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New Statutes effecting Alterations in the Law.
But no application can be made under the act, where a similar application has been rejected by Parliament.
Notice of the exercise of the powers of the act is to be entered on the settlement, under the direction of the court.
The court may appoint trustees to receive and apply the monies arising from sales for the following purposes :
The purchase or redemption of the land tax, or the discharge or redemption of any incumbrance affecting the hereditaments in respect of which such money was paid, or affecting any other hereditaments subject to the same uses or trusts; or
The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid; or The payment to any person becoming absolutely entitled.
Until the money can be so applied, the parties entitled to the rents of the land are to receive the dividends.
The court is not to authorise any act which would not have been authorised by the settlor. The court may direct the costs and expenses of these applications to be charged on the estate in respect of which the application is made, or any other estate included in the settlement, or may direct a sale or mortgage of sufficient to pay the costs, or may direct the same to be paid out of the rents.
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
COUNTY COURTS ACTS AMENDMENT.
1. Commencement of act.
2. Enactments in schedule (A) repealed.
3. This act and 9 & 10 Vict. c. 95, 12 & 13 Vict. c. 101, 13 & 14 Vict. c. 61, and 15 & 16 Vict. c. 54 to be construed together.
4. This act and those above recited to apply to debts sued for under 18 & 19 Vict. c. 67.
5. Time and mode of certain proceedings to be regulated by rules of practice.
6. Qualification of deputy judge.
7. Where a court cannot be held proceedings to stand
8. Clerk to be called registrar.
9. Registrar of more than one court to cease to be the registrar of all but one of such courts.
10. Compensation to registrars.
11. Deputy of judge to continue to act after death of judge till a new one is appointed; remuneration to deputy judge.
12. Deputy of registrar to continue to act after death or removal of registrar; remuneration to deputy registrars.
13. Judge to appoint deputy; registrar provisionally if one has not been appointed; remuneration to deputy registrar.
14. Assistant bailiffs to continue to act after remova of high bailiff; remuneration to bailiffs.
15. Power to registrar to issue summons against defendants residing out of jurisdiction of
16. On death, &c. of high bailiff, judge to appoint provisionally a deputy; remuneration to such deputy.
17. Summons may be served or process executed within 500 yards of district, &c.
18. Districts of the courts in the metropolis to be treated as one district for certain purposes.
19. Where judge of county court can sue and be sued.
20. If officer of court be plaintiff in his own court, defendant may remove the cause to an adjoining district.
21. Where officer of county court may be sued. 22. Power to judge to change venue.
23. If parties agree, county court shall have power to try certain causes, although the matters be beyond its jurisdiction.
24. Where claim reduced by set-off to £50, court to have jurisdiction.
Where title shall come in question, court, with consent of parties at trial, may decide the claim.
26. In certain cases judge of superior court may order cause to be tried in county court.
27. No action in county court on judgment of superior court.
28. If liquidated demand exceed £20, plaintiff may require defendant to give notice of intention to defend, on pain of judgment by default. 29. If notice to defend be given, action shall be tried; registrar to inform plaintiff if notice has or has not been given.
30. In certain cases of judgment by default, costs may be recovered.
31. Judge may issue warrant for bringing up a prisoner to give evidence.
32. Rules, &c. for regulating practice of county courts, and forms of proceedings, to be framed by judges appointed by Lord Chancellor. 33. Scale of costs to be allowed to attorneys in certain proceedings in county courts to be framed by the judges.
34. Costs of attorney in certain proceedings in county courts shall be taxed by registrar as between party and party.
35. Costs of attorney in certain proceedings county courts may be taxed by registrar as between attorney and client.
36. Costs between attorney and client. 37. Till new scale of costs, and rules, and orders, and forms, made, former practice to continue. 38. Certiorari may be granted in certain cases, at discretion of judge of superior court, on security given.
New Statutes effecting Alteratims in the Law.
