No. 345. 33 VICTORIA, the name of the registrar of the court in the matter of the particular trust (describing the same by the names of the parties as accurately as may be for the purpose of distinguishing it), in trust, to attend the order of the said court; and upon such persons filing with the registrar the receipt or document given to them by the officer of the said bank, the registrar shall record the same and give to them an acknowledgment in such form as may be directed by any rule of practice, which acknowledgment shall be a sufficient discharge to such persons for the money so paid, and in the case of stocks or securities may be transferred or deposited into or in the name of the registrar of such court in the matter of the particular trust (describing the same as before directed in the case of money), in trust, to attend the order of the court and the certificate of the proper officer of the transfer or deposit of such stocks or securities, shall be a sufficient discharge to such person for the stocks or securities so transferred or deposited, and any order made by the court shall fully protect and indemnify all persons acting under or in pursuance of such order. Provisions of county court as to juries suitors and witnesses extended to suitors and witequity jurisdic tion under this nesses in the Act. 28 & 29 Vict. c. 99 s. 7. Mode of proce 107. Whenever it is required that a jury should be summoned for the trial of any issue of fact arising out of the equity jurisdiction given to the county courts by this Act it shall be lawful for the judge to direct any such issue to be tried, and such jury shall be summoned from the list of jurors under Part II. of this Act; and all the previous enactments relating to the summoning impanelling and swearing of jurors in a county court, and to the number of jurors and their verdict, shall apply to all jurors summoned under the equitable jurisdiction of this Act; but the judge shall or shall not act upon such verdict as he shall think right according to the practice of the Supreme Court in its equitable jurisdiction; and the duties and obligations of and upon all jurors suitors and witnesses, and their liability to penalty and punishment, shall, in any proceeding under the equitable jurisdiction, be the same as those created authorised and imposed by the previous enactments. 108. Any suit or proceeding under Part III. of this Act may dure in equity. be commenced instituted and prosecuted in such manner and with such forms as shall from time to time be provided in the general rules and forms to be framed as hereinafter provided. Power to enforce judgments in county courts of equity. Ib. s. 8. When amount of 109. For the due execution of any judgment decree or order made under the authority of Part III. of this Act, or of the rules and orders framed or to be framed as hereinafter provided, the court shall have power to order, and the registrar upon such order shall have authority to do all such acts as he shall be thereby directed and to seal and issue, and the bailiff to execute any writ or warrant of possession, writ or warrant of execution or attachment, or other process of execution for carrying into effect any judgment decree or order of the said court; and such writs warrants and processes shall be in the form and be executed at the time and in the manner to be set forth in the rules and orders to be framed as hereinafter provided. 110. If during the progress of any suit or matter it shall be subject matter made to appear to the court that the subject matter exceeds the limit of the juris- limit in point of amount to which the jurisdiction of the county of suit exceeds remitted to the c. 99 s. 9. court is hereby limited, it shall not affect the validity of any order 33 VICTORIA, or decree already made, but it shall be the duty of the court to No. 345. direct the said suit or matter to be transferred to the Supreme Court, diction of county and thereupon the said suit or matter shall proceed in such Supreme court suit may be Court as a judge of said Supreme Court may by order direct; and Supreme Court. such judge shall have power to regulate the whole of the procedure 28 & 29 Vict. in the said suit or matter when so transferred: Provided always that it shall be lawful for any party to apply to such judge at chambers for an order authorising 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 judge, 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. 111. With respect to the court in which proceedings in equity In what courts shall be taken : (1.) Proceedings under this Act which relate to the recovery (III.) Proceedings for the administration of the assets of a (IV.) Proceedings in partnership shall be taken in the county (v.) Proceedings for specific performance of or for the (VI.) Proceedings in any suit or other matter under the proceedings shall causes for fur 112. In addition to the powers conferred by section six of this Removal of Act of transferring a cause from one county court to another county ther hearing and court it shall be lawful for the judge of any county court in any case taking accounts. (a) It is not necessary for a plaintiff to show that the amount is under the jurisdiction to sustain his case, but for the defendant to show that the amount is such as to oust the jurisdiction.— Shepherd v. The Patent Composition Pavement Company, 5 A.J.R., 27. No. 345. 