit actionem, or of such bill of sale, shall and may be a creditor or creditors for the same under this act. LXII. And be it further enacted, That the said provisional assignee file accounts. shall keep account from day to day, the same to be of record in the said court, of all moneys received and paid, and of every thing done by him and under him in the matter of every estate of any such prisoner vested in him, and shall make oath of the truth of every such account as often as he shall be duly required so to do; and that every other assignee of any such estate at the end of three months at the farthest from the time of his appointment, or sooner if the said court shall direct, and so from time to time as occasion shall require or the said court shall direct, shall make up an account of such estate, and make oath in writing, before any person before whom affidavits are by this act directed to be sworn, that such account contains a fair, just, and particular account of the estate and effects of such prisoner got in by or for such assignee, and of all payments necéssarily made or deducted therefrom, and of all expenses sought to be allowed in respect thereof, up to the time of filing such account, or to some ulterior time, if need be; which account so sworn, together with a minute concerning the probabie assets of the estate (if any), shall be filed with the proper officer of the said court, and there- upon and at the time of so filing the same appointment shall be made for the examination of such accounts, and for taxation of all costs and Accounts to charges claimed by such assignee ; and examination shall be had of the be audited. proceedings of the said provisional assignee, or of any other assignee or assignees, as the case may be, and of all the matters of his or their account, by the court or a commissioner thereof, or an examiner duly Debts tobe appointed, before any such assignee shall proceed to a dividend ; and if ascertained — ypon such examination there shall appear to be in the hands of such and dividend assienee or assignees any balance wherewith a dividend may be made . ‘proceedings shal] be had forthwith under the direction of the said court Er making such dividend, and also when it shall appear necessary, for correcting and ascertaining the list of creditors entitled to receive the same; and notice of any meeting ordered to be held for such ascertain- ing of debts or for declaring dividend thereupon, or for both purposes, shall be given for such time and place and in such manner as the said How av court shall at any time or in any case direct; and in case such dividend nade Shall be made before adjudication shall have been made with respect to such prisoner as hereinafter provided, the same shall be made amongst the creditors of such prisoner who shall prove their debts in pursuance of any order of the said court to be made in that behalf; and in case such dividend shall be made after such adjudication, the same shall be made amongst the creditors of such prisoner whose debts shall be ad- mitted in his or her schedule so sworn to as hereinafter directed, and amongst such other creditors (if any) who shall prove their debts in manner aforesaid, in proportion to the amount of the debts so proved, Court may and so admitted and proved respectively, as the case may be: Provided nmin into always, that if such prisoner, creditor, or assignee shall object in whole sEpated or in part to any debt tendered to be so proved as aforesaid, or to any debt mentioned in the schedule of such prisoner, or if any person whose demand is stated in such schedule, but is not admitted therein to the extent of such demand, shall claim to be admitted as a creditor for the whole of such demand, or for more thereof than is so admitted, the said objections and claims shall, upon application duly made, be examined into by the said court or a commissioner thereof on his circuit; and the said court or commissioner may, if it shall seem fit, refer the examination of the same to an officer of the said court, or to an examiner duly appointed in pursuance of this act; and the said court or commissioner, sand such officer or examiner to whom such reference shall have been cap. 110.} InsolWwent Acts, made, shall have full power for the purpose aforesaid to require and compel the production of all books, papers, and writings which may be necessary to be produced, as well by the person claiming such debt as by such prisoner, or his or her assignee or assignees, creditor or creditors, and to examine all such persons and their witnesses upon oath, as the nature of the case may require, and to:take all other measures neces- sary for the due investigation of such objections and claims; and the decision of the said court or commissioner thereupon shall be conclusive with respect to the title of any such creditor or creditors to his, her, or their share of such dividend, under the provisions of such act: Pro~ vided always, that if in any case it shall appear expedient that the proof of any debt or debts should be required to be made at any earlier or other period than as aforesaid, it shall be lawful at any time for the said court, by notice as may be directed in that behalf, to cause all or any of the creditors to prove their debts in such manner as the said court or a commissioner thereof shall require, and to decide upon such debts, and the rights to receive dividends thereupon, and to do all things Fequisite thereto as aforesaid. LXIIL. And be it further enacted, That in case such prisoner, or any of his or her creditors, or the said court shall at any time be dissatisfied with the account of any assignee or assignees so rendered upon oath as aforesaid, and it shall appear to the said court that the matters of such account require a fuller or further examination ; or in case any such assignee or assignees shall neglect to render such account, or shall neglect to dispose of the property or collect the effects of such prisoner, or shall in any manner waste or mismanage the estate or effects of such prisoner, or neglect to make a due distribution thereof, it shall be lawful for the said court to require such assignee or assignees to render such account on oath as is directed by this act, if not before rendered, and for the said court, or any commissioner thereof on his circuit to examine or further examine any account so rendered, and to inquire into any waste, mismanagement, or neglect of the estate and effects of such prisoner, and, if it shall seem fit, to order that it shall be referred to an officer of the said court, or to an examiner duly appointed in pursuance of this act, to investigate the accounts of such assignee or assignees so rendered as aforesaid, together with all matters brought forward in objection thereto, and to examine into the truth thereof, and to report thereon to the said court or commissioner; and it shall and may be lawful for the said court or commissioner, or such officer or examiner, upon such reference as aforesaid, to require and compel the production of all books, papers, and writings necessary for such purposes, and to summon all parties before him or them, and to examine all parties and their witnesses on oath, as the case may require ; and the said court or commissioner shall and may take all such measures as shall be necessary for the com- pelling of the rendering of such account and for the due investigation thereof, and shall have power to disallow any charge or charges in such account which it shall appear to the said court or commissioner ought not in fairness to be allowed, and to ascertain the produce of the estate and effects of any such prisoner to be divided among his or her creditors, and to direct the distribution thereof, and to take all such measures and make such orders as shall be necessary for compelling the proper dis- position and distribution thereof, and to award costs against any of the 179 If prisoner or creditor or court dis- satisfied with assignee’s account, the court may direct in- quiry. parties as justice shall require; and that if it shall appear to the said Court may ' court or commissioner upon any examination of the matters of account that any such assignee or assignees shall have wilfully retamed in his or their hands, or otherwise employed for his or their own benefit, any charge as- signee with 20 per cent. on money sum or sums of money part of or being the produce of such estate or wilfally re- effects, the said court or commissioner shall have power and authority tained. to order such assignee or assignees to be charged in his or their accounts 180 Assignees to pay unclaim- ed dividends into court. Court may remove as- signees and appoint new assignees. What shall be evidence of removal and appoint- ment. Court may commit for refusing to - file accounts and other contcmpts. Appendix to Part IV. (1 & 2 Viet. with the estate of such prisoner with such sum or sums of money as shall be equal to the amount of interest, computed at a rate not exceed- ing twenty pounds per centum per annum, on all sums of money appearing to the said court or commissioner to be so retained or employed by him or them for the time or times during which he or they shall have so retained or employed the same; and the said court shall in pursuance of such order charge such assignee or assignees in their accounts with such sum or sums of money accordingly , and the decisions of the said court or commissioner upon all such matters shall be final and conclusive. LXIV. And be it further enacted, That in all cases where any. divid- end or dividends have remained in the hands of any assignee or assignees for the space of twelve months next following the declaring thereof, such dividend or dividends shall be paid by such assignee or assignees into the said court, to be placed to the credit of the proper party or parties. in that behalf under such estate: Provided always, that it shall be lawful for the said court or a commissioner thereof at any time, although such twelve months may not have expired, if it shall seem fit, to direct that all unpaid and unclaimed dividends, together with the balance remaining in the hands of any assignee or assignees, shall be paid forthwith into the said court to the credit of the said estate or of the particular ereditors thereof, as the case may be. LXV. And be it further enacted, That in case apy assignee of the estate and effects of any such prisoner so appointed as aforesaid shall be unwilling to act, or in case of the death, incapacity, disability, mis- conduct, or absence from the realm of any such assignee, or other cause of unfitness appearing to the said court, it shall be lawful to and for any creditor or creditors of such prisoner to apply to the said court to appoint a new assignee or assignees with like power and authorities as are given by this act to the assignee or assignees bereinhefore men- tioned ; and that the said court shall have power to remove such assignees, and to appoint such new assignee or assignees, and to compel any assignee who shall be removed, and the heirs, executors, o7 administrators of any deceased assignee, to account for and deliver up to the said court, or as the said court shall order, all such estate and effects, books, papers, writings, deeds, and other evidences relating thereto as shall remain in his or their hands, to be applied for the purposes of this act; and the decision of the said court in the matters aforesaid shall be final and conclusive ; and from and immediately after such appointment of a’ new assignee or assignees, and by virtue of the order of the said court in that behalf, all the estate, effects, rights, and powers of such prisoner vested in any such former assignee or assignees shall become and the same are hereby vested in such new assignee or assignees without any assignment or conveyance executed in that behalf ; and every such removal and appointment shall be entered of record in the said court, and such notice thereof shall be published as the said court shall at any time direct ; and proof of such removal and appoint- ment so entered of record as aforesaid shail be received by such certified copy thereof as is hereinbefore directed to be received as proof of such order and appointment as aforesaid made in pursuance of this act. LXVI. And be it further enacted, That in case any assignee or other person shall disobey any rule or order of the said court duly made by the said court for enforcing the purposes and provisions of this act, or made and entered into by the consent of such assignee or other person for carrying into effect the purposes and provisions of this act, it. shall and may be lawful for the said court to oider the person so offending to be arested and committed as for a contempt of the said court to the cap. 110.] Insolvent Acts. 181 prison of the Queen’s Bench, or to the common gaol of any county, city, or place where he or she shall be, or where he or she shall usually reside, there to remain without bail or mainprize until such person shall have fulfilled the duty required by the said recited acts or this act, or until the said court shall make order to the contrary: Provided Proviso. always, that nothing herein contained shall authorize a commissioner of the said court acting out of court upon summons to commit any person for disobedience of any order of the said court or any commis- sioner thereof, _ LXVII. And be it further enacted, That all enactments, and provi- provisions sions in this act contained concerning the appointment and removal of concerning assignees, and otherwise concerning assignees, and concerning debts and divilende dividends, and the management and control of the estates of insolvent ¢ nee ; debtors, shall be deemed to extend to all cases which shall be of record tend to cases in the said court for the relief of insolvent debtors at the commencement now of re- of this act, as well as to cases arising subsequently thereto. cord: LXVIII. And whereas it may often happen that some interest in Court may Jands and tenements has or may become vested in the provisional as- direct con- signee of the said court for the relief of insolvent debtors which appears a to be of no value to creditors, but nevertheless it may be reasonable and assignee expedient that the provisional assignee should make or join in making where no some conveyance or assignment of the same, and that the same should sen? 3S be done without the expense attending advertisements and meetings of Seer creditors, as hereinbefore described in certain cases: Be it therefore enacted, That it shall be lawful for the said court, at any time after the day gazetted for the bringing up of any prisoner to be dealt with accord- ing to the provisions of this act, if no person or persons other than the said provisional assignee shall have been appointed assignee or assignees of his estate and effects, and if it shall appear fit, upon such notice given by advertisement or otherwise to the creditors, or any of them, as the said court shall in any case direct, to order the said provisional assignee to make or join in making any conveyance or assignment of any such interest as to the said court may appear just and reasonable, without observing the provisions of this act as to the sale of real property by the provisional or other assignees of the estates of insolvent debtors. LXIX. And be it enacted, That every prisoner whose estate shall by After order an order to be made under this act be vested in the provisional assignee made, the of the said court for the relief of insolvent debtors (whether upon his ee own petition or on the petition of any such creditor as aforesaid) shall, schedule of within the space of fourteen days next after such order shall have been debts, pro- made, or next after notice in writing of such order having been made Perty, &. shall have been given to him, in case such order shall not have been made on his own petition, or within such further time as the said court shall think reasonable, deliver in to the said court a schedule, contain- ing a full and fair description of such prisoner, as to his name or names, trade or trades, profession or professions, together with the last usual place of abode of such prisoner, and the place or places where he has resided during the time when his debts were contracted ; and also a full and true description of all debts due or growing due from such prisoner at the time of making such order, and of all and every person and persons to whom such prisoner shall be indebted, or who to his know- Jedge or belief shall claim to be his creditors, together with the nature and amount of such debts and claims respectively, distinguishing such as shall be admitted from such as shall be disputed by such prisoner ; and also a full, true, and perfect account of all the estate and effects of such prisoner, real and personal, in possession, reversion, remainiler, or ex- pectancy; and also of all places of benefit or advantage held by such . 182 Appendia to Part IV. [l & 2 Viet. prisoner, whether the emoluments of the same arise from fixed salaries or from fees, or otherwise; and also of all pensions or allowances of the said prisoner, in possession or reversion, or held by any other person or persons for or on behalf of the said prisoner, or of and from which the said prisoner derives or may derive any manner of benefit or advantage ; and also of all rights and powers of any nature and kind whatsoever, which such prisoner, or any other person or persons in trust for such prisoner, or for his use, benefit, or advantage, in any manner whatsoever, shall be seised or possessed of, or interested in, or entitled unto, or which such prisoner, or any other person or persons in trust for him, or for his benefit, shall have any power to dispose of, charge, or exercise for the benefit or advantage of such prisoner; together with a full, true, and perfect account of all the debts at the time of making such order due or growing due to such prisoner, or to any person or persons in trust for him, or for his benefit or advantage, either solely or jointly with any other person or persons, and the names and places of abode of the several persons from whom such debts shall be due or growing due, and of the witnesses who can prove such debts, so far as such prisoner can set forth the same ; and the said schedule shall also contain a balance sheet of so much of the receipts and expenditures of such prisoner, and of the items composing the same, as shall be at any time required by the said court in that behalf; and also shall fully and truly describe the wearing apparel, bedding, and other necessaries of such prisoner, and his or her family, and the working tools and implements of such pri- soner, not exceeding in the whole the value of twenty pounds, which may be excepted by such prisoner from the operation of this act, together with the values of such excepted articles respectively; and the said Sch schedule shall be subscribed by such prisoner, and shall forthwith be ichedule to filed i . . . be filed with filed in the said court, together with all books, papers, deeds, and writ- books and ings in any way relating to such prisoner's estate or effects, in his or her papers. possession, or under his or her custody or control. Court toap- _ LXX. And be it enacted, That the said court for the relief of insolvent point time debtors shall forthwith, after such schedule shall have been filed as ree aforesaid in the said court by any such prisoner, appoint a time and be brought Place for such prisoner to be brought up before such court or a commis- up. sioner thereof on his circuit, or justices of the peace, as hereinafter mentioned, to be dealt with according to the provisions of this act; and the time so appointed shall ia no case be more than four calendar months after the date of such appointment; and where such prisoner shall be in any gaol within the counties of Middlesex or Surrey, or the city of London or borough of Southwark, the said court shall order such prisoner to be brought before the said court ; and where any such Manner of Prisoner shall be in any other gaol in England or Wales, except in the proceeding town of Berwick-upon-Tweed, the said court shall order such prisoner by commis- to be brought before one of the commissioners of the said court, pro- arene ceeding on his circuit at such assize or other town or place within the ae county or county of a city or town wherein such gaol shall be situate, as may be directed by the order of the said court in that behalf; and where any such prisoner shall be in any gaol within the town of Berwick-upon-Tweed, the said court shall order such prisoner to be brought before the justices of the peace for the said town in open court at their general or general quarter sessions of the peace or at some adjournment thereof. Notice tobe | LXXI. And be it enacted, That the said court for the relief of in- given to cre- solvent debtors shall cause notice of the making every such vesting oer order as aforesaid, and the filing of every such schedule, and of the "time and place so as aforesaid appointed for such prisoner to be brought up, to be given, by such means as the said court shall direct, to the cup, L1U.45 insowent Acts. creditor or creditors at whose suit any such prisoner shall be detained in custody, or the attorney or agent of such creditor or creditors, and to the other creditors named in the schedule of such prisoner, and resident within the United Kingdom, and whose debts shall amount to the sum of five pounds, and to be inserted in the London Gazette, and also, if the said court shall think fit, in the Edinburgh and Dublin Gazettes, or either of them, and also in such other newspaper or newspapers as the said court shall direct. LXXIL. And be it enacted, That upon such prisoner being brought up as aforesaid, the said court or commissioner or justices shall examine into the schedule of every such prisoner so brought before the said court, commissioner, or justices upon the oath of such prisoner, and of such parties and other witnesses as the said court or commissioner or justices shall think fit to examine thereupon; and in case such nolice as the said court shall direct shall have been given by any creditor of his intention to oppose such prisoner’s discharge, it shall be lawful, both for the said creditor and any other of the creditors of such prisoner, and notwithstanding such creditor or creditors may have petitioned for and obtained such vesting order as aforesaid, to oppose such prisoner’s discharge, and for that purpose to put such questions to such prisoner, and examine such witnesses, as the said court or com- missioner or justices shall think fit, touching the matters contained in such schedule, and touching such other matters as the said court or com- missioner or justices shall be of opinion that it may be fit and proper to inquire into, 1n order to the due execution of this act; but no creditor shall examine or oppose the discharge of such prisoner until he shall make oath or affidavit of his debt, or otherwise give satisfactory. proof of his right to oppose such prisoner’s discharge, if required so to do by such prisoner; and that in case the said court or commissioner or justices shall entertain any doubt touching any matter alleged against such prisoner at such hearing, to prevent his or her discharge, or other- wise touching. the schedule or the examination of such prisoner, or it shall appear that amendment is necessary to be made of such schedule, or in case such prisoner shall refuse to be sworn, or shall not answer upon oath to the satisfaction of the said court or commissioner or justices, it shall be lawful for the said court or commissioner or justices to ad- journ the hearing and examination of such prisoner, and of witnesses thereupon, to some future sitting of the said court or commissioner or justices, or to some future circuit to be made by one of the said com- missioners, or to some future general or general quarter or adjourned sessions, as the case may be ; and in every such case such prisoner shall upon such adjournment remaia in custody, and shall and may be again brought up, and such hearing and examination be further proceeded in, as often as to the said court or commissioner or justices shall seem fit : Provided always, that when any such hearing shall be adjourned by the said court generally, or by such commissioner or justices, to some future circuit, or to some future sessions as aforesaid, the said court shall and may, upon the application of such prisoner, to be made within such time as the said court shall direct, order the said prisoner to be brought up for hearing accordingly, and such notice thereof shall be given, and to such parties, as the said court or commissioner or justices shall direct. LX XIII. Provided always, and be it further enacted, That where any prisoner, whose usual place of abode at or lately before his or her im- prisonment was other than in Middlesex, Surrey, London, or Southwark aforesaid, shall be so brought before the said court for the relief of insolvent debtors, it shall be lawful for the said court to receive the affidavits of any creditor or creditors or other person or persons not 183 At the time of hearing, the schedule to be ex- amined. Creditors may oppose prisoner’s discharge. Hearing may be adjourned. Affidavits may be re- ceived in op- position to prisoner's discharge in ain cases. 