12. WITHDRAWAL BY PLAINTIFF. If the plaintiff be desirous of not proceeding in the cause, he may give notice thereof to the Registrar and to the defendant, by post, and after the receipt of such notice the defendant shall not be entitled to any further costs than those incurred up to the receipt of such notice, unless the Judge otherwise orders (m). (m) Rules of Practice, r. 64. This is in the same terms as the former rule. See the Manual of Practice and Evidence in the CHAPTER VII. THE TRIAL AND JUDGMENT. 1. The Sittings of the Court and the general Course of Procedure. 2. Calling on the Cause and other preliminary Proceedings. 3. Proceedings where the Parties do or do not appear. 4. Trial by Jury. 5. Witnesses. 6. Adjournment of the Cause. 7. Amendment. 8. Contempt of Court. 9. The Judgment in general. 10. Judgment in Actions by and against Executors and Administrators. 11. Judgment in particular Actions. 12. Costs and Allowance of Witnesses. 13. Orders. 1. THE SITTINGS OF THE COURT AND THE GENERAL COURSE OF PROCEDURE. THE present chapter will be devoted to the proceedings on the trial of actions, or, as it is sometimes called, the "hearing." The original County Court Act, 9 & 10 Vict. c. 95, provides that, on the day named in the summons, i. e. (the return day (a)) the plaintiff shall appear, and thereupon the defendant shall be required to appear to answer such plaint; and ou answer being made in Court, the Judge shall proceed in a summary way to try the cause and give judgment, without further pleading or formal joinder of issue (b). The Judge determines all questions as well of fact as of law (c), unless a jury be summoned, as already mentioned (d). Sittings of the Court.]-The Judge of each district must attend and hold the County Court at the place ordered by the Queen in council, once at least in every calendar month, (d) See ante, p. 77, and post, (a) See ante, pp. 35, 36. p. 98. or such other interval as one of her Majesty's principal secretaries of state shall in each case order (e). The manner in which the Judge appoints the days and hours for holding his Courts has been already mentioned (f). It is to be observed, that two Courts cannot be holden before the same Judge on one day, unless with the consent of the Lord Chancellor; but this rule does not apply to the holding of an adjourned Court (g). Adjournment in consequence of the Death or Absence of the Judge.]-Where by reason of the death or unavoidable absence of the Judge, a County Court cannot be held, the Registrar, or in the event of his unavoidable absence, the high bailiff, must adjourn the Court to such day as he (e) 9 & 10 Vict. c. 95, s. 56. (f) See Rules of Practice, r. 2, ante, p. 36. It has been already stated, that in each of the 495 County Court districts, one and in some cases two Courts have been established, the number of which is now 500 (see ante, p. 19). The Court is held in that part of the district which on inquiry appears most convenient to the majority of the inhabitants. The building in which the Court sits has in some instances been erected by government specially for the purpose; sometimes it is a town-hall, courthouse or other public building belonging to a county, city, borough or town; sometimes it is a dissenting chapel, a savings bank, a literary institution or an inn, according to the conveniences for the purpose which the neighbourhood presents. With respect to the public buildings belonging to counties, cities, boroughs and towns, the free use of them is secured by statute to the Court as a matter of right (13 & 14 Vict. c. 61, s. 24); but in other cases the place of holding the Court is either built or hired by the treasurer with the sanction of government, and although formerly the expenses were paid out of the general fund of the Court, the new statute provides, that" the expense of building, purchasing or providing any messuages and lands for the purposes of the County Courts, and of repairing, furnishing, cleaning, lighting and warming the court-houses and offices, and of payment of the salaries of the necessary servants for taking charge of such court-houses and offices, and of supplying the Courts and offices with law and office books and stationery and of postagestamps, and the disbursements of the high bailiffs in conveying to prison persons committed by the County Courts, and all other expenses incident to the holding of the said Courts, shall be paid by the Commissioners of Her Majesty's Treasury out of any monies to be from time to time provided by parliament for such purposes." (19 & 20 Vict. c. 108, s. 85.) The 495 districts are distributed in numbers varying from one to thirteen, among sixty different divisions or circuits. To each of these divisions or circuits a judge has been appointed. (Report of the County Court Commissioners.) (g) Rules of Practice, r. 3. deems convenient, and enter in the minute book the cause of such adjournment (h). Summary of the Course of Proceeding.]-Before stating the practice in detail, it will be convenient to give a general summary of the course of proceeding at the trial (i). On the appearance day, the defendant on being called either appears or makes default. If both parties appear, the Judge, either with or without a jury, as the case may be, proceeds to hear the cause. Considerable powers of amendment are possessed by him, but the plaintiff is confined to the cause of action stated in the summons. If it appear desirable to the Judge, he is at liberty to grant time to either party to proceed in the prosecution or defence of the suit, or to adjourn the further hearing of the cause to any subsequent time. It is competent for the Judge to nonsuit the plaintiff on sufficient grounds. When the case on both sides is closed, the Judge, if unassisted by a jury, decides both on facts and law; if assisted by a jury, he directs them in point of law, and they decide on the facts. Judgment is then given for the plaintiff or defendant, and entered on the minutes of the Court. The Judge also directs the mode of payment of the sum for which judgment is given, and an order is drawn up in conformity with that direction. The order generally requires the unsuccessful party to pay the amount of the judgment either at once or by instalments into Court. The Judge formerly had power to direct the payment to be made to the successful party. This power, however, was very rarely exercised, and, having regard to the other arrangements of the Court, would be inconvenient, and is now taken away (k). A copy of this order is served on the unsuccessful party by post, but proof of its having reached him is not a condition precedent to issuing execution is case of non-payment. The object of the order is that the party may know specifically what and when he is required to pay. A very large majority of orders are for payment by instalments. The costs abide the event, unless the Judge otherwise orders. This, however, does not apply to costs for professional assistance. (h) 19 & 20 Vict. c. 108, s. 7. (i) This summary is nearly in the words of the Report of the County Court Commissioners, p. 12. (k) See the stat. 19 & 20 Vict. c. 108, s. 45, post, Chapter IX. Should either party be dissatisfied with the judgment, he may, within a limited time fixed by the practice of the Court, move for a new trial. This the Judge may grant or refuse at his discretion. If at the hearing day, neither party appears, the cause is struck out of the list. If the plaintiff only appears, proof is given of the service of the process on the defendant, and if no satisfactory reason be assigned for the defendant's absence, the Judge may proceed to hear the cause ex parte, and pronounce judgment accordingly. On sufficient cause shown, he may afterwards grant a new trial. If the defendant only appears, but does not admit the demand, the Judge may award him his costs. If, however, he does admit the demand, and pays the proper fees of Court, judgment may be given for the plaintiff in the same manner as if the plaintiff had appeared. If at any time in the course of the proceedings, it appears desirable to adjourn them, the Judge is at liberty to do so (1). 2. CALLING ON THE CAUSE AND OTHER PRELIMINARY STEPS. Having given an outline of the whole course of proceeding, it is necessary to notice with greater particularity, some of the points which occur in practice at the trial or hearing. Calling on the Cause.]-The cases are generally called on and heard in the order in which they are entered in the plaint book. If any cases have been adjourned from a previous Court, they are called on first in order. The plaintiff must then pay the hearing fee of two shillings in the pound (m). If the plaintiff does not appear on being called on, the general practice is, not to strike the case out at once, but to go through the list, and at its close, the Registrar calls over, a second time, the names of any who have not answered, and then, if no one appears, the plaint is struck out. (1) Report of the County Court Commissioners, p. 13. (m) See post, Appendix, stat. 19 & 20 Vict. c. 108, Schedule (C). |