record or pleadings. In cases of concurrent jurisdiction, or in other cases than those just mentioned, where the plaint could not have been entered in the County Court, the plaintiff must obtain either a certificate for costs on the back of the record from the Judge or other presiding officer before whom the cause was tried, that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered at any such County Court, or that it appeared to him at the trial that there was a sufficient reason for bringing the action in the Superior Court (t), or a rule of Court or order of a Judge at Chambers (upon summons) for such costs, upon making it appear to the satisfaction of such Court or Judge, that the action was brought for a cause in which concurrent jurisdiction is given to the Superior Courts, or for which no plaint could (as a matter of right) have been entered in any such County Court, or that the action was removed from a County Court by certiorari, or that there was sufficient reason for bringing such action in the Superior Court (u).

Actions on Bills of Exchange and Promissory Notes.]— It was at one time doubted whether or not actions brought on bills of exchange or promissory notes for sums not exceeding 201. might be brought in the County Court or the Superior Courts at the option of the parties, because the cause of action in respect of them cannot be said to arise in any particular district, but it was subsequently held that they were not within that class of cases in which the Superior Courts have concurrent jurisdiction, and they are, therefore, within the general operation of the acts as to costs (v); and the new statute expressly enacts that "the provisions of this act and of the recited acts (x) which apply to any debt not exceeding twenty pounds shall apply to such debt or any part thereof, although the same shall be secured by or claimed upon bill (y) of exchange or promissory note, and notwith

(t) The certificate may be granted after the assizes are over, Bennett v. Thompson, 25 L. J. (N. S.) Q. B. 378.

(u) See the statutes 13 & 14 Vict. c. 61, s. 12, and 15 & 16 Vict. c. 54, s. 4, and the Manual of Practice and Evidence, 2nd edit. pp. 14, 16.

(v) See the Manual of Practice and Evidence, 2nd edit. p. 12, and cases there cited.

(x) 9 & 10 Vict. c. 95; 12 & 13 Vict. c. 101; 13 & 14 Vict. c. 61, and 15 & 16 Vict. c. 54. See ante, p. 2. printers'

(y) Sic. in Queen's copy.

standing the statute of the eighteenth and nineteenth years of the reign of her present Majesty, chapter sixty-seven" (z).

The last-mentioned statute, called "The Summary Procedure on Bills of Exchange Act, 1855," and passed to facilitate the remedies on bills of exchange and promissory notes by the prevention of frivolous or fictitious defences to actions thereon, gives a summary mode of obtaining judgment by a special form of writ of summons in actions upon bills of exchange and promissory notes commenced within six months after they have become due and payable, and liberty to sign judgment thereon for the amount, and a fixed sum for costs, unless the defendant obtains leave to appear on paying into Court the amount claimed, or upon affidavits satisfactory to the Judge, disclosing a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Judge may deem sufficient to support the application, and on such terms as to security or otherwise as to the Judge may seem fit.

Without an express provision, it might have been contended that the plaintiff in an action under this act would be entitled to the fixed sum for costs, notwithstanding the action were otherwise within the jurisdiction of the County Courts. It seems clear, however, under sect. 4 of the new act, that an order for such costs must be obtained as in other cases.

It may be here observed that the above statute provides for the extension of its provisions by order in council to Courts of Record in England and Wales, and that this power has been exercised with reference to numerous districts. The new County Court Rules therefore make provision for cases under the act, and these rules will be considered hereafter (a).

Judgment by default.]-There was one state of circumstances, however, in which the plaintiff was entitled to costs when suing in the Superior Courts without any certificate, viz., when the defendant suffered judgment by default, the case of a judgment by default being expressly excepted from the operation of the stat. 13 & 14 Vict. c. 61, s. 11(b). pursuance, however, of the recommendation of the County

(*) 19 & 20 Vict. c. 108, s. 4. (a) See post, Chapter III.


(b) See the Manual of Practice and Evidence, 2nd edit. p. 15.

Court Commissioners (c), the new statute enacts, that "where an action of contract is brought in one of her Majesty's Superior Courts of Record to recover a sum not exceeding 201., and the defendant in the action suffers judgment by default, the plaintiff shall recover no costs, unless upon an application to such Court or to a Judge of one of the Superior Courts such Court or Judge shall otherwise direct" (d).

