PART I. Service of writ, and effect of. upon which they would arise, the court refused to set the writ aside, as it did not appear that those particulars were not pointed out to the judge at chambers (u). The granting of a rule nisi or summons for a certiorari will, if the court or a judge so direct, operate as a stay of proceedings in the cause until the determination of the rule, or until the court or judge otherwise orders; and the judge of the county court must from time to time adjourn the hearing of the cause to such day as he thinks fit. If, however, a copy of the rule or summons be not served by the party who obtained it on the opposite party and on the registrar of the county court two clear days before the day fixed for the hearing, the judge of the county court may order the party who obtained it to pay the costs of the day, or part of them, unless the superior court or judge has made some order respecting them (x). Where a writ of certiorari has been granted on an ex parte application, and the party who obtained it does not lodge it with the registrar, and give notice to the opposite party that it has issued, two clear days before the day fixed for hearing the cause, the judge of the county court may, in his discretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as he thinks fit, unless the superior court or a judge thereof has made some order respecting them (y). If the cause has been removed improperly, the opposite party should apply to the court or a judge for a writ of procedendo, which is a judicial writ issuing from the superior court, and commanding the judge of the county court to proceed with the cause (z). Service of Writ, and Effect of.]—The writ should be delivered as early as possible to the judge or registrar of the county court, so as to render all proceedings taken in that court after its service irregular and coram non judice (a). If the judge of the county court refuses to obey it, he is liable to an attachment for contempt (b). The effect of the service of the writ of certiorari is in (u) Golding v. Caudwell, 2 L. M. & P. 175. (x) 19 & 20 Vict. c. 108, s. 40, p. 405. (y) Ib. s. 41, p. 406. (z) Tidd's Prac. 410 (9th edit.). to the judge or officer of the court, before the jury appeared, or before one of them had been sworn; otherwise the inferior court might proceed with the cause; 43 Eliz. c. 5. (b) Mungeam v. Wheatley, 6 Exch. 88; S. C., 2 L. M. & P. 155; 15 Jur. 110; 20 L. J., Exch. 106. stantly to suspend the power of the county court in the CHAP. XIX. cause which it removes (c). Where the writ was left with a clerk at the registrar's office, it was held to be good service (d); but the court intimated that the strictly proper course to pursue, where there has been no personal service on the judge, and the cause does not come on for hearing until after the return-day, would be to rule the judge to return the writ (e). Where a defendant has removed from a county court, by certiorari under sect. 38 of 19 & 20 Vict. c. 108, a plaint for a sum not exceeding 51., the plaintiff is not bound to follow out his suit; and if he declines, the defendant cannot, after serving notice to declare, under sect. 53 of "The Common Law Procedure Act, 1852" (15 & 16 Vict. c. 76), sign judgment for want of a declaration, nor recover from the plaintiff the costs of removal (ƒ). Where a cause had been removed by certiorari from a county court and tried in a superior court, and the plaintiff recovered a verdict for less than 207. (g), the plaintiff was held to be entitled to costs on the higher scale, under the 7th direction to the masters of Hilary Term, 1853, inasmuch as in a cause so removed, no writ of trial could issue under sect. 17 of 3 & 4 Will. 4, c. 42. The power to issue a writ of trial is now abolished by 30 & 31 Vict. c. 142, s. 6. (c) Tidd's Prac. 404 (9th edit.); Cross v. Smith, 1 Salk. 148, 149; Fazacharly v. Baldo, 1 Salk. 352; Bevan v. Prothesk, 2 Burr. 1151; Mungeam v. Wheatley, ante. (d) Brookman v. Wenham, 2 L. M. & P. 233; S. C., 15 Jur. 249. (e) See Ib. (f) Garton v. Great Western Rail way Company, 1 E. & E., Q. B. 258; (g) Perry v. Bennett, 14 C. B., CHAPTER XX APPEAL. In what cases appeal lies. In what Cases Appeal lies.]—In all cases in which jurisdiction was given to the county court by statute 9 & 10 Vict. c. 95, the judgment of the court was final and conclusive between the parties (a), and no method of reviewing the judge's decision, whether in point of law or fact, existed. But now by sect. 13 of 30 & 31 Vict. c. 142, an appeal may be allowed in any case where the judge shall think it reasonable and proper that it should be allowed. In actions in which the debt or damage sought to be recovered is above 201., or in which title is in question (b), in actions of replevin where the rent or damage exceeds 20l., in actions for the recovery of tenements where the yearly rent or value of the premises exceeds 20l., in all actions of ejectment (c), and in proceedings in interpleader where the money claimed, or the value of the goods claimed, or of the proceeds thereof, exceeds 201., and in all actions where the parties agree that the court shall have jurisdiction, there is an appeal as of right. In these actions, if either party be dissatisfied with the determination or direction of the county court in point of