written, and the said indemnity has been approved by Esq., one of the said Masters: Now the condition of the above-written bond or obligation is such that if the above-bounden E. F., G. H. and I. K., or some or one of them, or the heirs, executors or administrators of them, or of some or one of them, do and shall save harmless and keep indemnified the said A. B., his heirs, executors, administrators and assigns, and his and their lands and tenements, goods, and chattels, of, from and against all costs in the said action, and all costs of or occasioned by any reference to arbitration therein, and of any award thereon, on both sides respectively, and all judgments, rules, orders, executions, attachments, actions, suits, claims. and demands whatsoever, touching or relating to any such costs, or any part thereof respectively, and from all losses, claims, costs, charges and expenses, which he or they respectively may bear or incur by reason of the non-payment of any such costs as aforesaid, then the above-written bond or obligation to be void or else to remain in full force and virtue. 12. Application by Defendant to stay Proceedings in Action commenced without Plaintiff's Authority. [Formal parts as usual in application to Master] for an order that all further proceedings in this action be stayed, and this action be dismissed on the ground that the same was commenced and is being maintained without the plaintiff's authority, and that Mr. X. Y., the solicitor purporting to act for the plaintiff herein (d), do pay to the defendant. his costs of the action, including the costs of this application, to be taxed. Dated [&c., as usual]. 13. The like Application where Writ issued without Authority of Solicitor whose Name is indorsed thereon (e). [Formal parts as usual] for an order that all further proceedings in this action be stayed pursuant to R. S. C., Order VII., Rule 1, and that the plaintiff do pay to the defendant his costs of action including his costs of this application to be taxed. Dated [&c., conclude as usual]. I, L. M., of 14. Affidavit in support of above Application. [Title, &c., as usual.] the solicitor in this action for the above-named defendant C. D., make oath and say as follows : 1. On the day of : 19—, I, as such solicitor as aforesaid, (d) See Greilinger v. Gibbs, [1897] 1 Ch. 479; 66 L. J. Ch. 230. (e) See R. S. C., Ord. VII., r. 1, ante, p. 68, n. (a). caused an appearance to the writ of summons in this action to be entered for the said defendant, C. D., who (as I was informed by him and verily believe) had been previously served as a defendant with the said writ. 19, I served Mr. X. Y., of day of 2. On the the solicitor whose name was indorsed on the said writ as that of the solicitor to the plaintiff in this action, with a demand in writing, a copy whereof is now produced and shown to me, marked A., inquiring whether the said writ was issued by the said X. Y., or with his authority or privity. day of 3. On the —, 19—, I received from the said X. Y. e declaration, now produced and shown to me, marked B., stating that the said writ was not issued by the said X. Y., nor with his authority or privity. The signature to the said declaration is the signature of the said X. Y. Sworn [&c., as usual]. This affidavit is filed [&c., as usual]. 15. Application to Stay on Terms of Compromise (ƒ). [Formal parts as usual in application to Master] for an order [by consent] that all further proceedings be stayed, the parties having agreed to a compromise [or on the terms that (set out the terms)]. [And that the costs of and occasioned by this application be 16. Application to Stay until Payment of Costs of discontinued Action (g). See the form ante, p. 162, No. 8. 17. Application to dismiss Action as frivolous and reratious and an Abuse of the Process of the Court (h). [Formal parts as usual in application to Master] for an order that all further proceedings in this action be stayed on the grounds that the same is frivolous and vexatious, and an abuse of the process of the Court, and that the plaintiff pay to the defendant his costs of action and this application, to be taxed. (f) On Compromise.]-The Court has power to enforce a binding compromise entered into between the parties, and in the event of either party proceeding in contravention of the terms agreed on, all proceedings may be ordered to be stayed. (g) See note (g), ante, p. 162. (h) As frivolous and rexatious.]—Where an action is utterly groundless and without pretence, as where it is against a public officer for a breach of an alleged public duty, when it is clear that no such duty existed; or where there is a decision of the Court directly in point deciding that the action will not lie; the Court will, on the application of the defendant, stay all further proceedings in it. Unless the objection appears on the face of the writ of summons or statement of claim, the application must be supported by a strong affidavit showing the circumstances under which it is made. See 1 Pract. 14th ed. 372. 18. Summons to stay Proceedings under the County Courts Act, 1888, s. 157 (i). [Formal parts as usual in application to Master] for an order that all further proceedings in this action be stayed under the County Courts Act, 1888, s. 157, the same being brought in respect of a claim made to [or to the proceeds or value of] certain goods [or chattels] taken in execution under process [or in respect of alleged damage arising out of the execution of process] issued, on the day of last, from the county court of holden at at the suit of -, against, and the registrar of the said county court having, upon the application of the high bailiff, on the day of last, issued a summons under the said section, calling before the said county court, as well the said party issuing the said process as the plaintiff in this action, being the party making such claim, in order that the judge of such court might adjudicate and proceed thereon according to the said section* [and that the plaintiff do pay to the defendant the costs of all proceedings in this action after the issuing of the said summons as aforesaid, and also the costs of this application (k).] I, C. D., the above-named defendant, make oath and say as follows :— (i) Section 157 of this Act (51 & 52 Vict. c. 43) provides, with respect to process of execution issuing out of a county court, that, "if any claim shall be made to or in respect of any goods or chattels taken in execution, or in respect