Proceeding where Cause sent for Trial from a Superior Court.]-In those cases, necessarily of rare occurrence, which have been sent by order of a Judge of one of the Superior Courts, under sect. 26 of the new act, 19 & 20 Vict. c. 108 (n), to be tried in a County Court, as there is no entry in the plaint book, the new rules provide that the Registrar of the County Court mentioned in the order shall enter the action in the minute book of the Court for hearing on the day appointed by the Judge of such Court, and that the same fee shall be taken for the hearing thereof, as if a plaint in the action had been originally entered in the County Court (o).

It is not unusual to deviate from the strict order of the entry, where it may be more convenient for the general course of business so to do.

Appointment of Guardian of Infant Defendant.] Where an infant defendant appears at the hearing, and names a person willing to act as guardian, and who then assents so to act, such person is appointed guardian accordingly; but if the defendant do not name a guardian, the Judge may appoint any person in Court willing to become guardian, or in default of such person the Judge appoints the Registrar of the Court to be guardian, and the cause proceeds thereupon as if another person had been appointed guardian, and the name of the guardian appointed is entered in a form provided in the schedule to the new rules (p), and no responsibility attaches to the person so appointed guardian at the instance of the Court (q).

3. PROCEEDINGS WHERE THE PARTIES DO OR DO NOT APPEAR.

Proceedings where both Parties appear.]-If both parties appear, the case is laid before the Court on both sides much in the same manner as in trials in the Superior Court, except that the Judge (unless a jury be summoned) decides the fact, as well as the law (r). As there are no pleadings, and in most cases nothing to show what the precise point in dispute is, the Judge often inquires from the defendant or

(n) See ante, pp. 4, 5.

(0) Rules of Practice, r. 65.
(p) See post, Appendix, Forms

Nos. 39, 40.

(9) Rules of Practice, r. 89.
(r) 9 & 10 Vict. c. 95, s. 69.

his attorney or counsel, the general ground of defence, so as to point the evidence to the important matter. This is often a convenient practice where the parties have no legal adviser, as in those cases the duty of examining the witnesses necessarily devolves on the Judge. In simple cases the plaintiff states the facts on oath, and is followed by his witnesses, if any; they being subject to cross-examination by or on the part of the defendant. The defendant then, or his witnesses, or both, are examined, and the Judge gives his decision. If the parties are represented by counsel or attornies (s), the course of proceeding, in conformity with the present practice in the Superior Courts, is as follows:

The advocate states the plaintiff's case, and calls the witnesses in support of it.

The defendant's advocate then addresses the Court and calls witnesses, and at the close of his case may sum up the evidence the plaintiff's advocate having the general reply.

If the defendant does not call any witnesses, the plaintiff's advocate sums up his evidence, and the defendant's advocate then addresses the Court.

If there be a jury the Judge sums up.

It is to be observed that if the plaintiff or defendant's attorney is to be a witness in the case he ought not to appear as the advocate.

Where the Plaintiff only appears.]-The statute 9 & 10 Vict. c. 95, s. 80, enacts, "that if on the day so named in the summons, or at any continuation or adjournment of the Court or cause in which the summons was issued, the defendant shall not appear, or sufficiently excuse his absence, or shall neglect to answer when called in Court, the Judge, upon due proof of service of the summons, may proceed to the hearing or trial of the cause on the part of the plaintiff only, and the judgment thereupon shall be as valid as if both parties had attended; provided always, that the Judge in any such case, at the same or any subsequent Court, may set aside any judgment so given in the absence of the defendant, and the execution thereupon, and may grant a new trial of the cause, upon such terms, if any, as to payment of costs, giving security for debt or costs, or such other terms (s) As to the appearance of post, Chapter XIII. parties by counsel or attornies, see

as he may think fit, on sufficient cause shown to him for that purpose.

The service of the process in the home district is proved by the bailiff who effected it. He refreshes his memory by the indorsement on the copy which he has made. Service in a foreign district is proved by the production of the affidavit of the bailiff of that district (u).

The necessary proof of service, to enable the Judge to hear the case in the defendant's absence, has been stated elsewhere (x).

It is scarcely necessary to observe that although the defendant does not appear, judgment may be given for him, or the plaintiff may be nonsuited, as in the cases where both parties appear.

Where the Defendant only appears.]-The 9 & 10 Vict. c. 95, s. 79, enacts that if upon the day of the return of any summons, or at any continuation or adjournment of the Court, or of the cause for which the summons was issued, the plaintiff shall not appear, the cause shall be struck out. In that case, if the defendant appears, and does not admit the demand, the Judge may, in his discretion, award costs to the defendant in the same manner and to the same amount, as to counsel, attorney, witnesses, and other matters, as if the cause had been tried, but no hearing fee shall be charged (y). Nevertheless, if the defendant, or some one duly authorized on his behalf, appears, and admits the cause of action to the full amount claimed, and the fees payable in the first instance by the plaintiff, the Court, if it thinks fit, may proceed to give judgment as if the plaintiff had appeared (z).

pays

Where the cause is struck out, the plaintiff is of course at liberty to bring a fresh action.

