office, before the day of hearing, and without returning the notice of intention to defend, he will avoid further costs (k).

Judgment by Default.]-If the defendant does not return the notice of intention to defend appended to the summons (1), but allows judgment against him by default, he will save half the hearing fee, for in that case the fee to be taken is 1s. in the pound (m), and the order upon such judgment will be to pay the debt and costs forthwith, or by instalments, if the plaintiff has given a written consent (n) for that purpose under the provisions of the statute (o), which enacts, that the order upon such judgment by default shall be for payment forthwith, or at such time or times and by such instalments, if any, as the plaintiff or his attorney or agent shall in writing have consented to take at the time of the entry of the plaint.

Payment into Court.]-If the defendant admits a part only of the claim, he must return the notice of intention to defend within the specified time; and he may, by paying into the Registrar's office the amount so admitted, together with costs proportionate to the amount he pays in, six clear days before the day of hearing, avoid further costs, unless the plaintiff at the hearing proves a claim against him exceeding the sum so paid (p).

Notice of Defence.]-So if the defendant defends for the whole amount, he returns the form of notice to defend, appended to the summons filled up as required (q).

If the defendant gives such notice of his intention to defend as above specified, the action is heard in the ordinary course; but in any event the Registrar must immediately after the last day for giving such notice, send a letter to the plaintiff by post, stating therein whether the defendant has or has not been served with such summons, and whether he has or has not given notice of his intention to defend (r).

(k) See the indorsement on the summons, post, Appendix, Form No. 8.

(1) See ante, p. 38.

(m) Rule of Practice, r. 84. (n) See the form of such consent, post, Appendix, Form No. 9.

(o) 19 & 20 Vict. c. 108, s. 28. (p) See the indorsement on the

summons, post, Appendix, Form No. 8.

(q) See post, Appendix, Form No. 8.

(r) 19 & 20 Vict. c. 108, s. 29. See the form of notice under this section, post, Appendix, Form No.

10.

Special Defence.]—If the defendant intends to rely on a SET-OFF, INFANCY, COVERTURE, a STATUTE OF LIMITATIONS, or a DISCHARGE under a BANKRUPT or an INSOLVENT ACT, as a defence, he must, in addition to the notice of intention to defend, give to the Registrar notice of such special defence six clear days before the day of hearing; and such last-mentioned notice must contain the particulars required by the rules of the Court (s); and he must deliver to the Registrar as many copies of such notice as there are plaintiffs, and an additional copy for the use of the Court (t).

Set-off:]-If the DEFENCE be a SET-OFF, the defendant must, with the notice, also deliver to the Registrar a statement of particulars (u).

Tender.]-If the DEFENCE be a TENDER, the defendant must pay into Court, before or at the hearing, the amount tendered (x).

6. THE DEFENDANT'S PROCEEDINGS ON A SUMMONS UNDER THE SUMMARY PROCEDURE ON BILLS OF EXCHANGE

Payment.]-If a defendant served with a summons under "The Summary Procedure on Bills of Exchange Act, 1855" (y), pays the amount indorsed on the summons for principal and interest, noting, Court fees, and costs, to the Registrar of the Court four days from the service of the summons, no further proceedings can be taken against him (2).

Judgment by Default.]-Where judgment is allowed to go by default, the fee to be taken is Is. in the pound (a). The new rules provide that no order on a judgment by default under 18 & 19 Vict. c. 67, need be drawn up or served (b).

(s) See ante, p. 58.

(t) See the indorsement on the summons, post, Appendix, Form No. 8.

(u) Id. and see ante, p. 57. (x) Id.

(z) See the indorsement on the summons, post, Appendix, Form No. 11.

(a) Rules of Practice, r. 84. (b) Rules of Practice, r. 191. As to setting aside judgment by

(y) 18 & 19 Vict. c. 67; see default, see post, p. 63. ante, p. 39.

Leave to defend.]-That statute enacts, that a Judge of any of the Superior Courts shall, upon application within the period of twelve days from such service, give leave to appear to the writ and to defend the action, on the defendant paying into Court the sum indorsed on the writ, or upon affidavit satisfactory to the Judge, which disclose 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 (c).

In accordance with this provision for actions in the Superior Courts, the new Rules and Orders for regulating the practice of the County Courts, provide that where a defendant applies for leave to defend he shall satisfy the Judge, or in his absence the Registrar, by affidavit, that good grounds exist for granting leave to defend the action, and shall leave with the Registrar such affidavit, together with a copy thereof, and shall, if required so to do by the Judge or Registrar, give security according to the provisions of sect. 2 of 18 & 19 Vict. c. 67 (d).

