CHAPTER X.

TRANSFER OF ACTION INTO ANOTHER DIVISION (a).

1. Summons for Transfer of Action from the King's Bench Division to another Division of the High Court.

[Formal parts as usual for application to Judge at Chambers (b)] for an order that upon the consent of the Lord Chancellor [or of the President of the Probate, Divorce and Admiralty Division] being obtained this action be transferred to the Chancery [or the said] Division of this Honourable Court. And that the costs of this application be

2. Order thereon.

[Formal parts as usual.] It is ordered that, subject to the consent of the Lord Chancellor [or of the President of the Probate, Divorce and Admiralty Division of the High Court of Justice] being first obtained, this action be transferred to the Chancery [or the Probate, Divorce and Admiralty] Division of the High Court of Justice [and assigned to Mr. Justice (c)]; and that the costs of this application be [costs in the cause].

3. Transfer after Order for Winding up or Administration.

By R. S. C., Ord. XLIX., r. 5, “When an order has been made by any Judge of the Chancery Division for the winding up of any company, or for the administration of the assets of any testator or intestate, the Judge in whose Court such winding up or administration shall be pending shall have

(a) By R. S. C., Ord. XLIX., r. 1, "Causes or matters may be transferred from one Division to another of the High Court, or from one Judge to another of the Chancery Division, by an order of the Lord Chancellor, provided that no transfer shall be made from or to any Division without the consent of the President of the Division." This Rule is not usually acted upon in the K. B. D., the practice being to apply to a Judge at Chambers under r. 3, infra.

By Ord. XLIX., r. 3, " Any cause or matter may, at any stage, be transferred from one Division to another by an order made by the Court or any Judge of the Division to which the cause or matter is assigned: provided that no such transfer shall be made without the consent of the President of the Division to which the cause or matter is proposed to be transferred."

(b) The application must be made to a Judge: the Master not having jurisdiction (Ord. LIV., r. 12 (c)).

(c) By Ord. XLIX., r. 7, “ Any cause or matter transferred from any other Division to the Chancery Division shall, by the order directing the transfer, be assigned to one of the Judges of that Division to be named in the order." The assignment must be obtained before the order is drawn up.

power, without any further consent, to order the transfer to such Judge of any cause or matter pending in any other Court or Division brought or continued by or against such company, or by or against the executors or administrators of the testator or intestate whose assets are being so administered, as the case may be."

By the Companies Winding-up Rules, 1892, r. 14 (1), "Where an order. has been made in the High Court for the winding up of a company on a petition presented on or after the 1st day of January, 1891, the Judge of the High Court shall have power, without further consent, to order the transfer to him of any cause or matter pending in any other Court or Division brought or continued against the company."

"(3) Provided always, that nothing in this Rule or in Order XLIX., r. 5, of the R. S. C., 1883, shall authorize the transfer of any action by a mortgagee or debenture-holder for the purpose of realizing his security, nor the transfer of any action which is not brought to enforce payment of a debt or demand provable in the winding up."

4. Transfer after Receiving Order in Bankruptcy.

By the Bankruptcy Act, 1883, s. 102 (4), “Where a receiving order has been made in the High Court under this Act, the Judge by whom such order was made shall have power, if he sees fit, without any further con sent, to order the transfer to such Judge of any action pending in any other Division brought or continued by or against such bankrupt."

CHAPTER XI.

THIRD PARTY PROCEEDINGS FOR CONTRIBUTION OR INDEMNITY.

1. Affidavit in support of Application for Leave to serve Third Party with Notice under Ord. XVI., r. 48 (a).

[Title, &c., as usual; see post, "Affidavits."]

I, C. D., the above-named defendant, make oath and say as follows::1. This action is brought against me by the above-named plaintiff for [here state concisely the nature of the plaintiff's claim]. 2. I entered an appearance herein on the the plaintiff on the delivered his statement of claim. I have not yet delivered my defence [stating what proceedings have been taken].

day of

19-, and

and

of the

3. [State concisely the nature of the claim to contribution or indernnity that the defendant has against the third party, and the facts on which he bases it. This will, of course, vary with the facts of each particular case. Sufficient should be stated to show a clear primâ facie right to the contribution or indemnity sought; for instance:] By an indenture, dated made between myself of the one part and T. P., of other part, the said 7. P. covenanted to indemnify me against the plaintiff's said claim herein. The said indenture is now produced and shown to me, marked A. [or By an indenture, dated, and made (&c., as above), I assigned the said lease, upon the covenants whereof I am sued herein, to the said T. P.; and the alleged breaches of covenant occurred, if at all, after such assignment and whilst the said T. P. held the said premises thereunder; and I am advised and verily believe that he is liable to indemnify me against the plaintiff's claim herein in respect of such alleged breaches. Or, The said bill of exchange sued on herein was accepted by me wholly for the accommodation of T. P. of

and not otherwise; and I claim to be indemnified by the said T. P. against the plaintiff's said claim herein].

