Order XXXIII. rule 42. Order XXXIII. rule 43. Order XXXIII. rule 44. Summons for attendance of assessors. Order XXXIII. rule 45. Form of summons. Fine for nonattendance. Form of fine. Remuneration to assessors. Order XXXIII. rule 46. cases where the claim exceeds £100. Provision for the payment of such fees (there being two assessors in each case) is contained in the rules following "Every solicitor requiring the Judge to be assisted by two "assessors shall, at the time of delivering the præcipe, pay to "the registrar the sum of two guineas if the amount claimed "does not exceed £100, and four guineas if it does exceed "that amount, and such payments shall be considered as costs "in the action, unless otherwise ordered by the Judge.”—Order XXXIII. r. 42. "Where the Judge requires the assistance of two assessors, "the above fees shall be paid by the plaintiff or his solicitor "before the trial, and shall be costs in the action, unless other"wise ordered by the Judge."-Order XXXIII. r. 43. "Where an action is adjourned, the plaintiff shall pay the "assessor's fees for the day of adjournment forthwith after "the order of adjournment is made by the Court."-Order XXXIII. r. 44. When the attendance of assessors is required, the registrar, on the filing of the required præcipe by the party, or on the order of the Judge, selects the names of two persons and summons them to attend. "Upon the delivery of the aforesaid præcipe or upon the order "of the Judge as last aforesaid, the registrar shall select from "the list of assessors the names of two persons whom he may, "having reference to the nature of the action to be tried, "consider most capable of assisting the Judge in trying and "determining it, and shall send to each of such persons by post a summons in the form annexed."-Order XXXIII. r. 45. 66 The form of the summons to an assessor will be found in the Appendix (p). If an assessor, properly summoned, does not attend he is liable to be fined. A form of order fining an assessor for non-attendance is provided (q). The remuneration of assessors who duly attend in accordance with the summons is provided for as follows: "The registrar of the Court shall pay to every assessor for "each day's attendance and service in every action one guinea or two guineas, according as the amount claimed in the "action does or does not exceed £100."-Order XXXIII. r. 46. 66 (p) Appendix II. Form 259. BOOK IV. JURISDICTION AND PROCEEDINGS IN ADMIRALTY CHAPTER II. TRANSFERS OF ADMIRALTY ACTIONS. Power of transfer to or from County Courts in IN the preceding Chapter the constitution of County Courts in Admiralty has been fully discussed. It is now necessary, before discussing the practice in such Courts, to consider what powers exist of transferring an action commenced in a County Admiralty. Court in Admiralty into the High Court of Justice, and of transferring Admiralty actions pending in the High Court of Justice into one of the County Courts in Admiralty. actions from High Court With reference to the power of the High Court to transfer Transfer of an Admiralty action pending in that Court into a County Admiralty Court in Admiralty, very few observations will suffice. As we have seen (a), a section in the Judicature Act, 1873 (b), pro- to County vides that the enactments contained in the seventh, eighth, and Court in tenth sections of "The County Courts Act, 1867," shall be Admiralty. applicable to all actions pending in the Court in which any relief is sought which could be obtained in a County Court. The sections just named all contain powers of transfer. And consequently it would appear that wherever an Admiralty action is pending in the High Court, seeking relief which could have been obtained in a County Court, there now exists a power to transfer such action into a County Court. In practice, however, it is believed that this power of transfer is never exercised. The practice in any case in which it may be sought to obtain such a transfer will of course be the same as in other cases of transfer under "The County Courts Act, 1867," and for the details of such practice reference must be made to that portion of this work in which the proceedings have been fully explained (c). Admiralty actions commenced in a County Court in Ad- Transfer of miralty are, on the other hand, not unfrequently transferred Admiralty from such County Court in Admiralty into the High Court of actions from County Court (a) Ante, p. 702. (b) 36 & 37 Viet. c. 66, s. 67. (c) See ante, Book III. cap. iv. p. 701, et seq. Justice. And, moreover, not only may an Admiralty action pending in a County Court, constituted as mentioned in the last chapter, be transferred into the High Court of Justice, but another County it may also be transferred into another County Court. in Admiralty to the High Court or to Court. Orders for transfer may High Court of Justice may order transfer of Admiralty action into that Court An order for the transfer of an Admiralty action to another County Court can only be made by a County Court. But an order for a transfer to the High Court may be made either (1.) By the High Court, or (2.) By a County Court. It thus becomes convenient to consider separately (1.) Transfers made under the order of the High Court; (2.) Transfers made by order of a County Court. SECTION I. TRANSFERS UNDER ORDERS OF THE HIGH COURT The High Court of Justice has power both to order a transfer of an action into that Court from a County Court in Admiralty or, on the other hand, as we have just seen (d), to order an Admiralty action pending in such High Court to be transferred into a County Court in Admiralty. The power of the High Court to transfer an Admiralty from a County action from a County Court into such High Court is conferred by "The County Court Admiralty Jurisdiction Act, 1868," which enacts as follows: Court in Ad miralty or vice versa. Power of High Court to transfer Admiralty action into High Court. 31 & 32 Vict. c. 71, s. 6. Who may apply for an order of transfer. In what cases be made. Service of order. 66 66 66 "The High Court of Admiralty of England, on motion by any party to an Admiralty cause pending in a County Court, may, if it shall think fit, with previous notice to the other party, transfer the cause to the High Court of Admiralty, "and may order security for costs, or impose such other terms as to the Court may seem fit."