184 Schedule and prisoner’s aecounts may be re- ferred to an officer of the court, or an examiner, who may or- der prisoner to attend. Officer and examiner may admi- nister oaths. Court may order ex- penses of re- ference to be paid out of insolvent's estate, Appendia to Part IV. [1 & 2 Viet. resident within Middlesex, Surrey, London, or Southwark aforesaid, in opposition to the discharge of such prisoner under this act, and also, if such court shall think fit, to permit interrogatories to be filed for the examination or cross-examination of any person making or joining in such affidavits, and to adjourn the hearing and examination of such prisoner until such interrogatories shall be fully answered to the satis- faction of the said court: and where any prisoner shall be brought before any commissioner of the said court on his circuit, or before any such justices as aforesaid, at their sessions aforesaid, and the usual place of abode of such prisoner at or lately before his or her imprison- ment shall have been other than in the county or riding where such prisoner shall be brought up, it shall be lawful for such commissioner or justices to receive the affidavits of any creditor or creditors, or other person or persons, not resident within the county or riding where such prisoner shall be brought up, in opposition to the discharge of such prisoner under this act, and also, if such commissioner or justices shall think fit, to permit interrogatories to be filed for the examination or cross-examination of any person making or joining in such affidavits, and to adjourn the hearing and examination of such prisoner until such interrogatories shall te fully answered to the satisfaction of the said commissioner or justices. LXXIV. Provided always, and it is hereby enacted, That at such hearing or adjourned hearing it shall be lawful for the said court or commissioner or justices, if it shall appear fit, upon application made by some creditor or creditors, and supported oath or affidavit, to order that it shall be referred to an officer of the said court, or to an examiner duly appointed according to the provisions of this act, to investigate the accounts of such prisoner, and to examine into the truth of his schedule, and to report thereon to the said court or com- missioner or justices ; and that the said court or commissioner or justices may at such hearing proceed on the other matters in opposition to the discharge of such prisoner, or may, if it shall appear just and reason- able so to do, forthwith adjourn the hearing thereof until such officer or examiner shall have made his report ; and that upon such reference being made as aforesaid, it shall be lawful for such officer or examiner to order the attendance of such prisoner as ofien as such officer or examiner shall think fit, and the prisoner mentioned in such order shall be accordingly carried before such officer or examiner, for which such order shall be a sufficient warrant; and the keeper of the prison, or his deputy, so carrying any prisoner before such officer or examuner, shall receive for the same the sum of ten shillings, and no more, to be aid by the person or persons at whose requisition the said reference shall have been had; and such officer or examiner shall and may, under such reference, administer oaths, and examine all witnesses and parties upon their oaths, touching all matters relating theieto: Provided always, that no keeper of any prison shall be required or compelled to carry any prisoner a greater distance than two miles from his prison to or before such officer or examiner, except that the keepers of prisons in Middlesex and London, and of the prisons of the Queen’s Bench and Marshaleea, and in Horsemonger-lane, and of and in the borough of Southwark, shall carry their prisoners before such officer of the said court, or at such other place within the bills of mortality as the said court shall direct ; and that in all cases where such reference shall have been made as aforesaid, it shall be lawful for the said court or commissioner or justices, if just cause shall appear, to order all the fees and expenses of such reference, paid by any creditor or creditors, to be repaid to him, her, or them out of the first money received by the provisional or other assignee or assignees of such prisoner from or by his estate or effects, cap. 110.) Insolvent Acts. 185 LXXvV. And be it enacted, That after such examination of any such Court, &c. prisoner as hereinbefore directed it shall be lawful atsuch hearing or ad- may adjudge Journed hearing as aforesaid for the said court or commissioner or justices, eaicahar et upon such prisoner’s swearing to the truth of his schedule, and executing from custoay, such warrant of attorney as is hereinafter directed, to adjudge that such and entitled prisoner shall be discharged from custody, and entitled to the benefit of to the benefit this act, at such time as the said court or commissioner or justices shall ° Hs) 2ets direct, in pursuance of the provisions hereinafter contained in that behalf, as to the several debts and sums of money due or claimed to be due at the time of making such vesting order as aforesaid from such prisoner to the several persons named in his schedule as creditors, or claiming to be creditors, for the same respectively, or for which such persons shall have given credit to such prisoner before the time of making such vesting order as aforesaid, and which were not then payable, and as to the claims of all other persons, not known to such prisoner at the time of such adju- dication, who may be indorsees or holders of any negotiable security set forth in such schedule so sworn to as aforesaid. LXXVI. And be it exacted, That in all cases where no cause shall Court may appear to the contrary it shall be lawful for the said court or commis- judge dis- sioner or justices, according as shail fit, to adjudge th h charge, do. } j » ac g as shall seem fit, to adjudge that such ¢o be forth. prisoner shall be so discharged, and so entitled as aforesaid, forthwith, with, or not or so soon as such prisoner shall have been in custody at the suit of later than six one or more of the,persons as to whose debts and claims such dis- ponte om ‘ ie a : : = e filing of charge is so adjudicated, for such period or periods, not exceeding six the petition. months in the whole, as the said court or commissioner or justices shall direct, to be computed from the making of such vesting order as aforesaid. LXXVII. And be it enacted, That in case it shall appear to the said In certain court or commissioner or justices that such prisoner has fraudulently, cases dis- with intent to conceal the state of his affairs or to defeat the objects of shares &e. this act, destroyed or otherwise wilfully prevented or purposely withheld period eee the production of any books, papers, or writings relating to such of his later than affairs as are subject to investigation under this act, or kept or caused three years to be kept false books, or made false entries in, or withheld entries from, rena or wilfully altered or falsified, any such books, papers, or writings, or s that such prisoner has fraudulently, with intent of diminishing the sum to be divided among his creditors, or of giving an undue preference to any of the said creditors, discharged or concealed any debt due to or from the said prisoner, or made away with, charged, mortgaged, or con- cealed any part of his property, of what kind svever, either before or after the commencement of his or her imprisonment, then it shall be lawful for the said court or commissioner or justices to adjudge that such prisoner shall be so discharged, and so entitled as aforesaid, as soon as he shall have been in custody at the suit of some or more of the persons, as to whose debts and claims such discharge is so adjudi- cated, for such period or periods, not exceeding three years in the whole, as the said court or commissioner or justices shall direct, to be computed as aforesaid. LXXVIII. And be it enacted, Thatin case itshall appear to the said tp other court or commissioner or justices that such prisoner shall have contracted cases the dis- any of his or her debts fraudulently, or by means of a breach of trust, or neta by means of false pretences, or without having had any reasonable or period, and robable expectation at the time when contracted of paying the same, or later than shall have fraudulently, or by means of false pretences obtained the ee yous forbearance of any of his debts by any of his creditors, or shall have put Bone - any of his creditors to any unnecessary expense by any vexatious or frivolou8 defence or delay to any suit for recovering any debt or sum of 186 Discharge may extend to process tor contempt in nonpayment of money ; and to costs incurred by creditor, but subject to taxation. Discharge may extend to sums pay- able by way of annuity, - &e. money due from such prisoner, or shall be indebted for damages recovered in any action for criminal conversation with the wife or for seducing the daughter or servant of the plaintiff in such action, or for breach of pro- mise of marriage made to the plaintiff in such action, or for damages recovered in any action for a malicious prosecution, or for a libel, or for slander, or in any other action for a malicious injury done to the plaintiff therein, or in any action of tort or trespass to the person or property of the plaintiff therein, where it shall appear to the satisfaction of the said court that the injury complained of was malicious, then it shall be lawful for such court or commissioner or justices to adjudge that such prisoner shall be so discharged and so entitled as aforesaid, forthwith, except as to.such debt or debts, sum or sums of money, or damages as above mentioned ; and as to such debt or debts, sum or sums of money, or damages to adjudge that such prisoner shall be so discharged, and so entitled as aforesaid, so soon as he shall have been in custody at the suit of the person or persons who shall be creditor or creditors for the same respectively, for a period or periods not exceeding two years in the whole, as the said court or commissioner or justices shall direct, to be computed as aforesaid. LXXIX. And be it enacted, That the discharge of any prisoner so adjudicated as aforesaid shall and may extend to all process issuing from any court, for any contempt of any court, ecclesiastical or civil, for nonpayment of money or of costs or expenses in any court, eccle- siastical or civil; and that in such case the said discharge shall be deemed to extend also to all costs which such prisoner would be liable to pay in consequence or by reason of such contempt, or on purging the same: and that every discharge so adjudicated as aforesaid, as to any debt or damages of any creditor of such prisoner, shall be deemed to extend also to all costs incurred by such creditor before the filing of such prisoner’s schedule, in any action or suit brought by such cre- ditor against such prisoner for the recovery of the same; and that all persons as to whose demands for any such costs, money, or expenses as aforesaid any such person shall be so adjudged to be discharged, shall be deemed and taken to be creditors of such prisoner in respect thereof, and ‘entitled to the benefit of all the provisions made for creditors by this act, subject nevertheless to such ascertaining of the amount of the said demands as may be had by taxation or otherwise, and to such examination thereof as is herein provided in respect of all claims to a dividend of such insolvent’s estate and effects. LXXX. And be it enacted, That the discharge of any such prisoner so adjudicated as aforesaid shall and may extend to any sum and sums of money which shall be payable, by way of annuity or otherwise, at any future time or times, by virtue of any bond, covenant, or other securities of any nature whatsoever, and that every person and persons who would be a creditor or creditors of such prisoner for such sum or sums of money, if the same were presently due, shall be admissible as a creditor or creditors of such prisoner for the value of such sum or sums of money so payable as aforesaid, which value the said court shall, upon application at any time made in that behalf, ascertain, regard being had to the original price given for such sum or sums of money, deducting therefrom such diminution in the value thereof as shall have been caused by the lapse of time since the grant thereof to the time of making such vesting order as aforesaid ; and such creditor or creditors shall be entitled in respect of such value to the benefit of all the provisions made for creditors by this act, without prejudice nevertheless to the respective securities of such creditor or creditors, excepting as respects such prisoner’s discharge under this act. Appendix to Part IV. (1 & 2 Vict, cap. 110.] Insolvent Acts. 187 LXXXI. And be it enacted, That in all such cases, where it shall Court, &e. be adjudged that any such prisoner shall be .so discharged, and so ™ay order entitled as aforesaid at some future period, it shall be lawful for the said Prsoner *o, court or commissioner or justices, if it shall seem fit, to direct that such within the prisoner shall be confined during any such period within the walls of walls of the the prison, and not within any rules or liberties thereof. Peon LXXXII. And be it enacted, That whenever any creditor or Court, &. creditors opposing any such prisoner's discharge shall prove to the satis- May order faction of the said court or commissioner or justices that such prisoner Coss aT has done or committed any act for which, upon such adjudication as be paid to aforesaid, he may be liable to remain in such custody as aforesaid for a opposing period not exceeding three years, to be computed as aforesaid, the said SS Ore court or commissioner or justices shall adjudge the taxed costs of such estate. opposition to be paid for such opposing creditor or creditors out of the estate and effects of such prisoner, by his or her assignee or assig- nees, before any dividend made thereof; and in all other cases of oppo- sition to a prisoner’s discharge being substantiated or effectual it shall be lawful for the said court or commissioner or justices to adjudge in like manner, if it shall seem fit; and that in case it shall appear to the where oppo- said court or commissioner or justices that the opposition of any sition frivo- creditor to any such prisoner's discharge was frivolous and vexatious, it 2ous and vex- shall be lawful for the said court or commissioner or justices to award Stout costs such costs to such prisoner as shall appear to be just and reasonable, to vaeedea to be paid by the creditor or creditors making such opposition, which shall prisoner. be paid accordingly. LXXXIII. And be it enacted, That where, upon any prisoner being Court or brought up before the said court, or a commissioner thereof on his eRe circuit, any such adjudication shall have been made as aforesaid by the ger, pursuant said court or commissioner, order shall be made accordingly by the to adjudica- said court or commissioner, in pursuance of such adjudication, and the tion, and said court or commissioner shall also issue a warrant or warrants to the hin gaoler accordingly ordering the discharge of such prisoner from custody gaoler. as to the detainers under which he or she shall then be confined, or which shall be lodged against him or her before he or she shall be out of custody, the same being for debts in respect of which such adjudi- cation shall have been made; and where, upon any such prisoner? justices to being brought up before such justices as aforesaid, any such adjudi- certify their cation as aforesaid shall have been made by such justices, the said adjudication justices shall forthwith certify such adjudication to the said court, ‘0 the cout, whereupon the said court shall order that such prisoner shall be dis- thereupon charged from custody, and entitled to the benefit of this act, according make order, to such adjudication, at the period or periods expressed therein, and and seen shall order such costs to be paid as shall have been adjudged by the bela 2 said justices in pursuance of the provisions of this act, and shall issue a warrant or warrants to the gaoler accordingly, ordering the discharge of such prisoner from custody as to the detainers under which he shall then be confined, or which shall be lodged against him before he shall be out of custody, the same being for debts in respect of which such adjudication shall have been made; and that every such order of adjudication shall take effect as from the day on which the adjudication gyecification shall have been made in that behalf; and that every such adjudication, of debts, &c. ‘and certificate thereof and order thereupon, may be made without not neces- specifying therein any such debt or debts, or sum or sums of money, or cadens claims as aforesaid, or naming therein any such creditor or creditors as tion, aforesaid, excepting so far as shall be necessary in any case in order to distinguish between the creditors as to whom any such prisoner may be adjudged to be so discharged and entitled as aforesaid forthwith, and the creditors as to whom he may be adjudged to be so discharged and 188 Adjudication may be con- ditional in certain cases. Where adju- dication is a discharge at a future period, the prisoner may be detained or arrested, &e. till that period ar- Tives. Court may order detain- ing creditor to pay pri- soner a sum not exceed- ing 4s. a week. Before adju- dication, pri- soner shall execute war- rant of attor- ney to con- fess judg- ment for amount of _ debts in sche- dule. Appendia to Part IV. (1 f 2 Viet. entitled at some future period: Provided nevertheless, that in all cases the detainer or detainers, with respect to which any such prisoner shall have been adjudged to be discharged out of custody, he being then in custody thereupon, shall be specified in the warrant of the said court or commissioner, to be delivered to the gaoler in that behalf. LXXXIV. And be it enacted, that where it shall appear to the said court, commissioner, or justices at any such hearing as aforesaid of any such prisoner that certain matters or things ought to be performed by or on behalf of such prisoner before he is intended to be actually dis- charged from custody, but that nevertheless it is expedient not to adjourn the hearing of the case absolutely to some future occasion, without the opportunity of such dischapge being sooner had by doing such things as aforesaid, it shall bé.dawful for the said court, com- missioner, or justices to pronounce adjudication without their issuing the order and warrant pursuant thereto; and that such adjudication may be directed to be conditional on the performance of such matters or things as aforesaid; and that on the nonperformance thereof the hearing of such case shall stand adjourned, according to the direction made in that behalf. ; LXXXV. Provided always, and be it enacted, That in all cases where it shall have been adjudged that any such prisoner shall be so discharged, and so entitled as aforesaid, at some future period, such prisoner shall be subject and liable to be detained in prison, and to be arrested and charged in custody at the suit of any one or more of his or her creditors with respect to whom it shall have been so adjudged, at any time before such period shall have arrived, in the same manner as he would have been subject and liable thereto if this act had not passed; Provided, nevertheless, that when such period shall have arrived such prisoner shall be entitled to the benefit and protection of this act, notwithstanding that he may have been out of actual custody during all or any part of the time subject to such adjudication, by reason of such prisoner not having been arrested or detained during such time or any part thereof. LXXXVI. And be it enacted, That in all cases where such prisoner shall, upon such adjudication as aforesaid, be liable to further imprison- ment at the suit of his creditor or creditors, or any or either of them, it shall be lawful at any time for the said court, on the application of such prisoner, to order the creditor or creditors at whose suit he shall be so imprisoned to pay to such prisoner such sum or sums of money, not ex- ceeding the rate of four shillings by the week in the whole, at such times and in such manner and in such proportions as the said court shall direct, and that on failure of payment thereof, as directed by the said court, the said court shall order such prisoner to be forthwith discharged from custody at the suit of the creditor or creditors so failing to pay the same. LXXXVII. And be it enacted, That before any such adjudication shall be made with respect to any such prisoner the said court or com- missioner or justices shall require such prisoner to execute a warrant of attorney to authorize the entering up of a judgment against such prisoner in some one of the superior courts at Westminster, in the name of the assignee or assignees of such prisoner, or of such provisional assignee, if no other assignee shall have been appointed and shall have accepted such office, for the amount of the debts stated in the schedule of such prisoner so sworn to as aforesaid to be due or claimed to be due from such prisoner, or so much thereof as shall appear at the time of executing such warrant of attorney to be due and unsatisfied ; and any such war- cap. 110.) Insolvent Acts. 189 rant of attorney is hereby declared not to be within the meaning of the said act passed in the third year of the reign of his late Majesty King George the Fourth, nor shall it be necessary that the same should’ be executed in the presence of an attorney for such prisoner according to the provision hereinbefore in that behalf contained ; and the order of the said court for entering up such judgment shall be a sufficient autho- rity to the proper officer for entering up the same, and such judgment shall have the force of a recognizance ; and if at any time it shall appear to Court may the satisfaction of the said court that such prisoner is of ability to pay such Permit hate debts or any part thereof, or that he is dead, leaving assets for that pur- futon (01 pose, the said court may permit execution to be taken out upon such judg- thereupon, tment, for such sum of money as under all the circumstances of the case when insol- the said court shall order, such sum to be distributed rateably amongst Seige se the creditors of such prisoner according to the mode hereinbefore directed pay, or is in the case of a dividend made after adjudication ; and such further pro- dead, leav- ceedings shall and may be had upon such judgment as may seem fit to ing assets. the discretion of the said court from time to time until the whole of the debts due to the several persons against whom such discharge shall have been obtained shall be fully paid and satisfied, together with such costs as the said court shall think fit to award ; and no scire facias shall be Ne scire necessary to revive such judgment on account of any lapse of time, but facias neces- execution shall at all times issue thereon by virtue of the order of the ™% said court: Provided always, that in case any such application against Jf applica- any such prisoner shall appear to the said court to be ill-founded and pon ie and vexatious, it shall be lawful for the said court, not only to refuse to make vexatious, any order on such application, but also to dismiss the same, with such court may 7 ‘ : : dismiss the costs against the party or parties making the same as to the said court 2 : ; ith shall appear reasonable, and the said costs shall be paid accordingly. me LXXXVIII. And be it enacted, That in case any such person shall, Where insol- after he has become entitled to the benefit of this act by any such adju- vent shall dications as aforesaid, become entitled to or possessed of, in his own right, ater le any stock in the public funds of this country, or other property, whether come entitled the same be in England or elsewhere, which by law cannot be taken into to property execution under the said judgment so to be entered up in the names of wee Sawol such assignee or assignees as aforesaid, and such prisoner shall have ezeeution, refused to convey or assign or transfer such stock or other property, or the assignee so much thereof as may be sufficient to satisfy the said judgment, then may apply to and in such case it shall be lawful for the assignee or assignees of such me for prisoner to apply by petition in a summary way, setting forth the facts . of the case to the said court, and to pray that the said prisoner may be taken and committed to custody notwithstanding any such adjudication and discharge as aforesaid ; and thereupon, if upon examination by the said court, and hearing as well the said assignee or assignees as the said risoner in case he shall appear, or the said assignee or assignees only, in case such prisoner, due notice having been given to him, shall not ap- pear, it shall apear-to the said court that the contents of such petition are true, then and in such case the said court shall declare and adjudge, Court may and shall thereupon order the said prisoner to be apprehended, and com- cde ae mitted to custody within the walls of any prison which the said court vomanded to shall direct, and not within any rules or liberties thereof, until he shall custody until convey, assign, and transfer such stock or other property, or so much he teepntire thereof as the said court shall direct, towards the satisfaction of the said peri O35 judgment, to such assignee or assignees, for the general benefit of the creditors of such prisoner. LXXXIX. And be it enacted, That in case any person or persons, body Manner of politic or corporate, shall, after any such insolvent shall have become proceeding entitled to the benefit of this act by any such adjudication as aforesaid, Where, after i . ” the discharge become or be possessed of, or have under his or their power or control, o¢ a prlaonee 190 any person. shall be pos- sessed of stock in pub- lie funds, &c. belonging to him. Persons dis- charged. under this act not liable to imprison- ment for debts, &c. to which adju- dication ex- tends. Tf arrested, to be released. by judge of the court from which process is- issued ; who may order costs to be paid to him. After dis- charge, no execution to issue against insolvent for debts, &c., to which ad- judication extends. Discharge under this act may be pleaded ge- nerally. Appendix to Part IV. (1 & 2 Vict. any stock in the public funds of this country, or any legacy, money due or growing due, bills of exchange, promissory notes, bank notes, secu- rities for money, goods, and chattels, or any other property whatsoever belonging to such insolvent, or held in trust for him, or for his use and benefit, or to which such ,insolvent shall be in any way entitled, or in case any such person or persons, body politic or corporate, shall be at such period in any manner indebted to such insolvent, it shall be lawful for the said court, upon the application of any assignee or creditor of such insolvent, to cause notice to be given to such person or persons, body politic or corporate, directing him or them to hold and retain the said property till the said court shall make further order concerning the same ; aud thereupon it shall be lawful for the said court further to order such person or persons, body politic or corporate, to deliver over such property, and to pay such debts as aforesaid, or any part thereof, to the provisional or other assignee or assignees of the estate and effects of such insolvent, for the general benefit of the creditors of such insol- vent, entitled to claim under such judgment entered up by order of the said court, as aforesaid; and such delivery and payment shall be made accordingly, in obedience to such order; and such person or persons, body politic and corporate, shall by such payment and delivery, so made in pursuance of such order of the said court, be discharged in respect of such property and debts against all persons whatsoever to all intents and purposes. XC. And be it enacted, That no person who shall have become entitled to the benefit of this act by any such adjudication as aforesaid shall at any time thereafter be imprisoned by reason of the judgment so as aforesaid entered up against him or her, according to this act, or for or by reason of any debt or sum of money, or costs, with respect to which such person shall have become so entitled, or for or by reason of any judgment, decree, or order for payment of the same; but that upon every arrest or detainer in prison upon any such judgment so entered up as aforesaid, or for or by reason of any such debt or sum of money or costs, or judgment, decree, or order for payment of the same, it shall be lawful for any judge of the court from which any process shall have issued in respect thereof, and such judge is hereby required, upon proof made to his satisfaction that the cause of such arrest or detainer is such as hereinbefore mentioned, to release such prisoner from custody, unless it shall appear to such judge, upon inquiry, that such adjudication as aforesaid was made without due notice, where notice is by this act re- quired, being given to or acknowledged by the plaintiff on such process, or being by him dispensed with by the acceptance of a dividend under this act, or otherwise ; and at the same time, if such judge shall in his discretion think fit, it shall be lawful for him to order such plaintiff, or any person or persons suing out such process, to pay such prisoner the costs which he shall have incurred on such occasion, or so much thereof as to such judge shall seem just and reasonable, such prisoner causing a common appearance to be entered for him in such action or suit. XCI. And be it enacted, That after any person shall have become entitled to the benefit of this act by any such adjudication as aforesaid, no writ of fieri facias or elegit shall issue on any judgment obtained against such prisoner, for any debt or sum of money with respect to which such person shall have so become entitled, nor in any action upon any new contract or security for payment thereof except upon the judg- ment entered up against such prisoner according to this act; and that if any suit or action shall be brought or any scire facias be issued against any such person, his heirs, executors, or administrators, for any such debt or sum of money, or upon any new contract or security for pay- ment