(a) By R. S. C., Ord. XVI., г. 48, "Where a defendant claims to be entitled to contribution or indemnity over against any person not a party to the action, he may, by leave of the Court or a Judge, issue a notice (hereinafter called the third party notice) to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice shall be filed with the proper officer and served on such person according to the rules relating to the service of writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a Judge, be served within the time limited for delivering his defence. Such notice may be in the form or to the effect of the form No. 1 in Appendix B., with such variations as circumstances may require, and therewith shall be served a copy of the statement of claim, or if there be no statement of claim, then a copy of the writ of summons in the action." The application is made to a Master ex parte on affidavit.

[4. If any special order as to service of the notice is desired, state the facts relied on in support of the application therefor. Or they may be stated in a separate affidavit.]

Sworn [&c., as usual; see post," Affidavits "].

2. Order giving Defendant Leave to serve Third Party with Notice (b).

Upon hearing

[Title, &c., as usual.]

and upon reading the affidavit of day of, 19— [and

-] :

filed the

It is ordered that the defendant [C. D.] be at liberty to issue a notice claiming contribution [or indemnity] over against T. P., pursuant to the Rules of the Supreme Court, Order XVI., Rule 48.

(Add any terms which the Master may think fit to impose. If any particular order as to service of the notice is applied for and obtained, it should be added, and so should any directions as to appearance rendered necessary thereby. For leave to serve out of the jurisdiction apply to the Judge in Chambers.)

3. Notice by Defendant under Ord. XVI., r. 48, claiming Contribution or Indemnity against a Person not a Party to the Action (c).

.Defendant.
day of

19-.

To Mr. T. P. (the party to be served), of

Take notice that this action has been brought by the plaintiff against the defendant [set out concisely the nature of the plaintiff's claim, e.g., as surety for M. N. on a bond conditioned for payment of £2,000 and interest to the plaintiff].

The defendant claims to be [set out the nature of the defendant's claim against the third party and the grounds of it, as for example: entitled to contribution from you to the extent of one-half of any sum which the plaintiff may recover against him, on the ground that you are his co-surety under the said bond, or also surety for the said M. N., in respect of the

(b) In practice the order is not usually drawn up (see Ord. LII., r. 14), unless it gives leave for substituted service, or service out of the jurisdiction.

(e) This form is framed from that given in R. S. C., App. B., No. 1; some unnecessary repetition being omitted. Its use is sanctioned by Ord. XVI., r. 48, supra, p. 208.

C.F.

14

same matter, under another bond made by you in favour of the said plaintiff, dated the

day of

19—].

[Or as acceptor of a bill of exchange for £500, dated the day of -, 19-, drawn by you upon and accepted by the defendant, and payable three months after date.

The defendant claims to be indemnified by you against liability under the said bill, on the ground that it was accepted for your accommodation.] [Or to recover damages for a breach of contract for the sale and delivery to the plaintiff of 1,000 tons of coal.

The defendant claims to be indemnified by you against liability in respect of the said contract, or any breach thereof, on the ground that it was made by him on your behalf and as your agent.]

[Add, where the claim can be sustained, And also take notice that the defendant claims to be entitled to contribution (or indemnity) from you in respect of any costs to be recovered in this action by the plaintiff against the defendant (and also any costs, charges and expenses which the defendant may incur in or about defending this action or enforcing his said claims against you for contribution, or indemnity) to the extent of the whole (or one half, or as the case may be) of such costs (charges and expenses) on the grounds aforesaid (or on the ground that).]

And take notice that, if you wish to dispute the plaintiff's claim in this action as against the defendant C. D. or your liability to the defendant C. D., you must cause an appearance to be entered for you within eight days after service of this notice.

In default of your so appearing, you will be deemed to admit the validity of any judgment obtained against the defendant C. D., and your own liability to contribute or indemnify to the extent herein claimed, which may be summarily enforced against you pursuant to the Rules of the Supreme Court, 1883, Order XVI., Part VI. (Signed) C. D.

Or, X. Y., of

Solicitor for the defendant C. D.

Appearance to be entered at the Central Office of the Royal Courts of Justice, Strand, London.

[The address for service of the said C. D. (or X. Y.) is

-.]

4. Appearance by Third Party (d).

[Title, &c., as in notice, ante, p. 209, No. 3.]

Enter an appearance for T. P. to the notice issued in this action on the

day of 19—, by the defendant [C. D.] under the Rules of the Supreme Court, 1883, Order XVI., Rule 49.

Dated the

day of

19

(Signed) X. Y.,

(d) Appearance by the Third Party.]—By R. S. C., Ord. XVI., r. 49, “If a person not a party to the action, who is served as mentioned in Rule 48 (hereinafter called the