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fied that the summons has come to the knowledge of the defendant ten days before the hearing, and in his absence.
Rule 62. This rule requires the defendant, when he pays money into court, before the return day of the summons, to pay the fee for notice of payment to the plaintiff. At the end of the table of fees, the " notice of payment into court” is without any qualification stated to be a fee“ payable by the plaintiff.” This fee is however made payable by defendant before the return of the summons.
Rule 117 authorizes the deduction of this fee from the plaintiff, on all payments after order.
Rule 65 is an exceedingly good one, and disallows expenses of proving a document wherever the parties proving it have not availed themselves of the powers the rule gives of serving notice on the other party to inspect and admit it. The judge may adjourn the trial, moreover, to give time to do so. This will much facilitate the proof of such documents.
Rule 66, with equal propriety, provides facilities to plaintiffs to abandon suits, without further costs, after notice to defendants.
Rule 67. Where notice of set-off or of other defences has not been given, the omnipotent judge may adjourn the case, should the plaintiff refuse to allow the defendant to go into such defence then and there!
The following is a new rule:
Rule 74. “Where the defence is a tender, such defence shall not be available unless, before or at the hearing of the cause, the defendant pays into court (which may be without costs) the amount alleged to
The distinction between tenders and payment into court differs now only as regards the costs.
The following is another tolerably plenary power in the hands of Messieurs les Juges !
Rule 86. “Where anything required by the practice of the court to be done by either party, before or during the hearing, has not been done, the judge may, in his discretion, and on such terms as he shall think fit, adjourn the hearing, to enable the party to comply with the practice.”
Rule 89 enacts, that
“ No attorney shall be allowed to appear for any person in a county court, until he has signed a roll or book, to be kept by the clerk for that purpose, but no fee shall be payable for that purpose.”
This is rendered quite useless by the precious amendment in the new bill about to pass, that counsel, attorney, or any one else, may appear for any party to any suit.
The powers of amendment, their extent and importance, may be judged of by the following specimens :
Rule 94. “ Where a person other than the defendant appears at the hearing, and admits that he is the person whom the plaintiff intended to charge, his name may be substituted for that of the defendant, if the plaintiff consents, and thereupon the cause shall proceed as if such person had been originally named in the summons, and, if necessary, the hearing may be adjourned on such terms as the judge shall think fit, and the costs of the person originally named as defendant shall be in the discretion of the judge.”
Rule 104. “Where at the hearing a variance appears between the evidence and the matters stated in any of the proceedings in the county court, such proceedings may, at the discretion of the judge, and on such terms as he shall think fit, be amended, and such amendment, as well as amendments as to parties, when ordered, shall be made in open court, and during the sitting of the court.”
If the judge finds there are too many defendants or plaintiffs, or too few of the latter, the judge by a stroke of his pen can increase or lessen them accordingly, and proceed as usual, to use the words of Rule 101,"as if the proper persons had been originally made parties.'
Not only is the judge to have all kinds of power to do all manner of things, but he is required and compelled, as we read Rule 107, to interfere and “order” even in minor matters hitherto left to the discretion of the clerk; ex. gr.
Rule 107. “ The judge shall in each case direct what number of witnesses are to be allowed on taxation of costs, and their allowance for attendance shall be according to the scale in the schedule, unless otherwise ordered, but shall in no case exceed the allowances therein mentioned.”
Rule 111. This rule provides that the costs of " unproductive” warrants against the goods shall not be allowed against the defendant, unless, &c.
Rule 113 says that the costs of executed warrants shall be allowed, unless, &c.
Now a warrant may be executed, though perhaps unproductive, by reason of claims for rent, &c., after bailiff has been in possession three or four days.
Rule 124. This rule, as to concurrent executions issuing into different districts, may work great hardship on a defendant. It is possible that a debt and costs may be levied in two or three places by different high bailiffs. If so, how is the defendant to obtain redress for the damages he may sustain ?
The costs of witnesses, whether they have been summoned or not, or examined or not, are to be allowed, if the judge thinks proper. We quite agree with the learned County Court judge, whose appreciation of his jurisdiction was so accurate, that when he received a prohibition signed by Mr. Justice Patteson, he exclaimed, “Oh, I don't mind that; Mr. Justice Patteson does not half know what my powers are!” We firmly believe he does not, and we also believe that the three judges, who signed these New Rules, are much in the same state of blissful ignorance,
Here is a difficult requirement to observe.