thereof, or upon any judgment obtained against, or any statute or cap. 110.] Insolvent Acts. 191 recognizance acknowledged by such person for the same, except as aforesaid, it shall be lawful for such person, his heirs, executors, or administrators, to plead generally that such person was duly discharged according to this act by the order of adjudication made in that behalf, and that such order remains in force, without pleading any other matter specially ; whereto the plaintiff or plaintiffs shall or may reply generally, and deny the matters pleaded as aforesaid, or reply any other matter or thing which may show the defendant or defendants not to be entitled to the benefit of this act, or that such person was not duly discharged according to the provisions thereof in the same manner as the plaintiff or plaintiffs might have replied in case the defendant or defendants had pleaded this act, and a discharge by virtue thereof, specially. XCII. Provided always, and be it enacted, That if at any time after when debts any such adjudication as aforesaid shall have been made with respect to are satisfied any such prisoner in pursuance of this act it shall appear to the satisfac- *he oon tion of the said court for the relief of insolvent debtors that all the We rant of debts in respect of which such adjudication was made have been dis- attorney to charged and satisfied, it shall be lawful for such court, upon application be cancelled, duly made, to direct the warrant of attorney executed by such prisoner 374 satistac- under this act to be cancelled, or if judgment shall have been entered entered in up thereon, to order satisfaction to be entered on such judgment, and the judg- the order of the said court for entering up such satisfaction shall be ™ents a sufficient authority to the proper officer for entering up the same; and anda re-as- that if in any case it shall appear to the satisfaction of the said court signment to that after the debts of any such prisoner shall have been so discharged be executed. and satisfied as aforesaid there shall remain in the possession, or subject to the control of his or her assignee or assignees, any property of any kind or description whatsoever which has come to such assignee or assignees, or to which he or they may claim title, by virtue of the order made in that behalf or otherwise, by virtue of his or their office of assignee or assignees, it shall be lawful for the said court, on application duly made, to order that all such property so remaining as aforesaid shall be vested in the person whose debts shall have been so discharged and satisfied, or his heirs, executors, administrators, or assigns; and such order shall have the effect of vesting the same accordingly; and that any deed of release to be recorded in the said court, by which any such debt or debts shall be released or discharged, shall not be liable to any stamp duty. XCIII. And whereas it may sometimes happen that a debt of, or where error claim upon, or balance due from such prisoner as aforesaid, may be in schedule, specified in his schedule so sworn to as aforesaid at an amount which is See not exactly the actual amount thereof, without any culpable negligence s+ to operate or fraud, or evil intention on the part of such prisoner: be it enacted, upon the ac- That in such case the said prisoner shall be entitled to all and every tual amount benefit and protection of this act; and the creditor in that behalf shall or ache be entitled to the benefit of all the provisions made for creditors by this act,in respect of the actual amount of such debt, claim, or balance, and neither more nor less than the same, to all intents and purposes, such error in the said schedule notwithstanding. XCIV. And be it further enacted, That if on any prisoner being Court, at re- brought before the said court for the relief of insolvent debtors it shall nest of cre- appear to the satisfaction of the said court that the usual place of abode naees po of such prisoner, lately before his arrest, was in some county or place soners from within the United Kingdom other than the counties of Mirldlesex or the gaols of Surrey, or city of London or borough of Southwark, it shall be lawful London, for the said court, if it shall think fit, upon the request of any creditor 4, Surrey, or creditors of such prisoner, to order such prisoner to be taken, at the their usual 192 Appendix to Part IV. {1 & 2 Viet. residencewas expense of such creditor or creditors, from the gaol in which such elsewhere, to prisoner shall then be, to the gaol of the county or place where such es prisoner had lately, before such arrest, his usual place of abode; and towhich if such late usual place of abode was in Scotland or Ireland, then to they are the gaol of such county or place as to the said court shall, under the removed. circumstances of the case, appear jmst and reasonable ; and the order of the said court in that behalf, directed to the keepers of the said gaols respectively, shall be their sufficient warrant, and they are hereby re- quired, in pursuance thereof, to deliver and receive respectively the body of such prisoner, together with a certificate of the day or days, and cause or causes of detainer against such prisoner, who shall from and after such removal be deemed to be in custody of the sheriff or other responsible officer of the county or place wherein the gaol shall be situate to which such prisoner shall have been so removed ; and the said court shall order such removal of the said prisoner from such gaol as aforesaid to be made on or before a day to be named in such order ; and if such prisoner shall not be removed accordingly on or before the said day, or on or before a day which the said court shal! name in any enlargement of the said order, (which enlargement it is hereby empowered to make whenever it shall seem just and reasonable so to do,) then the said court shall, upon application duly made, appoint a time for such prisoner to be brought up before the said court, and such advertisement thereof shall be published, and such notice given, and to such persons as the said court shall in any case direct; and when any such prisoner shall have been removed, and shall be in custody in any gaol in pursuance of such order, or of any enlargement thereof, the said court shall appoint a time and place for such prisoner to be brought up in the county or place where such gaol siall be situate, and such advertisement thereof shall be published, and such notice thereof given, After such and to such persons as the said court shall in any case direct: Provided removal, cre always, that when any such prisoner shall be brought up to be dealt 3 may fi a, 5 oppose the With according to the provisions of this act, after such removal or discharge, as failure of removal of such prisoner as aforesaid, it shall be lawful aucune for all the creditors of such prisoner to oppose the discharge of such ‘ prisoner as in other cases, although no such creditor shall have opposed or given notice to oppose the said discharge at the time first appointed Expense of for the bringing up of such prisoner ; and that in all cases where any removal of such prisoner shall be so removed as aforesaid the expense incurred by Prisoners. —_ such removal by the creditor or creditors requesting the same shall be repaid to him or them by the assignee or assignees of the estate and effects of such prisoner, out of such estate and effects, before any divi- dend shall be made thereof. Benefit of XCV. Provided always, and be it further enacted, That no prisoner aint Not (p Be shall be entitled to be discharged under this act upon his own petition, i who having been arrested in any county or place where he had, at or prisoners . . removed by lately before such arrest, his usual place of abode, other than in the habeas cor- counties of Middlesex or Surrey, or the city of London or borough of pus. Southwark, such usual place of abode being distant more than twenty : miles from the court house of the said court, shall be removed by any writ of habeas. corpus sued out on his behalf, or by his procurement or request, from custody in such county or place to any other custody : Court may Provided nevertheless, that it shall be lawful for the said court, if in any permit such case the said court shall think fit, at any time within ten days after the prisoner to filing of the petition of any such prisoner, or within such further time be removed as the said court shall all bh f any such pri back at the 28 the said court shall allow, upon the request of any such prisoner, to expense of order such prisoner to be taken, at the expense of any person or persons any person who will pay the same, from the gaol in which such prisoner shall then willing tobe to the gaol of the county or place where such priscner was arrested” th h : z 2 2 as as aforesaid, and the order of the said court in that behalf, directed to eap. 110.] Insolvent Acts. 193 the keepers of the said gaols respectively, shall be their sufficient war- rant, and they are hereby required in pursuance thereof to deliver and receive respectively the body of such prisoner, together with a cer- tificate of the day or days, and cause or causes of detainer against such prisoner, who shall from and after such removal be deemed to be in custody of the sheriff or other responsible officer of the county or place wherein the gaol shall be situate to which such prisoner shall have been so removed by such order ; and the said court shall order such removal of the said prisoner from such gaol as aforesaid to be made on or before a day to be named in such order, or in any enlargement of the same, which enlargement the said court is hereby empowered to make when- ever it shall seem just and reasonable so to do; and when any such whereupon prisoner shall have been removed, and shall be in custody in any gaol in the same pro- pursuance of such order, the said court shall and may appoint a time and canes pee place for such prisoner to be brought up to be dealt with according to hier Soe the provisions of this act, whereupon such proceedings shall be bad as if such prisoner had been in the said last-mentioned gaol at the time of filing his petition. XCVI. And be it further enacted, That every such adjudication as Adjudication aforesaid by the said court, commissioner, or justices as aforesaid with and order to respect to any prisoner, and the order thereupon, so made as aforesaid, be final, un- shall be final and conclusive, and shall not be reviewed by the said jets obtained court, unless the said court shall thereafter see good and sufficient cause gence, &c. to believe that such adjudication has been made on false evidence, or in which case otherwise improperly made, or fraudulently obtained, in which case it court may shall be lawful for the said court, upon the application of such prisoner, Aer a *°- or of any creditor of such prisoner, to order such prisoner, upon due notice to be given to such persons, and in such manner as the said court shall direct, to attend, or to be brought up, and the said matter to be re- heard before the said court, or une of the commissioners therefore on his circuit, or such justices as aforesaid, as the case may require, who shall thereupon re-hear the same; and shall and may, if just cause shall appear, annul the original adjudication and order thereupon made in such case, and shall have the same powers and authorities upon such re- hearing as upon any original hearing in pursuance of this act, and may adjudicate in such matter accordingly ; and thereupon, in case the former adjudication in the said matter shall not be confirmed, such order, certificate, and warrant shall be made or required by this act to be made upon such original adjudication ; and the said court or commis-~ sioner or justices shall and may, if necessary, remand the said prisoner to the same custody in which he was at the time of the former hearing of the matters of his petition, there to be subject to imprisonment as if the former adjudication therein had not been made; and thereupon all detainers which were in force against such prisoner at the time of his former discharge from custody, shall be deemed to be still in force against him as if such former adjudication had not been made ; and the gaoler or keeper of the prison to which such prisoner shall be so remanded, shall and is hereby required to receive such prisoner into his custody in pursuance of such remand, for doing which the order of remand in such case shall be his sufficient warrant ; and where in any case such prisoner Jnsolyent re shall refuse or neglect to appear before the said court or commissioner or fusing to ap justices, according to such order for re-hearing as aforesaid, a copy pose buy be whereof shall have beeu duly served on such prisoner, it shall be lawful ee for the said court to order such prisoner to be apprehended, and com- mitted to custody in such prison as the said court shall direct, and to issue 1ts warrant accordingly, and to cause such prisoner to be brought up for examination as often as to the said court or commissioner or justices shall seem fit: Provided always, that where upon such re- ty adjudica- hearing it shall appear to the said court, commissioner, or Justices that tion of dis- E aring. 194 Appendix to Part IV. (1 & 2 Vict. charge on such prisoner is not entitled to the benefit of the act until some future re-hearing, period, according to the provisions hereinbefore contained, the said court, the time since Cae Sapte ll and if it shall former hear. commissioner, or justices shall and may, if it shall appear reasonable, ing not to be adjudge the discharge of such prisoner at such future period, to be calculated. calculated without including the time during which such prisoner shall have been out of custody since the time appointed for his discharge by such former adjudication as aforesaid. Where anor- XCVII. Provided always, and be it further enacted, That if in any der of diss case an order or warrant for the discharge of any such prisoner shall lo have issued erroneously, and which is not pursuant to the adjudication iby mistake made in that behalf, it shall be lawful for the said court, on such error the courtmay being shown to the said court, to revoke such order and warrant, and to revoke and annul, suspend, or amend the same, according to such adjudication, and gnend the if necessary to re~commit such prisoner to his former custody, when by : such order or warrant he shall have been discharged therefrom ; and the gaoler or keeper of the prison to whose custody such prisoner shall be so re-committed, is hereby required to receive such prisoner into his cus- tody, according to such re-commitment ; and all detainers which were in force against such prisoner at the time of such discharge as aforesaid shall be deemed to be still in force against him, as if such erroneous order or warrant had not issued. Prisonermay XCVIII. And whereas the estate, both real and personal, of any after dis- © person whose discharge has been adjudicated under this act may not charge be be sufficiently described or discovered in his schedule so sworn to as espmined as aforesaid, or the assistance of such person may be necessary to adjust, © estate and Hi cffects,on ap- Make out, recover, or manage his estate or effects, for the benefit of plication of his creditors: Be it therefore enacted, That it shall be lawful for the assignee. —_ assignee or assignees of the estate and effects of any such person whose discharge shall have been adjudicated under this act, from time to time to apply to the said court that such person may be further examined as to any matter or things relating to his estate and effects, either by the said court, or a commissioner thereof on his circuit, or by any justice of the peace within the town of Berwick-upon-Tweed ; and if the said court shall order any such examination before any such justice, such justice shall send for or call before him such person by such warrant, summons, ways or means as he shall think fit: and if such person shall appear before such justice, such justice shall examine him upon oath, or otherwise, as to such matters and things as such assignee or assignees shall desire, relating to the estate and effects of such person; and if any such person, on payment or tender of payment ofsuch reasonable charges as such justice shall judge sufficient, shall neglect or refuse to appear before such justice, or having come before such justice shall refuse to be sworn, or to answer such questions as by such justice shall be put to him, relating to the discovery of his estate and effects vested or intended to be vested in such assignee or assignees as aforesaid, as required by the order of the said court, such justice shall certify such default to the said court; Prisoner and thereupon, and also in case such person shall neglect or refuse to refusing to appear before such court or commissioner at such time and place as shall appear, or to be directed by such order, or appearing shall refuse to be sworn, or to aes aa answer such questions as shall be put to him relating to the discovery of committed, his said estate and effects, then and in any of such cases it shall be lawful for such court or commissioner by warrant to commit such person to the common gaol of the county or place, there to 1emain without bail or mainprize until such time as he shall submit himself to the order of the said court in that behalf, and shall answer upon oath or otherwise as shall be required, to all such lawful questions as shall be put to him in pursuance of the same for the purposes aforesaid. eap. 110.) Insolvent Acts. 195 XCIX. And be it enacted, That in case any prisoner whose estate Persons wil- shall, by an order under this act, have been vested in the said provisiona) fully omitting assignee, shall, with intent to defraud the creditors or creditor of such anything tn: prisoner, wilfully and fraudulently omit in his schedule, so sworn to as guilty cea aforesaid, any effects or property whatsoever, or retain or except out of misdemea- such schedule, as wearing apparel, bedding, working tools, and imple- 20% and lia- ments, or other necessaries, property of greater value than twenty pounds, Peasumne every such person so offending, and any person aiding and assisting him sonment. to do the same, shall, upon being thereof convicted by due course of law, be adjudged guilty of a misdemeanor, and thereupon it shall be lawful for the court before whom such offender shall have been so tried and convicted to sentence such offender to be imprisoned and kept to hard labour for any period of time not exceeding three years ; and that Indictment in every indictment or information against any person for any offence need only set under this act it shall be sufficient to set forth the substance of the offence eee charged on the defendant, without setting forth the petition, or order charged. vesting such prisoner’s estate in the provisional assignee, appointment of assignee or assignees, or balance sheet, order for hearing, adjudication, ~ order of discharge or remand, or any warrant, rule, order, or proceeding of or in the said court, except so much of the schedule of such prisoner as may be necessary for the purpose. C. And be it enacted, That if any prisoner or other person taking an Person oath under the provisions of this act shall wilfully forswear and perjure Swenling: : himself in any oath to be taken under this act. and shall be lawfully felsely under. convicted thereof, the person so offending shall suffer such punishment to punish- as may by law be inflicted on persons convicted of wilful and corrupt mentinflicted perjury ; and that in all cases wherein by this act an oath is required for perjury. the solemn affirmation of any person, being a Quaker or other person by law allowed to affirm, shall and may be accepted and taken in lieu thereof; and that every person making such affirmation who shall be convicted of wilful false affirmation shall incur and suffer such and the same penalties as are inflicted and imposed upon persons convicted of wiltul and corrupt perjury. CI. And be it enacted, That the provisions of this act shall extend to Provisious married women, being prisoners within the intent and meaning of this Se act, but that the order of the said court vesting the estate and effects of married any such married woman in such provisional assignee as aforesaid shall women. operate upon all property, real and personal, to which she may be entitled for her separate use, or over which she shall have any power of disposition, notwithstanding her coverture, or which shall be vested in any trustees or trustee, or other person or persons for her benefit, and upon all personal estate and effects of which she shall have the actual possession, except her wearing apparel, bedding and other such neces- saries, not exceeding in the whole the value of twenty pounds, and upon all other real and personal estate and effects to which she shall be entitled in any manner whatsoever, in possession, remainder, or reversion, subject only to such right, title, or interest as her husband may have therein, and without prejudicing any rights of her husband in such real and personal estate and effects respectively ; and all provisions in this act contained touching the real and personal estate of any prisoner whose estate shal] under this act be vested in the said provisional assignee shall apply to such real and personal estate and effects respectively, in the game manner as the same would apply to such real or personal estate and effects if such woman had been sole and unmarried, subject only to the rights of her husband therein ; and such married woman shall also “execute a warrant of attorney to confess judgment in one of the superior courts aforesaid for the amount of the debts remaining unpaid from which she shall be so discharged e aforesaid ; and such warrant of K 196 Mode of pro- ceeding with prisoners of unsound mind. Application may be made by persons on behalf of such prisoners. Appendix to Part 1V. [1 & 2 Viet. attorney so executed shall be sufficicnt authority for entering up judg- ment against such woman accordingly, notwithstanding her coverture, but such judgment shall not in any manner prejudice or affect the rights of her husband, except that the same shall be deemed and taken to be her debt, in case she shall die in the lifetime of such husband, to the end that the same may be discharged out of her personal assets in a dué course of administration, or out of her real estate, if any she shall have at the time of her death, but without prejudice to any estate or interest of her husband therein as tenant by the curtesy; and in case such woman shall, during the lifetime of her husband, become entitled to any property for her separate use, such judgment may be enforced against such separate property by suit in equity, or otherwise, under the order of the said court, for the purpose of obtaining payment of so much of the debts in respect of which such woman shall have been discharged by the said court as shall then remain unpaid ; and in case such woman shall survive her said husband such judgment may be after his death enforced against such woman or her property, real and personal, in such and the same manner and with the same effect as it might have been if she had been sole and unmarried at the time when she executed such warrant of attorney, and at the time when such judgment shall have been entered up as aforesaid: Provided always, nevertheless, that the discharge of any married woman under the authority of this act shall not operate to discharge her husband from any debt in respect of which his wife shall be so discharged, but such debt, as far as the same shall remain unpaid or unsatisfied, shall be chargeable upon and in force against such husband, as fully to all intents and purposes as it his wife had not obtamed such discharge. : CII. And be it enacted, That if any person who shall at any time be a prisoner in any such prison as aforesaid, upon any such process as aforesaid, shall be or become of unsound mind, and therefore incapable ot taking the benefit of this act in such manner as he or she might have done if of sound mind, the gaoler or keeper of such prison shall forthwith require one or tore justice or justices of the peace tor the county, riding, division, or place wherein such prisoner shall be, to attend at the said prison, and inquire into the state of mind of such prisoner ; and thereupon, and also in case any such justice or justices shall receive information by other means, that any such prisoner is of unsound mind as aforesaid, such justice or justices shall go to the said prison, and by his or their owa view, and by examination on oath of such person or persons as he or they shall think fit to examine, shall inquire into the state of mind of such prisoner ; and if it shall appear to such justice or justices upon such inquiry that such prisoner is of unsound mind, and therefore incapable of taking the benefit of this act in such manner as a person of sound mind might do, such justice or justices shall forthwith make a record of the fact, and certify the same to the said court; and thereupon it shall be lawful for the said court, at the instance of any person or persons on behalf of such prisoner, to order notice to be inserted in the London Gazette, and in two or more public newspavers usually circulated in the neighbourhood of such prison, and in the neighbourhood of the usual residence of such prisoner before he was committed to such prison, as the said court shall see fit, that application will be made to the said court for the discharge uf such prisoner on a day to be specified in such order and notice, being twenty-one days at least from the day of publi- cauon of such one of the said Gazette and newspapers containing such notice as shall be last published ; which notice, together with the service of the like notice on the creditor or creditors at whose suit such prisoner shall be detained in custody or his or their attorney or attornies in such suil, shail be deemed sutticient to authorize the said court to proceed to the discharge of such piisouer, if otherwise entitled to such dissharge, eap. 110.] Insolvent Acts, 197 according to the true intent and meaning of this Act ; and the said court Court may shall proceed accordingly,and shal] discharge such prisoner from custody, discharge and do all other acts under this Act, in case it shall appear that such re prisoner might have obtained his or her discharge under this Act if he or , she had been of sound mind ; and thereupon all and every estate, right, title, interest in law and equity, real and personal, power, benefit, and emolument whatsoever, which if such prisoner was of sound mind, could or ought to be vested in the said provisional assignee, pursuant to the provisions of this act, shall, by force and virtue of the order of the said court for the discharge of such prisoner, be vested in the provisional assignee of the said court, or in the other assignee or assignees appointed may appoint by the said court, and named in the said court, or in any other order of assignees : the said court in that behalf, as fully and effectually, and in the same manner, and all and every the same consequences and effects; both in fact and law, to all intents and purposes whatsoever, as if such prisoner had been of sound mind, and such order as aforesaid had been made vesting the same in such provisional assignee at the time and in the manner in this act provided; and that it shall be lawful for the said may order court to order judgment to be entered up against such prisoner, in the judgment io same manner as it he or she had been of sound mind, and had executed P@ entered a warrant of attorney to authorize the entering up of such judgment in E the manner hereinbefore directed, and such order shall be a sufficient authority to the proper officer for entering up the same ; and any dividend