PART I. Defendant. Executors. Joint defend ants. compelled, as in the superior courts, to sue by prochein amy or guardian, but may prosecute such action in the same manner as if he were of full age (a). When he is suing for any cause of action, other than the above, the same advantage is not given him; but, at the time of entering the plaint, he must attend with his next friend at the office of the registrar, and no plaint may be entered until the next friend has undertaken, in the form given in the schedule to the rule (b), to be responsible for costs. On entering into such undertaking, he is liable in the same manner and to the same extent as if he were a party in an ordinary suit, and the cause proceeds in the name of the infant by such next friend, the undertaking being filed by the registrar. No order of court is necessary for the appointment of such next friend. If the plaintiff fail in, or discontinue his suit, and does not pay the amount of costs awarded by the court to be paid by him to the defendant, such amount may be recovered from the next friend, in the same way as any debt or damage ordered to be paid by the same court can be recovered (c). Where an infant is defendant, he must, as in the superior courts, appear by guardian. 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 may be 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 may appoint the registrar of the court to be guardian, and the cause may proceed thereupon as if another person had been appointed guardian, and the name of the guardian appointed must be entered in the form in the schedule; no responsibility, however, attaches to the person so appointed guardian (d). Executors.1-Executors or administrators may sue and be sued in like manner as if they were parties in their own right (e). Joint Defendants.]—Where there is a demand against (a) 9 & 10 Vict. c. 95, s. 64. (b) Rule 4. See form 1, App. (d) Rule 116. App. See forms 51, 52. (e) 9 & 10 Vict. c. 95, s. 66. See as to actions by and against executors, post, Chap. IX. See also as to where the proceedings may be amended when an error has been made. Rules 120, 121. two or more defendants who are jointly liable, it is sufficient to serve one with process, leaving out the others, and judgment and execution may go against the defendant or defendants served, who, when the judgment has been satisfied, may recover contribution from any persons jointly liable (ƒ). Where a plaintiff avails himself of this provision, and proceeds only against one or more of several joint contractors, the defendant or defendants sued may avail himself or themselves of any set-off or other defence to which he or they would be entitled if all the joint contractors were made defendants (g). It should be remembered, that as by law a judgment against one of several joint contractors extinguishes the obligation of the others, such a judgment may be made available to the defendant or defendants, or any other of the joint contractors, in the same or in any other county court or county courts, if sued jointly or severally on such joint contracts (h). CHAP. V. Seal of Court.]-Every summons and process issuing Seal of court. out of the court is sealed with the seal of the court (i). Plaint.]-All actions are commenced by plaint. The Plaint. plaint must be entered at the court in the district of which Entry. the defendant or one of the defendants dwells or carries on business, or by leave of the judge or registrar in that of the district in which he shall have dwelt or carried on his business at some time within six calendar months next before the entry of the plaint, or where the cause of action wholly or in part arose (j), except where the plaintiff In the metrodwells or carries on business within one of the metropoli- politan distan districts, or in the city of London, and the defendant (f) 9 & 10 Vict. c. 95, s. 68. (g) Rule 117. This is in accordance with the holding of the superior courts, that, in an action against one of two joint contractors, a plea by the defendant that the promises were made by him jointly with another and a set-off of a debt due from plaintiff to defendant and such other person jointly, is a good answer to the action. Stackwood v. Dunn, 3 Q. B. 822. See also in the case of a partner allowed by the firm to appear as the sole owner of partnership property. See Gordon v. Ellis, 2 C. B. 821. It must be shown, however, in such a case that the other partners were in some default, (h) King v. Hoare, 13 M. & W. (i) 9 & 10 Vict. c. 95, s. 57. tricts. PART I. Where plaintiff infant. Where jurisdiction extended by agreement. dwells or carries on business within any one of those districts, or within the city of London, when the summons may issue either in the plaintiff's or defendant's district (k). A plaintiff may sue in the metropolitan district in which he dwells, although he has only taken a lodging within it for the express purpose of so suing (1). On the application of any person desirous to bring an action, the registrar enters the plaint in a book kept in his office, stating the names and last known places of abode of the parties, and the substance of the action, every plaint being numbered according to the order in which it is entered (m). If the plaintiff does not reside in England, he must give security for costs to the satisfaction of the registrar (n). If the plaintiff is unacquainted with the defendant's christian name, he may be described in the summons by his surname, or by his surname and the initial of his christian name, or by the name by which he is generally known; and in the event of the plaintiff or defendant not appearing, the proceedings under sects. 