33 VICTORIA, under Part III. of this Act in which he shall see fit, and at any stage of the cause, to direct that the hearing or further hearing or the taking of accounts or all or any further proceedings in such cause shall be heard and taken in any other county court of which he is a judge, and the further hearing or taking of accounts or such further proceedings shall be heard and taken in such last mentioned court accordingly, and when the step so directed to be taken in such last mentioned court shall have been taken the judge may either direct the cause to be proceeded with to its termination in such court or to be remitted to such original court, and the final decree may be entered and all proceedings for enforcing the same may be taken either in the court in which such cause was commenced or in the court in which the final decree was pronounced, subject to the general rules to be made as hereinafter provided. Amendment of variances. 19 & 20 Vict. c. 108 s. 57. Appeal to the PART IV.-PROBATE AND ADMINISTRATION JURISDICTION. [Repealed by 36 Vict. No. 427 s. 2, "Administration (Deceased Persons' Estates)," ante, p. 17.] PART V. Amendment of Variances. 119. The judge of any such court may at all times, whether before or during the trial of any action suit or proceeding, amend all defects and errors in any proceeding whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not, and may amend the plaint or summons or other proceeding as to all variances between the plaint or summons or other proceeding and the evidence adduced in support thereof, and all such amendments may be made with or without costs, and upon such terms as to postponing or adjourning the trial or otherwise as to the judge shall seem fit, and all such amendments as may be necessary for the purpose of determining in the existing action suit or proceeding the real question in controversy between the parties shall be so made. Appeal. 120. Any party to any action suit matter or proceeding in any county court other than suits matters or proceedings under Part IV. of this Act for which an appeal is herein before provided who shall be dissatisfied with any judgment decree or order of the said court or with any order of a judge thereof not being an order of commitment() made by such court or judge may appeal from the same to the Supreme Court, notwithstanding such cause suit matter or proceeding may have been brought in the said first-mentioned court by consent as herein before directed: Provided he shall within seven days after such determination or direction give notice in writing of such appeal together with the grounds thereof to the (a) These words refer to commitments for misconduct in court, not committals for breach of injunction.-Shepherd v. The Patent Pavement Composition Company, 4 A.J.R., 143. (b) The Supreme Court will only entertain appeals on questions of law or on the improper admission or rejection of evidence.-Kavanagh v. Haynes, 4 A.J.R., 73. (c) Where an appeal case has been sent back for re-statement, and comes on again for hearing upon the original sufficient notice, no new notice of appeal need be given, but the case may be merely set down a second time for argument.-Gresson v. Foster, 2 W. & W. (L), 187. No. 345. other party or his attorney, and also give security (a) (to be approved 33 VICTORIA, by the registrar) of the said county court() for the costs of the appeal and the amount of the judgment or in lieu of giving such security deposit in the hands of such registrar the amount of the judgment decree or order, together with ten pounds in addition to such amount, to answer the costs of the appeal if such appeal be dismissed or not prosecuted within the time to be prescribed in the rules to be framed under this Act, and the Supreme Court shall decide the matter of such appeal and make such order therein as shall be just, and may either dismiss such appeal or reverse or vary the judgment decree or order appealed from, and may direct the cause to be reheard before any judge of the Supreme Court, but shall not in any case remit the cause for rehearing before the judge of the court from which such appeal shall have been brought, and may make such order with respect to the costs of the said appeal 13 & 14 Vict. and of the action suit matter or proceeding in which the judgment c. 61 s. 15. decree or order shall have been made as such court may think proper and such orders shall be final, and every such appeal shall be in the form of a case which shall contain the plaint proceedings and evidence and shall be prepared in accordance with the rules to be framed under this Act agreed on by both parties or their attornies or counsel, and if they cannot agree) the judge shall settle the case and sign it, and such case shall if it relate exclusively. to any suit matter or proceeding under Part III. of this Act be 28 & 29 Vict. transmitted within the time to be fixed by the general rules to be c. 99 ss. 18 & 19. framed under this Act by the appellant to the Master in Equity to be set down for argument before a single judge of the Supreme Court in the same manner as a cause is set down for hearing by the (a) In an appeal against a nonsuit with costs, where the appellant elects to pay into court the amount of the judgment together with £10 instead of giving security, the costs should be paid in in addition to the £10.-—Lucas v. Murray, 1 A.J.R., 130. The want of sufficient security may be waived. -Churchward v. Lyons, 2 A.J.R., 118. (b) The registrar may accept the security of personalty for an appeal if satisfied as to its sufficiency; and must not be guided by the opinion of the respondent's attorney, but must satisfy himself on the point.