-31 & 32 Vict. c. 71, s. 6. It is to be noticed that the application under this section (1.) can, it seems (e), only be made by a party to the cause; (2.) by motion; (3.) previous notice of the transfer will be given by the High Court; and (4.) the order directing transfer will be made on such terms as to the High Court may seem fit. It may now be as well to make one or two remarks upon a transfer will when the power conferred by this section will be exercised. The cases on the subject are not numerous. It has been held that, under this section, the Admiralty Divisional Court may, on motion by any party to an Admiralty cause pending in a County Court, transfer such a cause to the said Divisional Court (f), notwithstanding that the suit may relate to matters over which the Court of Admiralty has not original jurisdiction (g). Whether, however, the power to transfer a cause can (d) Supra, p. 745. But see post, p. 749, remarks on Ord. XXXIII. Rule 10 of "The County (f) The Herman Wedel, 3 Mar. Law Reps. 530. be exercised in a suit of the last mentioned description, must, it is submitted, depend upon whether "The County Courts Admiralty Jurisdiction Act Amendment Act, 1869," enables the County Courts to entertain such a suit. For if such a suit cannot be entertained by the County Court, because the Court of Admiralty has no original jurisdiction over it, then, it is submitted, that no power of transferring such a suit is exerciseable by the Admiralty Division. As will be seen (h), the question whether the County Courts do really possess an Admiralty jurisdiction distinct and different from that exercised by the Admiralty Division, is one on which there are conflicting decisions. It is quite discretionary with the Court to make the order of transfer or to withhold it (i). An order of transfer must, so soon as it has been made, be Service of served upon the other party and upon the registrar of the order. County Court in Admiralty. of proceedings to High Court. So soon as the order of the High Court for the transfer of a Transmission cause from the County Court to itself under the provisions of section 6 of "The County Courts Admiralty Jurisdiction Act, 1868” (k) has been served upon him, the registrar forthwith transmits the proceedings in the County Court to the High Court under the following rule :— "Where an action is transferred to the High Court of Order "Justice by order thereof, the registrar of the Court, upon the XXXIII. "service of the order of transfer, shall send by post the rule 19. "ceedings to the proper officer of such Court."-Order XXXIII. r. 19. pro After such transfer the action becomes for all purposes an Continuance action of the High Court of Justice (Admiralty Division), and of action in subsequently proceeds in all respects as if it had been originally commenced in that division of the High Court. The power of the High Court to transmit an action pending therein to a County Court has already been considered (). And, as then mentioned, the practice is the same as in other cases of transfer under "The County Courts Act, 1867." SECTION II.-TRANSFERS UNDER ORDERS OF COUNTY A County Court in Admiralty possesses powers of transfer of two distinct kinds. In the first place, it exercises a power similar to that vested in the High Court of ordering the transfer of an Admiralty action from such County Court in Admiralty itself into the High Court. And, secondly, every County Court in Admiralty also has the power (which the High Court does not possess) of ordering an action pending in such County (h) Post, p. 752 et seq. See The Swan, L. R. 3 A. & E. 314; and see Roscoe's Admiralty Law and Practice, p. 70. (k) Supra, p. 746. (1) Ante, p. 701 et seq. High Court. Power to transmit action from High Court to County Court. County Court in Admiralty may transfer an action (1.) to the High Court or (2.) to another County Court in Admiralty. 31 & 32 Vict. c. 71, s. 7. 31 & 32 Vict. c. 71, s. 8. Cinque ports are within above enactment. Power to exclude operation of section 7. Court in Admiralty to be transferred into another County "If during the progress of an Admiralty cause in a County "Court it appears to the Court that the subject matter exceeds "the limit in respect of amount of the Admiralty jurisdiction "of the Court, the validity of any order or decree theretofore "made by the Court shall not be thereby affected, but (unless "the parties agree, by a memorandum signed by them or by "their attorneys or agents, that the Court shall retain juris"diction,) the Court shall by order (m) transfer the cause to "the High Court of Admiralty; but that Court may, nevertheless, if the Judge of that Court in any case thinks fit, "order that the cause shall be prosecuted in the County Court "in which it was commenced, and it shall be prosecuted "accordingly."-31 & 32 Vict. c. 71, s. 7. 66 "If during the progress of an Admiralty cause in a County "Court it shall appear to the Court that the cause could be "more conveniently prosecuted in some other County Court, or in the High Court of Admiralty of England, the Court may by order (n) transfer it to such other County Court or "to the High Court of Admiralty of England, as the case may be, and the cause shall thenceforward be so prosecuted accordingly."-31 & 32 Vict. c. 71, s. 8. 66 66 Under the above section, an order for transfer can be made not only to the High Court, but, in certain cases, to the Court of Admiralty of the Cinque Ports. For "The County Courts Admiralty Jurisdiction Act, 1868," provides, by a subsequent section (0), that "In all cases which shall arise within the jurisdiction of the Cinque Ports as defined by the Act First "and Second George the Fourth, chapter seventy-six, section eighteen, causes may be transferred from the County Court .. to the Court of Admiralty of the Cinque Ports in lieu "of the High Court of Admiralty." 66 66 66 It will be noted that in cases where the amount in dispute exceeds the jurisdiction of the County Court in Admiralty, it becomes, under section 7 of "The County Courts Admiralty Jurisdiction Act, 1868," so far as the Court itself is concerned, the duty of the Court to make an order for transfer. The parties, however, may elect to continue the action in the County Court in Admiralty by signing a memorandum for that purpose, in which case it would seem no order for transfer could be made under this section, although one might still be made under section 8. (m) Appendix II. Form No. 252. (n) Appendix II. Form No. 253. (0) 31 & 32 Vict. c. 71, s. 33, set out post, p. 790. This section principally deals with appeals from the County Court to the Court of Admiralty of the Cinque Ports, and is therefore set out in full in the Chapter on Appeals. |