power and authority of the High Court of Chancery in the suits or matters hereinafter mentioned; that is to say, PART IV. СНАР. 1. "1. In all suits by creditors, legatees (whether specific, pecuniary or courts in cerresiduary), devisees (whether in trust or otherwise), heirs at tain suits law or next of kin, in which the personal or real or personal and matters. and real estate against or for an account or administration of which the demand may be made shall not exceed in amount or value the sum of five hundred pounds: "2. In all suits for the execution of trust in which the trust estate or fund shall not exceed in amount or value the sum of five hundred pounds: "3. In all suits for foreclosure or redemption, or for enforcing any charge or lien, where the mortgage, charge or lien shall not exceed in amount the sum of five hundred pounds: "4. In all suits for specific performance (f), or for the delivering up "5. In all proceedings under the Trustees Relief Acts, or under the "7. In all suits for the dissolution or winding-up of any partnership "8. In all proceedings for orders in the nature of injunctions, where the same are requisite for granting relief in any matter in which jurisdiction is given by this act to the county court, or for stay of proceedings at law to recover any debt proveable under a decree for the administration of an estate made by the court to which the application for the order to stay proceedings is made." Sect. 2. "In all such suits or matters the judge of a county court shall, in addition to the powers and authorities now possessed by him, have all the powers and authorities, for the purposes of this act, of a judge of the High Court of Chancery; and the treasurer, registrar and bailiff shall, in all matters in which the county court has jurisdiction under this act, discharge any duties which an officer of the Court of Chancery can discharge, either under the order of a judge of such court or the practice thereof, and all officers of the county courts shall in discharging such duties conform to any rules or orders to be framed as hereinafter provided." As to the power to frame rules and orders, see sect. 16 of the same act, ante, Vol. I, p. 59, note.-(h) (f) See post, pp. 12, 13. (g) See also 30 & 31 Vict. c. 142, ss. 24 and 25, post, p. 18. (h) Rule 27 of Order XXIII. of the County Court Orders and Rules in Equity, 1868, provides that, "The In matters under this act, judge and officers of the county have the powers and courts to authorities of a judge and officers of the Court of Chancery. PART IV. · Act not to It is to be observed that the general orders of the Court of Chancery do not apply to the county courts (i). The jurisdiction in all the above cases is, it will be noticed, limited to where the amount at stake does not exceed five hundred pounds. The same act (28 & 29 Vict. c. 99, s. 9) enacts, however, that where the subject-matter of the suit exceeds the limit, in point of amount, of the jurisdiction of the county courts, the suit may be remitted to the Court of Chancery, &c. (k). The jurisdiction thus given is merely concurrent with that of the existing courts of equity. Unlike proceedings in the superior courts of common law for debts or damages under a certain amount, where the suitors are deprived of costs as a penalty for selecting the more expensive tribunal, the claimant in equity is still left the option of proceeding in the higher courts. Nevertheless, as costs in equity do not follow the result, but are in the discretion of the court, an unnecessary or unreasonable selection of the higher court is regarded by the equity judge as a ground for withholding costs (7). "The County Courts Act, 1865" (28 & 29 Vict. c. 99) further enacts, that Sect. 6. "Nothing in this act contained shall be construed to impair impair juris- the jurisdiction of the Stannaries Court, or to give authority to any county court judge to entertain jurisdiction in any case to which the equitable jurisdiction of the said court at present extends." diction of Stannaries Court. so far as they shall be respectively (i) See Cheesewright v. Thorn, 38 (k) See the section at length post, Chap. IX., "Transfer of Proceedings." (1) See Simons v. M'Adam, 37 L. J. (N. S.) Ch. 751; Law Rep., 6 Eq. 324; where in an ordinary foreclosure suit in the Court of Chancery in respect of a mortgage debt of 401., and both parties resided near each other, costs were only allowed according to the county court scale, Malins, V.