PART IV.
CHAP. II.

any order giving directions for or with respect to the prosecution of the suit, as the circumstances of the case may require, and also make such order as to costs as the court may think fit." Decretal orders are drawn up by the registrar, the rules providing for their form and contents in various special cases, as orders for sale of property, taking accounts and preparation and execution of deeds.

Accounts and inquiries directed to be taken are taken and made by the registrar, who has for that purpose all the powers and discharges all the duties of a chief clerk of the Master of the Rolls or a vice-chancellor in the Court of Chancery.

In conformity with the power given to the Court of Chancery by the 15 & 16 Vict. c. 86, s. 54, a rule provides that "where a decretal order directs accounts to be taken, any books of accounts in which the accounts required to be taken, or any of them, have been kept, shall, unless the judge shall otherwise direct, be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised."

Various rules are provided with respect to the payment of money into court, and its investment, the proof of debts, the sale of property, the preparation of deeds and various interlocutory

matters.

When the court has determined all the questions raised between the parties, the registrar draws up a final decree in accordance with the judgment of the court. Every decretal order and final decree is transmitted for registration to the registrar of county court judgments in London. No decree or order once made is reheard unless the judge on special grounds thinks such rehearing necessary, and then only on such terms as the judge thinks fit.

An appeal is, nevertheless, given to parties dissatisfied with the determination or direction of the judge, on any matter of law or equity or on the admission or rejection of any evidence. The appeal is to such one of the vice-chancellors as the lord chancellor by general order directs. The decision of the county court judge is, however, final upon questions as to the value of property for the purpose of determining the question of the jurisdiction of the court, nor is there an appeal against the decision of the judge on the ground that the proceedings might or should have been taken in any other county court.

The costs of suits are in the discretion of the court (f). A scale of costs and charges to be paid to counsel and attorneys in the county courts has been framed. The registrar is the taxing officer of the court.

Judgments, decrees and orders of the county court are executed and enforced by process of the court. A copy of every decree is at the instance of the successful party served upon the party bound by it, and after the expiration of three days, the decree or order

(f) See post, Chap. XI. § 2.

may be enforced by a warrant of fi. fa. in the case of a decree or order for the payment of money, or by a warrant of possession or warrant of assistance in the case of a decree or order for the delivery up to any person of lands or tenements, goods or chattels. These warrants are executed by the bailiff of the court.

No special provision whatever is made by act of parliament for process against the person by attachment for contempt or otherwise, but the rules assume the existence of a power of committal for contempt in disobeying orders in the nature of injunctions, and decrees or orders to pay money or do an act within a certain time. The power of commitment to prison on a judgment summons in the county court can, it seems clear, be applied to a decree or order in equity for payment of money (g).

Having given an outline of County Court Practice in Equity, the various steps in the progress of a suit form the subject of subsequent chapters.

(g) See ante, Vol. I. p. 335.

PART IV.

CHAP. II.

In what

courts proceedings shall be taken.

CHAPTER III.

OF THE PLAINTIFF'S PROCEEDINGS IN ORDER TO
COMMENCE A SUIT IN EQUITY.

§ 1. THE COURT IN WHICH PROCEEDINGS ARE TO BE TAKEN. § 2. PROCEEDINGS BY PLAINT AND SUMMONS.

§ 3. PROCEEDINGS BY PETITION.

§ 4.-PROCEEDINGS FOR ORDERS IN THE NATURE OF INJUNC

TIONS.

§ 5.-PROCEEDINGS BY TRUSTEES AND EXECUTORS ON PAYMENT INTO COURT UNDER SECT. 24 OF "THE COUNTY COURTS ACT, 1867."

§ 1.—THE COURT IN WHICH PROCEEDINGS are to be TAKEN. "THE County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts :Sect. 10. "With respect to the court in which proceedings in equity shall be taken

"1. Proceedings under this act which relate to the recovery or sale of any mortgage, charge or lien on lands, tenements or hereditaments shall be taken in that County Court within the district of which the lands, tenements or hereditaments, or any part thereof, are situate:

"2. Proceedings under the Trustee Acts, 1850 and 1852, shall be taken in the County Court within the district of which the persons making the application, or any of them, reside or resides:

"3. Proceedings for the administration of the assets of a deceased person shall be taken in the County Court within the district of which the deceased person had his last place of abode in England, or in which the executors or administrators, or any one of them, shall have their or his place of abode :

"4. Proceedings in partnership cases shall be taken in the County Court within the district of which the partnership business was or is carried on:

"5. Proceedings for the specific performance or the delivery up or cancelling of agreements shall be taken in the County Courts within the district of which the defendants, or any one of them, reside or resides, or carry on or carries on business:

"6. Proceedings in any suit or other matter under this act, which are not otherwise provided for, shall be taken or instituted in the

County Court within the district of which the defendants, or
any or either of them, shall reside or carry on business" (a).

