PART IV. CHAP. VIII. for making default in payment of a sum of money. Among the exceptions from the operation of the above enactment are Default by a trustee or person acting in a fiduciary capacity, and ordered to pay by a court of equity any sum in his possession or under his control; and Default in payment of sums in respect of which orders are in that act authorized to be made. By the act any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court, where it is proved that the person making default either has or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made defaults, and has refused or neglected, or refuses or neglects to pay the same. Moreover, even in the cases excepted from the act, no person can be imprisoned for a longer period than one year (x). It will be observed that the abolition of imprisonment is for making default "in payment of a sum of money," and, on the other hand, that the power to make orders of imprisonment under the act is confined to cases of default "in payment of any debt or instalment of any debt." Questions may arise as to the effect of the act on certain orders of the county court under the equitable jurisdiction (y). It seems clear, however, that the power to imprison for contempt in disobeying orders of the court, not being orders for payment of a sum of money, are not affected by "The Debtors Act, 1869” (z). An order on a defendant trustee (made in a suit) to pay the plaintiff a specified sum, being the balance of the proceeds of the sale of stock, trust property sold by the defendant, may be enforced by imprisonment, although he may have parted with the actual possession of or control over the money prior to the order for payment; but interest due in respect of such trust money is not money in the trustee's possession or under his control, and, therefore, cannot be so enforced (a). (a) See the whole Law and Practice on an Order of Commitment on a Judgment-Summons, ante, Vol. I. p. 335. (y) As to committals under the act in the High Court of Chancery, see Daniell's Chancery Practice, 5th edit. p. 928, also sect. 8 of the act. (z) See General Order of the Court of Chancery made under the act, dated 7th January, 1870. (a) Middleton v. Chichester, 40 L. J. (N. S.) Ch. 237. CHAPTER IX. TRANSFER OF PROCEEDINGS. § 1.-TRANSFER TO THE COURT OF CHANCERY ON APPLICATION OF THE PARTIES. §2.-TRANSFER TO THE COURT OF CHANCERY WHERE THE SUBJECT-MATTER EXCEEDS THE JURISDICTION OF THE COUNTY Court. § 3.-TRANSFER from the Court of CHANCERY TO THE COUNTY COURT. § 4.-TRANSFER FROM ONE COUNTY Court to another. § 1.--TRANSFER TO THE COURT OF CHANCERY ON APPLICATION OF THE PARTIES. "The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that Sect. 3. "Any one of the vice-chancellors, on the application at chambers of any party to any suit or matter pending under this act, shall have power, then and there, or, if he shall think fit, after hearing a summons served upon the other party or parties, to transfer the same to the Court of Chancery, upon such terms, if any, as to security for costs or otherwise, as he may think fit." Power to a cellor to order transfer of vice-chan suits from county court to Court of Chancery. § 2.-TRANSFER TO THE COURT OF CHANCERY WHERE THE SUBJECT-MATTER EXCEEDS THE JURISDICTION OF THE COUNTY COURT. "The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that subject of the juris Sect. 9. "If during the progress of any suit or matter it shall be made Where to appear to the court that the subject-matter exceeds the limit in point of amount to which the jurisdiction of the county courts is hereby limited, it shall not affect the validity of any order or decree already made, but it shall be the duty of the court to direct the said suit or matter to be transferred to the Court of Chancery, and thereupon the said suit or matter shall proceed in such one of the vice-chancellor's courts as the lord chancellor may by general order direct; and such vice-chancellor shall have power to regulate the whole of the procedure amount of matter of suit exceeds limit diction of county court, suit may be Court of Chancery, &c, remitted to PART IV. CHAP. IX. Order XVIII. Rule 1. Transfer to where sub- in the said suit or matter when so transferred: provided always, that it shall be lawful for any party to apply to such vice-chancellor at chambers for an order authorizing and directing the suit or matter to be carried on and prosecuted in the county court, notwithstanding such excess in the amount of the limit to which jurisdiction in the matter is hereby given to the county courts; and the vice-chancellor, if he shall deem it right to summon the other parties or any of them to appear before him for that purpose, after hearing such parties, or on default of the appearance of all or any of them, shall have full power to make such order." In respect to the transfer of proceedings under this section, where the excess of jurisdiction is discovered in the progress of an inquiry before the master under order of the court, the orders provide that "If during the progress of any inquiry under order of the court it shall be made to appear that the subject-matter of the suit or proceeding exceeds the amount to which the jurisdiction of the court is limited, the registrar may proceed with the particular account or inquiry which is then before him, unless he thinks it inexpedient so to do, but he shall at the next sitting of the court present a certificate of the state of