-C., observing, that the object of the county court jurisdiction being to relieve the superior courts of petty cases and to save expense, by bringing justice home to every man's door, he should do all in his power to discourage suitors from bringing such cases to the court. Scotto v. Heritage, L. R., 3 Eq. 212; 36 L. J. (N. S.) Ch. 123, a suit instituted before the repeal of the 9 & 10 Vict. c. 95, s. 128 (see ante, Vol. I. p. 52, note), is no longer applicable, and therefore not to be relied on. It is to observed that "The County Courts Act, 1867" (30 & 31 Vict. c. 142, s. 29, expressly enacts, that "Where any action or suit shall be brought in any other court than the superior courts of law which could have been brought in a county court, and the verdict recovered is for a less sum than ten pounds, the plaintiff shall not recover from the defendant a greater amount of costs than he would have been allowed if the action or suit had been brought in such county court, unless the judge shall certify that the action or suit was a fit one to be brought in such other court." See Vol. I. p. 53, and note (ƒ). The application of this provision to suits in equity must, however, be very limited, as it is apparently confined to a recovery by verdict. See as to trials by jury post, Chap. V. § 4. Formerly there was in the stannaries in Devonshire and Cornwall a steward's court, with a common law jurisdiction, and the vice-warden's court, with an original equitable jurisdiction. Both jurisdictions were consolidated by the statute 6 & 7 Will. 4, c. 106 (amended and extended by 2 & 3 Vict. c. 58, 11 & 12 Vict. c. 83, 18 & 19 Vict. c. 32 and 32 & 33 Vict. c. 19). This court exercises the original jurisdiction of both the former courts (m). Sect. 21 of "The County Courts Act, 1865," enacts, that"This act and the act passed in the session of parliament holden in the ninth and tenth years of the reign of her present Majesty, chapter ninety-five, and any act amending or altering the same, shall be read and construed as one act, as if the several provisions contained in the said acts referred to, not inconsistent with the provisions of this act, were repeated and re-enacted in this act." This provision, although a common one in modern acts of parliament, will probably give rise to various questions as to the application of provisions in the County Courts Acts to the equitable jurisdiction. It seems that provisions relating to actions, may, under this section, be applied to suits, if not otherwise inapplicable (n). The act also gave power to the county court judges appointed to frame rules and orders for regulating the general procedure of the county courts, to frame rules and orders for the equitable jurisdiction and also to frame a scale of costs and charges (o). Although a concurrent equitable jurisdiction was thus conferred, the county courts remained for some time without the equitable powers of the superior courts of common law conferred on them by "The Common Law Procedure Act, 1854," permitting parties to set up equitable answers to actions and to defences to actions. This anomaly was remedied in 1867, by an order in council extending these and other provisions of "The Common Law Procedure Act, 1854," to county courts (p). Further special jurisdiction was given to county courts in respect of suits for partition, by "The Partition Act, 1868" (31 & 32 Vict. c. 40), and in respect of the separate property of married women, by "The Married Woman's Property Act, 1870" (33 & 34 Vict. c. 94) (g). (m) See ante, Vol. I. p. 55, note (k). Power is given to the county courts to enforce execution of judgments, decrees and orders of the Vice-Warden's Courts not exceeding 2501. See 18 & 19 Vict. c. 32, ss. 9, 10; and 32 & 33 Vict. c. 19, s. 29. As to the City of London Court, now a county court for all the purposes of equitable jurisdiction, see also ante, Vol. I. p. 108. (n) See Linford v. Gudgeon, 40 L. J. (N. S.) Ch. 514. (0) 28 & 29 Vict. c. 99, ss. 16 and (p) See Vol. I. Chap. VII., "Equit- PART IV. §2.-JURISDICTION IN SUITS BY CREDITORS, LEGATEES, DEVISEES, HEIRS AT LAW AND NEXT OF KIN. Passing over for the present the special jurisdiction of the county courts under the Charitable Trusts Acts and relating to literary and scientific institutions and to friendly societies, and the windingup of societies and companies (r), and dealing principally with the jurisdiction under the heads and in the order mentioned in "The County Courts Act, 1865," the first is "All suits by creditors, legatees (whether specific, pecuniary or residuary), devisees (whether in trust or otherwise), heirs at law, or next of kin, in which the personal or real or personal and real estate against or for an account or administration of which the demand may be made shall not exceed in amount or value the sum of five hundred pounds" (s). The jurisdiction given by this first branch of the section is for an account or administration of real or personal estate. Account. It has been said that in consequence of the former inablility of the courts of common law