It will be observed, that although the section appears to vest a complete discretion in the Court or Judge in granting costs in cases of judgment by default, a question has been raised as to whether the Court or Judge is controlled by the fact that the cause of action was one over which the Superior Courts have concurrent jurisdiction, or for which no plaint could have been entered in the County Courts, or in other words, whether the party is, in such a case, entitled as a matter of right to an order for his costs. The question has been determined in the affirmative, the Judges of the Court of Exchequer (in which Court the point was raised) having, on consultation with the Judges of the other Courts, arrived at the opinion that, according to the true construction of the new statute, judgment by default is put on the same footing with respect to costs as judgment after verdict (e). Another question of even greater practical importance to suitors has been raised by Mr. Baron Martin, namely, whether the order of a Judge, under sect. 30 of the new act, is to be made ex parte, for, unless it be ex parte, the costs of an ordinary judgment by default may be, and would be, in most cases, doubled or trebled by the costs of the summons, attendances and orders thereon. The Court, in the case above cited, intimated that some rule would probably be issued, regulating the practice. It is submitted that the act contemplated an ex parte proceeding, the very nature of a judgment by default implying the non-intervention of the other side.

With the above exception as to costs on judgment by default, the new statute does not make any alteration with respect to the costs of suitors who adopt the process of the Superior Courts for enforcing their rights; and in this respect the act conforms to the views of the majority of the County Court Commissioners, who recommended that the existing law as to costs in the Superior Courts, so far as it affects jurisdic

(c) Report, p. 26.

(e) Heard V. Edey, 3 Jur. (d) 19 & 20 Vict. c. 108, s. 30. (N. S.) 71.

tion, should remain unaltered, with the exception of actions when the defendant suffers judgment by default (ƒ).

(f) Report, p. 26. Mr. Pitt Taylor dissented from the recommendation of his co-commissioners, that the existing law should remain unaltered. He says, "At present a wide distinction exists between actions founded on contract, and actions founded on tort. If any sum not exceeding 201. be recovered in the former class of actions in a Superior Court, the plaintiff is deprived of costs, unless the Judge

certifies that the cause was fit to be tried before him. The same law prevails in actions on tort, only when a sum not exceeding 57. is recovered. This distinction should, in my opinion, be abolished, and no plaintiff should be allowed to recover costs in a Superior Court, whether the action be founded on contract or tort, unless he recovers a sum exceeding 201., or unless the Judge certifies in his favour."



1. The Court where the Plaint is to be entered.

2. Commencement of the Suit and Entry of the Plaint.

1. THE COURT WHERE THE PLAINT IS TO BE ENTERED. IN ordinary cases, the first step a claimant has to take is to furnish the Registrar (g) of the County Court with such particulars as will enable him to enter the plaint and issue the summons (h).

In what District to Sue.]-In pursuance of the stat. 9 & 10 Vict. c. 95, the whole of England and Wales, with the exception of the City of London (which is specially excluded from the operation of the act (i), was, in the year 1847, by order in council, divided into districts (k). These varied in extent and population. In determining what parishes and townships should be included in the different districts, the wishes and convenience of the inhabitants were consulted, and from time to time several modifications of the original arrangement have been made by successive orders in council. The number of districts originally formed was 491, but, on the petition of certain places, has been increased to 495, which constitute the existing districts (1). In each of these districts one Court, and in some few cases two Courts, have been established, the number of which is now 500. To each Court, at least, one clerk, now called the Registrar, is appointed, who keeps an office at each place where the Court of which he is Registrar is holden. This office is open daily

(g) Sect. 8 of the stat. 19 & 20 Vict. c. 108, enacts, that" the clerk of a County Court shall hereafter be called the Registrar of the Court, and henceforth no person shall be appointed Registrar of more than one Court."

(h) See Manual of Practice and Evidence, 2nd edit. p. 20. (i) See ante, p. 6.

(k) See the statute 9 & 10 Vict. c. 95, s. 2.

(1) Report of the County Court Commissioners, p. 1.

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