This statute employs, it will be seen, the words "reside," and "place of abode," and "last place of abode," while the County Courts Act (1867) uses the term "dwell" (b). Still, some of the decisions as to what constitutes a dwelling place may be useful in the construction of "reside" and "place of abode” (c).

Where Officer of County Court a Party.]-"The County Courts Act, 1856" (19 & 20 Vict. c. 108, s. 21), which enacts, that "if an action be brought against an officer of a County Court, the summons may issue in the district of which he is an officer, or in any adjoining district the judge of which is not the judge of a court of which the defendant is an officer," applies to suits in equity, as well as to actions, by force of "The County Courts Act, 1865" (28 & 29 Vict. c 99), conferring equitable jurisdiction, s. 21 of which enacts, that that act and the other County Court Acts shall be read and construed as one act (d).

§ 2.-PROCEEDINGS BY PLAINT AND SUMMONS.

Suits by creditors, legatees, devisees, heirs at-law, or next of kin; suits for the execution of trusts; suits for foreclosure or redemption, or for enforcing any charge or lien; suits for the dissolution or winding-up of any partnership; and suits for specific performance of, or for the reforming, delivering up, or cancelling of any agreement for the sale, purchase or lease of any property; are commenced by filing a plaint.

The following rules relate to the plaint and summons in the above

cases:

"All suits under the 1st, 2nd, 3rd, or 7th clauses of the first section of the act (e), and under the ninth section of 30 & 31 Vict. c. 142, shall be commenced by filing a plaint in equity in the county court to which jurisdiction in the matter is given by the tenth section of the act (f).

PART IV. CHAP. III.

Order I.
Rule 1.

Commence-
ment of suit.

Rule 2.

"Every plaint in equity shall state the name, address and description of the plaintiff, and of the person intended to be brought before the Names. court as defendant: and where any party sues or is sued in a represen- C. C. Rule 38. tative character he shall be so described in the plaint; but this rule shall be subject to the 38th Rule of the preceding County Court Rules" (g).

(a) As to the transfer of suits to another more convenient county court, see 28 & 29 Vict. c. 99, s. 11, post, Chap. IX. § 4.

(b) See ante, Vol. I. p. 130.
(c) See ante, Vol. I. pp. 131, 132.
(d) See Linford v. Gudgeon, 40

L. J. (N. S.) Ch. 514.

(e) See ante, p. 3.

(f) County Court Orders and Rules in Equity, 1868, Order I. Rule 1.

(g) 1d. Rule 2.

PART IV.

CHAP. III.

Order XXIII.

Rule 7. Where chris

tian name unknown.

Order I.

Rule 3.

Plaint.

Rule 4.

attorney.

The 38th Rule of the County Courts (Common Law) referred to, provides that—

"Where the plaintiff is unacquainted with the defendant's christian name, the defendant may be described by his surname, or by his surname and the initial of his christian name, or by such name as he is generally known by, and the defendant may be so described in the summons ; and in the event of the plaintiff or defendant not appearing, the proceedings under sects. 79 and 80 of 9 & 10 Vict. c. 95 (h), may be taken as if the true christian name and surname had been stated in the summons, and all subsequent proceedings thereon may be taken in conformity with such description, but without prejudice to any amendment made at any future time by direction of the judge."

The County Court Rules in Equity further provide that—

"Where any party to any suit or proceeding is unacquainted with the christian name of any person whose name he desires to insert in any plaint, proceeding, or document, he may describe such person by his surname or by his surname and the initial of his christian name or by such name as he is generally known by" (i).

"Every plaint in equity shall contain a concise statement of the grounds upon which the plaintiff seeks to obtain relief; and shall ask for the specific relief to which he conceives himself entitled, and also for general relief" (k).

"Where the plaint is filed by an attorney, he shall indorse thereon Plaint filed by his name or firm and place of business, and that the plaintiff sues by him as attorney; and where there is more than one plaintiff, and the plaint is not filed by an attorney, the plaintiff who actually files the same shall indorse thereon his name and address” (1).

Rule 5. Form of plaint.

Rule 6. Delivery to

registrar and filing of plaints.

"Plaints in equity may be in forms similar to those set out in the schedule to these orders, with such variations as the nature and circumstances of each particular case may require" (m).

"The plaintiff or his attorney shall deliver at the office of the registrar the plaint, with as many copies thereof as there are persons to be brought before the court as defendants, and the registrar shall forthwith indorse on the plaint a memorandum of the day on which the same was received by him, and when such plaint shall be so indorsed it shall be taken for all purposes to have been duly filed on the date so indorsed thereon" (n).

and in cases where no forms are provided, parties shall frame the proceedings or documents, using as guides those contained in the schedule."

(n) Id. Rule 6. "The registrar shall keep a book to be called The Suits and Proceedings in Equity Book,' and shall enter and number in such book each suit or proceeding consecutively in the order in which they are entered, and shall also enter therein a note of all documents filed and steps taken in such suit or proce ding. Order XX. Rule 1."