to examine interested parties as witnesses, and the power of a court of equity to compel a defendant to answer upon oath with regard to the truth of a transaction, the courts of equity acquired a concurrent jurisdiction with every other court in all matters of account; but, in modern times, the true foundation of the jurisdiction of courts of equity in accounts is placed upon the fact that the remedy is generally more complete and adequate than it can be at law (Story's Equity Juris. § 450, 451). Although this equitable jurisdiction exists in a variety of cases, the jurisdiction conferred by this part of the section on the county courts appears to be confined to an account in the matter of the estate of a deceased person. Administration. Courts of equity take cognizance of the administration of personal assets, consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators (3 Bla. Com. 437). This jurisdiction is, to a great extent, founded on the principle that it is the duty of the court to enforce the execution of trusts; and that the executor or administrator, who has the property in his hands, is bound to apply that property to the payment of debts and legacies, and to apply the surplus according to the will of the testator, or, in cases of intestacy, according to the Statute of Distributions; but the jurisdiction now assumed by courts of equity to so wide an extent over all administrations in cases of testacy and intestacy, rests on auxiliary grounds, such as the necessity for taking accounts, and the consideration that the remedy at law, when it exists, is not plain, adequate and complete (Story's Equity Juris. § 532-535). (r) As to these matters see post, Chap. XII. (8) 28 & 29 Vict. c. 99, s. 1, sub-s. (1), ante, p. 3. Suits by Creditors.]-In suits at common law nothing more can be done than to establish the debt of the creditor, and if the assets are not of a legal nature, or if a marshalling of the assets is indispensable to a due payment of the creditor's claim, the remedy at law cannot be effectual, and recourse must be had to equity. A creditor may proceed for payment of his own debt, and seek a discovery of the assets for this purpose only. If he does so, and an account is taken, the court will, upon the footing of such an account, proceed to make a final decree in favour of the creditor without sending him back to law for the recovery of his debt. The more usual course, however, pursued in the case of creditors is for one or more creditors to proceed by and on behalf of him or themselves, and all other creditors who shall come in, for an account of the assets and a due division of the estate (Story, Equity Juris. § 546, 547). The application to the Court of Chancery for relief in the administration of estates made by the executor or administrator himself, when he finds the affairs of his testator or intestate so much involved that he cannot safely administer the estate except under the direction of the court, or when for other reasons he desires to have the protection of the court, is now made under the Trustees Relief Acts, as to which see post, p. 18. Legal and Equitable Assets.]-Those portions only of the assets of a deceased person are deemed legal assets which by law are directly liable, in the hands of his executor or administrator, to the payment of debts and legacies, and which can be reached by a suit at law against him, either by a common judgment, or by a judgment upon a devastavit against him personally. But it is, perhaps, more accurate to say, that legal assets are such as come into the hands and power of an executor or administrator, or such as he is intrusted with by law, virtute officii, to dispose of in the course of administration. In other words, whatever an executor or administrator takes qua executor or administrator, or in respect to his office, is to be considered as legal assets. Equitable assets are, on the other hand, all assets which are chargeable with the payment of debts or legacies in equity, and which do not fall under the description of legal assets. They are called equitable assets because, in obtaining payment out of them, they can be reached only by the aid and instrumentality of a court of equity. They are also called equitable for another reason, and that is, that the rules of distribution by which they are governed are different from those of the distribution of legal assets (see infra). It may be laid down as a general principle, that everything is considered as equitable assets which the debtor has made subject to his debts generally, and which, without his act, would not have been subject to the payment of his debts generally (t). (t) Story's Equity Jurist. § 551, 552. The latest case on this subject is Bain v. Sadler, 40 L. J. (N. S.) PART IV. |