to be made by such assignee or assignees shall be made in such manner, and such proceedings shall be thereupon had, as are hereinbefore pro- vided in the case of a dividend of the estate and effects of any prisoner made before adjudication ; and the discharge of every such prisoner of unsound mind, so made as aforesaid, shall extend to all debts and sums of money to which the same might have extended if such prisoner had been of sound mind, and had duly filed his schedule, according to the provisions of this act: Provided always, that every such order of discharge, and of the appointment of an assignee or assignees, in such case, shall be entered of record in the said court, and proof thereof shall be received by such copy thereof as is hereinbefore directed to be received as proof of conveyances and assignments made in pursuance of this act. , CIII. And be it enacted, That this act shall not extend or be con- Discharge strued to extend to discharge any prisoner with respect to any debt due not to extend to ber Majesty or her successors, or to any debt or penalty with which ian he shall stand charged at the suit of the crown, or of any person for any jesg Treasury offence committed against any act or acts of Parliament relative to any give consent. branch of the public revenue, or at the suit of any sheriff or other public officer, upon any bail bond entered into for the appearance of any person prosecuted for any such offence, unless.three of the commissioners of her Majesty’s treasury for the time being shall certify under their hands their consents to such discharge. CIV. And be it enacted, That it shall be lawful for any person who Prisoners may now or shall hereafter be imprisoned under or by virtue of any writ onder we of capias or extent, issued and remaining in force at the instance or for ett may the benefit and reimbursement of any surety or sureties, or other person apply to the or persons, or the inhabitants of any parish, ward, or place, who shall Barons of the i 7 Exchequer or may have advanced and paid the debt to the crown, and by reason ; SP Ocd™ whereof the commissioners of her Majesty’s treasury may not be autho- charged. rized to give their consent as last aforesaid, to apply to the barons of her Majesty’s Court of Exchequer in England or Scotland for his discharge, giving one month’s previous notice in writing to the surety or sureties, or person or persons aforesaid, or to the churchwardens or overseers of the parish, ward, or place at whose instance or for whose henefit respectively such capias or extent shall remain in force of the 198 Appendix to Part IV. {1 & 2 Viet. intention of such person so imprisoned to make such application, and an enumeration and description of all and every the property, debts, and effects whatsoever of such person, in his own possession or power, or in the possession or power of any other person or persons for his or her use, and for the said court to whom such application shall be made to order such person to be brought before them, or before any baron of the said court, to be examined upon oath touching and concerning his property and effects ; and if such person shall upon such examination make a full disclosure of all his property and effects, and it shall otherwise appear to the satisfaction of such court reasonable and proper that such person should be no longer imprisoned under such writ, for such court or baron to order a writ of supersedeas quoad corpus to be issued out of the said court for the liberation of such person from such imprisonment: Pro- vided always, that no such liberation as aforesaid shall be held or deemed to satisfy or supersede such extent, or any proceedings thereon, except as to such imprisonment as aforesaid, or the debt or debts seized under and by virtue thereof, and for which such person shall be so imprisoned. Officer of CV. And be it further enacted, That the proper officer of the said court to court for the relief of insolvent debtors shall, on the reasonable re- produce pro- quest of any such prisoner as aforesaid, or of any creditor or creditors ceedings and ? < 2 give copies. Of such prisoner, or his, her, or their attorney, produce and show to such prisoner, creditor or creditors, and his, her, or their attorney, at such times as the said court shall direct, such petition, vesting order, schedule, orders of adjudication, and all other orders and proceedings made and had in the matter of such petition, and all books, papers and writings filed in such matter, and permit him, her, or them to inspect and examine the same; and shall provide for every such prisoner, cre- ditor or creditors, or his or their attorney requiring the same, a copy or copies of any such petition, vesting order, schedule, order of adjudica- tion, or other order or proceeding, or of such part thereof as shall be so required, receiving such fee as the said court shall appoint for so pro- Acopy of — viding the same; and that a copy of such petition, vesting order, sche- such proceed- qyle, order of adjudication, and other orders and proceedings purporting ings wet to be signed by the officer in wh tody th hall be, or bi genl.to be igned by the officer in whose custody the same shall be, or his admitted as deputy, certifying the same to be a true copy of such petition, vesting evidence. —_ order, schedule, order of adjudication, or other proceeding, and purporting to be sealed with the seal of the said court, shall at all times be ad- mitted in all courts and places whatever as sufficient evidence of the same, without any other proof whatever given of the same. Manner of CVI. And be it enacted, That when an order has issued for any such proceeding prisoner to be brought up to be dealt with according to this act, at any ae ee place other thanin Middlesex, Surrey, London, and Southwark aforesaid, place before such prisoners shall, within ten days after such order issued, or on such commission- earlier day as shall be named in such order, cause the duplicate of such oe ees ik petition, if any petition shal] have been presented by such prisoner, and Wales (a). the duplicate of such schedule, and all books, papers and writings relating thereto in his or her possession or power, to be lodged with the clerk of the peace of the county, or county of a city or town, or of the town of Berwick-upon-Tweed, where he or she shall be in custody, or with the deputy of the said clerk of the peace, to be approved of by the said court; and such prisoner shall be subject to such order as the said court shall make to enforce compliance with the directions of this act in this behalf; and that the said clerk of the peace, or his said deputy shall, on the reasonable request of such prisoner, or any creditor or cre- ditors of such prisoner, or of his, her, or their attorney, produce and show to him, her, or them such petition and schedule, and such books, papers and writings, and permit him, her, or them to inspect and examine (a) Seo 10 & 11 Vict. c. 102, s. 6, post, p. 207. cap. L1U.) Lnsowent Acts. the same, and may and shall receive the fee of one shilling from each and every creditor, or his or her attorney, at each time of his, her, or their so requesting and having the production of the same or any part thereof; and that such clerk of the peace or his said deputy shall provide for any such creditor or creditors, or his, her, or their attorney requesting the same, a copy or copies of such petition and schedule, or of such part thereof, as shall be so required ; and that such clerk of the peace, or his said deputy, shall be entitled to receive four-pence for every sheet so copied, containing seventy-two words, and no more, unless the same shall be the last or only sheet, in which case he shall be entitled to four- pence for such last or only sheet, although it does not contain seventy- two words ; and that every such duplicate as aforesaid, and all the said books, papers and writings shall be brought to the place of such hearing, and produced at such hearing by the said clerk of the peace or his said deputy, who shall and is hereby required to attend at the hearing of every such prisoner, with proper officers to preserve order in the court house or other place of such hearing ; and where any such county shall be within the circuit of one of the said commissioners, then such clerk of the peace or his said deputy shall and may act as clerk to such com- missioner, to assist him in the performance of his several duties under this act: and in all such cases, both before such commissioner, and before such justices as aforesaid, the said clerk of the peace, or his said deputy, shall, in consideration and recompense of and for his trouble in this behalf, be entitled to receive from every such prisoner so brought up for hearing as aforesaid the sum of five shillings, which shall be paid previously to the bringing up such prisoner for hearing as aforesaid: Provided always, that if it shall at any time appear to the said court that it is expedient that the duplicates of the petitions and schedules of prisoners confined in the gaol of any city, borough, town or place at which the commissioners of the said court shall give attendance on their circuits, so made as aforesaid, should be lodged with the town clerk or other officer of such city, borough, town, or place, and that the duties hereinbefore required of such clerk of the peace should be per- formed at such city, borough, town or place, by such town clerk or other officer of the same, it shall be lawful for the said court in any such case to order that the duplicates of ‘the petitions and schedules last aforesaid, and all such books, papers and writings as aforesaid, shall be lodged with such town clerk or other officer, instead of such clerk of the peace as aforesaid, and that all duties hereinbefore required of such clerk of the peace in respect of the same shall be performed by such town clerk or other officer, instead of such clerk of the peace, and that the said town clerk or other officer shall thereupon do and per- form all the duties aforesaid at such city, borough, town or place in the matters of all prisoners confined in the gaol thereof, and shall be entitled to receive the same fees and payments in respect thereof as are herein directed to be paid and made to such clerk of the peace or his deputy as aforesaid. 199 CVI. And it is hereby enacted, That such justices as aforesaid shall Power of have such and the same powers of compelling the attendance of wit- nesses, and of requiring and compelling the production of books, papers, and writings, for the purposes of this act, as are hereinbefore given to the said court and the commissioners thereof, subject to such provisoes justices to compel the attendance ot witnesses. and limitations as the same are made subject to; and that in all cases Clerk of the where the duplicate of any petition and schedule shall have been so peace may lodged as aforesaid with any such clerk of the peace or his deputy as iste sub- - as. aforesaid, or with such town clerk or other officer as aforesaid, such clerk ?*” of the peace, or his said deputy, or such town clerk or other officer, is hereby authorized to issue all subpoenas under this act as may be requi- 200 Examiners to be appointed for counties. Their fees. Fee to keeper for carrying each prisoner before the court. For paying the expense of conveying prisoners to the assize towns; and also the other ex- penses in pursuance of this act. Sheriffs and other persons indemnified for obeying the orders of the court. Appendix to Part IV. (1 & 2 Vict. site, in each of which the names of not more than four persons shal] be inserted, and to receive for such subpoena from the person requiring the same the sum of two shillings and sixpence, and no more. CVIII. And be it enacted, That the said court for the relief of in- solvent debtors in all cases or any commissioner thereof on his circuit, or such justices as aforesaid in open court at such sessions as aforesaid respectively, may from time to time, as occasion shall require, appoint as many fit persons as shall be requisite to be examiners for the purposes of this act within any county or division thereof, or any city or town ; and that such examiner shall and may receive for his trouble the sum of one pound, and no more, for every meeting held by him in pursuance of this act, to be paid by the person or persons requiring the same. CIX. And be it enacted, That the keepers of the several prisons in London and Middlesex, and of the prisons of the Queen’s Bench, Marshalsea, Horsemonger-lane, and of the borough of Southwark, shall be entitled to receive the sum of three shillings, and no mere, from every prisoner in the custody of such keepers respectively, for carrying him before the said court on the hearing of such prisoner as aforesaid; and that all keepers of prisons shall be entitled to receive the sum of one shilling and sixpence, and no more, from every prisoner in the custody of such keepers respectively, for carrying him before 2 commissioner of the said court on his circuit, or before such justices as aforesaid at their sessions aforesaid, on the hearing of such prisoner: and that the expense of conveying any prisoner to any assize or other town appointed as the place of hearing the matters of his or her petition as aforesaid, in every case where the gaol in which such prisoner shall be confined shall not be situate within such assize or other town, not exceeding one shilling a mile, shall be paid to the keeper or gaoler or other officer who shall bring such prisoner to such assize, or other town in obedience to the order of the said court, out of the estate and effects of such prisoner, if the same shall be sufficient to pay such expense, and if not, then such expense shall be paid by the treasurer of the county, or county of a city or town, in which such prisoner shall be imprisoned, as the same shall be directed or ordered by the commissioner or justices before whom such prisoner shall be so brought in pursuance of such order ; and in all such cases the reasonable expense of such clerk of the peace or his deputy as aforesaid, and of such proper officers to preserve order, as hereinbefore mentioned, and all other expenses necessary for making ready such court-house or other place as aforesaid for the despatch of business, in pursuance of this act, shall be paid by such treasurer as aforesaid ; and the justices of the peace of every such county, or county of a city or town, are hereby empowered and required to order such treasurer to pay the same at their general or general quarter sessions next ensuing the day when such hearing shall have taken place: Pro- vided nevertheless, that where the duties at any city, borough, town, or place shall be performed by any town clerk or other officer, in pursuance of such order of the said court as above mentioned in that behalf, the reasonable expenses of such town clerk or other officer, and of such proper officer as aforesaid, and of such court-house or other place as aforesaid, shall be defrayed by the said city, borough, town, or place, in the same manner as such like expenses are defrayed therein upon other occasions, : CX. And be it further enacted, That every sheriff, gaoler, keeper, or other officer of any prison, who shall do anything in obedience to any order of the said court for the relief of insolvent debtors, or of any com- missioner thereof, or of any justice or justices of the peace, officer of the said court, or such examiner as aforesuid, authorized by the said court, cap. 110.) Insolvent Acts. 201 by virtue of this act, shall be and is and are hereby indemnified for what- soever shall be done by them respectively in obedience thereto; and that if any action of escape, or any suit or action, be brought against any 1p action for judge, commissioner, justice of the peace, sheriff, gaoler, keeper of any escape, &., prison, or any person, for performing the duty of his office, in pursuance brought, the of this act, such judge, commissioner, justice of the peace, sheriff, gaoler, may at eine keeper of prison, and other person may plead the general issue, and give pleaded, and this act and the special matter in evidence ; and if the plaintiff be non- this act given suited, or discontinue his or her action, or a verdict shall pass against * evidence. him or her, or judgment shall be had for the defendant upon demurrer, the defendant shall have treble costs. CXI. And be it enacted, That in all rules, orders, warrants, and other What shall proceedings of the said court, or of any commissioner thereof, under this be sufficient act, it shall be sufficient to set forth such rule, order, or warrant, or in fori wens case of a warrant for the apprehension or detention of any person for a yules and contempt in disobeying any order or rule of the said court, or for the proceedings apprehension or detention of any person for the appearance of such ° the court. person before the said court, or any commissioner thereof, or any justice or justices of the peace, according to this act, or for the enforcing any rule or order of the said court, it shall be sufficient to set forth such rule or order, and the warrant thereon, and that the insolvent, in any order, rule, warrant, or other proceeding mentioned, has been duly discharged under this act, or some other act for the relief of insolvent debtors, if he has been so discharyed, or if he has not been so discharged, that he has applied by petition to the said court for his or her discharge from custody, according to the provisions of this act, without setting forth in any such order, rule, warrant, or other proceeding the petition, order vesting the estate of any such prisoner in the provisional assignee, appointment of assignee, or assignee or assignees; or the schedule, balance sheet, order for hearing, adjudication, order for discharge, or any other rule, order, or proceeding of or in the said court, or any part thereof, except as aforesaid. CXII. And be it enacted, That all affidavits to be used before the Before whom said court, or any commissioner thereof, or any justice of the peace, affidavits are i i ; iq to be sworn or any officer of the said couri, or any examiner appointed as aforesaid under this act, shall and may be sworn before the said court or any commissioner thereof, or any commissioner appointed by the said court for the purpose of taking affidavits, or any master extraordinary in Chancery, or commissioner for taking affidavits in any of the supe~ rior courts of Westminster, or in Scotland or Ireland before a magis~ trate of the county, city, town, or place where any such affidavit shall be sworn. CXIII. And be it enacted, That in all cases in which the said court, Recovery of or any commissioner thereof, or any justices, is or are by this act autho. costs. rized to award costs against any person or persons, it shall be lawful for the said court to cause such costs to be recovered from such person or persons in the same manner as costs awarded by a rule of any of the superior courts at Westminster may be recovered. CXIV. And be it enacted, That the said court for the relief of insolvent Court to ad- debtors shall and may admit, at their discretion, any number of fit persons, ee being attornies of any of the superior courts at Westminster, to practise iieceie in the said court as attornies on behalf of such prisoners in such actual custody as aforesaid, which admissions shall in all cases be made without the payment of any fee or gratuity whatsoever, and shall be filed of re- (a) See 8 & 9 Vict. o. 127, 8. 7, post. x 3 202 Appendix to Part LV. {1 f 2 Vict. cord in the said court; and that all persons now admitted as attornies in the court now established for the relief of insolvent debtors shall be deemed to be effectually admitted in the said court hereby continued as Persons not aforesaid ; and that in case any person not so admitted on the files of the duly appoint- said court, or having after such admission been removed from the said cds practising files, or ceased to be an attorney of any of the superior courts at West- attornics, . Be ea : guilty of con- Minster, shall practise in the said court as an attorney on behalf of any tempt. prisoner in such actual custody as aforesaid, he shall be deemed and taken to be guilty of a contempt of the said court, and that every person so guilty of any such contempt as aforesaid shall be liable to fine as well as imprisonment for the same. What shall CXV. And be it enacted, That the sum of three shillings and no more be paid for shall be paid to any printer or proprietor of any newspaper for the inser- insertion of |. . ; . : : advertise. tion of any advertisement by this act directed to be inserted in any news~- ments(@). paper; and all printers and proprietors of newspapers are hereby required to insert the same, on payment of the said sum of three shillings for the insertion thereof, in such form as the said court or any commissioner thereof shall from time to time direct. Proceedings CXVI. And be it enacted, That no letter of attorney, affidavit, cer- not liable to tificate, or other proceeding, instrument, or writing whatsoever, before stamp duty, or under any order of the said court, or before or under any order of auction duty, @2Y commissioner thereof, or before any justice or justices of the peace acting in the execution of this act, nor any copy thereof, nor any advertisement inserted in any newspaper by the direction of the said court, relating to matters within the jurisdiction of the said court shall be liable to or chargeable or charged with the payment of any stamp or other duty whatsoever; and that no sale of any real or personal estate of any such prisoner as aforesaid for the benefit of bis or her creditors, under this act, shall be liable to any auction duty. CXVII. The Insolvent Court may invest unclaimed Money, and apply: Profit towards Expenses of the Court. Court em- CXVIII. And be it enacted, That it shall be lawful for the said eene ae. court for the relief of insolvent debtors, in its discretion, to direct that ing from un- the expenses of applying for and obtaining the discharge of any claimed __ prisoner under this act, or any part of such expenses, may and shall be meer ci paid out of the estate and effects of such prisoner which may be in the ment of hands of the provisional or other assignee or assignees under this act ; expenses of and if the same shall not be sufficient for that purpose, then that such prisoner’sdis- expenses or any part thereof may and shall, in cases where the said charge. court shall be satisfied that the prisoner has not the means of defraying the same, be paid and advanced out of the interest and profit arising from any Government securities, upon which any unclaimed money produced by the estates and effects of insolvent debtors may be invested ; and in every such last-mentioned case the estate and effects of such prisoner, which may then be, or may thereafter come to the hands and be vested in the provisional or other assignee or assignees under this act, shall be liable, in the first place, to repay the money so advanced and paid, and the said court is hereby authorized to make such order or orders as shall be necessary for the purpose. CXIX. Prisoners for debt, or their creditors, may not petition any court for certain purposes under 32 Geo. 2, cap. 28. CXX. Records of the court to be in the custody of officers appointed. (a) Repealed by 2 & 3 Vict. c. 39, s. 1. See post, p. 204. eap. 110.] Insolvent Acts. 203 CXXI. And be it enacted, That this act shall extend to aliens, Construction denizens, and women, both to make them subject thereto and to entitle of act. them to all the benefits given thereby; and all powers given to or duties directed to be performed by the lord chancellor may be peformed by the lord keeper or lords commissioners of the great seal; and all powers given to or duties directed to be performed by the court of Teview may be performed by any one of the judges of the same court; and that whenever this statute hath used words importing the singular number or the masculine gender only it shall be understood to include several matters as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something in the subject or coritext repugnant to such construction ; and that this act shall not extend either to Scotland or Ireland, except where expressly mentioned. CXXII. And be it enacted, That this act may be amended, altered, Act may be or repealed during this session of parliament. altered. CXXIII. And be it enacted, That this act shall, as to all matters not Commence- otherwise provided for, commence and come into operation on the Ist ment of act. day of October one thousand eight hundred and thirty-eight. 204 Appendiz to Part IV. (2h 3 Viet. 2 & 3 VICT. CAP. 39. An Act to amend an Act passed in the last Session of Parliament, for abolishing Arrest on Mesne Process im Civil Actions, except in certain cases; for extending the Remedies of Creditors against the Property of Deb- tors; and for amending the Laws for the Relief of In- solvent Debtors in England. [17th August 1839.] 