Where neither Party appears.]-Where neither party appears the cause is simply struck out (a).

(u) See 9 & 10 Vict. c. 95, s. 62, appear, post, Appendix, Rules of ante, p. 48. Practice, Form No. 41.

(x) See ante, p. 45.

(y) Rules of Practice, r. 85. See also stat. 13 & 14 Vict. c. 61, s. 10. See Form of Order for Costs to Defendant when Plaintiff does not SUP.

(z) 9 & 10 Vict. c. 95, s. 79.

(a) As to the effect of the death of parties before or after judgment, see ante, p. 88, and post, Chapter IX.

F

4. TRIAL BY JURY.

The cases in which a trial by jury may be had by either party, as well as the mode of proceeding to obtain the jury, have been already mentioned (b). In case of any such jury trials, ten jurymen are summoned (c), five of whom are empannelled and sworn to give their verdicts in the causes which shall be brought before them in the Court; and, being once sworn, they need not be re-sworn in each trial. The jury must give an unanimous verdict (d).

Fine on Absent Jurors.]-The persons summoned as jurors must attend at the Court at the time mentioned in the summons served on them; and in default of attendance they forfeit such sum of money as the Judge directs, not being more than five pounds for each default. No person, however, can be summoned or compelled to serve on such jury more than twice within one year, or who shall have been summoned, and shall have attended upon any jury at the assizes, or any Court of Nisi Prius, or at the Central Criminal Court for the same county, within six calendar months next before the delivery of such summons (e).

Challenge of Jurors.]-Either of the parties to any cause is entitled to his lawful challenge against all or any of the jurors, in like manner as he would be entitled in any Superior Court (f).

5. WITNESSES.

Witnesses.]-The original County Court Act (passed before the statute by which the parties are now admissible witnesses in actions in the Superior Courts) enacted, that on the hearing or trial of any action, or on any other proceeding under that act, the parties thereto, their wives and all other persons, may be examined, either on behalf of the plaintiff or defendant, upon oath (or solemn affirmation in those cases in which persons are by law allowed to make affirmation in

(b) See ante, p. 77.

(c) Rules of Practice, r. 80. (d) 9 & 10 Vict. c. 95, s. 73. (e) Id. s. 72. See Form of Order, fining a Juror for Non-attendance,

post, Appendix, Rules of Practice, Form No. 36.

(f) Id. s. 73. As to the challenge of jurors, see Chitty's Archbold's Practice, 9th edit., by Prentice.

stead of taking an oath) to be administered by the proper officer of the Court (g). The same statute makes persons giving false evidence in the County Courts guilty of perjury (h), and many convictions have taken place for that

offence.

every

Fine on Witnesses neglecting to attend or refusing to give Evidence.]-The mode of summoning witnesses has been mentioned elsewhere (i); and if any person having been duly summoned, and to whom at the same time payment or a tender of payment of his expenses has been made on the scale of allowance provided by the rules of practice of the Court, and who refuses or neglects, without sufficient cause, to appear, or to produce any books, papers or writings required by such summons to be produced; and also person present in Court, who shall be required to give evidence, and who refuses to be sworn and give evidence, forfeits such fine, not exceeding 101., as the Judge shall set on him; and the whole or any part of such fine, in the discretion of the Judge, after deducting the costs, is applicable towards indemnifying the party injured by such refusal or neglect, and the remainder forms part of the general fund of the Court in which the fine was imposed (k). The payment of such fine may be enforced, upon the order of the Judge, in like manner as payment of any debt adjudged in the Court (1).

6. ADJOURNMENT OF THE CAUSE.

General Powers of Adjournment.]-By the original County Court Act the Judge may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of the suit, and also may from time to time adjourn any Court, or the hearing, or further hearing of any cause, in such manner as to the Judge may seem fit(m).

(g) 9 & 10 Vict. c. 95, s. 83. (h) Id. s. 84.

(i) See ante, p. 78.

(k) 9 & 10 Vict. c. 95, s. 86. (1) Id. s. 87. See the Form of Order, fining a Witness for Non

attendance, post, Appendix, Rules of Practice, Form No. 23.

(m) 9 & 10 Vict. c. 95, s. 81. See the Form of Order to adjourn Proceedings, post, Appendix, Rules of Practice, Form No. 38.