-Reg. v. Stephen, 1 A.J.R., 164. (c) The registrar should not pay out money, lodged in his hands by an appellant, merely because no application to stay proceedings bas been made.-Moore v. Prest., 1 A.J.R., 163. (d) If by any possible view of the facts which might have been taken by the judge of the county court, consistently with the law, he could come to the conclusion he has, the Supreme Court will not review that conclusion.-Edelnan v. Heyneman, A.R., 26 Nov. 1859. (e) In an action of libel, where the Supreme Court ordered a new trial, the appellant elected to proceed in the Supreme Court. Leave was granted to add a plea of justification.-Nolan v. Connell, 5 A.J.R., 21. (f) Where the appellant succeeds as to part only of the appeal, he is nevertheless entitled to the costs of the appeal.-Fenton v. Earls, 1 W. a'B. & W. (L.), 150; 1 A.J.R., 132. (g) In reversing on appeal a judgment given for defendant in the county court, where the damages sought to be recovered were certain, and the parties had been fully heard, the Supreme Court may order judgment for the amount claimed to be entered without the necessity of a new trial.-Allison v. Byrne, 3 V.R (L.), 155. (h) When a case is settled and signed by the judge it must appear that the parties could not agree.-Broadfoot v. Wilson, 1 W. & W. (L.), 147. Unless there be evidence that the parties have agreed to waive the objection.-Cooke v. Coward, ib., 148. And a consent to the appeal being set down for hearing signed by the attorney for respondent only is a sufficient waiver.-Rucker v. Lyall, ib., 149. (i) In an appeal from the county court, the Supreme Court will not hear affidavits to contradict the statements made by the judge in the case sent up by him. If any ambiguity appear upon the case, the court will send it back to the judge, but they will not send a case back with a suggestion that it is untrue.-Morris v. The Town Council of Williamstown, A.R., 9 April 1858. The case may be referred to the judge, who may amend it if he choose, but the Supreme Court will not direct any amendment to be made. -McMullen v. Fraser, 2 A.J.R., 117. No. 345. 33 VICTORIA, said court in its equitable jurisdiction or to be set down for argument before the full court if a judge of the Supreme Court upon the application of either appellant or respondent shall so direct and the decision of such single judge or of the full court as the case may be, shall be final, and if such case shall relate to any act suit matter or proceeding in any County Court other than such suits matters or proceedings under Part III. of this Act or under Part IV. of this Act it shall be transmitted within the time to be fixed by the general rules to be framed under this Act by the appellant to the proper officer and be set down for argument in the Supreme Court in the same manner as special cases in actions in that court: Provided always that no such appeal shall operate as a stay of proceedings unless the judge of the county court shall so order: Provided also that nothing herein contained shall authorize any party to appeal against any decision of a county court given upon any question as to the value of any real or personal property for the purpose of determining the question of the jurisdiction of the court under this Act nor to appeal against the decision of a county court on the ground that the proceedings might or should have been taken in any other county court. (a) Certiorari. 13 & 14 Vict. c. 61 s. 16. Power to make Certiorari. 121. No judgment determination decree decretal or other order given or made by any judge in any action suit cause matter or thing brought before him or pending in his court shall be removed by writ of error writ of certiorari or otherwise, but every final decision by which the merits of the case may be concluded of a judge of a county court given or made in any such action cause suit matter or thing before any such court or judge shall be subject to review by way of appeal as herein before provided. GENERAL RULES. 122. It shall be lawful for any three of the county court judges rules of practice. from time to time and at any time to frame rules and orders for regulating the practice and proceedings in the county court, the form of cases upon appeal to the Supreme Court, and for determining the time within which such appeal shall be prosecuted, and by such rules to provide either a separate procedure for suits under Part II. and for suits under Part III. of this Act, or by such rules to provide a procedure under which rights cognizable under Part II. and rights cognizable under Part III. may be disposed of in one and the same suit, and whether such rights are asserted by the plaintiff or by the defendant or by both, and to frame forms of proceeding therein, and to fix the scale of fees and costs to be allowed to practitioners in the said courts, and rules and forms for keeping all registers books entries and accounts by registrars and other officers in the said courts, and for regulating the expenses to be paid to witnesses in the said courts, and from time to time to amend such rules orders and forms, and such fees costs and expenses, and such rules orders and forms and scales of costs and expenses; or amended rules orders and forms and scales of costs and expenses certified under the hands of such judges, shall be submitted to a law officer of the Crown, who (a) As to what cases are within this proviso, see Bullen v. Hooper, 2 V.R. (L.), 108. |