39. In certain cases defendant may object to cause being tried in the county court.
40. Rule or summons to show canse why a writ of certiorari or prohibition should not issue, to be a stay of proceedings.
41. Notice of writ of certiorari or prohibition having been obtained to be sent to registrar.
42. Application for writ of prohibition to a judge shall be finally disposed of by rule or order. 43. Rule or order substituted for writ of mandamus to a judge or officer of a county court. 44. Refusal of writ of certiorari or prohibition or of rule or order in the nature of a mandamus by one court or judge to be final. 45. Where judgment does not exceed £20, judge may order payment by instalments; in other cases consent of plaintiff's necessary.
46. Priority of executions issuing out of county
47. Priority of executions issuing out of superior court and county court.
48. Summons for commitment may, by leave of court, issue in court in which judgment was obtained.
49. Judgment may be removed if there are no goods to be taken under it.
50. Possession of small tenements may be recovered in county courts by landlords where term has expired or been determined by notice. 51. In plaint for recovery of possession plaintiff may claim for rent and mesne profits.
52. Possession of small tenements may be recovered in county court by landlords for non-payment
53. Sub-tenant served with summons to recover possession must give notice to his immediate landlord, who may come in and defend. 54. In plaints to recover possession of premises, how summonses may be served.
55. Warrants to high bailiffs sufficient to justify them for entering on premises.
56. Such warrants to be in force for three months from the day named for delivering possession. 57. As to amendment of defects and errors of proceedings, &c.
58. Before whom affidavits may be sworn.
59. Warrants of commitment, how long to be in force.
60. No officer or party shall be deemed a trespasser by reason of irregularity.
61. Judgment summonses and warrants of commitment sufficient, if in form given in schedule.
62. Bankruptcy and insolvency of plaintiff not to cause action to abate, if assignees elect to continue it.
63. Registrar to grant replevins.
64. Replevins to be granted, on securities given. 65. Replevins may be commenced in superior
66. Conditions of security to be given in such cases; conditions of security to be given when replevin brought in county court. 67. Replevins shall, at instance of defendant, be removed into superior court by certiorari, in certain cases.
68. Appeal in actions of replevin, and proceedings in interpleader, and for recovery of tenements.
69. Parties may agree not to appeal.
70. How securities under county court acts to be given and enforced.
71. Where security is required to be given, a deposit of money may be made in lieu thereof.
72. Claimant of goods taken in execution must deposit their values or pay costs of keeping possession, otherwise goods shall be sold.
82. Registrars to be paid by salaries, as herein mentioned.
83. High bailiffs to be paid partly by salaries and partly by fees.
84. Salaries of registrars and high bailiffs to be paid out of fees.
85. Expense of building, &c. to be paid out of monies to be provided by Parliament.
86. Provisions relating to superior courts, to apply to Court of Common Pleas at Lancaster and Court of Pleas at Durham; proviso as to certiorari.
The following are the title, preamble, and sections of the act:
An Act to amend the Acts relating to the County Courts. [29th July, 1856. WHEREAS it is expedient to amend and extend the provisions of the acts relating to the county courts established by the act passed in the session of Parliament holden in the ninth and tenth years of the reign of her present Majesty, chapter ninety-five: Be it enacted by the Queen's most excellent Majesty,
New Statutes effecting Alterations in the Law.
by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. The provisions of this act shall come into operation on the first day of October, in the year of our Lord one thousand eight hundred and fifty-six, except the provisions relating to framing a scale of costs and making rules and orders of practice and forms of proceeding which shall come into operation on the passing of this act.
2. The several enactments specified in schedule A to this act are hereby repealed, except as to acts done under them.*
3. This act and the acts passed in the sessions of Parliament holden in the ninth and tenth years of the reign of her present Majesty, chapter ninety-five, in the twelfth and thirteenth years of the reign of her present Majesty, chapter one hundred and one,
The enactments contained in the 9 & 10 Vic. c. 95, which are now repealed, are as follow:
Sect. 37. Fees to be taken according to schedule D., and tables to be exhibited in conspicuous places.
