10. Order, and Præcipe, for Prohibition to Mayor's Court, London. Use the title given in the preceding form, and adapt forms Nos. 5 and 6, ante, pp. 793, 794.

11. Writ of Prohibition to the Mayor's Court, London.

[Title, &c., as in form No. 9, supra.]

Edward the Seventh, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith:

To the Mayor and Aldermen of the City of London, and to the judge of the Mayor's Court, London, and to A. B. [name of plaintiff]: Whereas we have been informed that you the said A. B. have entered an action against C. D. in our court holden before you the said Mayor and Aldermen of the City of London, in the outer chamber of the Guildhall, and that the said court have no jurisdiction in the said action or to hear or determine the same by reason that [&c., stating the ground on which the court is alleged to have acted without jurisdiction]: We therefore hereby prohibit you from further proceeding in the said action in the said court. Witness Lord High Chancellor of Great Britain, the This writ was issued by X. Y., of

C. D.

day of

A.D. 19-. solicitor for the within-named

12. Prohibition to other inferior Courts (t).

Adapt the preceding forms Nos. 1 or 8 (Affidavit); No. 2 (Summons); No. 5 (Order); No. 6 (Præcipe for Writ); Nos. 7 or 11 (Writ): describing the inferior court by its proper title.

13. Pleadings in Prohibition (u).

By R. S. C., Ord. LXVIII., r. 3, "Where pleadings in prohibition are ordered, the pleadings and subsequent proceedings, including judgment and assessment of damages if any, shall be, as nearly as may be, the same as in an ordinary action for damages."

Pleadings in prohibition to a county court are no longer allowable (County Courts Act, 1888, s. 128, ante, p. 793, n. (k)); and in cases where they are still allowable, they are now seldom allowed (r), as an appeal from an order granting or refusing prohibition in civil proceedings lies from

(t) As to the Salford Hundred Court, see Payne v. Hogg, [1900] 2 Q. B. 43. (u) See 2 Pract. 14th ed. 1542.

(x) See Serjeant v. Dale, 2 Q. B. D. 568; Martin v. Mackonochie, 3 Id. 783; Toomer v. L. C. & D. R. Co., 2 Ex. D. 458.

a Judge in Chambers to a Divisional Court, and from a Divisional Court to the Court of Appeal without leave (y).

For forms of pleading formerly used, see the 10th edition of this work, p. 795. See also the forms in L. J. S. Bank v. Mayor of London, 1 C. P. D. 1, 5 Id. 494, 6 App. Cas. 393; S. E. R. Co. v. Rail. Commrs., 41 L. T. 760, 44 Id. 203.

(y) Barton v. Titchmarsh, 49 L. J. Ex. 573; Lister v. Wood, 23 Q. B. D. 229; The Recepta, [1893] P. 255.

CHAPTER III.

TRANSFER OR REMISSION OF PROCEEDINGS TO COUNTY COURT.

PAGE

SECTION I. Transfer of Action of Contract (C. C. Act, 1888, s. 65) 798 II. Transfer of Action of Tort (C. C. Act, 1888, s. 66) . 802 III. Transfer of Interpleader Proceeding

.808

SECTION I.-TRANSFER OF ACTION OF CONTRACT (a).

1. Order remitting Action of Contract, upon Plaintiff's Application for Judgment under R. S. C., Ord. XIV.

[See form No. 18, ante, p. 95.]

(a) Action of Contract.]—By the County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 65, "Where in any action of contract brought in the High Court the claim indorsed on the writ does not exceed one hundred pounds, or where such claim, though it originally exceeded one hundred pounds, is reduced by payment, an admitted set-off, or otherwise to a sum not exceeding one hundred pounds, it shall be lawful for either party to the action, at any time, if the whole or part of the demand of the plaintiff be contested, to apply to a Judge of the High Court at Chambers, to order such action to be tried in any court in which the action might have been commenced, or in any court convenient thereto; and on the hearing of the application the Judge shall, unless there is good cause to the contrary, order such action to be tried accordingly ; and thereupon the plaintiff shall lodge the original writ and the order with the registrar of the court mentioned in the order, who shall appoint a day for the trial of the action, notice whereof shall be sent by post or otherwise by the registrar to both parties or their solicitors, and the action and all proceedings therein shall be tried and taken in such court as if the action had been originally commenced therein and the costs of the parties in respect of proceedings subsequent to the order of the Judge of the High Court shall be allowed according to the scale of costs for the time being in use in the county courts, and the costs of the order and all proceedings previously thereto shall be allowed according to the scale of costs for the time being in use in the Supreme Court."

An action for unliquidated damages for breach of contract cannot be remitted under this section (Bassett v. Tong, [1894] 2 Q. B. 332); nor can an action for a liquidated claim originally exceeding £100, unless it be reduced to £100 or less by a payment made before action brought (Hodgson v. Bell, 24 Q. B. D. 525; Dierken v. Philpot, [1901] 2 K. B. 380), or by an admitted set-off for which the plaintiff gives credit in the indorsement on his writ (Hubbard v. Goodley, 25 Q. B. D. 156 ; see Lovejoy v. Cole, [1894] 2 Q. B. 861).

