either party, and on such terms as he should think fit, that the cause should be heard in a County Court (1). In accordance with this suggestion, the new statute enacts, that " where in any action of contract brought in a Superior Court the claim indorsed on the writ does not exceed 50l., or where such claim, though it originally exceeded 50l., is reduced by payment into Court, payment, an admitted set-off, or otherwise, to a sum not exceeding 501., a Judge of a Superior Court, on the application of either party, after issue joined, may, in his discretion, and on such terms as he shall think fit, order that the cause be tried in any County Court which he shall name; and thereupon the plaintiff shall lodge with the registrar of such Court such order and the issue; and the Judge of such Court shall appoint a day for the hearing of the cause, notice whereof shall be sent by post or otherwise by the registrar to both parties or their attornies; and after such hearing the registrar shall certify the result to the Master's Office of such Superior Court, and judgment in accordance with such certificate may be signed in such Superior Court" (m).

3. LIMITATION OF JURISDICTION.

Actions excluded from the Jurisdiction of the County Court.]-By the stat. 9 & 10 Vict. c. 95, s. 58, the County Courts have not cognizance 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 (n), or in which the validity of any devise, bequest or limitation under any will or settlement may be disputed (o); or for any malicious prosecution, or for any libel or slander, or for criminal conversation, or for seduction, or for breach of promise of marriage." And although the County Court Commissioners thought that the jurisdiction of the County Courts might be rendered beneficially available by extending it to actions of malicious prosecution (p), the legislature has not adopted that suggestion. In almost every description of action, however, except actions for cri

(1) Report, p. 27.

(m) 19 & 20 Vict. c. 108, s. 26. (n) As to when the title to any corporeal or incorporeal hereditament is in question, see the Manual

of Practice and Evidence, 2nd edit.
pp. 6, 7.

(o) See Id. pp. 7, 8.
(p) Report, pp. 25, 27.

minal conversation, the County Courts may now have jurisdiction by consent of the parties, as will be presently shown; at present, however, we are dealing with the jurisdiction as a matter of right to the suitor.

Actions on Judgments.]-The new act provides that "no action shall be brought in a County Court on any judgment of a Superior Court" (q).

Local and Personal Exemption.]-The rights and privileges of the Universities of Oxford and Cambridge remain as heretofore (r).

Jurisdiction of the Sheriffs' Court of London.]—The County Court Acts which we are now considering do not extend to the City of London, which has a Sheriffs' Court of its own for the recovery of small debts and demands, the jurisdiction and practice of which is regulated by the stat. 15 Vict. c. lxxvii. (local and personal) (s).

Actions against Justices of the Peace.]-No action can be maintained in the County Court against a justice of the peace for anything done by him in the execution of his office, if such justice objects thereto; and if, within six days after being served with a summons in any such action, such justice or his attorney or agent gives a written notice to the plaintiff that he objects to be sued in such County Court for such cause of action, all proceedings afterwards had in such County Court in any such action, are null and void (t).

Dissent of the Defendant to try in the County Court.]— Although the plaintiff, as will be presently seen, has the option of proceeding in the Superior or in the County Courts where the claim exceeds 51. in tort, and 207. in contract, but does not exceed 501., the defendant had no power to compel the plaintiff to sue in the Superior Courts. His only course

(g) 19 & 20 Vict. c. 108, s. 27. (r) See the stat. 9 & 10 Vict. c. 95, s. 140, and the Manual of Practice and Evidence, 2nd edit. p. 8.

(s) The Commissioners recommended that the London Court should be assimilated to the County Courts (Report, p. 50). See the

Manual of Practice and Evidence, 2nd edit. pp. 16, 19, as to the distinctions between the London Act and the General Statutes, as to costs, &c.

(t) 11 & 12 Vict. c. 44, s. 10; Manual of Practice and Evidence, 2nd edit. p. 8.

was to apply for a writ of certiorari as hereinafter mentioned, but this is not grantable as of right. The County Court Commissioners were of opinion that the defendant should have an opportunity of expressing his dissent from the plaintiff's choice of tribunal, although they saw no objection to the plaintiff being permitted as heretofore to exercise his option in the first instance, for he must in all cases initiate the proceedings. They thought, however, that the defendant, if not disposed to try the cause before the County Court, ought to be permitted to try in the Superior Court without assigning any reason, on giving satisfactory proof that his objection is not for the purpose of delay. For this purpose they recommended that he should be required to give in the County Court security for the amount claimed, and costs in the Superior Court, or to make a deposit to the like amount, not exceeding in the whole 150%.; the costs in the Court below being treated as costs in the cause, and the plaint being then transmitted to such one of the Superior Courts as the plaintiff should direct. If, however, the defendant did not declare his dissent, and comply with the condition above mentioned within such time as should be fixed by the practice of the Court, the Commissioners suggested he must be taken to assent to the cause being tried by the County Court, and that tribunal may then dispose of the cause in the usual way (u).

