JURISDICTION IN PROCEEDINGS FOR ORDERS OF INJUNCTION, ETC. to which the application for the order to stay proceedings is made" (ƒ). It will be seen that orders in the nature of injunctions are confined to those matters over which jurisdiction is given by the new act, and that orders for stay of proceedings are confined to the case of actions brought to recover debts proveable under a decree for the administration of an estate made under the first or fifth sub-sections of "The County Courts Act, 1865," s. 1 (see ante, pp. 3, 6, 18); and further, that the application for stay of proceedings must be made to the court which made the decree. It seems that under this provision proceedings at law may be stayed not only in the court to which application is made, but in other courts, whether county courts or superior courts. A county court judge may, therefore, stay an action in the Court of Queen's Bench. This is, perhaps, the first time such a power has been given to an inferior court. In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, the court may award damages to the party injured, either in addition to or in substitution for such injunction, just as in the case of applications for specific performance (21 & 22 Vict. c. 28, s. 2): but this power seems scarcely to apply to the proceedings mentioned in the text, because, in the first place, it is not proceedings for injunctions, but for "orders in the nature of injunctions," that jurisdiction is conferred; and secondly, jurisdiction is given only where such orders are requisite for granting relief, and the power to substitute damages would not apply, for it would be a contradiction in terms to substitute damages where an order is requisite. 233 PART IV. СНАР. І. § 12.-JURISDICTION IN SUITS TRANSFERRED TO THE COUNTY COURTS. "The County Courts Act, 1867" (30 & 31 Vict. c. 142), sect. 8, enacts, that proceedings in equity, which might have been commenced in a county court, may be transferred to the county courts (g). By giving power to any of the parties to apply to transfer a suit to the county court, the right of an unsuccessful defendant to set up as a ground for the suit being dismissed without costs that it was unnecessary to resort to the superior courts of equity is in some measure taken away. (f) 28 & 29 Vict. c. 99, s. 1, sub-s. (8), ante, p. 3. (g) See the section at length, post, Chap. IX. § 3. CHAPTER II. THE GENERAL COURSE OF PROCEEDING IN AN EQUITY SUIT IN THE COUNTY COURTS. IT has been elsewhere stated that the equitable jurisdiction of the county courts is to be governed and closely controlled, so far as principles and doctrine of relief and parties are concerned, by the established principles and rules of the superior courts of equity; but the practice, as regards the conduct of a claim under the county court jurisdiction, is essentially distinct from the existing practice of the Court of Chancery. The county court practice in equity is a practice of its own, but having a much greater affinity to the practice in the county courts under their original common law jurisdiction than to the established practice in any other court (a): as a proof of this, it is only necessary to refer to the fact, that "The County Court Act, 1865," incorporates all the prior statutes relating to the county courts, and that the rules in equity direct that the rules and forms and practice theretofore in force in the county courts shall be adopted in equity, so far as they are applicable. The rules, therefore, coupled with the original practice of the county courts, must be looked to for the outline of practice in equity (b). (a) See ante, Vol. I. p. 58. (b) Order XXIV. of the County Court Orders in Equity, 1868, provides that "In the orders in equity the following words shall have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be something in the subject or context repugnant to such construction; (viz.): (1.) The words "the act" shall mean 28 & 29 Vict. c. 99: a party to a suit or proceed- shall include a body politic or corporate: (3.) The word "affidavit" shall (4.) Where any number of days is the county court having СНАР. ІІ. The proceedings are taken in the county court in the district of PART IV. which the property is situated, or business carried on, or where the parties or one of them reside or carry on business, according to the subject-matter of complaint. Nearly all suits, except proceedings under the Trustees Relief Act or under the Trustee Acts, and except proceedings relating to the maintenance of or advancement of infants, and except proceedings for orders in the nature of injunctions, are begun by a plaint containing the names and addresses of the parties and a concise statement of the grounds upon which the plaintiff seeks relief, and a summons with a copy of the plaint is served upon the defendants. Proceedings under the Trustees Relief Act and under the Trustee Acts, and proceedings relating to the maintenance or advancement of infants, are by petition, stating names and descriptions of the parties, the nature of the trust and how created, the property to which it relates, and the substance of the order sought for; and proceedings for orders in the nature of injunctions are begun by notice of application, stating the names, &c., and the substance of the order sought for. Copies of these petitions and notices are served upon the defendants with a notice from the registrar informing them of the time when the petition or application will be heard (c). Service is in general effected by the bailiff of the court, according to the present practice of the courts. Provision is made however, for substituted service "where justice requires it," and for service on a defendant who is out of England. The defendant is not obliged to give any notice of defence or to take any step corresponding with putting in an "answer," but may reserve his full defence, whether of law or fact, for the hearing (unless, perhaps, in those exceptional cases where notice of a defence is required under the present law and practice of the county courts). He may, however, if so inclined, within eight days after the service of the summons, "by a statement in writing signed by him, disclaim any interest in the subject-matter of the suit, or admit or deny any of the statements in the plaint, or raise any