Fees may be reduced.
Appropriation of surplus fees.
52. A general fund to be raised for paying off money borrowed.
92. Court may make orders for payment by instalments. 107. As to the liability of goods taken in execution under 8 Anne, c. 77.
Landlords may claim certain rents in arrear.
Bailiffs making levies may distrain for rent and costs.
121. How actions of replevin may be removed.
122. Possession of small tenements may be recovered by plaint in county court.
If tenant, &c., neglect to appear, or refuse to give possession, judge may, on proof of service of summons, issue a warrant to enforce the same.
123. The manner in which such summons shall be served. 126. How execution of warrant of possession may be stayed.
127. Proceedings on the bond for staying warrant of possession, &c.
139. Provision for the protection of officers of the court. So much of section 102 as enacts that "no protection order or certificate granted by any court of bankruptcy, or for the relief of insolvent debtors, shall be available to discharge any defendant from any commitment" under the order of a judge.
So much of section 142 as applies to the word "Agent." The act also repeals the 6th section of 12 & 13 Vic. c, 101, whereby power was given to the Secretary of State, with consent of the Treasury, to alter the fees payable on proceedings in the county courts.
The following sections in the 13 & 14 Vic. c. 61, are repealed, namely:--
5. Fees to be taken according to schedule. Power to Secretary of State, with consent of the Treasury, to alter fees.
6. Fees to be taken by barristers and attorneys.
7. Power of paying judges' clerks and high bailiffs, by salary instead of fees, given to the Lords of the Treasury and the Secretary of State.
17. In certain cases, on agreement of the parties, court shall have power to try causes, although the matters are beyond its jurisdiction.
20. So much of 9 & 10 Vic. c. 95, as requires a landlord, where rent is in arrear for premises wherein goods have been taken in execution, to state in writing the terms of holding, &c., repealed.
To entitle landlord to benefit under recited act it shall be sufficient to state the amount of rent claimed, &c.
21. Enactments of recited act as altered by this act as to certain claims of landlords to extend to goods taken in execution.
23. Before whom affidavits may be sworn.
The 1st section of the 15 & 16 Vic. c. 54, by which the Lord Chancellor was authorised to appoint five judges of the county courts to frame a scale of fees to be submitted to judges of superior courts for approval, is repealed; and also the provision as to the taxation of costs by clerk of court, subject to review.
The 1st section of the 17 & 18 Vic. c. 16, is also repealed, extending the right of appeal under the 13 & 14 Vic. c. 61.
in the thirteenth and fourteenth years of the reign of her present Majesty, chapter sixty-one, and in the fifteenth and sixteenth years of the reign of her present Majesty, chapter fifty-four, shall be read and construed as one act, as if the several provisions in the said recited acts contained, not inconsistent with the provisions of this act, were repeated and reenacted in this act.
4. The provisions of this act and of the recited acts which apply to any debt not exceeding twenty pounds shall apply to such debt or any part thereof, although the same shall be secured by or claimed upon bill of exchange or promissory note, and notwithstanding the statute of the eighteenth and nineteenth years of the reign of her present Majesty, chapter sixty-seven.
5 Where the time within which or where the mode in which any proceeding should be taken in the county court is not prescribed either in this act or in any act relating to the county courts, such time and mode shall be appointed by the rules of practice, orders, and forms to be made as hereinafter provided.
6. Any person hereafter to be appointed a deputy to the judge of a county court shall be a barrister-atlaw of seven years standing, or shall have practised as a barrister and special pleader for at least seven years, or shall be a judge of a county court.
7. 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, shall adjourn the court to such day as he may deem convenient, and enter in the minute book the cause of such adjournment.