Where leave is given to defend, the Registrar appoints the cause to be heard at the first convenient sitting of the Court to be held after such leave is granted, and sends to the plaintiff notice thereof according to the form (e) set forth in the schedule to the Rules and Orders, together with a copy of the affidavits made by the defendant, and he must also send to the defendant by post a notice according to the form (ƒ) in the same schedule (g).

It is to be observed, that the act (18 & 19 Vict. c. 67, s. 2, supra) gives a defendant a right to the leave to appear and defend on paying into Court the sum indorsed on the writ, and therefore it seems that the above Rule (189) must be read as only applying to cases where the defendant applies on affidavits, and that if he chooses to pay the amount claimed on the summons into Court, he is entitled to leave to defend as a matter of right. The rule, and the form of notice indorsed on the summons, appear to have overlooked this.

(c) 18 & 19 Vict. c. 67, s. 2. (d) Rule 189. As to security in general, see post, Chapter VI. See also a Form of Bond, by way of security, under the Bills of Exchange Act, post, Appendix, Form

No. 15.

(e) See post, Appendix, Form No. 16.

(f) See post, Appendix, Form No. 17.

(g) Rule 190.

Setting aside Judgment by Default.]-The "Summary Procedure on Bills of Exchange Act, 1855," provides, that after judgment, the Court or a Judge may, under special circumstances, set aside the judgment, and if necessary, stay, or set aside execution, and may give leave to appear to the writ and to defend the action, if it appears to be reasonable to the Court or Judge so to do, and on such terms as to the Court or Judge may seem just (h).

The new Rules and Orders for regulating the Practice of the County Courts provide (i) that any application under the above section, to set aside the judgment, shall be made to the Judge of the Court; but, until the Judge can hear the same, execution shall be stayed, upon the defendant's giving security to abide the decision of the Judge, in accordance with the practice in cases of appeal under Rules 142 and 143 (k).

Impounding the Bill and Staying Proceedings.]--The above act further provides, that in any proceedings under it, it shall be competent to the Court or a Judge to order the bill or note sought to be proceeded upon, to be forthwith deposited with an officer of the Court, and further to order that all proceedings shall be stayed until the plaintiff shall have given security for the costs thereof (1).

(h) 18 & 19 Vict. c. 67, s. 3. (i) Rule 192.

(k) See post, Chapter VIII.
(7) 18 & 19 Vict. c. 67, s. 4.

CHAPTER V.

REMOVAL OF PLAINTS BY CERTIORARI, AND PROHIBITION AND OBJECTIONS TO JURISDICTIONS UNDER THE NEW ACT.

1. Certiorari.

2. Prohibition.

3. Objection to Jurisdiction.

4. Change of Venue in Actions by Officers of County Courts.

1. CERTIORARI.

IN the preceding chapter we have considered the course of proceeding, where the defendant either settles the claim or proceeds to dispute it in the County Court. In those cases, therefore, the defendant submits himself to the jurisdiction of the Court. In some cases, however, where the defendant has substantial reasons for wishing to transfer the matter to another tribunal for decision, or where the County Court has no jurisdiction, it is competent to take certain steps for that purpose. These proceedings will form the subject of the present chapter.

The County Court, like all inferior jurisdictions, is subject to the supervision of the Superior Courts by writs of certiorari and prohibition (a).

The statute 9 & 10 Vict. c. 95, (which established the County Courts,) enacted, however, (sect. 90), "that no plaint entered in any Court holden under this act should be re

(a) Report of the County Court Commissioners, p. 1. Although either party may make the appli. cation for a writ of certiorari or prohibition, still it cannot be often resorted to by a plaintiff who, by instituting proceedings in the County Court, tacitly admits the propriety of the trial and adjudication in that Court. It can only be by circumstances occurring or disclosed subsequently, that he can

consistently apply for the removal of the case. As a step, therefore, generally taken on the part of the defendant, if at all, it is mentioned here. (See the Manual of Practice and Evidence in the County Courts, 2nd edit. p. 34.) As to writs of certiorari issued by the Courts of Common Pleas at Lancaster, and Court of Pleas at Durham, see 19 & 20 Vict. c. 108, s. 86.