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(4) That this said action is brought against me for the purpose of recovering the said sum of £ for goods alleged to have been supplied without my knowledge, consent, or privity to my wife whilst she was living separate and apart from me.
(5) That I have been separated from my wife since the
(6) That I am advised and verily believe that several difficult questions of law are likely to arise on the trial of this cause, and, amongst other, the following [here state distinctly the questions of law likely to arise, also state in the affidavit any facts tending to show that such questions are likely to arise.]
(7) That I have been threatened with many actions by different tradesmen, who have, as it is alleged, supplied goods of upwards of £-to my wife whilst she was separated from me.
(8) That I verily believe the said tradesmen are waiting the result of the said action, before bringing actions against me for the price of the said goods; and, therefore, the result of the said action is of great importance to me.
(9) That I have been advised and verily believe that I have a good defence to the said action on the merits (z).
In country cases the affidavit will be sent, with the necessary instructions, by the attorney for the defendant, to his agent in London, who will take out the summons (a).
The application may be made ex parte, without any notice to the other side (b); but, in that case, the parties must bear in mind the above provisions of the recent statute, giving power to the Judge of the County Court to impose costs when due notice has not been given.
Imposition of Terms.]-In pursuance of the provisions of the statutes, the Judge upon granting the writ will impose such terms as he thinks proper. If the certiorari will stay execution for a considerable period, he may order the money to be brought into Court, the costs paid or security given for the same, or the like (c).
Service of the Writ.]-Service of the writ upon the clerk of the County Court, or upon a person acting as clerk at the office of the chief clerk, is good service on the Judge; though, where the writ does not come to the Judge's knowledge until after the return day, the proper course is to rule the Judge
(z) It is advisable to add this paragraph where practicable. See this form in Chitty's Forms, 9th edit. (a) See the Manual of Practice
and Evidence in the County Courts, 2nd edit. pp. 33, 34.
(b) Symonds v. Dimsdale, 2 Exch. Rep. 533.
(c) Per cur. Id. 538.
to return the writ, and not to move for an attachment against him in the first instance (d), although an attachment will lie against a County Court Judge for disobeying a writ of certiorari (e).
Supposing the claim to be one over which the Judge of the County Court has no jurisdiction, on account either of the nature or amount of the demand, the defendant may adopt one of these courses: 1. He may waive the objection of want of jurisdiction; or, 2. He may wait until the trial, and raise the objection then; or, 3. He may, without waiting for the trial (f), apply to one of the Superior Courts for a writ of prohibition (g).
In general the application is made after trial, but this is a convenient place for noticing the subject.
The new provisions already mentioned with respect to the effect of the application for a writ of certiorari, as a stay of proceedings, and the power of the Judge of the County Court to impose costs on the party applying for or obtaining it, without sufficient notice to the other side, extend, it will be seen, to writs of prohibition (h).
In what cases granted.]—It is often a difficult matter to determine whether a writ of prohibition will lie. Where in a claim of debt (as in use and occupation) under 207. in a County Court, it is alleged that the title to land comes in question in the action, the Judge of the County Court has power to inquire into and determine that point; but, if he decides that title does not come in question, and the fact is otherwise, a prohibition will lie (i). Where the parties appeared
(d) Brookman v. Wenham, 20 L.J. (N.S.) Q. B. 278.
(e) See Mungean v. Wheatley, 6 Exch. Rep. 88.
(f) Sewell v. Jones, 19 L. J. (N. S.) Q. B. 372; Wadsworth v. The Queen of Spain, 20 L. J. (N. S.) Q. B. 488.
(g) Manual of Practice and Evidence in the County Courts, 2nd edit. p. 32. As to the cases in which this proceeding may or may
not be advisable, see Id. p. 33.
(h) See 18 & 19 Vict. c. 108, ss. 40, 41, 42, supra.
(i) Thompson v. Ingham, 19 L. J. (N. S.) Q. B. 189; Re Bowen, 21 L. J. (N. S.) 12; Sewell v. Jones, 19 L. J. (N. S.) 372; Kimpton v. Willey, 19 L. J. (N. S.) C. P. 269; Lilley v. Harvey, 5 D. & L. 648; Chew v. Holroyd, 22 L. J. (N. S.) Exch. 95.
before the County Court Judge and agreed to a reference, a prohibition was granted, title to land being in question (k). But prohibition will not lie where the Judge of the County Court makes a mistake in fact or law in a matter within his jurisdiction (1). Where, on a summons in the County Court, the defendant pleaded judgment recovered, and execution issued for the same claim, and the plaintiff admitted the truth of the plea, but the Judge nevertheless decided in his favour, the matter was held to be within the jurisdiction, and a prohibition was accordingly refused (m). In one case a prohibition moved for by the defendant was refused, as the plaint stated a matter within the Judge's jurisdiction, and the objection to the jurisdiction arose on contested facts which the Judge had power to inquire into; and, as the decision on the merits turned on the very point on which the question of jurisdiction arose, and as the affidavits were conflicting (n); and where on the trial of a plaint for trespass and false imprisonment (and, therefore, within the jurisdiction of the Court), the Judge in his judgment used expressions from which it appeared that he had dealt with the facts upon the question of damages as if it were a case for malicious prosecution, it was held that this was no ground for prohibition (o).
Nevertheless, if the Court has no jurisdiction as to part of the proceedings, a partial prohibition may be granted (p).