law, or upon the admission or rejection of any evidence, he may appeal from the county court to any one of the superior courts of common law at Westminster (d). No appeal will lie, however, if, before the decision of the county court be pronounced, both CHAP. XX. parties agree, in writing signed by themselves or their attorneys or agents, that the decision of the judge shall be final (e). The court of appeal is constituted by two or more of the judges of the superior courts, sitting in, or out of term for the purpose (f). And the judges, or any five of them, may from time to time make orders for regulating the proceedings in appeals (g). An appeal will not lie, without leave, where the amount sought to be recovered by the plaint is under 207., although the objection is not taken until the case has been stated and has come on for hearing (h). As a general rule the right to appeal depends upon the amount of the plaintiff's claim, and not on the amount for which judgment is given (i). But if the nature of the case is such, that the judge of the county court cannot lawfully give higher damages than 20., there is no right of appeal, although the damages claimed are unliquidated and exceed 201. Thus in an action against a bailiff for omission to levy a debt and costs, amounting to 12l. 17s. 8d., in which the judge decided against the plaintiff, it was held that no appeal would lie, although he had claimed in his particulars 20l. 1s. (k). The power of appealing is confined, it will be observed, to those cases only in which one of the parties is dissatisfied with the "determination or direction of the court in point of law, or upon the admission or rejection of any evidence;" therefore, where there is no jury, and a judge finds certain facts, his finding, as that of all courts of inferior jurisdiction on questions of fact (1), is final and cannot be questioned. If the law and facts of a case are so mixed up in fey, 9 Exch. 315; S. C., 23 L. J., Exch. 89; Fraser v. Fothergill, 14 C. B. 295; S. C., 23 L. J., C. P. 53. Nor was there any appeal where jurisdiction had been conferred on the county court by consent, under 13 & 14 Vict. c. 61. See Groves v. Janssens, 9 Exch. 481; S. C., 23 L. J., Exch. 91. As to appeal in equitable proceedings, see post, Chapter XXIV. (e) 19 & 20 Vict. c. 108, s. 69, p. 404; 30 & 31 Vict. c. 142, s. 34, p. 353. The agreement does not require a stamp. Ib. (f) 13 & 14 Vict. c. 61, s. 14, p. 403; 15 & 16 Vict. c. 54, s. 2, p. 404. (g) 15 & 16 Vict. c. 54, s. 3, p. 404. See Reg. Gen., H. T., 16 Vict. (h) Blowers v. Rackham, 20 L. J., Q. B. 397; S. C., 15 Jur. 755. (i) Dreesman v. Harris, 9 Exch. 485; S. C., 23 L. J., Exch. 210. (k) Mayor v. Burgess, 4 Q. B. 655; S. C., 24 L. J., Q. B. 67. (1) Brittain v. Kinnaird, 1 B. & B. 432; 1 Will. Saund. 263 a. PART I. Notice of appeal. the judgment of the county court, that it is impossible to separate them so as to eliminate one of the above grounds of appeal, the decision cannot be reviewed (m). If an appeal is contemplated, any point which a party may rely on should be distinctly raised before the judge of the county court, since the court of appeal will allow such objections only to be argued as were made at the trial (n). Where the judge at the trial gives to either side leave to move, and afterwards gives judgment upon the question of law reserved, the party against whom he decides may then, but not before, appeal against the decision (o). The right of appeal exists only where there is a judgment of the court, and does not apply to an order of committal under sect. 99 of the 9 & 10 Vict. c. 95 (p); nor does it apply to the decision of the judge, on an interlocutory matter, as reviewing the registrar's taxation of costs (q). The party who is desirous of appealing may, before the rising of the court on the day on which judgment was pronounced, deliver to the registrar a statement in writing, signed by him, his counsel or attorney, containing the grounds of his dissatisfaction. In default of such statement being delivered, the successful party may proceed on the judgment, unless the judge otherwise orders; but the judge may direct proceedings to be taken on the judgment, notwithstanding such statement has been delivered. The party so dissatisfied may, however, appeal, on grounds different from those contained in this statement, and although he shall not have delivered any statement (r). Notice of Appeal.]-The party appealing must, within ten days after the determination or direction in the county court, give notice to the other party or his attorney (s). The ten days within which this notice may be given are reckoned exclusive of the day of trial (t). The notice of appeal must be in writing, and must state the grounds on which the party appeals (u). The sufficiency of this notice is a question, however, for the judge of the county court, (m) East Anglian Railway Company v. Lythgoe, 2 L. M. & P. 221; S. C., 20 L. J., C. P. 84; 15 Jur. 400; Cawley v. Furnell, 12 C. B. 249; S. C., 20 L. J., C. P. 197. (n) Watson v. The Ambergate, &c. Railway Company, 15 Jur. 448. (0) Foster v. Green, 6 H. & N. 793; S. C., 30 L. J., Exch. 263. (p) Rackham v. Blowers, 15 Jur. 758. (q) Carr v. Stringer, 1 E. B. & E. 123; S. C., 4 Jur., N. S. 439. (r) Rule 186. (s) 13 & 14 Vict. c. 61, s. 14, p. 403. (t) Rule 187. |