8. The clerk of a county court shall hereafter be called the registrar of the court, and henceforth no person shall be appointed registrar of more than one
9. From and after the first day of October one thousand eight hundred and fifty-six, a registrar of more than one county court shall cease to be the registrar of all of the courts of which he is the registrar, except of that court of which he may by writing addressed to the judge of such court have elected to remain the registrar: Provided always, that this provision shall not apply to any registrar who was clerk to any court mentioned in schedule (A.) or (B.) to the act passed in the ninth and tenth years of the reign of her present Majesty, chapter ninety-five, unless such registrar shall, by writing addressed to the judge of such courts, have signified his desire that it should apply to him.
10. Every person who shall, under the provisions of the last section, cease to be the registrar of one or more county courts, shall be entitled to receive, as compensation for the loss sustained by him thereby, an annuity equal to one-fourth of the yearly amount of the fees received in such court or courts for the use of the registrar, calculated on an average of the five years ended the 31st day of December 1855, and the commissioners of her Majesty's Treasury are hereby empowered to award in each case such annuity, and to direct payment of the same to be made out of any monies to be provided by Parliament for that purpose: Provided always, that where any such registrar shall have been the clerk of any court mentioned in the schedule (A.) or (B.) to the act passed in the ninth and tenth years of the reign of her Majesty, chapter ninety-five, compensation may be awarded to him according to the provisions of section thirty-eight of the said act.
11. The appointment of a deputy of a judge of a county court, whether such deputy shall have been
New Statutes effecting Alterations in the Law,
appointed by the judge or by the Lord Chancellor, or by the Chancellor of the Duchy of Lancaster, shall not be vacated by the death of the judge, but his acts done after such death shall be as valid as if the judge had not died, and he shall continue to act in all the courts of the district of which the deceased was judge until the Lord Chancellor, or, where the whole of such district is within the Duchy of Lancaster, until the Chancellor of that duchy shall otherwise order, or a successor to such judge shall be appointed; and such deputy shall receive as remuneration for the period that he may act as deputy, after the death of the judge, such sum as the Lord Chancellor shall direct, or if the successor of the deceased judge be appointed by the Chancellor of the Duchy of Lancaster, then as the said Chancellor of the Duchy shall direct, and such sum shall be deducted from the salary and travelling allowance of the judge appointed to succeed the deceased judge; and the provisions of this section shall apply to all acts done by any deputy prior to the commencement of this act.
12. The appointment of a deputy of a registrar shall not be vacated by the death or removal of the registrar, but his acts done after such death or removal shall be as valid as if the registrar had not died or been removed, and he shall continue to act until a successor to such registrar shall be appointed; and he shall receive as remuneration for his services during the period he may so act after the death or removal of the registrar a rateable proportion of the salary attached to the office of registrar.
13. On the death or removal of a registrar who shall not have appointed a deputy the judge may, for a period not exceeding three months, provisionally appoint a person to discharge the duties of registrar; and such person shall act as and have all the rights and liabilities of a registrar until a permanent successor shall be appointed; and shall receive as remuneration for his services during the period he may so act a rateable propertion of the salary attached to the office of registrar.
14. The appointment of the bailiffs who are appointed to assist the high bailiff shall not be vacated by the death or removal of the high bailiff, but their acts done after such death or removal shall be as valid as if the high bailiff had not died or been removed, and had authorised such acts, and they shall continue to act until they shall be dismissed by the successor of the high bailiff or by the judge; and they shall be paid for their services during the period they shall so act after the death or removal of the high bailiff the same wages as they were receiving at the date of such death or removal, and such wages shall be paid out of the salary and allowance attached to the office of high bailiff.
15. The registrar of any county court may issue a summons against any defendant residing out of the jurisdiction of such court, at any time, upon the application of any plaintiff who will depose before such registrar that his cause of action has arisen within the jurisdiction of such court, in like manner as any judge of any county court has now power to issue any such summons.