the suit and proceedings, and if the judge shall be of opinion that such excess exists, he shall make an order for the transfer of the suit or matter to given by act. the Court of Chancery; and the registrar shall make and file with the record a copy of such certificate and order, and shall transmit the original, together with the order of the judge thereupon, under the seal of the court, by post or otherwise, to the office of the clerk of records and writs in chancery, or to such other office or officer as the lord chancellor may by general order direct, and shall also send notice, by post or otherwise, of the fact, to all parties and persons entitled to be served with a copy of the decree" (a). Proceedings Order of Transfer of Suit or Matter to Court of Chancery (b). Whereas it appearing that the subject-matter of this suit exceeds in amount the sum of 500l., it is ordered that this suit [or matter] be transferred to the High Court of Chancery, together with the annexed certificate of the registrar of this court, showing the state of the suit [or matter] and the proceedings that have been had therein in this court. By the court, Registrar. § 3.-TRANSFER FROM THE COURT OF CHANCERY TO THE COUNTY COURT. "The County Courts Act, 1867" (30 & 31 Vict. c. 142), enacts that Sect. 8. "Where any suit or proceeding shall be pending in the High in equity may Court of Chancery, which suit or proceeding might have been com be transferred (a) County Court Orders and Rules in Equity, 1868, Order XVIII. Rule 1. (b) County Court Forms in Equity, 1868, No. 40. See form of heading, ante, p. 52. PART IV. CHAP. IX. might have menced in a county court, it shall be lawful for any of the parties thereto to apply at chambers to the judge to whose court the said suit or proceeding shall be attached to have the same transferred to the to county county court or one of the county courts in which the same might have courts, which been commenced (c), and such judge shall have power upon such ap- commenced plication, or without such application, if he shall see fit, to make an therein. order for such transfer, and thereupon such suit or proceeding shall be carried on in the county court to which the same shall be ordered to be transferred, and the parties thereto shall have the same right of appeal that they would have had had the suit or proceeding been commenced in the county court." The following Rules relate to transfers under the above section:"Where any suit or proceeding is transferred under section 8 of the 30 & 31 Vict. c. 142, to a county court, the plaintiff shall lodge with the registrar thereof the order of transfer, together with all original documents in the suit or proceeding in his possession, and also a statement of the names and addresses of the several parties to the suit, and their 8 attorneys, and the defendant shall lodge all original documents in the suit or proceeding in his possession, and either party shall from time to time lodge office copies of any further documents the judge or registrar may require" (d). "The registrar shall forthwith indorse on the order of transfer the date on which the same was lodged" (e). Order XVIII. Rule 2. Chancery under section of 30 & 31 Vict. c. 142. Rule 3. Indorsement. Rule 4. Registrar to apply to instructions. "When the order of transfer is lodged, the registrar shall forthwith apply to the judge for directions as to the further steps in the suit or proceeding, and thereupon the judge may give such directions for carry- judge for ing on the suit or proceeding as he may think fit, or he may appoint a time to hear and determine any matters in such suit or proceeding, and direct the registrar to summon all parties to appear on the day so appointed. And the judge shall also, if he think fit, order the registrar to give notice to the parties to the suit or proceeding, or any of them, that the order of transfer has been lodged" (f). § 4.-TRANSFER from one County Court to another. "The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that as to transfer of suit from oue county Sect. 11. "If during the progress of a suit or matter it shall be made to appear to the court that the same could be more conveniently prosecuted in some other county court, it shall be competent for the court court to to transfer the same to such other county court, and thereupon the suit another. or matter shall proceed in such other county court." (c) If an officer of a county court is a defendant, the suit may be transferred to an adjoining district, the judge of which is not the judge of a court of which the defendant is an officer, 19 & 20 Vict. c. 108, s. 21; see 28 & 29 Vict. c. 99, s. 21; and Lin ford v. Gudgeon, 40 L. J. (N. S.) (d) County Court Orders and (e) Id. Rule 3. PART IV. CHAP. IX. Order XXIII. Rule 20. Transfer of suits or pro This is a strong power given to a judge of one court to transfer a suit absolutely from his own court to another. There is no appeal, however, from the order (g). "Where suits or proceedings shall be commenced in different courts by parties in the same interest, such suits or proceedings shall be transferred to the court in which the first plaint or petition was filed, and ceedings from shall there be proceeded with in the same way in all respects as if they had been commenced in that court" (h). one court to another in certain cases. (g) As Chap. X. to appeals, see post, (h) County Court Orders and Rules in Equity, 1868, Order XXIII. Rule 20. |