of the proceeds or value thereof, by any person, it shall be lawful for the registrar upon application of the high bailiff, as well before as after any action brought against him, to issue a summons calling before the court as well the party issuing such process as the party making such claim, and the judge shall adjudicate upon such claim, and make such order between the parties in respect thereof and of the costs of the proceedings, as he shall think fit, and shall also adjudicate between such parties, or either of them, and the high bailiff, with respect to any damage, or claim of or to damages, arising or capable of arising out of the execution of such process by the high bailiff, and make such order in respect thereof, and of the costs of the proceedings, as to him shall seem fit; and such orders shall be enforced in like manner as any order in any action brought in such court, and shall be final and conclusive as between the parties, and as between them or either of them and the high bailiff, unless the decision of the court shall be in either case appealed from; and upon the issue of the summons any action which shall have been brought in any court in respect of such claim, or of any damage arising out of the execution of such process, shall be stayed." (k) Omit from the asterisk if no proceedings have been taken since the issue of the summons in the county court. (7) The application should be made promptly after appearance being entered to the action, or after issue of the summons in the county court if issued after action brought. holden at 1. I am the high bailiff of the county court of day of 2. On the —, 19—, a warrant of execution, a copy whereof is now produced and shown to me, marked A., was issued under the seal of the said county court for the satisfaction of a judgment recovered therein by one G. H. against J. K. [or as the case may be]. 3. By virtue of the said warrant, I, as such high bailiff as aforesaid, on the day of 19-, entered the house of at- -, the door thereof being open, and goods of the said J. K. being therein, and seized certain goods as and for the goods of the said J. K. [state the taking in execution, &c., according to the facts]. 4. Afterwards, on the day of, 19-, A. B., the plaintiff in this action, claimed the said goods, and served on me a notice of his claim, a copy whereof is now produced and shown to me, marked B. 5. Thereupon I applied to the registrar of the said county court, and upon my application he issued a summons, dated the - day of, 19—, calling before the said court as well the said G. H. who issued the said process as the plaintiff A. B. A copy of the said summons is now produced and shown to me, marked C. day of 6. This action was commenced on the 19-, and is brought [entirely] in respect of the plaintiff's [alleged] claim in respect of the said goods so taken in execution as aforesaid, or of the proceeds or value thereof, or of [alleged] damage arising out of the execution of process aforesaid [and not otherwise]. Sworn [&c., as usual]. This affidavit is filed [&c., as usual]. 20. Summons under 7 Geo. 2, c. 20, s. 1, for staying Proceedings in Action for a Mortgage Debt, &c. [Formal parts as usual in application to Master] for an order that it be referred to one of the Masters to ascertain and compute the principal moneys and interest due to the plaintiff upon the mortgage, for which this action is brought, and also all such costs as the plaintiff may be entitled to in this behalf in respect of such mortgage, and that upon payment of the same to the plaintiff, or his solicitor, together with the costs of this action to be taxed, the money so paid shall be deemed and taken to be in full satisfaction and discharge of such mortgage, and all proceedings in this action stayed, and that the mortgaged premises, and the plaintiff's estate and interest therein, be assigned, surrendered or reconveyed at the cost and charges of the defendant, to such persons as he shall appoint, and that all deeds, evidences and writings in the custody or power of the plaintiff, relating to the title of such mortgaged premises, be delivered up to the defendant, or to such person or persons as he shall for that purpose nominate and appoint. 21. Summons to stay Proceedings under the Arbitration Act, 1889, s. 4, where Action brought is contrary to Agreement to refer Matters to Arbitration (m). [Formal parts as usual in application to Master (n)] for an order that all further proceedings in this action be stayed, pursuant to section 4 of the Arbitration Act, 1889, and that the plaintiff do pay to the defendant his costs of and occasioned by this action (including the costs of this application) to be taxed. 22. Affidavit in support thereof. [Title, &c., as usual.] I, C. D., the above-named defendant, make oath and say as follows :1. This action is brought to recover damages for an alleged breach of [or for moneys alleged to be payable under] the agreement in writing referred to in the indorsement on the writ of summons herein [or as the case may be, stating shortly the cause of action]. 2. The said agreement is now produced and shown to me and marked A. By the said agreement [or By an agreement in writing made on or about day of, 19, between the plaintiff and myself (or as the case may be)] it was [amongst other things] agreed [by clause thereof] that the [here set out the agreement to submit differences to arbitration, which, or a copy whereof, should be exhibited]. 3. The matters in dispute and difference in this action arose out of the said agreement [or as the case may be], and are matters within the scope of the said agreement to submit differences to arbitration, and are fit and proper to be referred to and decided by arbitration pursuant to the terms of the said agreement, and by arbitrators to be appointed thereunder. [It is often desirable, especially if the matters are at all complicated, to state concisely what are the matters in dispute, and to show clearly that the disputes arose before the commencement of the action, and that they are within the scope of the agreement to refer.] 4. There is no sufficient reason why the said matters should not be so referred and decided. (m) The Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4, provides that, "if any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a Judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order to stay the proceedings." (a) The Master has jurisdiction (Ord. LIV., r. 12a). |