any costs or damages not exceeding the amount which may have been so agreed to be paid (b). It would, however, be only in rare cases that a larger sum than those fixed by statute for appearing and acting in the suit, would be allowed for the mere preliminary costs attendant on entering the plaint, which are the only costs we are now considering.

:

Plaint Note.]-At the time of entering the plaint, the Registrar must give to the plaintiff or his attorney or agent a note under the seal of the Court, according to a prescribed form and this plaint note must be taken care of, as no money can be paid out of Court to the plaintiff or his attorney or agent unless on production of such note, unless, in the event of its being lost or destroyed, proof is made on oath to the satisfaction of the Registrar that the applicant is the plaintiff or his agent authorized in that behalf (c). By the new rules this proof to the Registrar is substituted for the "order of the Judge" in the former rules.

(b) 9 & 10 Vict. c. 95, s. 91; (c) Rules and Orders, r. 38. 19 & 20 Vict. c. 108, s. 36.

CHAPTER III.

OF THE SUMMONS AND SERVICE.

1. The Summons in the ordinary Form.
2. Summons to obtain Judgment by Default.
3. Summons under the Bills of Exchange Act.
4. The Service.

1. THE SUMMONS IN THE ORDINARY FORM.

The Plaint Book.]-The plaintiff having given the necessary instructions to the Registrar, as mentioned in the last chapter, the duty of issuing the summons and effecting its service on the defendant devolves on the officers of the County Court. The statute 9 & 10 Vict. c. 95, s. 59, enacts, that, on the application of any person desirous to bring a suit, the Registrar (then called the Clerk) of the Court shall 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.

The Registrar, therefore, as he receives the necessary information from the plaintiff or his attorney, enters the plaint in writing in this book, called the "Plaint Book," the form of which is appended to the Rules and Orders for Regulating the Practice of the County Courts. By those rules the Registrar is required to "keep the books in the forms set forth in the schedule; and every entry in such books shall have a number prefixed, corresponding with the number of the plaints to which the entry relates" (a). And every plaint must be entered in the plaint book before issuing the summons (b).

Form of the Summons.]-The Registrar must issue the summons to appear to the plaint forthwith after the plaint is entered (c). The original County Court Act, 9 & 10 Vict. c. 95, directed (sect. 59) that the summons should state the substance of the action, and bear the number of the plaint in (b) Rule 33. (c) Rule 11.

(a) Rule 7.

the margin, and be issued under the seal of the Court (d) according to such form as should be directed by the rules to be made for regulating the practice of the Court, as provided for by the same act. A form was accordingly provided, but this was subsequently altered by the rules of practice requiring particulars of demand to be delivered in claims exceeding 40s. The form of the summons was therefore varied, the particulars being referred to for the nature of the claim, although the terms of the original act were still complied with by the rules of practice providing that in all cases the particulars shall be deemed part of the summons (e). This form has been adopted and repeated in the new rules, and may be called the general form of summons, to distinguish it from two other descriptions of summons to be presently noticed, the one created by the new act, and the other arising from the provisions of "The Summary Procedure on Bills of Exchange Act, 1855” (ƒ).

Ordinary Form of Summons.]-The ordinary form of the summons will be found in the Forms appended to the new rules (g), which expressly direct that the summons to appear to a plaint shall be in the form set forth in the schedule (h). It is entitled in the County Court of the district and the place where it was issued, with the name, address and description of the plaintiff and of the defendant, and is addressed "to the defendant," informing him that he is thereby summoned to appear at a County Court, to be holden at the place named on a particular day and hour, to answer the plaintiff to a claim, the particulars of which are stated to be annexed to the summons. The date of the summons is stated, which must be the day on which the plaint was entered, and this date is the commencement of the suit (i). The summons is signed with

(d) The stat. 9 & 10 Vict. c. 95, s. 57, enacts, "that for every Court holden under this act there shall be made a seal of the Court, and all summonses and 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."

(e) Rules of Practice, r. 35.
(ƒ) See post, p. 39.
(g) See post, Appendix, Form
No. 5.

(h) Rules of Practice, r. 39.
(i) Id.

the name of the Registrar of the Court. Below this the debt or claim is stated in figures, and beneath it the costs of the plaint, and the total amount being added up and stated; at the foot is a notice to the defendant, that, if he owes the money and will consent to a judgment, he will save half the hearing fees (k). On the back of the summons various instructions are indorsed, telling the defendant what course he is to adopt if he confesses the plaintiff's claim, and the saving of costs thereby attained, and how all further costs may be avoided by payment; so if he admits only part of the plaintiff's demand, how he may pay the amount admitted into Court; on the other hand, if the defendant relies on certain specified defences, he is informed what notice he must give of them. He is also told how, if the debt or claim exceeds 5l., he may have the cause tried by a jury, and how he may obtain summonses for witnesses and for the production of documents (all which matters will be fully considered hereafter). Lastly, the indorsement informs the defendant of the hours of attendance at the office of the Registrar.

Particulars of Demand.]-It has been already stated, that the plaintiff, when he enters his plaint, must in most cases deliver to the Registrar particulars of his demand(); and the Registrar must, in all cases where particulars are required, annex to the summons a copy of the particulars, sealed with the seal of the Court (m).

Variations in the ordinary Form, where the Amount of the Claim does not exceed 40s.]—The particulars of the plaintiff's claim, as has just been stated, are in general annexed to the summons. If the amount of the claim, however, does not exceed 40s., no particulars are necessary (n); and, instead of the summons referring to them, the substance of the claim is shortly stated on the face of the summons (o).

Where the Amount claimed exceeds 201.]-In cases not exceeding 201., all that can be claimed from the defendant in the summons, in the shape of costs, are the costs of the plaint. In cases above that amount, if the plaintiff has employed an attorney, the defendant, as we have seen, may

(k) See post.

(1) See ante, p. 26.
(m) Rules of Practice, r. 14.

(n) See Rules of Practice, r. 35, and ante, p. 26.

(o) See post, Appendix, Form No. 5.

be called upon to pay his costs of letter before suit (if sent), for instructions to sue, and for attendance and entering the plaint and particulars of demand and copies, if signed by the attorney, amounting in all to 18s. (o). Where such costs are claimed, the total amount is entered on the summons below the amount of debt or claim, and the costs of the plaint and the total amount stated thus:

"Debt or claim..
Costs of plaint..
Attorney's costs

Total amount..

£ s. d.

£ "(p).

Variation in the ordinary Form, where the Defendant, sued as Executor or Administrator, is charged with wasting the Assets.]-Where a plaintiff proposes to charge in the summons that a defendant, sued as executor or administrator, has had assets and has wasted them (q), and the plaintiff has instructed the Registrar accordingly, the summons commences in the above form, but naming the defendant as executor or administrator of the deceased, and adding, "and the plaintiff alleges that you the defendant have money, goods and chattels, which were the property of F. Ġ. deceased at the time of his death, and which came to your hands, as executor [or administrator] of the said deceased, to be administered, and if you have not, that you have withholden and wasted the same, whereby you have become liable to satisfy the plaintiff's claim and his costs herein out of your own goods" (r).

Where Jurisdiction is given by Consent.]-The new rules provide, that where the parties in pursuance of sect. 23 of the stat. 19 & 20 Vict. c. 108, agree to try any action in a County Court, a plaint shall be entered and a summons shall be 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 (s).

(o) See ante, p. 29. (p) See post, Appendix, Form No. 5.

(q) See ante, p. 25, and post, Chapter VII., and Rules of Prac

tice, r. 160.

(r) See post, Appendix, Form No. 5.

(s) Rules and Orders of Practice,

r. 185.