The powers of the Judge to award costs, in the absence of either party, has been already mentioned (p). The costs of attornies and counsel will be discussed in a subsequent chapter (q). It may be observed, however, that where a case comes before a County Court which, as the summons originally stood, has no jurisdiction to try it, and where jurisdiction is given by the plaintiff amending the summons or particulars, the plaintiff ought to pay the costs of his opponent up to the time of trial, for the defendant may come into Court to defend the case on the very ground that the Court had no jurisdiction (r). Treble Costs in Second Suits for the same Cause.]—If any party sues another in any County Court, for any debt or other cause of action for which he has already sued him and obtained judgment in any other Court, the proof of such former suit having been brought and judgment obtained may be given, and the party so suing is not entitled to recover in such second suit, and shall be adjudged to pay three times the costs of such second suit to the opposite party (s). Allowance of Witnesses.]-The Judge in each case directs. what number of witnesses are to be allowed on taxation of costs, between party and party, but their allowance for attendance can in no case exceed the highest rate of the allowances mentioned in the scale in the schedule to the new rules (t). 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 (u). It seems that the Judge has only to determine the number of witnesses to be allowed on taxation; the amount is a matter for the Registrar who taxes the costs. 13. ORDERS. Service of Orders.]--Orders for payment of money or costs, or both, and orders of adjournment, when directed to (p) See ante, pp. 96, 97. (q) See post, Chapter XIII. (r) Per Alderson, B., in Re Hill v. Swift, 24 L. J. (N. S.) Exch. 137. (s) 13 & 14 Vict. c. 61, s. 18. be served, are in all cases prepared by the Registrar of the Home Court, and delivered to the bailiff, who sends them by post or otherwise to the parties on whom they are respectively directed to be served: it is not, however, necessary for the party in whose favour any order has been made to prove, previously to his taking proceedings thereon, that it was posted or reached the opposite party (x). It may be observed in this place, that where the Court gives leave to take any proceeding, it is not necessary to draw up any order, nor is any order drawn up to warrant such proceeding (y). (x) Rules of Practice, r. 108. (y) Id. r. 109. CHAPTER VIII. PROCEEDINGS BETWEEN JUDGMENT AND EXECUTION. 2. Appeal. 1. New Trial. 1. NEW TRIAL. ALTHOUGH every order and judgment of a County Court is final and conclusive between the parties, except where an appeal is allowed, as hereafter mentioned, the Judge, nevertheless, in every case whatever, has the power, if he thinks fit, to order a new trial to be had upon such terms as he thinks reasonable, and in the meantime to stay the proceedings (a). When and how the Application is to be made.]—An application for a new trial to set aside proceedings, may be made and determined on the day of hearing, if both parties be present, or such application may be made at the first Court holden next after the expiration of twelve clear days from such day of hearing; provided the intended applicant, seven clear days before the holding of such Court, delivers to the Registrar at his office, and also gives to the opposite party (by serving the same personally on such party, or by leaving the same at his place of abode or place of business), a notice in writing, signed by himself, his attorney or agent, stating that such an application is intended to be made at such Court, and setting forth shortly the grounds of such intended application; but such notice does not operate as a stay of proceedings, unless the Judge otherwise orders. If any money paid into Court under any execution or order in the suit has not been paid out, when such notice in writing is given to the Registrar, the Registrar must retain the same (a) 9 & 10 Vict. c. 95, s. 89. See the Manual of Practice and Evidence, 2nd edit. pp. 45, 46. See the Form of Order for a New to abide the event of such application, or until the Judge otherwise orders; and if no such application be made, the money is, if required, to be paid over to the party in whose favour the order was made, unless the Judge otherwise orders; and if such notice be not given in manner aforesaid, or such application be not made at the Court mentioned in the notice, no application for a new trial or to set aside proceedings, can be subsequently made, unless by leave of the Judge, and on such terms as he thinks fit (b). New Trial where the Defendant has not appeared at the first Trial.]— The above-mentioned provisions do not apply to cases where judgment has been given against a defendant in consequence of his neglecting to appear at the hearing (c). In those cases we have seen that the Judge may proceed to hear the case; but the Judge at the same, or any subsequent 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, or such other terms as he may think fit, on sufficient cause shown to him for that purpose (d). The application for a new trial under this section, when a judgment has been given in the defendant's absence, is analogous to applications in the Superior Courts for new trials, where a cause has been suddenly called on in the defendant's absence owing to causes standing first in the list being unexpectedly disposed of, or for some other like reason. In those cases the Court, in granting a new trial, generally requires the defendant to pay into Court the amount for which the verdict was taken, as a sort of test of the bona fides of the defendant that the application is not made for the purposes of delay. In cases of trifling amount in the County Court, where the Judge is satisfied that the defendant's absence was accidental, and that there is ground for defending the action, the rule of the Superior Courts is scarcely applicable. The New Trial may be before a Jury.]-The Judge may, in his discretion, make it a condition of granting a new trial, that it shall take place before a jury, although the former trial did not take place before a jury. If he grants a new (b) Rules of Practice, r. 128. (c) Id. (d) 9 & 10 Vict. c. 95, s. 80. trial generally, without any such stipulation, either party has the same right to a jury as in ordinary cases (e). It is to be observed, that if the Judge has once refused to grant a new trial, his power in this respect is at an end, and he cannot entertain an application for it or grant it afterwards, even if he wishes to do so in consequence of changing his mind (f). Costs of New Trial.]-The Judge has the same power over the costs of the second trial as over the first trial, and costs are allowed to counsel and attornies (according to the scale provided under the new statute) in actions above 201., on the same scale as on the original trial. 2. APPEAL. The statute 13 & 14 Vict. c. 61, s. 14, enacts, that if either party in any cause of the amount to which jurisdiction is given to the County Courts by that act (namely, any debt, damage or demand above 201. and not exceeding 50l. (g)) shall be dissatisfied with the determination or direction of the said Court in point of law, or upon the admission or rejection of any evidence, such party may appeal from the same to any of the Superior Courts of Common Law at Westminster, provided that such party shall, within ten days after such determination or direction, give notice of such appeal to the other party, or his attorney, and also give security, to be approved by the clerk of the Court, for the costs of the appeal (h), whatever be the event of the appeal, and for the amount of the judgment, if he be the defendant and the appeal be dismissed; provided, 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 (e) R. v. Harwood, 22 L. J. (N. S.) Q. B. 127. See the Manual of Practice and Evidence in the County Courts, 2nd edit. p. 47. (f) The Great Northern Railway Company v. Mossop, 25 L. J. (N. S.) C. P. 22. (g) See Blowers v. Rackham, 20 L. J. (N. S.) Q. B. 397. (h) As to security in general, see ante, p. 86. Any defect in the security does not take away the jurisdiction of or prevent the Court from hearing the appeal. Daniel v. Cleasbury, 21 L. J. (N. S.) C. P. 37. |