79 and 80 of the 9 & 10 Vict. c. 95 (which provide for proceedings in the absence of the plaintiff or defendant), may be taken as if the true christian name and surname had been stated in the summons, and all subsequent proceedings thereon may be taken in conformity with such description (o). The mode of proceeding where an infant enters a plaint, will be found ante, p. 65. In cases in which the parties have agreed that the court shall have power to try actions in respect of which it has not otherwise jurisdiction, the memorandum of agreement required by the act (p) must be filed with the registrar at the time of filing the plaintiff's demand (q). The plaint in these cases is entered, and the summons issues thereon, as in other cases; and all the rules of practice applicable to other proceedings within the jurisdiction are adopted in these (r). (k) 19 & 20 Vict. c. 108, s. 18, and 30 & 31 Vict. c. 142, s. 3. In Waterlow v. Dobson, 8 E. & B. 585; S. C., 27 L. J., Q. B. 55, it was held that the 19 & 20 Vict. c. 108, s. 18, was an enabling act, and that it did not restrict a plaintiff's right to sue in the superior court where there was concurrent jurisdiction. (1) Massey v. Burton, 2 H. & N. 597; S. C., 27 L. J., Exch. 101. business. Dwelling or carrying on Business.]—The plaint, it will CHAP. V. be observed, must ordinarily be entered at the court in Dwelling or the district of which the defendant or one of the defen- carrying on dants dwells or carries on business. Under the repealed section, which gave concurrent jurisdiction if the plaintiff dwelt more than twenty miles from the defendant, it was held that where the plaintiff had a permanent dwelling more than twenty miles from the defendant the superior courts had concurrent jurisdiction, although the plaintiff had also lodgings or resided for a temporary purpose, at the time when the action was brought, within twenty miles of the defendant (s). And where the plaintiff or defendant had two permanent places of residence, one less the other more than twenty miles from the other party, and at the time of the action was living at the latter: it was held, a case of concurrent jurisdiction (t). For that section was satisfied by showing that the plaintiff dwelt beyond the twenty miles, though he might also have a dwelling within it. And these decisions evidently apply where, as under the present section, the question is whether the defendant dwells within the district of the court. Where the defendant had no permanent place of residence, it was held, under the concurrent jurisdiction section, that he must be taken to dwell at the place where he was temporarily residing (u). A corporation or joint-stock company dwells at the place where its business is carried on (x). "Carrying on his business" means more than a mere employment; therefore a clerk in a public office does not carry on his business at the office where he performs his duties (y); nor could a foreman or shopman be said to (8) Macdougal v. Paterson, 2 L., M. & P. 681; S. C., 21 L J., C. P. 27; Marsh v. Conquest, 17 C. B., N. S. 432. (t) Butler v. Atlewhite, 6 C. B., N. S. 740; S. C., 28 L. J., C. P. 292; Pigrim v. Knatchbull, 18 C. B., N. S. 798; S. C., 24 L. J., C. P. 257; Adams v. Great Western Railway Company, 6 H. & N. 404; S. C., 30 L. J., Exch. 124. See, however, Bailey v. Briant, 1 E. & E. 340; S. C., 28 L. J., Q. B. 86, decided upon the City Small Debts Court Act. (u) Alexander v Jones, 4 H. & C. 204; S. C., 1 L. R., Exch. 133; 35 L. J., Exch. 78. (x) Taylor v. The Crowland Gas Company, 11 Exch. 1; S. C., 24 L. J., Exch. 233; Keynsham Blue Lias Lime Company v. Baker, 2 H. & C. 729; S. C., 33 L. J., Exch. 41; Oldham Building Company v. Heald, 3 H. & C. 132. See also Sheils v. Rait, 7 C. B. 116, as to the meaning of "dwells." (y) Buckley v. Hann, 5 Exch. 43; S. C., 19 L. J., Exch. 151; 14 Jur. 226; Rolfe v. Learmouth, 14 Q. B. 196; S. C., 19 L. J., Q. B. 10; Glennie v. Delmar, 1 L., M. & P. 402; S. C., nomine Sangster v. Cave, 19 L. J., Exch. 431. PART I. Misnomer. Particulars of demand. carry on his business at his master's shop (z). A railway company cannot be said to carry on their business at any place other than at their principal office, and they cannot, therefore, be properly sued in the county court of a district, where they have a large, but not their principal, station (a); or where they have merely a receiving office for parcels which conducted by an agent (b). A pier company was held to carry on its business not at the place where the pier was situated, but at its central office in London (c). A company incorporated for the manufacture and sale of goods carries on its business at the place of manufacture and sale, not at its registered offices (d). In an action against the General Steam Navigation Company, as common carriers by water, for the loss of goods received to be carried from London to Newcastle, they having an agent at the latter place who carried on business for them, and also for others, as a general wharfinger: it was held, under the concurrent jurisdiction section, that the plaintiff was entitled to his costs, although he recovered less than 201. (e). A surgeon carries on his business in a district where he visits his patients, although he does not reside in it (f). The cases as to suing a debtor who resides out of the jurisdiction, for a cause of action which arose within it, will be found post, p. 73. Misnomer.]-Neither plaint nor summons is vitiated by misnomer or inaccurate description of person or place, so that the person or place is described so as to be commonly known (g). As to the description of the defendant by initials, ante, p. 68. Particulars of Demand.]-The plaintiff, on entering the plaint, must in all cases, where the sum sought to be (z) See per Rolfe, B., in Glennie v. Delmar, ante. (a) Re Brown v. London and North Western Railway Company, 4 B. & S. 326. (b) Minor v. The London and North Western Railway Company, 1 C. B., N. S. 325; S. C., 26 L. J., C. P. 39; 20 Jur. 1168. (c) Aberystwith Promenade Pier Company v. Cooper, 35 L. J., Q. B. 44. (d) Keynsham Blue Lias Lime Company v. Baker, 2 H. & C. 729; (e) Corbett v. General Steam Navigation Company, 4 H. & N. 482; S. C., 28 L. J., Exch. 214; Shiels v. Great Northern Railway Company, 30 L. J., Q. B. 331. (f) Mitchell v. Herder, 23 L. J., Q. B. 373. (g) 9 & 10 Vict. c. 95, s. 59. |