16. On the death or removal of a high bailiff the judge may, for a period not exceeding three months, provisionally appoint a person to discharge the duties of high bailiff; and such person shall act as and have all the rights and liabilities of a high bailiff until a permanent successor shall be appointed, and shall receive as remuneration for his services during the period he shall so act a rateable pro
portion of the salary and allowances attached to the office of high bailiff.
17. A summons may be served, or a warrant executed, within five hundred yards of the boundary of the district of the county court from which the same issued by the bailiff of such court, or, by order of the judge of such court, by such bailiff within the district of any other court.
18. Where a plaintiff shall dwell or carry on business in the district of the Bloomsbury county court of Middlesex, or in the district of the Brompton county court of Middlesex, or in the district of the Clerkenwell county court of Middlesex, or in the district of the Lambeth county court of Surrey, or in the district of the Marylebone county court of Middlesex, or in the district of the Shoreditch county court of Middlesex, or in the district of the Southwark county court of Surrey, or in the district of the Westminster county court of Middlesex, or in the district of the Whitechapel county court of Middlesex, and the defendant shall dwell or carry on business in the district of any of the said courts, the summons may issue and be served either in the district in which the plaintiff shall dwell or carry on business, or in the district in which the defendant shall dwell or carry on business.
19. A judge proposing to sue any person dwelling or carrying on business in any district of which he is the judge may bring his action in the county court of any adjoining district of which he is not the judge; and any person proposing to sue a judge may bring his action in any county court of a district adjoining the district of which the defendant is judge.
20. 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, and that 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, notice whereof shall be sent by post or otherwise by the registrar of such last-mentioned court to both parties.
21. If an action be brought against an officer of a county court, the summons may issue in the district of which he is an officer, or in any adjoining district the judge of which is not the judge of a court of which the defendant is an officer.
22. If a judge of a county court shall be satisfied by either party to a cause pending in his court that such cause can be more conveniently or fairly tried in some other county court, he shall order that the venue be changed, and that the cause be sent for hearing to such other county court, or, if the judge shall be interested in the matter of any cause pending in his court, he shall order that the venue be changed, and that the cause be sent for hearing to some convenient county court of which he is not the judge, at his discretion; and in either case the registrar of the court in which the plaint was entered shall forthwith transmit by post to the registrar of the court to which the cause is to be sent a certified copy of the plaint, as entered in the plaint book, the
New Statutes effecting Alterations in the Law.
duplicate copy of the summons and particulars served on the defendant, and a certified copy of the order for changing the venue, and the judge of such lastmentioned court shall appoint a day for the hearing, notice whereof shall be sent by post or otherwise by the registrar to both parties.
23. The county courts shall not have jurisdiction to try any action for criminal conversation; but with respect to all other actions, which may be brought in any superior court of common law, if both parties shall agree by a memorandum signed by them or their respective attorneys that any county court named in such memorandum shall have power to try such action, such county court shall have jurisdiction to try the same.
24. Where in an action the debt or demand claimed consists of a balance not exceeding fifty pounds, after an admitted set-off of any debt or demand claimed or recoverable by the defendant from the plaintiff, the court shall have jurisdiction to try such action.
25. In an action in the county court in which the title to any corporeal or incorporeal hereditament, or to any toll, fair, market, or franchise shall incidentally come in question, the judge shall have power to decide the claim which it is the immediate object of the action to enforce, if both parties at the hearing shall consent in any writing signed by them or their attorneys to the judge having such power; but the judgment of the court shall not be evidence of title between the parties or their privies in any other action in that court or in any proceeding in any other court; and such consent shall not prejudice or affect any right of appeal of either of the parties to such first-mentioned action.
