Adjournment to obtain a Jury.]-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 thereupon the trial shall take place accordingly (n). Adjournment to enable Defendant to give Notice of Special Defence.]-It has been stated in a former chapter, that where the defendant intends to rely on a set-off, infancy, coverture of defendant, Statute of Limitations, or discharge of defendant under a bankrupt or insolvent act, he must give notice thereof (o). In case, however, of non-compliance with the rules in that respect, and of the plaintiff's not consenting 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 (p). Adjournment to enable Parties to comply with Rules.]— So 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, adjourn the hearing to enable the party to comply with the practice (q). Adjournment by Consent.]-The parties to any cause, at any time before the cause is called on, may, by consent and without payment of any hearing fee, postpone the hearing to such subsequent Court as the Judge shall direct (r). Order of Adjournment unnecessary.]-It is to be observed, that where a cause is adjourned, no order of adjournment is served on either party, unless by direction of the Judge (s). Reference to Arbitration.]—The power of a Judge, before or at the trial, to refer actions to arbitration, has been already mentioned. 7. AMENDMENT. Amendment in general.]-Although no evidence can be given by the plaintiff on the trial of any cause, of any demand or cause of action except such as is stated in the summons (t), (the particulars being for this purpose part of the summons); nevertheless, very extensive powers of amendment have been conferred on the Judges of the County Courts. The new act provides, that the Judge of a County Court may at all times amend all defects and errors in any proceeding in such Court, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as to the Judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for (u). Substitution of Name of third Party as Defendant.]— Where a person other than the defendant appears at the hearing, and admits that 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 proceeds as to set-off and other matters as if such person had been originally named in the summons, and the costs of the person originally named as defendant are in the discretion of the Judge (x). Parties improperly Suing or being Sued in a representative Character.]-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 thereupon the cause proceeds as to set-off and other matters as if the proper description of the party had been given in the summons (y). (t) 9 & 10 Vict. c. 95, s. 75. (x) Rules of Practice, r. 91. Parties improperly Suing or being Sued in their own Right.]-Where a party sues or is sued in his own right, but at the hearing it appears that he ought to 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 thereupon the cause proceeds as to set-off and other matters, as if the proper description of the party had been given in the summons (z). Insufficient Description of the Plaintiff.]-Where the name or description of a plaintiff in the summons is insufficient or incorrect, it 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 thereupon the cause proceeds 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 (a). Insufficient Description of the Defendant.] - Where the name or description of a defendant in the summons is insufficient or incorrect, and the defendant appears and objects to the description, it 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 thereupon the cause proceeds 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 objection is taken to the name or description the cause may proceed, and in the judgment, and all subsequent proceedings founded thereon, the defendant may be named and described in the same manner (b). Improper Joinder or Omission of Wife.]-In actions by or against a husband, if the wife be 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 thinks fit, and thereupon the cause proceeds, as to set-off and other matters, as if the proper person had been made party to the suit (c). Misjoinder of Plaintiffs.]-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 im (z) Rules of Practice, r. 93. (a) Id. r. 94. (b) Id. r. 95. properly joined may, at the instance of either party, be struck out, by order of the Judge, on such terms as he thinks fit, and thereupon the cause proceeds as to set-off and other matters, as if the proper party or parties had alone been made plaintiffs (d). Omission of Plaintiffs.]-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 thinks fit, and thereupon the cause proceeds, as to set-off and other matters, as if the proper persons had been originally made parties; and if such person, either at the hearing or at some adjournment thereof, personally or by writing, signed by him or his agent, consents to become a plaintiff in the manner above mentioned, the Judge then pronounces judgment as if such person had originally been made a plaintiff; but if such person does not consent to become a plaintiff, either at the hearing or at an adjournment, judgment of nonsuit must be entered (e). Misjoinder of Defendants.]-Where it appears at the hearing that a greater number of persons have been made defendants 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 thinks fit, and thereupon the cause proceeds, as to set-off and other matters, as if the proper party or parties had alone been made defendants, and the costs of the person improperly joined as a defendant are in the discretion of the judge (ƒ). Abandoning Proceedings against Defendants who have not been served.]-Where two or more persons are made defendants, and some 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 thinks fit: (d) Rules of Practice, r. 97. (e) Id. r. 98. (ƒ) Id. r. 99. Mr. Baron Martin has expressed an opinion that the election to proceed against one or more of several defendants under this section, must be made before the case goes to the jury if there be a jury, and that if the plaintiff does not abandon the proceedings against the co-defendant improperly joined, the verdict must be for the defendants. Levick v. Carline (MS.), Exchequer, Sittings after Hilary Term (9th February), 1857. and thereupon the cause proceeds, as to set-off and other matters, as if the party or parties whose name or names have not been struck out, had alone been made defendant or defendants (g). 8. CONTEMPT OF COURT. If any person wilfully insults the Judge, or any juror, or any bailiff, clerk or officer of the Court for the time being, during his sitting or attendance in Court, or in going to or returning from the Court, or wilfully interrupts the proceedings of the Court, or otherwise misbehaves in Court, any bailiff or officer of the Court, with or without the assistance of any other person, may, by order of the Judge, take such offender into custody and detain him until the rising of the Court; and the Judge is empowered, if he thinks fit, by a warrant under his hand, and sealed with the seal of the Court, to commit any such offender to prison (h) 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 prison for a time not exceeding seven days, unless the said fine be sooner paid (¿). 9. THE JUDGMENT IN General. Judgment for the Plaintiff or Defendant.]-The Judge of the Court delivers his judgment in open Court, and it is entered by the clerk in a book belonging to the Court (k). If both parties appear, and the case be decided by the Judge, he may give judgment for the plaintiff or defendant. If there be a jury, and the Judge does not direct a nonsuit, the judgment must follow the verdict, which is also given and entered in open Court, but in that case, unlike ordinary cases in the Superior Courts, the Judge has control over the costs (7). (g) Rules of Practice, r. 100. (h) As to the prison, see the stat. 12 & 13 Vict. c. 101, ss. 1, 2. (i) 9 & 10 Vict. c. 95, s. 113. (k) Id. s. 111. See the Manual of Practice and Evidence, 2nd edit. (1) See the Form of Judgment for a Plaintiff, post, Appendix, Rules of Practice, Form No. 45. As to the power to examine and commit a defendant at the hearing, see post, Chapter VIII. |