1&2Vict Wuerrzas by an act passed in the last session of parliament, intituled, e. 110. ‘An Act for abolishing Arrest on Mesne Process in Civil Actions except in certain Cases, for extending the Remedies of Creditors against the Property of Debtors, and for Amending the Laws for the Relief of Insolvent Debtors in England,” it was amongst other things enacted, That the sum of three shillings and no more shall be paid to any printer or proprietor of a newspaper for the insertion of any adver- tisement by that act directed to be inserted in any newspaper, and all printers and proprietors of newspapers were thereby required to insert the same, on payment of the said sum of three shillings for the insertion thereof, in such form as the court for the relief of insolvent debtors, or any commissioner thereof, should from time to time direct ; and whereas it is just and expedient that the said act should be altered and amended as hereinafter mentioned: Be it therefore enacted, by the Queen’s most Repeal of excellent Majesty, by and with the advice and consent of the lords provision in spiritual and temporal, and commons, in this present parliament recited act assembled, and by the authority of the same, That so much of the said respecting in- : 5 : iz ; sertion of ad. act as is hereinbefore recited shall be and the same is hereby repealed ; vertisements. and that from and after the passing of this act all printers and pro- prietors of newspapers shall and are hereby required to insert any ad- vertisement or advertisements by the said recited act directed to be in- serted in any newspaper, on payment of a reasonable compensation for the insertion thereof, in such form as the said court, or any commissioner thereof, shall from time to time direct. The court II. And whereas it is expedient that persons residing at a distance may appoint greater than ten miles from the court-house in Portugal-street who persons to ~=may be willing to enter into :ecognizances of sureties for the due receive re- . . cognizances, 4Ppearance of insolvent debtors before the court,. or before commis- Sioners on their circuits, or before justices of the peace in Berwick- upon-Tweed, should be enabled to enter into such recognizances without the necessity of appearing for such purpose before the courtitself, at its usual and ordinary place of sitting ; be it therefore enacted, That the chief commissioner and other the commissioners of the court for relief of insolvent debtors for the time being shall and may, by one or more commission or commissions under the seal of the said court, from time to time as occasion shall require, empower such and so many fit and proper persons as they shall think necessary, in al] and every cap. 39.) Insolvent Acts. 205 the several towns and counties within England and Wales and the town of Berwick-upon-Tweed, to take and receive all and every the recog— nizance or recognizances of sureties into which any persons shall be willing to enter for the due appearance of insolvent debtors according to such several and respective recognizances, and in such form as the court, in pursuance of the statute in that behalf, may and shall direct and require. IIT. And be it enacted, That in any case of a prisoner whose estate Persons em- and effects shall have been or shall hereafter be, by order of the court powered to for relief of insolvent debtors, vested in the provisional or other assignee, Cnter into and who shall be confined in the gaol of any county, town, or place yaneek &. other than in London, Southwark, Middlesex, or Surrey, and who shall have filed his schedule in the said court according to the statute in that - behalf, it shall and may be lawful for any person or persons who may be willing to enter into such recognizances as before mentioned, whose usual and ordinary place of residence shall be distant more than ten miles from the court-house in Portugal-street, London, to appear before a person duly appointed and empowered in manner aforesaid, and there to enter into and acknowledge such recognizance of sureties for the due appear- ance of the insolvent, according to such forms and in such terms and manner as shall or may be prescribed by the said court ; which said re- cognizances of sureties so taken as aforesaid shall be transmitted and filed in the said court, with an affidavit of the due taking of the said recog- nizances of such sureties by some credible person present at the taking thereof, upon payment of such fees as have been usually received for the taking of recognizances in the said court ; which recognizances so taken, transmitted, and filed shall be of the like force and effect as if the same were taken before the said court; for the taking of every such recognizance of sureties the person or persons so empowered shall receive only the sum or fee of two shillings and sixpence and no more. IV. And be it enacted, That the commissioners of the said court shall Commission- make such rules and orders regulating the amount and for the taking of ers to make such recognizances as to them shall seem meet, so as such sureties be not oe the compelled to appear in person in the said court to justify themselves, but amount and the same may and is hereby directed to be determined before the said the taking court, or a commissioner thereof, by affidavit or affidavits duly taken of reopen: before the person or persons so empowered as aforesaid, who are hereby “°° empowered and required to take the same. V. And be enacted, That any commissioner of the said court on his Commis- circuits shal] and may take and receive all and every such recognizances Stoners em- : eae powered to of sureties as any person or persons shall be willing to make and acknow- take such re- ledge before him, which, being transmitted, shall without oath be filed cognizances. in manner aforesaid, upon payment of the usual fees. VI. And be it enacted, That as soon as such sureties shall have Court to justified by affidavit in manner aforesaid, and such recognizances as order dis- hereinbefore mentioned shall have been filed, the said court shall there- eee upon issue a warrant to the gaoler for the discharge of such insolvent when sureties from custody accordingly, and who shall have such and the like pri- justified by vileges and be subject to such and the like liabilities as the statute in affidavit, &e. that behalf directs. VIL. And be it enacted, That this act shall commence and come into Commence- operation on the first day of October one thousand eight hundred and ment ot Act. thirty-nine, except where any other commencement is specified in this act. 206 Appendia to Part IV. [10 § 11 Viet. 10 & 11 VICT. CAP. 102. An Act to abolish the Court of Review in Bankruptcy, and to make Alterations in the Jurisdiction of the Courts of Bankruptcy and Court for Relief of Insolvent Deb- tors. [22nd July 1847.] BY sections I.and II, the court of review in bankruptcy is abolished, and its jurisdiction transferred to one of the vice-chancellors. * * * * * * Jurisdiction IV. And be it enacted, That from the time this act shall commence of courts of and take effect all power, jurisdiction, and authority given to her Majesty’s &@ court of bankruptcy and district court of bankruptcy, and to the com- Vict. c. 116; missioners thereof,in matters of insolvency, by an act passed in the sixth 7&8 Vict. year of the reign of her Majesty, intituled “ An Act for the Relief of In- eee an solvent Debtors,” and by an act passed in the eighth year of the reign of c. 127, ‘trans. her Majesty, intituled «An Act to amend the Law of Insolvency, Bank- ferred to tuptcy, and Execution,” and by an act passed in the ninth year of the court for the reign of her Majesty, intituled “ An Act for better securing the Payment peel ig of Small Debts,” or by the rules and orders made in pursuance of any and tothe Of the said acts, shall be transferred to and vested in the court for the county relief of insolvent debtors in England, and to and in the commissioners courts: thereof for the time being, and to and in the county courts constituted or to be constituted under an act passed in the tenth year of the 9 &10 Vict. reign of her Majesty, intituled ‘‘ An Act for the more easy Reco- c. 95. very of Small Debts and Demands in England,” in manner hereinafter mentioned. In insolvent | V. And be it enacted, That in the court for the relief of insolvent debtors’ court debtors the provisional assignee, and in the said county courts the clerk ae eer z. of the court, shall in every case of insolvency under such two first-men- nee, and in tioned acts be and act as the official assignee of the estate and effects of county courts the insolvent; and that in each of the said county courts the clerk of ue Clerk, to such court shall act as the registrars of the court of bankruptcy have assignee: heretofore been accustomed to act under any of the said acts ; and every Clerks of Such clerk shall do and perform all acts heretofore done and performed county courts by such registrars or by the clerk of the insolvent debtors court under to act as any of the said acts ; and every such clerk shall do and perform all such registrars: acts and duties necessary for carrying this act into effect as shall be ordered by any such county court, or by any commissioner of the said Bailiffs of | court for the relief of insolvent debtors ; and that the high bailiff of every county courts such county court and his assistants shall be and act as a messenger of ee the court of bankruptcy and his assistants have hitherto been accustomed Gers. to act under the said acts; and such high bailiff and his assistants shall do all acts heretofore done under the said acts, and shall possess and enjoy all the powers, authorities, and .privileges when acting under the cap. 102.) Insolvent Acts. 207 said acts as have been heretofore done, possessed or enjoyed by any messenger of the court of bankruptcy or his assistants when acting under any of the said acts, and shall do and perform all such acts as shall be ordered by any such county court for the purpose of carrying this act into effect. VI. And be it enacted, That from the time this act shall commence Jurisdiction and take effect the court for the relief of insolvent debtors in England, of insolvent and the commissioners thereof, and the judges of the county courts SEDO aforesaid, shall have jurisdiction in all matters of insolvency and debt county under the aforesaid acts in manner following ; that is to say, the said courts. court for the relief of insolvent debtors, and the commissioners thereof, in all cases in which the insolvent in cases of insolvency, or the defend- ant in the case of any summons issued under the aforesaid act for the better securing the payment of small debts, shall have resided for six calendar months next immediately preceding the time of filing his petition, or of the suing out of any such summons aforesaid within any parish the distance whereof, as measured by the nearest highway from the General Post Office in London to the parish church of such parish, and shall not exceed the distance of twenty miles, to which district the jurisdiction of the said court and the commissioners thereof under the aforesaid acts is hereby restricted; and the said county courts aforesaid in all cases wherein the insolvent or defendant shall have resided elsewhere, and shall have resided for six calendar months next immediately preceding the time of filing his petition, or the suing out of any summons within the district of such county court to which such insolvent shall prefer his petition, or to which any plaintiff may apply for any summons as afore- said ; and that every commissioner of the court for the relief of insolvent debtors, and every such county court aforesaid, shall, from and after the time this act shall commence and take effect, have and exercise, in the prosecution of such petitions and summonses filed and issued in such courts respectively, the like power and authority in all respects under the aforesaid acts as the commissioners of her Majesty’s court of bank- Tuptcy and district courts of bankruptcy have heretofore had and exer- cised on the presentation of petitions of insolvent debtors, and on such summonses as aforesaid, under such acts, except as herein otherwise provided, and shall each, singly, be and form a court for every purpose under this or the aforesaid acts ; and that every commissioner of the said court for the relief of insolvent debtors shall henceforth, singly, be and form a court for every purpose under all acts now in force or which may hereafter be in force relating to insolvent debtors. VII. And be it declared and enacted, That the said two first-men- Recited acts tioned acts shall apply to the cases of persons petitioning under the said to apply to acts, although they may have been already in prison under judgment or eer otherwise for debt. have been in prison. VIII. Provided always, and be it enacted, That if any such insolvent If insolvent shall not have so resided for six months in any one place as aforesaid, ae aot 4 then he shall file his petition in the said insolvent debtors court, and the sie onthe jurisdiction aforesaid in the matter of such insolvency shall be vested jurisdiction either in the court for the relief of insolvent debtors in London, or in vested in such one of the said county courts as the said court for the relief of insolvent insolvent debtors shall direct. county court. IX. And be it enacted, That with respect to petitions under the afare- Petitions i said acts or either of them which are now in dependence, or which shall now pending have been presented to the court of bankruptcy or any district court of aaa bankruptcy before the time at which this act shall commence and take he disposed effect, the provisions of such acts, and the jurisdiction of such courts and of, notwith- the commissioners thereof under such acts, or under the rules and orders standing the 208 passing of this act. Jurisdiction of the court for relief of insolvent debtors on circuit trans- ferred to county courts, Recogni- zances of sureties en- tered into Appendix to Part IV. [10 § 11 Vict. made in pursuance thereof, shall remain in full force aad effect notwith- standing the passing of this act. X. And be it enacted, That from and after the fifteenth day of September next the circuits of the commissioners of the said court for the relief of insolvent debtore shall be abolished ; and that if thereafter any insolvent debtor in custody in any of her Majesty’s gaols situated elsewhere than within the district to which the jurisdiction of such court is restricted as hereinbefore mentioned shall petition such court under any act or acts relating to insolvent debtors, other than the two first- mentioned acts or this act, or if any such prisoner shall have so petitioned prior to the passing of this act, and his petition shall not have been heard, or if the same shall have been heard and the consideration thereof shall have been adjourned, such court or some commissioner thereof shall forthwith, after the schedule of such prisoner shall have been duly filed - in the case of any new petition, and at any time which to such court or commissioner shall seem fit in the case of any petition which shall not have come on for hearing, or the hearing of which shall have been adjourned as aforesaid, make an order referring such petition for hearing to the county court within the district of which such insolvent debtor is in custody, and shall transmit such petition and schedule to such court for hearing accordingly ; and that the judge of such court shall appoint a time and place for such prisoner to be brought up before such court, and cause the usual notices to be given; and that any court to which any such petition shall be so referred and transmitted shall have and possess the same power and authority with respect to every such petition, and shall make all such orders, give all such direc- tions, and do all such matters and things requisite for the discharging or remanding of such prisoner, and otherwise respecting such prisoner, his schedule, creditors, and assignees, as the said court for the relief of insolvent debtors or any commissioner thereof might make, give, or do in the matters of petitions heard before such court or commissioner under such acts; and that every such petition and schedule, and all judgments, rules, orders, directions, and proceedings pronounced, made, and done thereon in all and every the matters aforesaid by such county court, shall be returned to the said court for the relief of insolvent debtors, signed by the judge of such county court, to be a record of the said court for the relief of insolvent debtors, and to be kept as such among the records thereof; and the said court for the rclief of insolvent debtors, and every commissioner thereof, in every case in which any insolvent debtor petitioning the court for the relief of insolvent debtors under such acts shall be in custody in any of her Majesty's gaols within the district to which the jurisdiction of such court is limited aforesaid, and the county courts in the matter of every such petition so referred and transmitted for hearing as aforesaid, shall have power to issue a warrant or order, directed to the governor, keeper or gaoler of any gaol, directing him to bring the insolvent before the county court on the day appointed for the hearing of his petition, or at any adjourned sitting held in the matter of this petition, and every such governor, keeper or gaoler shall obey such warrant ; and every such court may order the expense attending the bringing up of every such insolvent to be paid by the provisional assignee out of tie estate and effects of such insolvent, or if there be no estate, or the same be insufficient for such purpose, out of the interest and profit arising from any government securities upon which any un- claimed money produced by the estates and effects of insolvent debtors may be invested. XI. And whereas in pursuance of an act passed in the second year of the reign of her Majesty, intituled “An Act for abolishing Arrest on Mesne Process in Civil Actions except in certain cases, for extending the Remedies of Creditors against the Property of Debtors, and for arnend- cap. 102 | Insolvent Acts. 209 ing the Laws for the Relief of Insolvent Debtors in England,” divers under 1 & 2 persons as sureties have entered into recognizances to the provisonal Vict. ¢. 110, assignee of the insolvent debtors’ court, with conditions that the in- eee solvents therein mentioned should duly appear at the times and places insolvents, to therein mentioned, and it is necessary that some of such insolvents bind persons should appear before the county courts under this act ; be it therefore f2,@PPear enacted, that every such recognizance shall extend to bind the persons cous" . who may have entered into the same, in case the insolvent debtor therein mentioned shall not at the time appointed in such recognizance duly appear before the county court to which the matter of such insolvent is transterred by this act, and on every adjourned hearing, or shall not abide by the final judgment of such court. XII. Fees received in the Insolvent Debtors’ Court in London to go in reduction of certain compensations to its officers. XIII. And be it enacted, That it shall be lawful for one of her Ma- power to Jesty’s principal secretaries of state, with the consent of the commissioners Secretary of of her Majesty’s treasury, from time to time to order what fees shall be State to order paid and received by the several officers or otherwise, under and by pace aioe virtue of the said recited act passed in the tenth year of the reign of her officers under Majesty, and of this act, and the amount of such fees respectively ; and 9 & 10 Vict. that until such order shall be made the clerks of the several county eS dnad courts shal] have and receive for their own use all tees which bave_” heretofore been taken under any of the aforesaid acts by any officer of Use ee the court of bankruptcy, or by any officer or other person of or con- clerks and nected with the court for the relief of insolvent debtors, except as herein- bailiffs to re- after mentioned, for business which is by this act transferred to the cme county courts; and that the several high bailiffs acting as messengers ; under this act as aforesaid shall have and receive for their own use all fees which have heretofore been paid to the messengers of the court of bankruptcy when doing the busmess by this act directed to be done by such bailiff. * * * = [Sections XIV. and XV. relate to the Court of Bankruptcy. ] * * * * XVI. And be it enacted, That the forms given in the schedules to Forms may any of the said acts, or any forms heretofore used under the said acts be altered. may be altered so far as to adapt them to the change of jurisdiction by this act directed. XVII. Vacancies not to be filled up tilt after the termination of the neat session of Parliament. ‘ & * * * XVIIL And be it enacted, That no judge of any county court who Judges of has been appointed, or who shall herealter be appointed to that office, fey ee under or by virtue of the hereinbefore recited act passed in the tenth year peing Sane of the reign of her Majesty, intituled, «An Act for the more easy Re- bers of par- covery of Small Debts and Demands in England,” shall, during his liament. continuance in such office, be capable of being elected or of sitting as a member of the house of commons. XIX. Interpretation of “ Lord Chancellor.” XX. Commencement of this Act, 15 Sept. 1847. XXI. Act may be amended, §c. Attornies of superior courts may practise, Retainer. Costs.—De- livery of bill. RULES MADE BY THE COURT FOR RELIEF OF INSOLVENT DEBTORS. In Prisoners’ Cases (a) it is Ordered: I. Tuar any attorney of the superior courts may be admitted to prac- tise on behalf of prisoners in the zaols of London, Middlesex, and Surrey, on proving his certificate for the current year; excepting such as have been heretofore removed by the court. II. That in every case, the prisoner’s retainer of his attorney, and the acceptance thereof by the latter, shall be filed with the first proceeding in the court, and shall be in form following : Name. I, Late Residence, of Trade, &c, do hereby retain of to act for me as my attorney in the court for relief of insolvent debtors; and I hereby declare that he is so employed by me at my own request. Signet by me at onthe day 0 . {Adding Name and Residence of Witness.] I, of hereby accept the above retainer— signed by me on this day of Provided, that in case of the illness of such attorney, or of his absence from London or the place where he practises, such retainer may be received and accepted for him by some other duly certificated attorney, the cause thereof being stated in such acceptance. III. That the attorney of a prisoner, where the total of his demand may exceed six pounds, shall cause a bill to be taxed by the proper officer, and shall on such taxation prove by affidavit or affidavits, the actual payment of every sum of money charged as paid, and the actual performance of every matter charged as done up to the time of swearing such affidavit; and that all payments and matters so charged are essentially necessary to the prisoner’s discharge ; and further, that the sum of and no more has been paid to or for such attorney on account of such bill:—and that the said bill and affidavits shall in all cases be prepared in the printed form; and that any such affidavit shall be sworn in the country not before the signing of the schedule, and in town not sooner than eighteen days before the day of hearing ; and that on such bill with name and number endorsed being delivered to the proper officer, he shall have the schedule, &c., ready for the tax- (a) See Rule 210 of the county courts, ante, p. 105. InsolWent Rules. 211 ation on the following day; and that he shall, if requested, sign the allocatur in duplicate: and that the attorney shall deliver his bill so taxed, with the allocatur thereon, to the prisoner, two daysat least before the day appointed for hearing, in order that the prisoner may be able at the hearing to take objection to such bill as taxed ex parte. IV. That no attorney shall directly or indirectly employ any gaoler, Attorney not turnkey, prisoner, or other person confined or residing within any gaol to employ or prison, as a clerk or agent to solicit retainers, or to transact any busi- Corte pe ness whatever relating to proceedings in this court touching the relief or ney while in discharge of any prisoner, on pain of being removed from the files of the prison not to court ; and that no attorney shall continue to practise in the court while Practise. he shall himself be a prisoner for debt or otherwise. V. That every petition in form prepared by the court shall be signed Signing peti- in the presence of the attorney of the prisoner or creditor petitioning, or tion, and in of the keeper of the gaol in which the prisoner petitioning shall be con- vee se fined ; andsuch attorney or keeper shall attest the same accordingly. : WI. That in all cases there shall be filed with the petition a certificate Copy of from the gaoler, of the day or days, and cause or causes of detainer Causes 10 be against the prisoner. petition. VII. That with the petition of a creditor there shall be filed an affidavit Creditor’s of such creditor, stating the accounts between himself and prisoner, the eae securities held by him, the benefit accrued from his judgment, and other “7°?”" matters as contained in the form of affidavit prepared together with the petition under direction of the court, and sold by Hodson, printer to the court, 2, Clifford’s Inn-passage, Fleet-street (a). VIII. That before vesting order is made on petition of « creditor, Certificate of there shall be annexed to such petition a certificate of the proper officer, no prior peti- that no prior petition has been filed in the same case since the com- mencement of the prisoner’s custody. IX. That when a vesting order of the estate of a prisoner has been Notice of made on the petition of a creditor, notice thereof, together with an order vos order to file schedule, shall forthwith be given to such prisoner by service of a ™ eSrTaee: copy of the same by a messenger of the court ; and that delivery to the gaoler or other known officer of the prison in which, or in the rules or hiberties of which, such prisoner is confined, shall be deemed good service of such notice and order upon the prisoner in such case: which delivery shall be made personally when the gaol is within ten miles from the court house in Portugal-street, and by letter post paid, where the gaol is at greater distance. X. That with a prisoner’s petition there shall be filed an account in Estate paper. writing, in form prepared by the court, signed by the prisoner, and poo attested by his attorney (or in country causes by the keeper of the gaol) anpraigement of all the real and personal estate and effects of such prisoner then in in town his possession or under bis control ; stating the value, and, if liable for cases. rent stating landlord’s name and particulars of his demand, in order that such property may be duly ascertained and given up to the provisional assignee: and that the said account shall be signed, attested, and filed in duplicate: and in cases of persons confined in the prisons of London, Middlesex, and Surrey, excepting the gaol of Kingston-upon-Thames, every such estate paper shall have endorsed thereon a duplicate of the notice for appraisement given to the brokers of the court with the (a) Mr. Hodson’s direction is now, 22, Portugal-street, Lincoln's Inn. 212 Affidavit for leave to file petition. Inventory of excepted ar- ticles and valuation. Brokers. General balance sheet, Appendia to Part IV. day of leaving the same at their office marked thereon by them or theif clerk. XI. That every application by a prisoner for leave to file petition after the expiration of fourteen days allowed for that purpose in town cases, and after the expiration of twenty-one days from the commence- ment of the custody in country cases, shall be supported by the affidavit of the prisoner in form prepared by the court; in which shall be stated the degree, profession, or trade, and the last place of abode of such pri- soner; and the time of his or her first arrest in the action wherein he or she is then detained, and the time of commitment to the prison where he or she is then confined; together with a statement of all monies paid or spent, and of all property spent, sold, made over, assigned, disposed of, or in any manner parted with by him or her since such first arrest, and in what manner and to whom; and also the cause of not having sooner presented such petition; and such application shall be made by petition, with the said affidavit and the gaoler’s certificate annexed ; and there shall also be annexed such account in writing of estate and effects as is in all cases required by the tenth rule of court to be filed with the petition; which account shall be verified by the said affidavit ; and on such application being granted, the duplicate of the said account shall be delivered to the officer of the court, at the time of filing the petition, the gaoler’s certificate will be transferred to the petition. XII. That in all cases there shall be filed with the schedule an inven- tory of the excepted articles, with a valuation of the same respectively ; to which shall be added a certificate of the appraiser, signed by him ; which certificate when made by a broker of the court shall be according to the printed form ordered to be used by them ; and in other cases in form following :— * Late residence of I certify that I have on the day of the said prisoner; been at the* residence of the said : or. _., prisoner at and have then ae lie and there seen, examined, and valued each and as the case may be. every of the above-mentioned articles; and that the said sum of £ is a just and fair value of the same. I cer- tify also, that there was on the same premises, besides the said articles, the following property :— {Here add a description of such peppery Gif any), and state the representa~ tions made concerning it by the insolvent, his family, or any person on the premises.] XIII. That all such appraisements in London, or within ten miles thereof, shall be made by the broker of the court, who shall be allowed for completing the same three clear days if the appointment is made within four miles from the court house in Portugal-street, and four clear days if beyond that distance ; and they shall have their return ready for delivery to the prisoner, or his attorney, not later than at ten o’clock on the morning following the days allowed for valuation. XIV. That every prisoner shall with his schedule file a general balance sheet, in form prepared by the court, of his* receipts and expen- ditures from the date of the earliest debt in his schedule up to the time of signing his petition if the prisoner petitioned; up to the time of signing his schedule, if a creditor petitioned, including all property of every kind, with description of the same, which he may have had at any time during that period ; together with the time when, persons 10 whom, and consideration for which any part thereof shall have been disposed or parted with by him; and that in thu said genera! balance Insolvent Rules. 