Application for the Writ.]-The application is made to a Judge at chambers, and is founded upon an affidavit disclosing all the material facts. The affidavit must be simply entitled in the Superior Court, and the application for the writ made in the same manner as pointed out in respect to a writ of certiorari (q). The following form of affidavit may serve as a guide:
In the Queen's Bench [Common Pleas, or Exchequer of Pleas.]
(1) That I was summoned to appear at the County Court of held at under the 9 & 10 Vict. c. 95, on the
(k) Re Knowles v. Holden, 24 L. J. (N. S.) Exch. 223.
(1) See Ellis v. Watt, 8 C. B. 614; Zohrab v. Smith, 5 D. & L. 639; The Guardians of the Lexden Union v. Southgate, 23 L. J. (N. S.) Exch. 316.
(m) Toft v. Rayner, 5 C. B. 162. (n) Joseph v. Henry, 19 L. J. (N. S.) Q. B. 369.
(o) In re Chivers v. Savage, 25 L. J. (N. S.) Q. B. 85.
(p) Walsh v. Ionides, 22 L. J. (N. S.) Q. B. 137; Kerkin v. Kerkin, 2 E. & B. 399. See further, Chitty's Archbold's Practice, by Prentice, p. 1627.
(g) Manual of Practice and Evidence in the County Courts, 2nd edit. p. 33.
185-, by a summons, a copy of which is hereto annexed, marked B. [annex a copy.]
(2) That a particulars of demand was annexed to the said summons, and that a copy of the said particulars is hereto annexed, marked B. [annex a copy.]
(3) That I did attend at the said Court in pursuance of the said summons, and did there and then object to the jurisdiction of the said Court to entertain the said plaint, inasmuch as I claimed to justify the said alleged trespass by right and title to the said close at the time when the said trespass was alleged to have been committed.
(4) That I did there and then offer to prove before the said Judge that I did bonâ fide claim the right and title to the said close, and that the same was my close, soil, and freehold.
(5) That the said close in which the said supposed trespass was committed is part and parcel of a certain farm called
(6) That I did at the time when the said supposed trespass was committed bonâ fide claim, and from thence continually hitherto have bonà fide claimed, the soil and freehold of the said farm by virtue of a conveyance thereof, heretofore made to me by one G. H., by a deed bearing date
(7) That the said close is part and parcel of the said farm so conveyed as aforesaid, and that the said claims the said close adversely to me, and contends, as I believe, that the said close is part of another farm adjoining to the said close called in the possession of the said but which I say is not the case.
(8) That the entry on this close, for which the said action is brought, was made for the express purpose of trying my right and title to the said close.
(9) That the said Judge, notwithstanding the said objection, and notwithstanding my said cffer to prove my said title as aforesaid, did proceed to hear and determine the said plaint, and did give judgment on the said plaint against me (r).
The County Court Commissioners recommended, with regard to the writ of prohibition, that where it is directed to the Judge of the County Court, the decision of the Superior Court should be final, and that no declaration or further proceedings in prohibition should be allowed. The new act accordingly declares that (s) "when an application shall be made to a Superior Court or a Judge thereof for a writ of prohibition to be addressed to a Judge of a County Court, the matter shall be finally disposed of by rule or order, and no declaration or further proceedings in prohibition shall be allowed" (t).
(r) See Chitty's Forms, 7th edit. (s) Report of the County Court
Commissioners, p. 31.
(t) 19 & 20 Vict. c. 108, s. 42.
3. OBJECTION TO JURISDICTION IN CLAIMS EXCEEDING TWENTY POUNDS IN CONTRACT, AND FIVE POUNDS IN TORT.
The right of a defendant under the new act (19 & 20 Vict. c. 108, s. 39) to object to the County Court trying any action of contract where the plaintiff claims a sum exceeding 207., and any action of tort where the plaintiff claims a sum exceeding 51., has been already noticed (u).
The new rules provide that "a defendant, intending to avail himself of the power given by sect. 39 of 19 & 20 Vict. c. 108, to object to an action being tried in the County Court, shall give notice personally or by post of such intention to the Registrar and to the plaintiff, five clear days before the return day of the summons, according to the form set forth in the Schedule (x); and shall therein name the parties whom he proposes to be his sureties, or state therein his willingness to deposit money in lieu of giving security (y), and if he shall fail to give such security or make such deposit before the return day, or shall fail to give such notice of his intention to object as aforesaid, he shall not be entitled to object to the action being tried in the County Court" (z).
4. CHANGE OF VENUE IN ACTIONS BROUGHT BY OFFICERS OF COUNTY COURTS.
In the preceding cases the effect of the application is to remove the action altogether from the County Courts. In one instance, however, a defendant, although not empowered to remove the cause out of the jurisdiction of the County Court generally, yet is entitled to have it tried in another district. The new act provides that "if an action be brought by an officer of a County Court, in the Court of which he is an officer, except in case of the Registrar suing as official assignee, the Judge shall at the request of the defendant, order that the venue be changed (a), and that
(u) See ante, pp. 6, 7, 8. As to the right of justices of the peace to object to the jurisdiction of the County Court, see also ante, p. 6. (x) See post, Appendix, Form No. 30.
(y) See generally as to giving
security, post, p. 86, and a Form of Bond under sect. 39, post, Appendix, Form No. 31.
(z) Rules of Practice, r. 60.
(a) See the Form of Order for changing the venue, post, Appendix, Form No. 28,