moved or removable from the said Court into any of her Majesty's Superior Courts of Record by any writ or process, unless the debt or damage claimed should exceed 51., and then only by leave of a Judge of one of the said Superior Courts, in cases which should appear to the Judge fit to be tried in one of the Superior Courts, and upon such terms as to payment of costs, giving security for debt or costs, or such other terms as he should think fit" (b).

a

The County Court Commissioners observed, that, as a general rule, the amount of the claim is a convenient test of the importance of the question to be determined, and therefore it is generally desirable that where a claim does not exceed 51., the same should be irremovable. But it occasionally happens that questions of great difficulty, both of law and fact, arise in cases where the amount in dispute does not exceed 51. Thus questions of fact occur, where the claims belong to a class, each of which, individually, is of less amount than 57., but which being questions of fact, cannot as the law now stands, be raised before a superior tribunal. Thus, in actions by several workmen against a contractor, or by several passengers on a railway, or by several customers of common carrier, where in each case the demand does not exceed 51., although the question is of considerable importance, and in effect brings into litigation an aggregate amount far beyond 5l., no means exist at present of removing such actions into the Superior Court. Again difficult questions of law other than those which are excluded from the jurisdiction of the Court may arise, or such questions may be so mixed with questions of fact as not to be conveniently separated, and yet the amount in dispute may not exceed 51. (c). The Commissioners therefore recommended that where a claim, whether in tort or contract, did not exceed 5l., it should be competent for the defendant to remove the plaint into one of the Superior Courts by leave of a Judge of those Courts; but only on giving security for the claim and costs in the Superior Court, not exceeding 1007., or on depositing that

(b) The power under this section is not affected by the statute 13 & 14 Vict. c. 61, s. 16, which enacts, that no judgment, order or determination given or made by any Judge of a County Court, nor any cause or matter brought before him or pending in his Court, shall be re

moved by appeal, motion, writ of error, certiorari or otherwise, into any other Court whatever, save and except in the manner and according to the provisions therein before mentioned with respect to appeal.

(c) Report of the County Court Commissioners, pp. 29, 30.

amount (d), and on such other terms as the Judge might think proper to impose (e).

The new act accordingly provides that "any action commenced in a County Court for a claim not exceeding 51. may be removed by writ of certiorari into a Superior Court, if such Superior Court or a Judge of a Superior Court shall deem it desirable that the cause shall be tried in such Superior Court; and if the party applying for such writ shall give security, to be approved by one of the masters of such Superior Court, for the amount of the claim, and the costs of the trial, not exceeding in all 100%., and shall further assent to such terms, if any, as the Superior Court or Judge shall think fit to impose" (ƒ).

While the Commissioners recommended greater facilities than previously existed, for removing causes from the County Court, they expressed themselves anxious that such facility should not be used for the purpose of vexation or oppression (g). They thought that a Court or Judge to whom an application is made for a certiorari to remove a plaint from a County Court, or to whom application on affidavit is made for a rule or summons to show cause why a certiorari should not issue, ought to be empowered in either case to grant a rule or summons to show cause why a certiorari should not issue; and that such rule or summons if so directed should be a stay of proceedings, until the determination of such rule or summons, or until the Court or Judge shall otherwise order; and that the party applying should serve a copy of such rule or summons upon the clerk of the County Court, and if such copy be not served upon the clerk of the County Court two clear days at the least before the day fixed for hearing the plaint, and if the rule or summons be not served on the plaintiff one clear day at the least before the day fixed for hearing the plaint, the Judge of the County Court should be empowered, at his discretion, to order the party applying to pay all the costs of the day, or so much thereof as he may think fit, unless the Court or Judge granting the rule or summons has made some order respecting such costs (h).

The new act carries out the substance of these views. It

(d) As to the mode of depositing money in lieu of security, see the stat. 19 & 20 Vict. c. 108, s. 71, post, Chapter VI.

(e) Report of the County Court

Commissioners, p. 30.

(f) 19 & 20 Vict. c. 108, s. 38. (g) Report of the County Court Commissioners, p. 30. (h) Id. p. 31.

1

enacts that, "the granting by any of the Superior Courts or by any Judge thereof of a rule or summons to show cause why a writ of certiorari or prohibition should not issue to a County Court, shall, if the Superior Court or a Judge thereof so direct, operate as a stay of proceedings in the cause to which the same shall relate until the determination of such rule or summons, or until such Superior Court or Judge shall otherwise order; and the Judge of the County Court shall from time to time adjourn the hearing of such cause to such day as he shall think fit until such determination or until such order be made; but if a copy of such rule or summons shall not be served by the party who obtained it on the opposite party and on the Registrar of the County Court two clear days before the day fixed for the hearing of the cause, the Judge of the County Court may, in his discretion, order the party who obtained the rule or summons to pay all the costs of the day, or so much thereof as he shall think fit, unless the Superior Court or a Judge thereof shall have made some order respecting such costs" (g).

In several cases, also, parties, by their mode of proceeding when the writ of certiorari had been obtained, rendered it a medium of harassing their opponents. Thus, a defendant has waited until a plaintiff has incurred all the expenses of preparing for trial, and when the cause was called on, has produced a writ of certiorari to remove the proceedings. The plaintiff under such circumstances had no remedy for his costs, as, by the operation of the writ, the parties had ceased to be suitors of the Court.