213 sheet reference may be made, for the particulars of any matter, to the special balance sheet contained in the schedule ; but that in the schedule reference may not be made to such general balance sheet; and that the prisoner shall also state in the said general balance sheet the cause of his or her present insolvency, and the amount of debts, if any, still due by him under any prior insolvency or bankruptcy. XV. That every schedule and balance sheet, and every amendment Signing sche- thereto, shall be read over to the prisoner by or in the presence of the dule and attorney named in the retamer, before such prisoner shall sign the same ; ei and that the balance sheet, and every side of every sheet of the schedule, ; and of any amendment thereof, shall be signed by the prisoner; and such signature shall be attested by the said attorney, and not by any clerk, and such reading over, signatures, and attestations shall be veri- fied by the affidavit of such attorney to be filed with the schedule ; for preparing and swearing which affidavit no charge shall be made ;— provided, that in case of the illness of such attorney, or of his absence from London or the place were he practices, the matters aforesaid, whether concerning the petition or the schedule, may be done by some other attorney of the court; in which case the cause thereof shall be stated in each attestation and also in such affidavit as aforesaid. XVI. That every application to the court for leave to file schedule Application after the expiration of fourteen days from the filing of the prisoner’s for eee petition or from notice to file schedule on creditor’s petition (as the case © °SeON® may be) shall be supported by the affidavit of the prisoner, in form pre- pared by the court, in which shall be stated the cause of not having filed such schedule in due time; and if the said’ prisoner shall have filed his petition without a special application to the court, the said affidavit shall also contain such statement concerning the arrest, commitment, and property of the prisoner as is required in an affidavit made on application for leave to file petition. XVII. That in every case to be heard by a commissioner on circuit, Office copy of or by justices in Berwick-upon-Tweed, where the petition was filed by Or FF pee a creditor, an office copy of such petition with the affidavit in support smaavits to thereof, shall be annexed to the schedule to be lodged therewith with be annexed. the clerk of the peace or other person appointed to receive the same according to the statute ; and if the prisoner shall have obtained leave to file petition or schedule, or both, on affidavit made for such purpose, an office copy of such affidavit or affidavits shall be annexed in like manner. XVIII. That every order for hearing by a commissioner on circuit Order for (the circuit appointments having been Gazetted), also every order for ne ee hearing by justices of the peace, shall be ready for delivery at the open- attorney. ing of the office on the second day (exclusive of Sunday) after the filmg of the schedule; but that the same shall not be issued before that time: and in every such case the duplicate of the petition and schedule shall be given out with the order for hearing ; and the warrant of attorney shall be prepared and ready to be given out on the seventh day after the issuing of such order ;—provided that no order for hearing by a commissioner on circuit shall be issued later than the twenty-first day before the day notified in the Guzette for the attendance of the commissioner; and that no order for hearing by justices of the peace shall be issued later than the twenty-eighth day before the day to be appointed for such hearing. XIX. That a prisoner desiring to be discharged on sureties till the Discharge on hearing, must apply (which he may do as soon as schedule is filed) in sureties. 214 Notices. Personal service. Letter ser- vices. London Ga- zette14 days. Edinburgh and Dublin Gazettes 14 days. Country newspapers 11 days. Advertise- ment.— Country Appendix to Part IV. the office of the court (town or country as the case may be) and deliver the names, &c. of necessary parties entered in the proper printed form ; he will thereupon receive a form of notice to be served on the detaining creditor and the proposed sureties, containing the appointment for en- tertaining such application, with instructions by the court: where the hearing is to be by the court in London, the prisoner must attend the court when such application is entertained ; and the gaoler will be ordered to bring him before the court accordingly. XX. That henceforth notice of the making of the vesting order, and filing of schedule, and of the time and place appointed for the prisoner to be brought up, shall be given to creditors and persons claiming to be creditors, whether such debts are admitted or disputed in the sche- dule, in the following manner :— 1. In all cases by personal service of a copy of the order for hearing, made fourteeu days at least before the day of hearing, upon every detaining creditor and every creditor for five pounds or more, resident or carrying on business in London, or within ten miles thereof: also upon the attorney or egent (resident as aforesaid) of every detaining creditor suing by attorney. N.B. Delivery of the said copy to the wife, son, daughter, clerk, or servant of the party at the usual place of abode or business of such party; or, where the party is assignee of a bankrupt, to the solicitor of such assignee, or his clerk, or ser- vant, at the usual place of business of such solicitor, shall be deemed equivalent to personal service. 2. In all cases, by sending, sixteen days at least before the day of hearing, a copy of the order for hearing by the general post, rightly and methodically addressed, and with the proper post town thereon, to every detaining creditor and every creditor for five pounds or more, resident in England elsewhere than as above mentioned, or in Scotland or Ireland; and to the attorney or agent (resident more than ten miles from London) of every detaining creditor suing by attorney; or by such personal service as is above mentioned made upon any such creditor or attorney. Letters to the attorneys or agents of detaining creditors, and to detaining creditors suing in person, must be post paid. It is not required that notice should in any case be given both to the attorney and agent. N.B. Where the sheriff has failed to communicate a detainer to the gaoler before the issuing of the order for hearing, the plaintiff in such case will not be deemed a detaining creditor within the above rule. ; 3. In all cases, by advertisement published in the London Gazette fourteen days at least before the day of hearing. 4. In cases where the prisoner is described in the schedule as having resided in Scotland or Ireland, also in cases where four or more of the creditors of the prisoner are resident in Scotland or Ireland, by advertisement published fourteen days at least before the day of hearing, in the Edinburgh or Dublin Gazetie, as the case may be. 5. In all cases where the prisoner is described in the schedule as having resided in some county in England other than London, Middlesex, and Surrey, by advertisement published eleven days at least before the day of hearing in some newspaper usually cir- culated in the neighbourhood of the prisoner’s last usual place of residence in such county. This rule applies to each such county, if more than one in the description. 6. In cases to be heard by a commissioner on circuit, or by justices in Berwick-upon-Tweed, by advertisement published Insolvent Rules. 215 eleven days at least before the day of hearing in some newspaper cases in ad- most usually circulated in the county or place where the case is dition to the ordered to be heard. above. 7. In every case, to be heard by a commissioner on circuit, or Removal. by justices, of a prisoner removed under the act 7 Geo. 4, c. 57, sec. 65, or the act 1 & 2 Vict. e. 110, sec. 94, or by the court, of @ prisoner whom his creditor, after order obtained, has failed to Temove, notice of the hearing shall be given by advertisement published ten days at least before the day of hearing in the London Gazette; and also, where on an original hearing notice in any newspaper in England would be required, by advertisement pub- lished in such newspaper seven days at least before the day of hearing: and also by service of the order for hearing seven days at least before the day of hearing, upon all detaining creditors, and all creditors (if any) who entered notice of opposition for the former hearing: unless in any case the court shall otherwise direct by special order concerning the notice in such case, 8. Where at the hearing notices shall appear to have been ‘py complete served on any creditor not in sufficient time, and any other or service of further hearing of the case shall be appointed for that or any other notices. cause at a subsequent time, notice of such last-mentioned appoint- ment shall be given to the said creditor in such time as will, toge- ther with the time of giving the former notice, complete the regular period of fourteen or sixteen days, as the case may be; which being done, such creditor shall be deemed to have had due notice ; provided, that such second notice shall in no case be effectual, if served less than five days before the day of hearing in cases re- quiring personal service, and six days in case of services by the post; nor unless the prisoner shall consent to waive notice of Opposition to be made at such hearing: and that notice for the original hearing shall be of no effect, if served less than seven and nine days in such cases respectively. 9. Where the service has been defective, and the creditor shall Creditor ap: appear against the prisoner at the hearing, he shall be deemed to pearing to have had due notice, unless the court, commissioner or justices ape cute shall otherwise direct. enrin, XXI. That services shall be made, and that proof of notice shall be Proofs of given, and affidavits be made and filed, in manner following i notices. 1, No proof shall be required at the hearing of advertisement London Gat in the London Gazette, which is ordered to be inserted always by zette. the officer of the court, and by no other person. 2. Proof of all other advertisements shall be made by pro- duction of the Gazette or newspaper in which the same were pub- lished. 3. Proof of all services, whether personal or by post, shall be services, made by affidavit, to the satistaction of the court, commissioner or justices. The ge ; ‘ 4. All personal services in London and within ten miles thereof Messengers’ shall be made by the messengers of the court, who shall make services. affidavit of the same. The copies of orders for hearing to be served, duly addressed, and numbered according to the number in the schedule, must be delivered to them three clear days at the least (exclusive of Sunday) before the last day of service, in cases for original hearing ; and one clear day at the least (exclusive of Sunday) before the last day of service, in cases for adjourned hearing ; and at the same time sball be delivered the original order for hearing, together with a list in duplicate of persons to be served ; the entries in which lists shall correspond with the directions written on the notices. Newspapers. 216 Appendix to Part IV. Affidavits of 5. All services by the post shall be made by the messengers of post services the court, who shall make affidavit of the same. The copies, folded, petiole’ TSS addressed, and numbered according to the number in the schedule, must be delivered to them one day at least before the last day of service, together with a list in duplicate (separate from the lists for personal service), the entries in which shall correspond with the directions on the letters. Filing affida- 6. In cases to be heard by the court, all such affidavits and vits of ser- advertisements as aforesaid (excepting those in the London Gazette) ae. shall be filed at the office eight days at least before the day of in town. hearing in original cases, and two clear days at least (exclusive of Sunday) before the day of hearing in adjourned cases. Filing of affi- 7. In cases to be heard on circuit, all such affidavits and adver- davits of ser- tisements as aforesaid (excepting those in the London Gazette) vice and ad- shall be lodged between the hours of twelve and four, two days eesti before the day notified in the London Gusette for the attendance of the commissioner; and in cases to be heard by justices at Ker- wick between the same hours two days before the day of hearing, at the office of the clerk cf the peace, or his approved deputy or other person appointed for that purpose by the court according to the act 1 & 2 Vict. c. 110, s. 106, in the town or place at which such attendance or such hearing as aforesaid is appointed. Opposition. XXII. That notice of intention to oppose a prisoner’s discharge be given in manner following :— Town. 1. In cases to be heard by the court, by entry made in the proper page and columns of the book kept for that purpose at the office of the court, between the hours of ten in the forenoon and three in the afternoon, two clear days before the day of hearing, exclusive of Sunday and exclusive both of the day of entering such notice and of the day of bearing. N.B.—Entrance to the othice, in Portugal-street, Lincoln’s- Inn-Fields. 2. In cases to be heard by a commissioner or justices, by giving vey a notice of such intention in writing to the prisoner two clear days before the day of hearing, exclusive of Sunday, and exclusive both of the day of giving such notice and of the day of hearing. After re- 3. In cases of hearing after removal or failure of removal, moval, or on notice of opposition shall be given in manner aforesaid one clear failure of re- day before the day of hearing ; unless where such notice was given for the original hearing, or where the prisoner may waive the same on giving short notice of the hearing. See above XX. 8. Inspection of , XXIII. That the petitions and schedules, and the books and papers schedule, &. filed therewith, shall be produced by the proper officer for inspection or examination, until the last day of entering opposition, between the hours of ten and three: notice to produce books or papers in court must be given to the officer having the custody thereof on any day previous to the day on which they are to be produced. Affidavits XXIV. That all papers annexed to any affidavit, and referred to in and exhibits, the same, shall be marked as exhibited by the commissioner or other person before whom such affidavit shall be sworn. Appointment AV. Assiguees will be appointed, if expedient, by the court or a of assignees, COMmissioner at any time after vesting order made. {na case heard at Berwick, a nomination by the justices will be attended to. N.B.—Parties applying for appointment of assignees are at liberty to take into the office such vouchers as they may think fit, showing the wish of a majority or other portion of the creditors. Appoint- Insolvent Rules. 217 ments will be made on proof of the desire of such majority, unless some cause to the contrary shall appear in any case. XXVI. That the provisional assignee shall in each case, after vesting Provisional order made, sell all goods, chattels, and personal estate of the prisoner, assignee to of which such provisional assignee shall take possession according to the sell property statute ; and shall account for the produce to the court. and’ account. _ XXVIT. That in every case to be heard by a commissioner on circuit Certificate in which there shall have been any property in the possession or under that property the control of the prisoner to be given up to the provisional assignee, there has been shall be obtained and produced at the hearing a certificate from the pro- 7°" "P- visional assignee, or a sufficient voucher, that such property has been duly given up or accounted for. XXVIII. That any party desiring an examination and report upod Examination the documentary proofs of debts satisfied, or other such matters, shall in proof of deliver his vouchers and request to the clerk of the rules who will, debts satis- thereupon fill up a rule of reference, and forward the same to the "“~" examining officer. XXIX. That after a case has been numbered, in all applications Documents made to the court, whether in court or in the office, the motion paper, to be num- petition or other document by which the application is made, shall be Besee aoe marked with the number of the case and T, or C, as it may be: and : that every order, &c. delivered from the office shall be marked in like manner. BY THE COURT. 218 Circuit, No. Appendix to Part IV. FORMS USED IN THE COUNTY COURT ON THE HEARING AND ADJUDICATION UPON INSOLVENT DEBTORS, UNDER 1 & 2 VICT. cv. 110. No. 1. Order for Hearing. Pursuant to the several Acts for the Relief of Insolvent Debtors in England. The county court of at the day of 185 . Uponthe due filing of the schedule of (Copy verbatim the description from the schedule.) a prisoner in the gaol of in the county of whose estate and effects have been vested in the provisional assignee by order duly made in that behalf; and upon reference of the petition and schedule of the said prisoner for hearing made to this court by order of the court for relief of insolvent debtors pursvant to the said acts: it is ordered and appointed that the said prisoner shall be brought up to be dealt with according to the provisions of the said acts before the judge of the said county court at in the said county, on the day of next, at the hour of in the morning precisely : of which all creditors and persons claiming to be creditors of the said prisoner, for the sum of five pounds or more, shall have notice by service of a copy of this order, made within such time and in such manner as is prescribed by the rule of court in that behalf. . By the court. Take Notice, 1, If any creditor intends to oppose the said prisoner’s discharge, notice of such intention must be given to the said prisoner in writing, which may be left at the gaol, two clear days before the day of hearing above mentioned, exclusive of Sunday, and exclusive both of the day of giving such notice and of the said day of hearing. 2. The petition and schedule will be produced by the proper officer for inspection and examination at the office of the court in London, between the hours of ten and three, on this notice being exhibited: and copies of the petition and schedule, or such part thereof as shall be required, will be provided by the proper officer according to the act 1 & 2 Vict. c. 110, s. 105, - f Pookie: to the office, in Portugal-street, Lincoln’s-Inn- ields, Insolvent Forms. 219 3. The duplicate of the petition* and schedule, and all books, papers, * (Or office and writings filed therewith, will be produced by the clerk or assistant ple a clerk of the said county court, for inspection and examination at the office petition.) of the said county court at aforesaid, and copies of the petition and schedule, or such part thereof as shall be required, will be provided according to s. 106 of the act. No. 2. Form of Advertisement to be inserted in Gacette. Pursuant to the Acts for the Relief of Insolvent Debtors in England. (See notice at the end.) The following prisoners, whose estates and effects have been vested in the provisional assignee by order of the court, and whose petitions and schedules filed in the court for the relief of insolvent debtors have been duly referred and transmitted to the county court of ; holden at pursuant to the statute in that behalf, are ordered to be brought up before the judge of the said county court at aforesaid, to be dealt with according to law, on the day of 85 , at o’clock in the forenoon, (Copy the names and descriptions of the insolvents verbatim from the schedule.) N.B.—1, If any creditor intends to oppose a prisoner’s discharge, notice of such intention must be given to the said prisoner in writing, which may be left at the gaol two clear days before the day of hearing above mentioned, exclusive of Sunday, and exclusive both of the day of giving such notice and of the said day of hearing. 2. The petition and schedule will be produced by the proper officer for inspection and examination at the office of the court in London, be- tween the hours of ten and four, on this notice being exhibited: and copies of the petition and schedule, or such part thereof as shall be required, will be provided by the proper officer according to the act 1 & 2 Vict. c. 110, 5. 105. N.B.—Entrance to the office, in Portugal-street, Lincoln’s-Inn- Fields. 3. The duplicate of the petition and schedule, and all books, papers and writings filed therewith, will be produced by the clerk or assistant clerk of the said county court, for inspection and examination at the office of the sa:d county court at aforesaid, and copies of the petition and schedule, or such part thereof as shall be required, will be provided according to s. 106 of the act. (a). - This advertisement will not be inserted in the Gazette unless it be signed by tis Hark of the court, and sealed with “S seal of the court. Lo 220 Appendix to Part IV. No. 3. Affidavit of Service of Notices to be made by Bailiff. In the county court of holden at In the matter of the petition of a prisoner in the gaol of of bailiff of the said court, maketh oath and saith that he did serve true copies of the order of court hereunto annexed, on the day of : 185 by delivering the same before the hour of six in the evening of the same day, into the hands of the proper person authorized to receive paid letters, at the receiving house for general post letters situate which said copies were duly folded and wafered as letters, and addressed in manner following, that is to say, Circuit, No. . and that at the same time this deponent paid the said person the sum of for postage of the same. Sworn at in the county of this day of 185 Before me No. 4. Warrant to Gaoler to bring up Insolvent. ee Pursuant to the several Acts for the Relief of Insolvent Debtors in Jireuit, England No . ngland. Insolvent debtors ordered to be heard at the county court of holden at on the day of 185. Prisoner’s names. Attornies. The county court of holden at on the day of 185. Insolvent Forms. It is ordered, that you shall bring the several prisoners whose names are above mentioned, if in your custody, before the judge of the said county court, on the day of at the hour of © in the morning precisely, at in the said town of and at all times during the sitting of such court, according to any adjournment made by the said judge, in order that the prisoners whose schedules have been referred and transmitted thereto for hearing may be severally dealt with accord- ing to the provisions of the said acts, whether on application for dis- charge on recognizance of sureties, or on the hearing of their petitions and schedules, and for so doing this shall be your sufficient warrant. Also that you shall then and there attend to receive into your custody, if the law shall so require, such prisoners as have been discharged from your custody, upon taking the recognizance of sureties for them to appear at the said time and place: also on each succeeding day to which the hear- ings shall be adjourned. By the coutt. To the gaoler or keeper of the gaol of in the wal county of Clerk of the Court. No. 5. Order of Reference to Examiner. Pursuant to the Acts for the Relief of Insolvent Debtors in England. Circuit, No. At the county court of holden at on the day of 185 In the matter of a prisoner in the gaol of ; in the said county» whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. At the hearing of the matters of the schedule of the said prisoner, and upon application made by creditor of the said prisoner, and supported by the : it is ordered (the same appearing fit to me the judge of the said county court) that it shall be referred to an examiner duly appointed according to the provisions of the statutes in that behalf, to investigate the accounts of the said prisoner, and to examine into the truth of the schedule of the said prisoner, and to report thereon to this court, and it is hereby so referred accordingly : and the further hearing of the matters of the said schedule, and of the matters in opposition to the discharge of the said prisoner is therefore adjourned to the next county court, which shall be holden at aforesaid; and it is further ordered, that the said prisoner shall give to the creditors aforesaid notice of the time and place at which ihe will be brought before such court for such further hearing as aforesaid days before the day which such court shall appoint in that behalf, Judge of the said county court. 222 Appendix to Part IV. No. 6. Subpena to Witness. Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith, to greeting: we command you and every of you that all other things set aside, and ceasing every excuse, you and every of you be and appear in your proper persons before our judge of the county court of holden at at in aforesaid, on the day of by of the clock in the noon of the same day, and from day to day, until this matter is heard, to testify the truth according to your knowledge in the matter of the insolvency of of whose estate and effects vesting order has been made in the court for the relief of insolvent debtors, pursuant to the statute in that case made and provided (and that you bring with you and produce at the time and place aforesaid ), and this you nor any of you shall in no wise omit under the penalty of every of you of one hundred pounds. Witness esquire, judge of the said county court, the day of in the year of our reign. Clerk. No. 7. Order to bring a Prisoner as Witness. Cireuit, Pursuant to the Acts for the Relief of Insolvent Debtors in England. Oo. « At the county court of bolden at before esquire, judge of the said court ou the day of 185 In the matter of a prisoner in the gaol of in the county of whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. Whereas it appears to me, judge of the said county court, acting under the powers of the statutes in this behalf, that a prisoner in and in your custody there, is a necessary and material witness in the matter of the said prisoner now pending in the said county court: it is ordered that you shall bring the said before me, the said judge, on the day of at the hour of in the morning precisely, at the county court aforesaid, at aforesaid, then and there to testify the truth according to his knowledge in the matter aforesaid. Judge of the said county court. To the gaoler or keeper of the said gaol. Insolvent Forms. 223 No. 8. Notice to Sureties, Pursuant to the several acts for the Relief of Insolvent Debtors in Circnit, No. England. No. Schedule filed on Clerk. In the county court of holden at on the day of 185 In the matter of Prisoner, &v. a prisoner in in custody at the suit of Prison. Detaining creditors and their London attornies or agents and addresses for service. and who having filed his schedule, and the same being duly referred and transmitted to this court, proposes as sureties to enter into recog- nizance, pursuant to 1 & 2 Vict. c. 110, s. 38, the following persons :— I. Names, trades, or professions, and resi- dences,— if no trade or profession, to be so stated. 