In accordance with the opinion, recommendation and suggestions of the Commissioners, the new act provides that "if in any action of contract the plaintiff shall claim a sum exceeding 201., or if in any action of tort the plaintiff shall claim a sum exceeding 5l., and the defendant shall give notice that he objects to the action being tried in the County Court, and shall give security, to be approved of by the Registrar, for the amount claimed, and the costs of trial in one of the Superior Courts of Common Law, not exceeding in the whole the sum of 150l., all proceedings in the County Court in any such action shall be stayed; but if in any such action the defendant do not object to the same being tried by the County Court, or shall fail to give the security aforesaid, the County Court shall dispose of the cause in the usual way; and the entry of the plaint in such action shall be a sufficient commencement of the suit to prevent the operation of any Statute of Limitation applicable to such claim" (w).

As this right of removal was intended by the County Court

(u) Report, pp. 26, 27.

(w) 19 & 20 Vict. c. 108, s. 39.

Commissioners to be in addition to the power to remove, already existing by law in such cases, the section goes on to provide, "that nothing herein contained shall prevent the removal of any cause from a County Court by writ of certiorari in the cases and subject to the conditions in and subject to which such cause may now be removed” (x).

The period for giving notice, and the contents of the notice, will be stated hereafter (y).

4. EXTENSION OF JURISDICTION BY CONSENT.

Trial of Actions which are not within the General Jurisdiction.]-Under the provisions of the stat. 13 & 14 Vict. c. 61, s. 17, the parties might by consent confer a jurisdiction on the County Court, notwithstanding that the amount of the claim exceeded 50l., or that the action was one " in which the title to land, whether of freehold, copyhold, leasehold, or other tenure, or to any tithe, toll, market, fair or other franchise shall be in question." It will be observed that the cases in which questions might, by consent under this section, be decided by the County Court, were not so numerous as those excepted from the general jurisdiction of the Court by the stat. 9 & 10 Vict. c. 95, s. 58 (z), the power of the parties to give this extension of jurisdiction not extending to actions for malicious prosecution, or for libel, or slander, or for criminal conversation, or for seduction, or for breach of promise of marriage (a).

The County Court Commissioners, however, were of opinion that the principle of permitting parties, if so inclined, to refer to the County Court Judge as to an arbitrator, should be applicable, not merely to the matters above enumerated in the 17th section of the 13 & 14 Vict. c. 61, but should be extended to all questions whether of law or fact, in which the Courts of Common Law have jurisdiction, except claims for damages in respect of alleged criminal conversation. They thought that claims of the latter description ought not to be made the subject of a proceeding by consent, as such a proceeding might be mischievously used, with the ulterior object

(x) 19 & 20 Vict. c. 108, s. 39. As to the removal of plaints by certiorari, see post. Chapter V. (y) See post, Chapter V. (*) See ante, p. 5; Report of

the County Court Commissioners, p. 4.

(a) Manual of Practice and Evidence, 2nd edit. pp. 8, 9.

of obtaining a divorce, in which the interests of the wife might, in her absence, be collusively sacrificed (b). The new act, carrying out the opinion of the Commissioners, enacts that "the County Courts shall not have jurisdiction to try any action for criminal conversation; but with respect to all other actions, which may be brought in any Superior Court of Common Law, if both parties shall agree by a memorandum signed by them or their respective attornies that any County Court named in such memorandum shall have power to try such action, such County Court shall have jurisdiction to try the same" (c).

The parties or their attornies were required by the stat. 13 & 14 Vict. c. 61, s. 17, to state in their memorandum of agreement that they knew such cause of action to be above the amount of 501., or that they knew the title to come in question in such action; and, by the same section, the memorandum must have been filed with the clerk of the Court at the time of filing the plaintiff's demand.

The majority of the County Court Commissioners thought that the provisions of the statute, as to the mode in which the consent of parties is required to be given, should continue (d); and although section 17 of the stat. 13 & 14 Vict. c. 61, is repealed by the new statute, the new Rules and Orders for Regulating the Practice of the County Courts have provided a form of agreement, to be signed by the parties or their attornies, stating, that they thereby agree that the County Court of the district shall have power to try the action (which they shortly describe) under the provisions of section 23 of the 19 & 20 Vict. c. 108 (e).

23.

(b) Report, p. 27.

(c) Stat. 19 & 20 Vict. c. 108, s.

(d) Mr. J. Pitt Taylor, one of the Commissioners, differed from the rest in their opinion on this point. He says, "I regard this mode of conferring jurisdiction on the County Courts as illusory. It has been tried now for nearly five years, and has proved an utter failure. The reason is obvious. A man who is about to submit his dispute with another party to a Court of justice is not often in a frame of mind which is calculated to lead him, on the one hand, to

offer to his adversary any amicable proposal for settling their mutual differences in any particular mode, or, on the other, to entertain any such proposal should it emanate from his adversary. . . . . To require the active consent of both parties under these circumstances is, in my judgment, an object that cannot be attained; and all that can reasonably be expected or required is, that the County Court should not have jurisdiction unless the parties passively consent."

(e) See the form of " Agreement to give Jurisdiction to a County Court under sect. 23 of 19 & 20