The County Court Commissioners accordingly recommended that in all cases where a writ of certiorari has been obtained ex parte for the removal of a plaint from the County Court, and the party obtaining it has not lodged the writ with the clerk of the County Court two clear days at the least before the day fixed for hearing the plaint, and if he has not given notice to the plaintiff of such certiorari having been obtained one clear day at the least before the day fixed for hearing the plaint, the Judge of the County Court ought to be empowered at his discretion to order the party obtaining the certiorari to pay all the costs of the day, or so much thereof as he shall think fit, if the Court or Judge granting the certiorari has made no order respecting such costs (h).

(g) 19 & 20 Vict. c. 108, s. 40.

(h) Report of the County Court Commissioners, p. 30.

The new statute, therefore, further provides that, "where a writ of certiorari or of prohibition addressed to a Judge of a County Court shall have been granted by a Superior Court or a Judge thereof, on an ex parte application, and the party who obtained it shall not lodge it with the Registrar, and give notice to the opposite party that it has issued, two clear days before the day fixed for hearing the cause to which it shall relate, the Judge of the County Court may, in his discretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as he shall think fit, unless the Superior Court or a Judge thereof shall have made some order respecting such costs" (k).

Before the new act, if one of the Superior Courts, or a Judge thereof, refused a writ of certiorari, it was competent for the applicant to renew his application in either of the other two Courts, and in the event of a second refusal, he might apply to the third Court. This state of the law appeared to the County Court Commissioners to be inconvenient.

They recommended, therefore, that where an application is made for a writ of certiorari to one Court or to one Judge for the purpose of removing a plaint from the County Court, and the application is contested, the refusal by that Court or Judge, subject in the latter case to the usual appeal to the Court, should be binding in the matter, and that no further application should be permitted to any other of the Superior Courts on the same grounds (1).

The new statute accordingly enacts, that when any Superior Court or a Judge thereof shall have refused to grant a writ of certiorari or of prohibition to be addressed to a Judge, no other Superior Court or Judge thereof shall grant such writ; but nothing herein shall affect the right of appealing from the decision of the Judge of the Superior Court to the Court itself, or prevent a second application being made for such writ to the same Superior Court, or a Judge thereof, on grounds different from those on which the first application was founded (m).

Grounds for the Application.]-That difficult questions of law are likely to arise upon the trial of the cause is a ground for applying for a certiorari (n); and where a plaint

(k) 19 & 20 Vict. c. 108, s. 41. (1) Report of the County Court Commissioners, p. 30.

(m) 19 & 20 Vict, c. 108, s. 44.

(n) See Hunt v. The Great Northern Railway Company, 2 Pr. Rep. 268; Longbottom v. Longbottom, 22 L. J. (N. S.) Exch. 74.

was removed from the County Court by certiorari, on the affidavit of the defendant's attorney that difficult questions of law would arise, the Court refused to quash the certiorari, though the affidavits of the plaintiff's attorney averred that no such difficult questions of law would arise (o). So, if the cause is to be tried before a jury (p), and if it be made clearly to appear that an impartial jury cannot be obtained within the limits of the County Court, a certiorari may be obtained (q). But a plaint over which the County Court has jurisdiction cannot be removed to a Superior Court, if such Court would have no jurisdiction over it when removed (r), as, for instance, a case of partnership accounts (s).

Mode of Application for the Writ.]—The application should be made by summons before a Judge at chambers, either in Term or Vacation (t), and not to the full Court (u), and must be supported by an affidavit disclosing the nature of the actions and all the essential facts, to induce the Court to grant the application to determine what terms ought to be imposed on the applicant if it be granted (x). The affidavit should be entitled simply with the name of the Superior Court, and not in any cause. It must be drawn up in the first person, and be divided into numbered paragraphs (y). The following form of affidavit will serve as a guide:

In the Queen's Bench [Common Pleas, or Exchequer of Pleas.]
I, A. B., make oath and say,-

(1) That on the

day of

issued out of the County Court of

last I was served with a summons

held at, of which summons the following is a copy [here copy the summons. Or, say, a copy of which summons is hereto annexed, marked A., and annex a copy.]

(2) That the following is a copy of the particulars of demand annexed to the said summons [here copy particulars. Or, instead of the foregoing sentence, say, (2) That the paper writing hereto annexed, marked B., is a copy of the particulars annexed to the said summons, and annex a copy.] (3) That I am the said A. B. mentioned and referred to in the said summons and particulars.

(o) Rees v. Williams, 21 L. J. (N. S.) Q. B. 367; Bowen v. Evans, (N. S.) Exch. 24. 3 Exch. Rep. 111.

(p) See post, p. 77.

(q) See Symonds v. Dimsdale, 2 Exch. Rep. 533.

(r) Rees v. Williams, 21 L. J., Exch. 24.

(s) See ante, p. 3.

(t) 13 & 14 Vict. c. 61, s. 22.
(u) Robertson v. Womack, 19 L. J.

(x) Parker v. The Bristol and Exeter Railway Company, 6 Exch. Rep. 184; 20 L. J. (N. S.) Exch. 112; S. C. Robertson v. Womack, 19 L. J. (N. S.) Q. B. 367.

(y) See the Rules of Practice of the Superior Courts, Michaelmas Term, 1854.