An action to which the section applies may be remitted thereunder to any county court in which it "might have been commenced" (Curtis v. Storin, 22 Q. B. D. 513) under the C. C. Act, 1888, s. 74, either as of right or by leave (Burkill v. Thomas, [1892] 1 Q. B. 312). The action may be remitted, upon the defendant's application, although the defendant seeks to set up a counter-claim for unliquidated damages

2. Application to remit Action of Contract (b).

[Formal parts as usual in application to Master] for an order that this action be tried in [or remitted to, or transferred to] the county court of holden at [or in such other county court, convenient thereto, as the Master may direct], pursuant to the County Courts Act, 1888,

section 65.

Dated [&c., conclude as usual].

3. Order thereon (c).

[Title, &c., of action as usual.]

Upon hearing [the solicitors on both sides] [and upon reading

affidavit of A. B., filed the

the

day of -, 19-]: It is ordered that this action be transferred to [or remitted to, or tried in or before] the county court of, holden at [pursuant to the County Courts

Act, 1888, section 65]. And that the costs of and occasioned by this application be [costs in the cause]. Dated the

day of

19-.

4. Particulars of Plaintiff's Demand or Cause of Action (d). In the County Court of

--, holden at

Between A. B.

[Address and description],

and C. D.

[Address and description].

Being an action of contract commenced in the High Court of Justice, and sent by order of a Judge at Chambers [or Master or District Registrar],

(Guildford v. Lambeth, [1894] 2 Q. B. 832; [1895] 1 Q. B. 92; Morgan v. Bullen, 11 Times L. R. 153), but a counter-claim cannot be remitted, unless the action be alive and be also remitted (Delobbel-Flipo v. Varty, [1893] 1 Q. B. 663).

(b) See supra, n. (a).

(c) This form is framed from that given in R. S. C., App. K., No. 44. The order does not operate as a transfer of the action until the plaintiff lodges the writ and order with the county court registrar, pursuant to the C. C. Act, 1888, s. 65 ante, p. 798, n. (a); see D'Errico v. Samuel, [1896] 1 Q. B. 163; Hemming v. Davies, [1898] 1 Q. B. 660. As soon as the action has been transferred, the High Court ceases to have any jurisdiction over it (Harris v. Judge, [1892] 2 Q. B. 565; Duke v. Davis, [1893] 2 Q. B. 260).

(d) By the County Court Rules, 1889, Ord. XXXIII., r. 1, "Where, by order of the High Court of Justice, any action or matter is remitted or transferred to a county court, the plaintiff shall lodge with the registrar thereof the order, or a duplicate thereof, and the writ, together with the pleadings, affidavits, and other documents filed in the High Court, or copies thereof, and also a copy or copies of any affidavit or affidavits on which the order was made, and also a statement of the names and addresses of the several parties to the action or matter, and their solicitors, if any, and

under section 65 of "The County Courts Act, 1888," to be tried in this Court.*

This action is brought for [state the particulars of the plaintiff's demand or cause of action, according to the facts, adding:] Above are the particulars of the plaintiff's demand [or cause of action].

Dated this day of

To the registrar of the court

and to the defendant.

5. Plaintiff's Particulars as to Parties (e).

[Follow the preceding form down to the asterisk, *, and then say :] The following are the particulars of the names and addresses of the several parties to this action, and their solicitors. Viz. :- [Here insert the particulars.]

Dated [&c., as in the preceding form].

6. Notice by Defendant of Special Defence (ƒ).

[Follow form No. 4 down to the asterisk, *, and then say :]

Take notice that the defendant intends at the hearing of this action to give in evidence and rely upon the following ground of defence :

[Here state the defence as in the forms, infra.]

a concise statement of the particulars of claim, such as would be required upon entering a plaint, signed by the plaintiff or his solicitor, and the registrar shall thereupon enter the action or matter for trial and give notice to the parties of the day appointed for such trial, by post or otherwise, ten clear days before such day, and shall annex to the notice to the defendant a copy of the particulars." The above form, No. 4, follows that given in the C. C. Rules, App., No. 72.

By r. 2, "The 1egistrar shall forthwith indorse on the order, or duplicate thereof, the date on which the same was lodged and file the same, and the action or matter shall proceed in all things as if it were an ordinary action in the court. No notice of defence under Order X. shall be required where statement of defence has been delivered in the High Court."

By r. 3, "Upon being served with a notice of trial under Rule I. of this Order, a defendant shall proceed in all things in the same way as if the action had been brought in the county court, and the notice so served upon him was an ordinary summons."

(e) These particulars are required by the C. C. Rules, 1888, Ord. XXXIII., r. 1, supra, p. 799, n. (d). There seems to be no reason why they should not be incorporated in the preceding form.

(f) See the C. C. Act, 1888. s. 82, and the C. C. Rules, 1889, Ord. X. The above form, No. 5, is framed from that in the C. C. Rules, 1889, App., No. 95. The notice is not required where a defence has been delivered in the High Court (C. C. Rules, 1889, Ord. XXXIII., r. 2, supra, n. (d)).