question of law on such statements without admitting the (c) "The County Courts Act, 1867" (30 & 31 Vict. c. 142), enacts, sect. 27, that "any proceeding taken in the county courts under "The County Courts Act, 1865," conferring an equitable jurisdiction on such courts, may, if so directed by rules and orders to be made under such act, be commenced by summons." "The County Courts Act, 1865" did not prescribe the mode of commencing suits in the county courts. The orders framed under that act directed the proceedings under the 5th, 6th and PART IV. СНАР. ІІ. truth thereof; or he may state concisely any new fact or document upon which he intends to rely as a defence at the hearing, or which he thinks advisable to bring to the notice of the court;' and in exercising his discretion as to costs, the judge is to consider the fact of a defendant's having or not having availed himself of these powers. On the other hand, the defendant may, to save expense, sign an admission of the plaint and submit to the judgment of the court. A plaintiff, moreover, may before the hearing withdraw altogether or as against some of the defendants, and have the plaint dismissed as against all or any of the defendants, but he must pay the costs. On the return day of the summons the suit is heard in open court (d), and all parties must be prepared, as far as the nature of the case admits, with evidence to enable the judge to try the whole matter of the suit upon the merits and to determine it by a final decree, or to make such decretal order, or give such directions, for adding parties to the suit for making inquiries, taking accounts, realizing assets, or doing any act which the judge may consider necessary to enable him to make a final decree upon a subsequent adjourned day. In those cases in which a plaint and summons are issued, the evidence of witnesses is taken vivâ voce on oath, but affidavits may be used if notice of the intention be given to the opposite party and no notice of objection given. Upon the hearing of any petition or application under the Trustee Acts, or in relation to infants or for injunctions, as already mentioned, the facts relied upon in support of or in opposition to such petition or application are proved by affidavit, unless the judge otherwise directs. The amount of damages in any case where the court may award damages, or any question of fact arising in any suit or proceeding, may, by order of the judge, be tried by a jury summoned and chosen as in other cases in the county court. The question of fact, or as to the amount of damages for the jury, must be put in writing by the judge, and it is then called the "Record for Trial." There is an important provision with regard to evidence: "Where any documents are produced to the court from proper custody, they shall be read without further proof if they appear genuine, and if no objection be taken thereto; and if the admission of any document so produced be objected to, the judge may adjourn the hearing, and the party objecting shall pay the costs caused by such objection in case the same shall afterwards be proved, unless the judge shall otherwise order." (d) The rules provide, that "the times of the sitting of a county court in matters of equity shall be those appointed for the transaction of the general business of the court, unless the judge otherwise orders, and shall appoint a special day or days for a sitting of the court in matters of equity." The above rule is a somewhat strong invasion on the duties and rights of parties with respect to the burden of proof. Under the rule, it seems that a promissory note produced by the holder, or a bill of exchange by the drawer or indorsee, or a receipt produced by the debtor, or a letter by the person to whom it is addressed, will be presumed and taken as proved without any proof whatever in fact; and that a party asking to have the documents proved in the usual way must submit to be mulcted in the costs, even if successful in the suit, and although he may never have seen or heard of the document before it is tendered. Still, there is no doubt that in many cases the rule will work well (e). It is to be observed, that this rule, so far as costs are concerned, may be found to conflict with a previous rule, that no costs of proving any document shall be allowed unless a notice to inspect and admit has been given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense. The inspection of documents in the possession or control of the opposite party, and the production of documents by third persons, and the attendance of witnesses, are fully provided for in conformity with the statute 15 & 16 Vict. c. 86, ss. 18 and 20. The common law rules of the county courts with respect to amendments are expressly applied to proceedings in equity. The effects of death, marriage, or of any change or transmission of interest or liability, may be remedied by an order of revival, or supplementary decree or order, as may be necessary. A vice-chancellor may, on an ex parte application, or, if he think fit, after hearing a summons, transfer a suit or matter to the Court of Chancery, upon such terms as to security for costs or otherwise as he thinks fit. On the other hand, if it appears to the judge of the county court that the suit or matter could be more conveniently prosecuted in some other county court, it may be transferred to such other county court; or if, during the progress of any suit or matter, it appears that the subject-matter exceeds the limit in point of amount of the county court jurisdiction, it must be transferred to such one of the vice-chancellor's courts as the lord chancellor by general order directs. The vice-chancellor may, however, direct the suit to proceed in the county court notwithstanding such excess in amount. So, also, where suits or proceedings are commenced in different courts by parties in the same interest, such suits or proceedings are transferred to the court in which the first plaint or petition was filed and there proceeded with. "Upon the hearing the court may dismiss the suit or grant the relief asked by the plaint or any part thereof, or may grant any other relief consistent with the case made by the plaint, or make (e) There is a similar rule in the Common Law Rules. See the ob servations upon it, ante, Vol. I. P. 464. |