2. Ditto. The names, &c. of all parties above mentioned will be furnished by insolvent’s attorney; great accuracy should be observed by him herein, not forgetting the numbers of houses in streets, post towns, &c. &c. &c. ; error may be fatal to the application. Documents having been exhibited which purport to be affidavits by Circuit, the proposed sureties, in form required by the court, and sworn after No. order made for hearing. Notice is given that the said prisoner will be brought up on the day of next, at o’clock in the fore- noon, to support his application for discharge on recognizances of sureties, &c., until the day of hearing: and that the said sureties are to attend the said county court at the same time. 224 Appendia to Part IV. Any creditor, by himself, by counsel, or by his attorney, or attorney’s agent, may then object to the proposed sureties, and offer his own or other evidence by affidavit ur vivd voce in support of his objection. The amount of the recognizance is usually required to be double of the amounts of debts for which the prisoner is detained, and of those for which warrants of attorney or cognovits have been given: but there may be circumstances from atic the court will require more, or will be satisfied with less. A list of such debts must be delivered into court when the application - is heard, and signed by the prisoner. : Clerk of the court. This notice, with copies for service, must be delivered to the with lists as in other cases; who must serve a copy on each detaining creditor, and also on his London aitorney or London agent, or (if no London attorney or agent) on his attorney elsewhere. Where service is by post letter, postage must be paid. Copies of the affidavits, written on the printed forms, must also be served on such creditors and on such attornies or agents; which must be delivered to the together with the original at the same time as this notice. Service by the general post is to be made by the on the day on which the notice, &c. is received, if received before twelve o’clock ; one day is allowed for personal service—the latter to be made not later than four o’clock in the afternoon. Parties must have two clear days for inquiry :—therefore the at- torney, in asking an appointment, should remember that, in case of personal service, there must be two clear days at least between the service and the day appointed ; and, in case of service by post, two clear days for inquiry in the country: viz., clear of the days of re- ceiving the letter in common course of post and of answering it for the purpose in question. No. 9. Recognizance to be entered into by Sureties. Pursuant to the Acts 1 & 2 Vict. c. 110, s. 38, and 10 & 11 Vict. c. 102. County court of holden at In the matter of whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court, (to wit) Insolvent Forms. 995 and acknowledge themselves and each of them acknowledges himself to be indebted to Samuel Sturgis, gentleman, provisional assignee of the court for relief of insolvent debtors, in the sum of pounds, to be levied on their and each of their goods and chattels, lands and tenements, by way of recognizance to the use of the said Samuel Sturgis and his successors in office, pursuant to the statute in such case made and provided. The condition of this recognizance is such, that if the said an insolvent debtor whose estate and effects have been vested in the said provisional assignee by order of court pursuant to the statute, shall duly appear before the judge of the county court of holden at on the day of now next ensuing, at in the said county court town, the same being the time and place fixed for the hearing of the said insolvent debtor, and on every adjourned hearing, and shall abide by the final judgment of the judge of the said court, then this recognizance is to be void, otherwise to be and remain in force. Taken and acknowledged before the county court of holden at on the day of 185 Clerk. No. 10. Affidavit, with Recognizance annexed (a). Pursuant to the Acts for Relief of Insolvent Debtors. Gren - 0. In the county court of holden at In the matter of Benonente name, trade, or profession, and resi- maketh oath and saith that the recognizance of sureties hereunto dence. annexed was duly taken and acknowledged by Names of sureties, with trades or pro- and fessions, and the sureties therein named before residences. who took the same in this deponent’s presence on the : day of in the year of our Lord one thousand eight hundred and Sworn at in the county of on the day of 185, before me, (a) This affidavit, now that the recognizances are entered into before the court itself or the clerk, seems unnecessary, but : is still used. L 226 Appendix to Part IV. No. 11. Affidavit to be made separately by each proposed Surety. Circuit Pursuant to the several Acts for the Relief of Insolvent Debtors in No. . England. N.B. If de- ponent de- In the county court of holden at sires to state art onl: bf his vie In the matter of perty with its value, he ‘ i h etition and schedul may do so. @ prisoner in whose pi e€ filed in the court for the relief of insolvent debtors have been duly Deponent’s referred and transmitted to the said county court, name, de- scription with trade or profession, and address. maketh oath and saith, that he, this deponent, is now and has been con- tinuously for last past a housekeeper at and Describe —_—rresiding at place accu- ‘rately, the street, and number if — that he is worth property to the amount of ; fh es over and above what will pay his just debts and every sum for which country, give he is bail or surety for other persons: and that he, this deponent, is the the distance Jawful owner of goods and chattels which are in his own possession, from the and are of the value of and that the same are now to be ost town. ee fae __ found as follows :— stock in trade in his busi- - ness of carried on by him at of the value of or furni- ture in his any other personal pro- perty, indi- eating the place where each part is . tobe found, and that all the goods and chattels above mentioned are free from any charge or lien, and are not liable to be seized for rent or for any other cause: and that he, this deponent, is not bail or surety for any other person or persons whatever, either in this honourable court or in either of her Majesty’s courts at Westminster or elsewhere, except And this deponent further saith, that-he is fully aware that if he shall enter into recognizance in this matter, then, in the event of the said prisoner being discharged on sureties till the hearing, and afterwards not duly appearing to be heard, such goods and chattels may be forthwith distrained and sold by order of this court to the extent of such recognizance. Insolvent Forms. 227 Deponent may, if he thinks fit, state any other sort of property ; such as in the public funds, &e., freehold or leasehold. farm, lands, houses, value of the same, where situ- ated, by whom oceu- pied, good book debts after allowing all set off. And this deponent further saith, that he was bankrupt Either write and further that he “never,” or petitioned any court for his discharge under the laws for the relief of Sate ihe msolvent debtors ; and further that he never petitioned the court of bank- such proceed- Tuptcy as an insolvent debtor. ings, viz., whether cer- iS tificate in Sworn at in the county | bankruptcy, of on the day and whether of 185 . warrant of attorney can- | celled under Before J insolvency, with dates. No. 12. Order of Discharge on Recognizance of Sureties. Pursuant to the Acts for the Relief of Insolvent Debtors in England. circuit, No. . The county court of holden at aa before esquire, judge of the said court, on the day of 185. In the matter of a prisoner in the gaol of in the county of whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. On notice duly given to tf ; Detaining creditors. Whereas order has been heretofore made directing the said prisoner to be brought up in order to be dealt with according to the provisions of the said acts : and whereas the said prisoner has found two sufficient sureties in the sum of £ each, as required by the court, with a condition that he shall duly appear at the time and place fixed for his hearing, and on every mdyearnstl hearing, and shall abide by the final judgment of the court: ’ 228 Appendix to Part IV. It is ordered and directed that the said prisoner shall be discharged out of custody as to the detaining creditors aforesaid, until the day of next, at o’clock, being the time appented for the hearing of the said prisoner, and for such further time (if any) as the said court shall by indorsement on this order from time to time appoint. Judge of the said county court. No. 13. Gaoler’s Warrant for Discharge of Prisoner on Sureties, s. 38. Circuit, Pursuant to the several Acts for the Relief of Insolvent Debtors in No. England. , The county court of holden at before esquire, judge of the said court, on the day of 185 In the matter of a prisoner in the gaol of in the county of whose petition and schedule filed in the court for the relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. Upon application of the said prisoner and hearing him in support thereof, and upon affidavits of sureties and recognizance entered into + It is ordered that the prisoner shall be discharged from your custody forthwith as to the detainer of upon his now paying your fee for coming up with him for his hearing before the judge of this court, at the county court of to be holden at on the day of and attending then and there, to receive bim into your custody if the law shall so require. And for so discharging the said prisoner from custody as to the said detainer this shall be your sufficient warrant. Judge of the said county court. To the gaoler or keeper of the said gaol. No. 14. Order for adjourned Hearing Circuit, Pursuant to the several Acts for the Relief of Insolvent Debtors in No. . England. The county court of holden at on the day of 185. ® Insolvent Forms. In the matter of a prisoner in the gaol of inthe county of — whose petition and schedule filed in the court for the relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf, Whereas the said prisoner was brought before the judge of the said county court at aforesaid, on the day of 185 in pursuance ofan order of the said court made in that behalf, and the hearing was then adjourned by the said Judge to some future county court: It is ordered and appointed that the said prisoner shall be brought up to be dealt with according to the provisions of the said acts, before the judge of the said county court at in the said county, on the day of next, at the hour of in the morning precisely ; and that the matters of the said schedule shall be then and there further heard by the said judge, of which such advertisement shall be published and such notice shall be given, and to such persons, as is prescribed by the rule of court in that behalf, and as the judge may have directed on making the said adjournment. By the Court. Take Notice. 1, If any creditor intends to oppose the said prisoner’s discharge, no- tice of such intention must be given to the said prisoner in writing (which may be left at the gaol) two clear days before the day of hearing above mentioned, exclusive of Sunday, and exclusive both of the day of giving such notice and of the said day of hearing. 2. But where notice for the original hearing has been defective, and a short notice is given for the adjourned hearing under the rule of Court XX. 8, such short notice will only be valid upon condition that the prisoner waives his right to notice of opposition. 3. Also creditors, whose opposition was commenced at the former hearing, are not required to give further notice of the same. 4. ‘I'he petition and schedule will be produced by the proper officer for inspection and examination at the office of the court in London, between the hours of ten and three, on this notice being exhibited ; and copies of the petition and schedule, or such part thereof as shall be re- quired, will be provided by the proper officer according to the act 1 & 2 Vict. c. 110, s, 105. N.B.—Entrance to the office, in Portugal-street, Lincoln’s-Inn- Fields. 5. The duplicate of the petition* and schedule, and all books, papers and writings filed therewith, will be produced by the clerk or assistant clerk of the said county court, for inspection and examination at the office of the said county court, at aforesaid, and copies of the petition and schedule, or such part thereof as shall be required, will be provided according to s. 106 of the act. * (Or office copy, ifa creditor's petition.) 230 Circuit, No. Appendix to Part IV. No. 15. Warrant of Attorney. Pursuant to the Acts for the Relief of Insolvent Debtors in England. To William Ingram Marter and Henry Walker, Attorneys of Her Majesty's Court of Queen’s Bench, at Westminster, jointly and severally, or to any other Attorney of the same Court. These are to desire and authorize you, the attorneys above named, or any one of you, or any other attorney of the Court of Queen’s Bench aforesaid, to appear for me, an insolvent debtor, as of Michaelmas term last, or any subsequent term, in the Court of Queen’s Bench aforesaid, and then and there to receive a declaration for me in an action of debt for the sum of pounds at the suit of Samuel Sturgis, gentleman, pro- visional assignee of the estates and effects of insolvent debtors in England, his successors and assigns; and thereupon to confess the same action, or else to suffer a judgment by nil dicit, or otherwise, to pass against me in the said action, and to be thereupon forthwith entered up against me of record of the same court, for the said sum, with costs of suit: and I, the said : do hereby further authorize and empower you, the said attorneys, or any one of you, after the said judgment shall be entered up as aforesaid, for me and in my name, and as my act and deed, to sign, seal, and execute a good and sufficient release in the law, to the said Samuel Sturgis, his successors and assigns of all and all manner of error and errors, writ and writs of error, and all benefit and advantages thereof, and all mis- prisions of error and errors, defects and imperfections whatsoever, had, made, committed, done or suffered in, about, touching or concerning any writ, warrant, process, declaration, plea, entry, or other proceed- ings whatsoever, of or any way concerning the same. And for what you, the said attorneys, or any one of you, shall do or cause to be done in the premises, or any of them, this shall be to you, and every of you, a sufficient warrant and authority. ‘In witness whereof I have hereunto set my hand and seal, the ” day of one thousand eight hundred and ty Signed, sealed and delivered in the presence of (1.86) Clerk of the county court of ’ No. 16, Order on Adjudication for Discharge forthwith. Pursuant to the Acts for the Relief of Insolvent Debtors in England. At the county court of holden in before esquire, judge of the said court, on the day of 185. Insolvent Forms. In the matter of a prisoner in the gaol of in the said county, whose petition and schedule fled in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf Upon hearing the matters of the schedule of the said prisoner, and upon examination made into the same, and upon the gaid prisoner's swearing to the truth of the same, and executing a warrant of attorney in pursuance of the said act: : It is adjudged and ordered that the said prisoner shall be discharged from custody and entitled to the benefit of the said act forthwith, as to the several debts and sums of money due or claimed to be due on the day of 185 being the time of making the order vesting the estate and effects of the said prisoner, pursuant to the statute in that behalf, from the said prisoner to the several persons named in the said schedule as creditors or claiming to be creditors for the same respectively, or for which such persons gave credit to the said prisoner before the said time of making such vesting order, and which were not then payable, and as to the claims of all other persons not now known to the said prisoner who may be indorsees or holders of any negotiable security set forth in the said scheduie so sworn to as aforesaid. Judge of the said county court. No. 17. Gaoler’s Wurrant for Discharge forthwith. Pursuant to the Acts for the Relief of Insolvent Debtors in England. Cireuit, No. . At the county court of holden at before esquire, judge of the said court on the day of 185 In the matter of a prisoner in the gaol of _ In the said county, whose potion and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. Upon adjudication duly made herein ; It is ordered that the said prisoner be discharged from your custody forthwith as to the detainer of : And for so discharging the said prisoner from custody as to the said detainer, this shall be your sufficient warrant. Judge of the said county court. To the gaoler or keeper of the said gaol, 232 Circuit, No. oO. Circuit, N Appendix to Part IV. No. 18. Order of Adjudication under s, 76, for discharge at future Period. Pursuant to the Acts for the Relief of Insolvent Debtors in England. At the county court of holden at before esquire, judge of the said court, on the day of 185k In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. Upon hearing the matters of the schedule of the said prisoner, and upon examination made into the same, and upon the said prisoner's swearing to the truth of the same, and executing a warrant of attorney in pursuance of the said act: It is adjudged and ordered that the said prisoner shall be discharged from custody and entitled to the benefit of the said act as to the several debts and sums of money due or claimed to be due on the day of 185 being the time of making the order vesting the estate and effects of the said prisoner pursuant to the statute in that behalf, from the said prisoner to the several persons named in the sche- dule as creditors or claiming to be creditors for the same respectively, or for which such persons gave credit to the said prisoner before the said time of making such vesting order, and which were not then payable, and as to the claims of all other persons not now known to the said prisoner, who may be indorsees or holders of any negotiable security set forth in the said schedule so sworn to as aforesaid, so soon as the said prisoner shall have been in custody at the suit of one or more of the persons above mentioned for the period of to be computed from the said time of making such vesting order as aforesaid. ’ Judge of the said county court. No. 19. Gaoler’s Warrant for Discharge at future Period, under ss. 76, 77, or 78. (a). Pursuant to the Acts for the Relief of Insolvent Debtors in England. At the county court of holden at before esquire, judge of the said court, on the day of 1 : (a) When under tho 77th or 78th section, it should be so stated in the margin, that the gaoler may properly classify the insolvent, the treatment being different. Insolvent Forms. In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. Upon adjudication duly made herein: It is ordered that the said prisoner shall be discharged from your custody as to the detainer of at the period of to be computed from the day of being the time of making the order vesting the estate and effects of the said prisoner, pursuant to the statute in that behalf. And for so discharging the said prisoner from custody as to the said detainer, this shall be your sufficient warrant. Judge of the said county court. To the gaoler or keeper of the said gaol. No. 20. Order of Adjudication for Discharge forthwith and at future Period under s, 76. Pursuant to the Acts for the Relief of Insolvent Debtors in England. Circuit, No. At the county court of holden at before esquire, judee of the said court, on the day o 185 In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. + Upon hearing the matters of the schedule of the said prisoner, and upon examination made into the same, and upon the said prisoner swear- ing to the truth of the same, and executing a warrant of attorney in pursuance of the said act: It is adjudged and ordered that the said prisoner shall be discharged from custody and entitled to the benefit of the said act as to a certain due at the time of making the order vesting the estate and effects of the said prisoner, pursuant to the statute in that behalf, from the said prisoner to so soon as the said prisoner shall have been in custody at the suit of the said creditor for the same for the period of to be computed from the day of . 185, being the time of making such vesting order. And it is adjudged and ordered that 33 234 Circuit, No. Appendix to Part IV. the said prisoner shall be discharged from custody and entitled to the benefit of the said act forthwith as to the several other debts and sums of money due or claimed to he due on the day of 18, being the time of making such vesting order, from the said prisoner to the several persons named in the schedule as creditors or claiming to be creditors for the same respectively, or for which such persons gave credit to the said prisoner before the said time of making such vesting order and which were not then payable, and as to the claims of all other persons not now known to the said prisoner who may be indorsees or holders of any negotiable security set forth in the said schedule so sworn to as aforesaid. . Judge of the said county court. No, 21. Gaoler’s Warrant for Discharge forthwith and at future Period, under ss. 76 or 78. A Pursuant to the Acts for the Relief of Insolvent Debtors in England. At the county court of holden at before esquire, judge of the said court, on the day of 185. In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in that behalf. Upon adjudication duly made herein: It is ordered that the said prisoner shall be discharged from your custody forthwith as to the detainer — of and that the said prisoner shall be discharged from your custody as to the detainer of at the period of to be computed from the day of being the time of making the order vesting the estate and effects of the said prisoner pursuant to the statute in that behalf, And for so discharging the said prisoner from custody, as to the said several detainers respectively, this shall be your sufficient warrant. Judge of the said county court. To the gaoler or keeper of the said gaol. Insolvent Forms. 235 No. 22, Order of’ Adjudication, under s. 77.” Pursuant to the Acts for the Relief of Insolvent Debtors in England. ee 0. At the county court of holden at before esquire, judge of the said court, on the day of 185k In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have béen duly referred and transmitted to the said county court pursuant to the statute in that behalf. Upon hearing the matters of the schedule of the said prisoner, and upon examination made into the same, and upon the said prisoner's swearing to the truth of the same, and executing a warrant of attorney in pursuance of the said act ; forasmuch as it appears to the said judge that the said prisoner has fraudulently, with intent [For Forms of filling up the ground of remand, see below.] It is adjudged and ordered that the said prisoner shall be discharged from custody and entitled to the benefit of the said act as to the several debts and sums of money due or claimed to be due on the day of 185 being the time of making the order vesting the estate and effects of the said prisoner, pursuant to the statute in that behalf, from the said prisoner to the several persons named in the said schedule as creditors or claiming to be creditors for the same respectively, or for which such persons gave credit to the said prisoner before the said time of making such vesting order, and which were not then payable ; and as to the claims of all other persons not now known to the said prisoner, who may be indorsees or holders of any negotiable security set forth in the said schedule so sworn to as aforesaid, so soon as the said prisoner shall have been in custody at the suit of one or more of the persons above mentioned for the period of to be computed from the said time of making such vesting order as aforesaid. Judge of the said county court. Forms of Adjudication, under s, 77. The above Form may be filled in as follows, according to the circum- stances of each case. Forasmuch as it appears to the court that the said prisoner has Destroying fraudulently, with intent to conceal the state of his affairs, destroyed books. certain books [or papers, or writings] relating to such of his affairs as were subject to investigation under the said act, Forasmuch, &c., with intent to conceal the state of his affairs, wil- Preventingor fully prevented [or purposely withheld] the production cf certain books fee [or papers, or writings] relating to such of his affairs as were subject to tion of books, investigation under the said act. he: 236 Appendix to Part IV. Keeping false Forasmuch, &c., with intent to conceal the state of his affairs, kept, books. or caused to be kept, false books. Making false __Forasmuch, &c., with intent to conceal the state of his affairs, made entries in false entriés in [or purposely withheld entries from, or wilfully altered books, &e. and falsified] certain books [or papers, or writings] relating to such of his affairs as were subject to investigation under the said act. Discharging § Forasmuch, &c., with intent of diminishing the sum to be divided cr concealing among his creditors, discharged [or concealed] a certain debt due to [or minish the from] the said prisoner. dividend. aeons kes Discharging Forasmuch, &c., with intent of giving an undue preference to A. B., or concealing a creditor of the said prisoner, discharged [or concealed] a certain debt adebtto due to [or from] the said prisoner. give undue preference. 2B) of ee ee eg 4 Making away Forasmuch, &c., with intent of diminishing the sum to be divided with, charg- among his creditors, made away with [or charged, or mortgaged, or con- ing, mort- __cealed] part of his property. gaging, or concealing property to diminish dividend. Makingaway Forasmuch, &c., with intent of giving an undue preference to A. B., with, charg: a creditor of the said prisoner, made away with [or charged, or mort- einige. or 8 aged, or concealed] part of his property. concealing 7 ‘ : property to * [If it be thought necessary to state whether the making away with, siveundue &¢., or the undue preference, was before or after the commencement of preference. the imprisonment, that fact must be ascertained from the court at the time, and the needful words inserted after the word ‘“‘ property,” viz. ** before (or after) the commencement of his imprisonment.”’] No. 23. Order of Adjudication, under s. 78. Circuit, Pursuant to the Acts for the Relief of Insolvent Debtors in England. mee At the county court of holden at _ before esquire, judge of the said court, on the day of 185 . In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pur- suant to the statute in that. behalf. Upon hearing the matters of the schedule of the said prisoner, and upon examination made into the same, and upon the said prisoner's swearing to the truth of the same, and executing a warrant of attorney in pursuance of the said acts: It is adjudged and ordered that the said prisoner shall be discharged from custody and entitled to the benefit of the said act forthwith as to the several debts and sums of -money due or claimed to be due on the day of 185 being the time of making Insolvent Forms. 