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the cause be sent for hearing to the Court of some convenient district of which he is not the Judge; and the Registrar of the first-mentioned Court shall forthwith transmit by post to the Registrar of such last-mentioned Court a certified copy of the plaint as entered in the plaint book, the duplicate copy of the summons and particulars served on the defendant, and a certified copy of the order for changing the venue as entered in the minute book; and the Judge of such last-mentioned Court shall appoint a day for the hearing, small notice whereof shall be sent by post or otherwise by the Registrar of such last-mentioned Court to both parties" (b).
(b) 19 & 20 Vict. c. 108, s. 20.
PROCEEDINGS BETWEEN THE SUMMONS AND TRIAL.
1. The Employment of Attornies and Counsel.
2. Trial by Jury.
3. Summoning Witnesses.
4. Notice to produce Documents.
5. Inspection of Documents.
6. Notice to admit Documents.
7. Changing the Venue.
8. The Mode of giving Security when required.
9. Continuance of Action by Assignees and Personal Representatives. 10. Reference to Arbitration.
11. Agreement that the Decision of the Judge shall be Final.
12. Withdrawal by the Plaintiff.
1. THE EMPLOYMENT OF ATTORNIES AND COUNSel. ALTHOUGH in the majority of actions brought in the County Courts, the whole of the proceedings previous to the hearing consists in the entry of the plaint and service of the summons, there are various matters frequently requiring the attention of suitors and their attornies, in order that the case of one party or the other may be effectually presented to the Court.
The duty of the defendant on service of the summons has been mentioned in a previous chapter, and in treating of that, the steps to be taken by the Registrar in giving notice to the parties, and by the plaintiff in accepting or rejecting the part payment or offers of settlement, have been also incidentally referred to. The present chapter will be devoted to the consideration of those steps in an action previous to the hearing (or trial), which, unless otherwise stated, either party may adopt, as well of those matters which either party may be called upon to perform.
As the steps considered in this chapter are seldom taken except with the advice and assistance of the attornies of the parties, it may be well to observe in this place, that although parties have a right to employ attornies and counsel in pro
ceedings in the County Courts (a), nevertheless, as between party and party, costs of counsel or attorney previous to the hearing were formerly not allowed in any case (b), and that now such preliminary costs are only allowed in actions where the debt or damage claimed exceeds 201. In such cases the costs are taxed as well between party and party as between attorney and client, according to the new scale framed and allowed for that purpose, under the provisions of the new act (c), unless in the last-mentioned case of attorney and client, the client has agreed, in writing, to pay extra costs, in which case they may be allowed as between them, on satisfying the Registrar of the fact (d).
With respect also to costs of preliminary proceedings as between attorney and client, when the debt or damage does not exceed 20%., they can now only be allowed where the client has agreed, in writing, to pay costs (e).
In demands exceeding 501. or other cases brought within the jurisdiction of the County Court by consent, no scale of professional fees has been established. Now, however, by the new scale already mentioned, costs in actions under sect. 23 (f) of the new act are directed to be taxed according to the scale of taxation used in the Court of Queen's Bench, so far as it is directly applicable; and where it is not so applicable, the principle of that scale is to be followed (g).
It is observed, that it is unnecessary to give notice of the employment of an advocate, and the allowance of costs is not affected by want of such notice (h).
2. TRIAL BY JURY.
With few exceptions, causes in the County Court are decided by the opinion of the Judge, on matters of fact as well as of law. The statute, however, which constituted these Courts, enacts, "that in all actions where the amount claimed shall exceed 57. it shall be lawful for the plaintiff or defendant to require a jury to be summoned to try the said action; and in all actions where the amount claimed shall not exceed 57. it shall be lawful for the Judge, in his dis(a) See post, Chapter XIII. (b) Id. See also the Report of the County Court Commissioners, p. 22.
(c) 19 & 20 Vict. c. 108, s. 53. See post, Chapter XIII.
(d) 19 & 20 Vict. c. 108, s. 35. (e) Id. s. 36.
(f) See ante, p. 9.
(g) See more fully as to costs, post, Chapter XIII.