26. Where in any action of contract brought in a superior court the claim indorsed on the writ does not exceed fifty pounds, or where such claim, though it originally exceeded fifty pounds, is reduced by payment into court, payment, an admitted set-off, or otherwise, to a sum not exceeding fifty pounds, a judge of a superior court, on the application of either party, after issue joined, may, in his discretion, and on such terms as he shall think fit, order that the cause be tried in any county court which he shall name, and thereupon the plaintiff shall lodge with the registrar of such court such order and the issue; and the judge of such court shall appoint a day for the hearing of the cause, notice whereof shall be sent by post or otherwise by the the registrar to both parties or their attorneys; and after such hearing the registrar shall certify the result to the master's office of such superior court, and judgment in accordance with such certificate may be signed in such superior court.
27. No action shall be brought in a county court on any judgment of a superior court.
28. In any action in a county court for a debt or liquidated money demand exceeding twenty pounds, the plaintiff may, at his option, cause to be issued either a summons in the ordinary form, or a summons in the form or to the effect given in schedule (B.) to this act numbered (1); provided that if such lastmentioned summons be issued it shall be personally served on the defendant twelve clear days before he return day thereof, and then if the defendant shall not at least six clear days before such return day give notice in writing, signed by himself, his attorney or agent, to the registrar, of his intention to defend, the plaintiff may, on or within one month after such return day, without giving any proof of his claim, have judgment entered up against the defendant for the amount of his claim and costs,
such costs to be taxed by the registrar; and the order upon such judgment shall be for payment forthwith, or at such time or times, and by such instalments, if any, as the plaintiff or his attorney or agent shall in writing have consented to take at the time of the entry of the plaint.
29. If the defendant shall give such notice as in the last preceding section is specified, the action shall be heard in the ordinary course; but in any event the registrar shall, immediately after the last day for giving such notice, send a letter to the plaintiff by post, stating therein whether the defendant has or has not been served with such summons, and whether he has or has not given notice of his intention to defend.
30. Where an action of contract is brought in one of her Majesty's superior courts of record to recover a sum not exceeding twenty pounds, and the defendant in the action suffers judgment by default, the plaintiff shall recover no costs, unless upon an application to such court or to a judge of one of the superior courts such court or judge shall otherwise direct.
31. A judge of a county court, in any case where he shall see fit, upon application on affidavit by either party, may issue an order under his hand and the seal of the court for bringing up before such court any prisoner or person confined in any gaol, prison, or place, under any sentence or under commitment for trial or otherwise, except under process in any civil action, suit, or proceeding, to be examined as a witness in any cause or matter depending, or to be inquired of or determined in or before such court; and the person required by any such warrant or order to be brought before such court shall be so brought under the same care and custody, and be dealt with in like manner in all respects, as a prisoner required by any writ of habeas corpus awarded by any of her Majesty's superior courts of law at Westminster to be brought before such court to be examined as a witness in any cause or matter depending before such court, is now by law required to be dealt with: Provided always, that the person having the custody of such prisoner or person shall not be bound to obey such order, unless a tender be made to him of a reasonable sura for the conveyance and maintenance of a proper officer or officers, and of the prisoner or person in going to, remaining at, and returning from such county court.
32. The Lord Chancellor may appoint five county court judges, and from time to time fill up any vacancies in their number, to frame rules and orders for regulating the practice of the courts, and forms of proceedings therein, and from time to time to amend such rules, orders, and forms; and such rules, orders, and forms, or amended rules, orders, and forms, certified under the hands of such judges or any three or more of them, shall be submitted to the Lord Chancellor, who may allow or disallow or alter the same; and the rules, orders, and forms, or amended rules, orders, and forms, so allowed or altered, shall, from a day to be named by the Lord Chancellor, be in force in every county court.
33. With respect to proceedings in the county courts, in actions where the debt or damage claimed exceeds twenty pounds, the five county court judges mentioned in the last section shall be empowered to frame a scale of costs and charges to be paid to counsel and attorneys, and from time to time to amend such scale; and such scale or amended scale, certified under the hands of such judges or any three or more of them, shall be submitted to