237 the order vesting the estate and effects of the said prisoner, pursuant to the statute in that behalf, from the said prisoner to the several persons named in the said schedule as creditors or claiming to be creditors for the same Tespectively, or for which such persons gave credit to the said prisoner before the said time of making such vesting order, and which were not then payable ; and as to the claims of all other persons not now known to the said prisoner who may be indorsees or holders of any negotiable security set forth in the said schedule so sworn to as aforesaid Excepting as to [For Forms of filling this up, see below.] And forasmuch as it appears to the said judge that the said prisoner It is adjudged and ordered that the said prisoner shall be discharged from custody and entitled to the benefit of the said act as to the said so soon as the said prisoner shall have been in custody at the suit of the said creditor for the same for the period of to be computed from the said time of making such vesting order as aforesaid. Judge of the said county court. (The gaoler’s warrant under this adjudication is the same as Form 21.) Form of Adjudication, under s. 78. The above Form may be filled in as follows, according to the circum- stances of each case. Excepting as to a certain debt of £ due from the game in all said prisoner to A. B. cases. And forasmuch, &c. that the said prisoner hath contracted the said Debt con- last-mentioned debt fraudulently [or by means of a breach of trust], tracted frau- [or by means of false pretences], or without having had any reasonabie ‘lently, by Ei i ic means of or probable expectation at the time when contracted of paying the preach of same.] trust, false pretences, without reasonable or probable expectation. And forasmuch, &c. that, &c. fraudulently [or by means of false Obtaining pretences] obtained the forbearance of the said last-mentioned debt. ee And forasmuch, &c. that the said prisoner hath put the said A. B. to Vexatious unnecessary expense by a vexatious and frivolous defence to a suit for defence. Tecovering the said last-mentioned debt. And forasmuch, &c. is indebted to the said A. B, in the last-men- Damages, tioned sum for damages recovered by him against the said prisoner in an Crim. con. action for criminal conversation with the wife of the said A. B., the plaintiff in such action. And forasmuch, &c. is indebted to the said A. B. in the said last- Damages for mentioned sum for damages recovered by him against the said prisoner seduction. in an action for seducing the daughter [or servant] of the said A. B., the vlaintiff in such action. 238 Damages for breach of promise of Marriage. Damages for malicious prosecution, or for libel, or for slander. Damages for malicious injury. Damages for tort (or tres- pass.) Circuit, No. . Appendix to Part IV. And forasmuch, &c. is indebted to the said A. B. in the said last- mentioned sum for damages recovered by him against the said prisoner in an action of breach of promise of marriage to the said A. B., the plaintiff in such action, And forasmuch, &c. is indebted to the said A. B. in the said last-mentioned sum for damages recovered by him against the said prisoner in an action for a malicious prosecution [or for a libel], [or for slander]. And forasmuch, &c. is indebted to the said A. B. in the said last- mentioned sum for damages recovered by him against the said prisoner in an action for a malicious injury done to the said A. B., the plaintiff in such action. And forasmuch, &c. is indebted to the said A. B. in the said last-men- tioned sum for damages recovered by him against the said prisoner in an action of tort [or trespass] to the person [or property ] of the said A. B., the plaintiff in such action, wherein it appears to the satisfaction of the court that the injury complained of was malicious. No. 24, Order for Costs to Opposing Creditor where Opposition has been Effectual. Pursuant to the Acts for the Relief of Insolvent Debtors in England. In the county court of holden at on the day 185. In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for the relief of insolvent debtors have been duly referred and transmitted to the said county court pursuant to the statute in tlfat behalf. Whereas the opposition of creditor opposing said prisoner’s discharge, has been effectual ; ‘ It is adjudged and ordered that the taxed costs of the said opposition shall be paid to the said opposing creditor out of the estate and effects of the said prisoner by the assignee or assignees of the said prisoner before any dividend made thereof. Judge of the said county court. Witness * (One, two, or no witnesses, as the case may be.) Insolvent Forms. 239 No. 25. Order for Costs to Oppusing Creditor in other Cases. Pursuant to the Acts for the Relief of Insolvent Debtors in England. Ciatt oO, At the county court of holden at on the day of 185 . In the matter of a prisoner in the gaol of in the said county, whose petition and schedule filed in the court for relief of insolvent debtors have been duly referred and transmitted to the said county court pur- suant to the statute in that behalf. Whereas creditor opposing said prisoner’s discharge have proved to the satis- faction of the court, that the prisoner has fraudulently, with intent It is adjudged and ordered that the taxed costs of the said opposition shall be paid to the opposing creditor out of the estate and effects of the said prisoner by the assignee or assignees of the said prisoner before any dividend made thereof, Judge of the said county court. N.B.* Witness * (One, two, or no witnesses, as the case may be.) No. 26. Acceptance of Appointment by Assignees (2). Court for Relief of Insolvent Debtors, No. In the matter of on the day of 165. Clerk. It * Or we. Names to be written at full length, with de- scriptions, trades, pro- fessions, &c., and resi- (a) The practice has been, where assignees ate named at the hearing or circuit, dences. to give out this paper, only filling in the name and number of Insolvent, and the date, with circuit clerk's signature. 240 Appendix to Part IV. do hereby signify to the court acceptance of the appoint- ment of assignee herein. Dated the day of 185 Signed Every wit- Witness to the signature of the said ness must add his de- scription, trade, or pro- fession, and residence, first putting in the name of the assignee. N.R.—On this acceptance paper, filled up, &c., being presented to the provisional assignee, at the court in London, within ten days from the day first above written, he will give receipt for the same ; aad will, on ascertaining the sudiciency of the acceptance, prepare the order of appointment, which may then be taken, together with the insolvent’s books and papers (if any), from the care of the bookkeeper. N.B.—It has been ordered that monies realized in any case by the provisional assignee shall remain in court and be applied to dividend, and shall not be committed to the keeping of other assignee, if such be appointed, nor applied in his costs and expenses, unless specially directed by a commissioner on investigation. No, 27. Commitment for Contempt. Circuit, Pursuant to the-Acts for the Relief of Insolvent Debtors in England. No. . At the county court of holden at before esquire, judge of the said court, on the day of 185. Whereas hath now, in the presence of the said judge acting under the powers of an act passed in the tenth and eleventh year of the reign of her present Majesty, intituled *‘ An Act to abolish the Court of Review in Bankruptcy, and to make alterations in the jurisdiction of the Courts of Bankruptcy and Court for Relief of Insolvent Debtors :” It is adjudged that the said by reason of the matters aforesaid, is guilty of a contempt of the said county court of holden at and it is ordered that the said shall for the said contempt be committed forthwith to being the common gaol for the county of in which county the said now is, for the space of now next ensuing ; and the keeper of the Insolvent Forms. 241 said common gaol is hereby required to receive into his custody the said ; . and him safely to keep as afore- said, and for so doing this shall be a sufficient warrant. Judge of the said county court. To the gaoler or keeper of her Majesty’s gaol of in the county of No. 28. Calendar to be returned to Insolvent Court in London. A calendar of all cases of insolvent debtors, whose to wit. petitions and schedules having been filed in the court for relief of insolvent debtors, and duly referred and transmitted to the county court of ° holden at have been ordered to be heard by the judge of the said county court at on the day of ft setting forth the causes of detainer, the judgments of the court, and the nomination of assignees. Names Detainers Adjudication Assignees No. _ of certified by the or Named. Insolvents. Gaoler. Adjournment. Judge of the said county court. BM APPENDIX TO PART V. —— 5 & 6 VICT. CAP. 116. An Act for the Relief of Insolvent Debtors. [12th August 1842. ] Warrzas it is expedient to protect from all process against the person such persons as have become indebted without any fraud or gross or cul- pable negligence, so as nevertheless their estates may be duly distributed among their creditors: Be it enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by Ray person the authority of the same, That if any person not being a trader within not being a the meaning of the statutes now in force relating to bankrupts, or if any trader, or —_ person being such trader, but owing debts amounting in the whole to less being as than three hundred pounds, shall give notice(a), according to the sche- trader owing ° . : Jess than © ule to this act annexed, to one-fourth in number and value of his 3001., on creditors, and shall cause the same notice to be inserted twice in the siving and London Gazette, and twice in some newspaper circulating within the een an county wherein he resides, he may present a petition for protection from notice, may process to the Court of Bankruptcy, if he has resided twelve calendar present a pe- months in London or within the London district, or to the commissioner tition tof bankrupt in the country within whose district he may have resided bankruptey, twelve calendar months, which petition shall have annexed to it a full stating the and true schedule of his debts, with the names of his creditors, and the nett owing dates of contracting the debts, severally, the nature of the debt, and the ae security (if any) given for the same, and also the nature and amount of his property, and of the debts owing to him, with their dates, and the names of his debtors, and the nature of the securities (if any) which he may have for such debts, and which petition shall also set forth any proposal.which he may have to make for the payment, in whole or in Judge or _— Patt, of his debts; and it shall thereupon be vawfal for the judge or commissioner Commissioner of the Court of Bankruptcy to whom, by any order of the of court of court, as hereinafter provided, the same shall be referred, or for the com- Heenan missioner in the country to whom the petition shall be presented, to give, grant a pro- upon the filing of such petition, protection to the petitioner from all pro- tection. cess whatever, either against his person or his property of every descrip~ tion, which protection shall continue in force, and all process be stayed, until the appearance of the petitioner in court, as hereinafter provided ; {a) The portion of this section which relates to notice is repealed by 7 & 8 Vict. c. 96, 3. 1, post. 5 & 6 Vict. cap. 116.] Protection Acts. 243 and upon the presentation of any such petition all the estate and effects Estate and of the petitioner shall forthwith become vested in the official assignee effects shall who shall be nominated by the commissioners acting in the matter of the fortnwiee He said petition ;'and such official assignee shall and may forthwith take official possession of so much thereof as can be reasonably obtained and assignee. Possessed without suit; and the said official assignee shall hold and stand possessed of the same in like manner as official assignees hold and possess estates and effects under and by virtue of the statute relating to bankrupts. II. Provided always, and be it enacted, That nothing herein contained Not to pre- shall be held or construed to hinder or prevent the said insolvent from Vent inaol- being arrested or held to bail under the authority of any judge’s order bate aes for that purpose, in like manner as may now by law be done notwith- ed under a oe any protection which may be granted under the authority of judge's order. this act, III. Rotation of commissioners, and orders relating to the hearing of petitions to be appointed by the Court of Bankruptcy (a). IV. And be it enacted, That the commissioners so authorized, or the Commis- commissioner in the country (as the case may be), shall, on the day sioner to ex- notified by such notice as aforesaid, proceed to examine upon oath to the pmnine tHe petitioner, and any creditor who may attend such examination, and any Fe, on Ont: witness whom the petitioner or any creditor may call; and the said Adjournment commissioner may adjourn the examination from time to time, and sum-~ of examina- mon to be examined before him any debtor of such petitioner, or any tion. creditor of such petitioner, or any other person whose evidence may appear necessary for the purposes of the inquiry ; and if it shall appear If commis- to the said commissioner that the allegations in the petition and the sioner satis- matters in the schedules are true, and that the debts of the petitioner ee were not contracted by any manner of fraud or breach of trust, or any eetitioner, he prosecution against the petitioner whereby he had been convicted of any may make a offence, or without having at the time of becoming indebted reasonable “nal order assurance of being able to pay the debts, and that such. debts were not re 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, taalicious suing out a fiat of bankruptcy, or malicious trespass, and that the petitioner has made a full discovery of his estate, effects, debts, and credits, and has not parted with any of his property since the presenting of his petition, it shall then be lawful for the said commissioner to cause notice to be given, that on a certain day, to be named therein, he will proceed to make an order, unless cause be shewn to the contrary ; which order shall be called a final order, and shall be for the protection of the person of the petitioner from all process, and for the vesting of his estate and effects in an official assignee (b), to be named by such commissioner, together with an assignee to be chosen by the majority in number and value of the creditors who may attend before the commissioner on such day, or for the carrying into effect such proposal as the petitioner shall ‘have set forth in his petition, provided that the consideration of such final order may be adjourned from time to time by the commissioner without any fresh notice: Provided always, that it shall be lawful for the said Allowance commissioner, if he shall think fit, to direct in such final order some for support. allowance to be made for the support of the petitioner out of his estate and effects. (a) The jurisdiction having been transferred to the insolvent and county court, this’, ion is omitted. (6) See 7 & 8 Vict. c. 96, 8. 4. “ : M 244 Renewal of order for pro- tection. Punishment for prevari- cation, &c. Power of commitment. On passing of final order, estate of peti- tioner to be vested in his assignees (a). Provision for death or re- moval of assignees. Certificate of appointment of assignees to be regis- tered where required. 1&2 Will. 4, c. 56. Title of pur- chasers not to be invali- ‘dated by the appointment of an assig- nee. Estate of petitioner to Appendix to Part V. [5 & 6 Vict. V. And be it enacted, That at the first examination of the petitioner it shall be lawful for the commissioners to renew the order for protection, and to renew it from time to time until the final order for protection and distribution, VI. And be it enacted, That it shall be lawful for the commissioner, by warrant under his hand and seal, to commit to prison any petitioner who shall appear to him to have prevaricated or made any false state- ment before him, for such time as he shall think fit, not exceeding one calendar month ; and touching all persons other than the petitioner who shall be examined before him, or being lawfully summoned shall refuse or neglect to attend him, the said commissioner shall have the same poweis in respect of commitment as he has by any law now in force relating to bankrupts. VII. And be it enacted, That from and after the passing of the final order the whole estate, present and future, as well real as personal, and as well in the colonies, dominions, and plantations belonging to her Ma- jesty, as in the United Kingdom of Great Britain and Ireland, all the effects and all the credits of the petitioner shall become absolutely vested in the official assignee and assignee chosen by the creditors, without any deed or conveyance, which assignees shall hold the same as fully as if the petitioner had been made a bankrupt and they had been assignees under his fiat, and shall sue and be sued as if they had been assignees under such fiat; and as often as any such assignee shall die or be lawfully removed, and a new assignee duly appointed, all estate, teal and personal, and such effects and credits as were or remained vested in such deceased or removed assignee, shall vest in the new assignee, either alone or jointly with the existing assignées, as the case may require, without any deed or conveyance for that purpose. VIII. Provided always, and be it enacted, That where according to any laws now in force any conveyance or assignment of any real or per- sonal property of a petitioner would require to be registered, enrolled, or recorded in any registry office in England, Wales, or Ireland, or in any registry office, court, or other place in Scotland, or any of the dominions, plantations, or colonies belonging to her Majesty, then in every such case such certificate of the appointment of an assignee or assignees as is described in an act passed in the first and second year of the reign of his late Majesty King William the Fourth, intituled, “‘ An Act to establish a Court in Bankruptcy,” shall be registered in the registry office, court, or place wherein such conveyance or assignment as last aforesaid would require to be registered, enrolled, or recorded ; and the registry hereby directed shall have the hke effect, to all intents and purposes, as the registry, enrolment, or recording of such conveyance or assignment as last aforesaid would have had; and the title of any purchaser of any such property as last aforesaid for valuable consideration, who shall have duly registered, enrolled, or recorded his purchase deed previous to the registry hereby directed, shall not be invalidated by reason of such appointment of an assignee or assignees as aforesaid, or the vesting of such property in him or them consequent thereupon, unless the certificate of such appointment shall be registered as afuresaid within the times following ; (that is to say), as regards the United Kingdom of Great Britain and Ireland, within two months from the date of such appoint- ment, and as regards all other places, within twelve months from the date thereof, IX. And be it enacted, That the said assignees shall be entitled to (a) See 7 & 8 Vict, ¢. 96,'3. 4. eap. 116.] Protection Acts. 245 claim and demand from the said petitioner, at any time after the said be absolutely final order, any estate and effects acquired by him at any time after vested in his such order shall have been made; and all such estate and effects, of signees. what kind soever and wheresoever situate, shall be absolutely vested in such assignees upon their filing a copy of their claim, served upon the petitioner personally, or by leaving it at the place of residence men- tioned in his notice of petition, and they shall hold the same in like manner as they held the estate and effects of the petitioner transferred by force of the final order, as hereinbsfore provided: provided always, Assignee not that no assignee of any insolvent shall be authorized by virtue of this to take pos- act to take possession of any estate or effects which the insolvent shall session of have acquired or become possessed of after the making of the final order *tat® &c-, ss ¥ Ss ~ without an herein mentioned, except under the authority of an order of the said order for the commissioner, or of the court of review in bankruptcy, made for that purpose. purpose, and then only to the extent and at the time and in manner directed by such order, and after giving such notices, and doing such acts, matters, and things, as by the rules, orders, and regulations made aera authority of this act shall be required and directed in that ehalf. X. Provided always, and it is hereby further enacted, That if any proof of pre- suit or action is brought against any petitioner for or in respect of any sentation of debt contracted before the date of filing his petition, it shall be a suf- Petition and ficient plea in bar of the said suit or action that such petition was making ct f : Be REE ler to duly presented, and a final order for protection and distribution made bar suits. by a commissioner duly authorized, whereof the production of the order signed by the commissioner, with proof of his handwriting, shall be sufficient evidence. XI. And be it enacted, That the like evidence of the appointments proof of ap- of assignees shall be received as sufficient to prove such appointments pointment of in all courts and places whatsoever as is received by the laws now in 4sgnees- force relating to bankrupts to prove such appointments, XII. And be it enacted, That it shall be lawful for any creditor, or Creditor or official assignee or other assignees at any time after the final order official as- shall have been made, to give one month’s notice to the petitioner, signee may either by personal service, or, if he cannot be found, by service at the mae motion place of his residence mentioned in his notice of petition, that such ing final or- creditor intends to apply by motion to the said commissioner, or, in der in part. case of his death, resignation, or removal, to the commissioner ap- pointed to succeed him, that the final order be rescinded as far as relates to the protection of the petitioner’s person from process, and as far as relates to the effect of such order in bar of suits and actions; and the Commis- said commissioner shall, upon hearing the matter of such motion, and any sioner to_ evidence in support of il, and what the petitioner has to allege against hear motion, it, and any evidence against it, and upon examining the petitioner, if he shall desire to be examined, or if the commissioner shall think fit, roceed to make such rescinding order as is hereinbefore mentioned, if fe sees reason to believe that the petitioner had not before the making of the order sought to be rescinded made a full disclosure of his estate, effects, and debts, or had since the making of such order not given notice to the assignees of any property after acquired by him ; provided Notice of that on any such motion by a creditor the official and other assignee motion. shall be duly served with a month’s notice to attend the said commis- sioner; and provided further, that notice of the hearing of such motion shall be given twice in the London Gazette and twice in the same paper - in which notice of the petition had beeo given, or in some other paper circulating in the same county ; and provided always, that the said com- Costs of missioner, in case he shall refuse to make the rescinding order, shall, if motion. 246 Time when. act shall come into operation. Act may be altered, &c., this session. Appendix to Part V. [5 & 6 Viet. cap. 116. he think fit, order the petitioner’s costs of the motion to be paid by the creditors making the motion, or by the assignee chosen by the creditors, in case he shall make the motion, but not out of the petitioner’s estate and effects. XIII. The judges and commissioners of the Court of Bankruptcy may make orders for carrying act into execution. XIV. And be it enacted, That this act shall not come into operation before the first day of November next ensuing, except as regards the power of the commissioners to make orders, rules, and regulations, with consent of the lord chancellor, lord keeper or lords commissioners of the great seal, XV. Provided always, and be it enacted, That this act may be altered or repealed by any act to be passed during the present session of parliament. The schedule to the act contains a form of notice to creditors as re- quired by s. 1. This being rendered unnecessary by 7 & 8 Vict. c. 96, s. 1, is omitted. 7 & 8 Viet. eap.96.] Protection Acts. 247 7 & 8 VICT. CAP. 96. An Act to amend the Law of sacri Bankruptcy, and Execution. {9th August 1844.] Wueraas it is expedient to amend an act passed in the sixth year of the reign of her present Majesty, intituled ‘An Act for the Relief of 5 & 6 Vict. Insolvent Debtors :” Be it therefore enacted by the Queen’s most excel- ¢. 116. lent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, petition for and by the authority of the same, That a petition for protection from protection Process under the said act may be presented to any court or district cia ca court of bankruptcy within the district of which the petitioner shall sented ty any have resided twelve calendar months, without any notice whatever court of being given to any creditor, or in the London Gazette, or any news~ bankruptcy ‘paper. without any paper. notice given. II. And be it enacted, That every petition for protection from process Form of presented after the commencement of this act to the court of bankruptcy, petition. or to any district court of bankruptcy, shall be in the form specified in the schedule hereunto annexed (A. No. 1.); and such petition, and the petition and schedule required by the said recited act to be annexed thereto, shall be schedule to verified by an affidavit of the petitioner in the form specified in the be en schedule hereunto annexed (A. No. 2.), and such affidavit shall be ae tie toe sworn in like manner as affidavits in matters of bankruptcy may be specified. sworn by any law now in force relating to bankrupts, and shall be an- , nexed to such petition at the time of filing the same; and if such petition and affidavit shall not be in the form herein prescribed such petition shall be dismissed. III. And be it enacted, That the commissioner authorized to act in Forthwith the matter of such petition shall forthwith, after such petition shall after filing of have been filed, cause notice of the filing of such petition to be given Deen Ee in such manner as the commissioner shall direct, to the creditors named given’ to. Gre. in the schedule of the petitioner, and resident within the United King- ditors and dom, and whose debts respectively shall amount to the sum of five feed in pounds, and to be inserted in the London Gazette and in some news- 5 ead a paper or newspapers circulating within the county wherein the peti- public sitting tioner shall reside, and shall thereby appoint a public sitting of the at te ee court whenever the commissioner shall think fit for the first examination ae mane of the petitioner ; and the commissioner may adjourn such sitting from nation of pe- time to time, and allow the petitioner to amend his schedule and correct titioner and any misstatement, at the discretion of the commissioner, and the choice of. ee itor’s assi ke pl t such sitting, or any “editors choice of the creditor’s assignee shall take place at such | g, iP saaleaee. adjournment thereof, and shall be made by the majority in number and value of the creditors who may attend, by themselves or their attornies 248 Appendix to Part V. [7 & 8 Viet. duly authorized by letters of attorney in that behalf, before the com- Commis- missioner on such day: provided that the commissioner shall have rotor power to reject any person so chosen who shall appear to him unfit to a evethe be such assignee as aforesaid, or to remove any assignee; and upon person so _—s-such rejection or removal a new choice of another assignee shall be made chosen. in like manner. Property of IV. And be it enacted, That the property of the petitioner shall, for petitioner to the purposes of the said recited act and this act, vest in the assignee or A aE assignees for the time being, by virtue of the