(h) Rules of Practice, r. 87.
cretion, on the application of either of the parties, to order that such action be tried by a jury; and in every case such jury shall be summoned according to the provisions hereinafter contained: provided always, that the party requiring a jury to be summoned shall give to the clerk of the Court, or leave at his office, such notice thereof as shall be directed by the rules made for regulating the practice of the Court as hereinafter provided; and the said clerk shall cause notice of such demand of a jury, made either by the plaintiff or defendant, to be communicated to the other party to the said action, either by post, or by causing the same to be delivered at his usual place of abode or business; but it shall not be necessary for either party to prove on the trial that such notice was communicated to the other party by the clerk” (h).
The statute further enacts, "that every party requiring any jury to be summoned shall, at the time of giving the said notice, and before he shall be entitled to have such jury summoned, pay to the clerk of the Court the sum of 5s. for payment of the jury, and such sum shall be considered as costs in the cause, unless otherwise ordered by the Judge” (i).
The new act does not interfere with the above provision. If, therefore, either party be desirous of having the cause tried by a jury, he may claim that privilege as a matter of right, when the claim exceeds 5l., and when it does not exceed that sum he must obtain the permission of the Judge (k).
Notice to the Registrar.]- By the new rules of Court notice of a demand of a jury must be made in writing to the Registrar of the Court three clear days before the day of hearing (1), and the sum of 5s. paid to him, which, as the statute provides, are costs in the cause, and the summonses to the intended jurors must be delivered to the bailiff forthwith (m).
Summoning of the Jury.]-With respect to the mode of
(h) 9 & 10 Vict. c. 95, s. 70. (i) Id. s. 71.
(k) See the Report of the County Court Commissioners, p. 12.
(1) When, however, notice has not been given in due time, the Judge at the hearing may, if both parties desire to try by a jury, adjourn the cause to enable a jury to
be properly summoned, Rule 78. See post, p. 100.
(m) Rules of Practice, r. 77. By the former rules only two days' notice was required. See the Manual of Practice and Evidence in the County Courts, 2nd edit. p. 541.
summoning the jury, the sheriff of every County, and the high bailiffs of Westminster and Southwark, are required to deliver to the clerk of the Court a list of persons qualified and liable to serve as jurors in the Courts of Assize and Nisi Prius for their County, city and borough respectively, within fourteen days from the receipt of the jury book from the clerk of the peace of the County or other officer, each list containing only the names of persons residing within the jurisdiction of the Court, for which list the said sheriffs and high bailiffs are entitled to receive out of the general fund of the Court, a fee after the rate of 2d. for every folio of seventy-two words; and whenever a jury is required, the clerk of the Court causes so many of the persons named in the list, as shall be needed in the opinion of the Judge, to be summoned to attend the Court at a time and place to be mentioned in the summons (n).
By the Rules of Practice, however, the number of jurymen directed to be summoned to attend at a Court for the trial of causes is ten, unless the Judge shall otherwise order (o). This is double the number of jurymen required to serve on any one jury, the statute 9 & 10 Vict. c. 95, s. 73, enacting, "that whenever there are any jury trials, five jurymen shall be impannelled and sworn as occasion shall require to give their verdicts in the causes which shall be brought before them in the said Court."
The jurors are summoned by the high bailiff and the delivery of the summons to the person whose attendance is required, or to his wife or servant, or any inmate at his usual place of abode, trading, or dealing, is deemed good service (p).
3. SUMMONING OF WITNESSES.
Provision is made for compelling the attendance of witnesses at the hearing.
Either of the parties to the suit may obtain, at the office of the Registrar, summonses to witnesses, to be served by one of the bailiffs of the Court, with or without a clause requiring the production of books, deeds, papers, and writings in their possession or control, and in any such summons any number of names may be inserted (q).
(n) 9 & 10 Vict. c. 95, s. 72. (o) Rule 80. This is similar to the former rule on the subject.
(p) 9 & 10 Vict. c. 95, s. 72. (q) Id. s. 85. See the Form of Summons, post, Appendix, No. 22.