Rule 129. “ Concurrent or successive summonses for commitment may be issued in the same district or in different districts by the several conrts thereof, provided that in no case shall a summons for commitment be issued, except by the court of the district wherein the party summoned then dwells or carries on business; and the costs of more than one summons shall not be allowed against the other party, unless by order of the judge.”
How is the clerk to the court, who issues the summons at his office, to ascertain whether the defendant lives in the district or not, and what is meant by concurrent summonses wbich are only to go to one district? The useful thing would be to allow them to issue together for several districts, so as to catch a defendant who was shifting his residence to evade it; and it is difficult to see the possibility of any hardship in it, the costs being allowed only for one summons.
Rule 130. “When a defendant does not dwell or carry on business
to a plaint, he shall not be liable to be committed at the hearing of such summons, whether he appears to such summons or not.”
This rule simply makes doubtful what the act made plain. It fails to specify when the defendant must so reside, &c., to make the summons available.
Rule 139. This rule is intended to facilitate payment to plaintiffs of the produce of their summonses issued into foreign districts; but in very many courts the clerk may not have “ any money in hand” whereout to pay the amount certified, and he can scarcely be expected to advance the money out of his own pocket, so that this rule may in numerous instances delay the plaintiff rather than otherwise.
Much extra trouble is imposed on the clerk of the court with regard to the accounts which he will be compelled to keep. The mode pointed out for keeping the cash book and ledger, and the forms of entries given by way of example, are likely to create
VOL. XV. NO. XXVIII.
great confusion, and render it extremely difficult, especially in courts of large business, to adjust the balances.
It may appear over punctilious to criticise the forms in the appendix; but they are drawn up with such extreme carelessness, that we cannot help giving one or two examples. In the form of commitment after judgment, the court is made to say that it has been proved to the judge's “ SATISFACTION” that the defendant has not answered to his “satisfaction,” among the other grounds of commitment.
In the summons to appear after judgment, the defendant is told that, if he does not appear at the hearing, he may be committed to gaol. Now the plain inference is, that if he does appear he will not be committed ; and it seems a very awkward thing, if not a very unfair one, after such notice to imprison him on other grounds.
There is urgent need for the revision of these Rules, which, with a little more pains, may be inade very useful, and a great, instead of a partial improvement on the old ones.
Notes of Leading Cases.
EQUITY. VENDOR AND PURCHASER—INTEREST-CONDITIONS OF SALE.
De Visme v. De Visme, 1 M‘N. & G. 336. The case of De Visme v. De Visme relates to the right of a vendor to claim interest upon purchase-money, and is important as overruling the judgment of Sir John Leach, V.C., in Esdaile v. Stephenson (1 Sim. & Stu. 122).
Where a time is specified for the completion of a contract, but the contract is not completed within the specified time, there equity, considering that as done which is agreed to be done, treats the estate as the property of the purchaser, and the purchase-money as the property of the vendor from the time fixed for the completion of the contract. Each becomes a trustee for the other. The vendor is entitled to interest on the purchase. money, the purchaser to the mesne rents and profits of the estate.
But as the rate of interest allowed by the court may exceed the value of the rents and profits, the court will in such a case consider to whom the delay was attributable, and if it be clearly made out to have been occasioned by the vendor, then, as no man may take advantage of his own wrong, the court gives the vendor no interest, but leaves him in possession of the interim rents.
Such is the general rule where there is merely a time fixed for the performance of the contract, and nothing specific is said as to the time from which interest is to run. It was followed by Sir John Leach, V. C., in Paton v. Rogers (6 Madd. 256), and in Monk v. Huskisson (4 Russ. 121); and by Lord Lyndhurst, C., in Jones v. Mudd (4 Russ. 118), and is expressly recognized even in Esdaile v. Stephenson.
The decision in Monk v. Huskisson carried the rule still further. The contract in that case contained an express stipulation as to interest, that if, by reason of any unforeseen or unuvoidable obstacles, the conveyances and assurances could not be prepared or perfected for execution on the day fixed for the completion of