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38 & 39 Vict. metropolitan police or stipendiary magistrate, in respect of any act
or jurisdiction which may now be done or exercised by him out of court.
II. Jurisdiction of Justices. The 4th section enacts, that—"A dispute under this act between an employer and a workman may be heard and determined by a court of summary jurisdiction, and such court, for the purposes of this act, shall be deemed to be a court of civil jurisdiction, and in a proceeding in relation to any such dispute the court may order payment of any sum which it may find to be due as wages or damages or otherwise, and may exercise all or any of the powers by the act conferred in a county court 44: provided that in any proceeding in relation to any such dispute the court of summary jurisdiction(1.) Shall not exercise any jurisdiction where the amount claimed
exceeds £10; and (2.) Shall not make an order for the payment of any sum exceed
ing £10, exclusive of the costs incurred in the case; and (3.) Shall not require security to an amount exceeding £10 from any defendant or his surety or sureties.”
III. Procedure. Mode of giving Security.] By the 8th section, a person may give security by an oral or written acknowledgment, in or under the
44 The powers conferred on the county court are contained in sect. 3, and by the following sub-sections ;(1.) It may adjust and set off the one against the other all such claims
on the part of either the employer or of the workman, arising out of or incidental to the relation between them, as the court may find to be subsisting, whether such claims are liquidated or un
liquidated, and are for wages, damages or otherwise; and (2.) If, having regard to all the circumstances of the case, it thinks it
just to do so, it may rescind any contract between the employer and the workman, upon such terms as to the apportionment of wages or other sums due thereunder, and as to the payment of
wages or damages or other sums due, as it thinks just; and (3.) Where the court might otherwise award damages for any breach of
contract, it may, if the defendant be willing to give security to the satisfaction of the court for the performance by him of so much of his contract as remains unperformed, with the consent of the plaintiff, accept such security and order the performance of the contract accordingly, in place either of the whole of the damages which would otherwise have been awarded or some part of such damages. The security shall be an undertaking by the defendant and one or
more surety or sureties that the defendant will perform his contract, subject on non-performance to the payment of a sum to
be specified in the undertaking. Any sum paid by a surety on behalf of a defendant in respect of
a security under this act, together with all costs incurred by such surety in respect of such security, shall be deemed to be a debt due to him from the defendant, and where such security has boen given in or under the direction of a court of summary juris
a diction, that court may order payment to the surety of the sum which has so become due to him from the defendant.
direction of the court, of the undertaking or condition by which 38 & 39 Vict. and the sum for which he is bound, in such manner and form as may be prescribed by any rule for the time being in force, and in any case, where security is so given, the court may order payment of any sum which may become due in pursuance of such security.
By the same section, the Lord Chancellor may at any time after the passing of this act, and from time to time make, and, when made, rescind, alter and add to rules with respect to giving security under this act.
Summary Proceedings.] Section 9 enacts that, any dispute or matter in respect of which jurisdiction is given by this act to a court of summary jurisdiction is to be deemed to be a matter on which the court has authority by law to make an order on complaint in pursuance of the 11 & 12 Vict. c. 43, but is not to be deemed to be a criminal proceeding; and all the powers conferred by this act are to be deemed to be in addition to, and not in derogation of, any powers conferred on it by the 11 & 12 Vict. c. 43, except that a warrant is not to be issued under that act for apprehending any person other than an apprentice for failing to appear to answer a complaint in any proceeding under this act; and that an order made by the court under this act for the payment of any money is not to be enforced by imprisonment, except in the manner and under the conditions provided in this act; and that no goods or chattels are to be taken under a distress which might not be taken under an execution issued by a county court.
Payment by Instalments.] The same section empowers the court to direct any sum of money for the payment of which it makes an order to be paid by instalments, and from time to time to rescind or Fary such order.
Money payable under an Order to be deemed a Debt.] The same section, also, directs that any sum payable under an order is to be deemed a debt in pursuance of a judgment of a competent court, within the meaning of the 5th section of the Debtors Act, 1869, and may be enforced accordingly.
The Lord Chancellor has, by the same section, power conferred upon him to make, rescind, &c. rules for carrying into effect the jurisdiction given by this act to a court of summary jurisdiction.
IV. Rules for carrying into effect the Jurisdiction given to Courts
of Summary Jurisdiction in England, by the Employers and
Workmen Act, 1875, 38 & 39 Vict. c. 90. 1. A person desirous to enter an action under the Employers and Workmen Act, 1876, shall deliver to the clerk of the court particulars in writing of his cause of action, and the clerk of the court shall enter in a book to be kept for this purpose in his office a plaint
38 & 39 Vict. in writing stating the names and the last known places of abode of
the parties, and the substance of the action intended to be brought; and thereupon a summons shall be issued according to the form in the schedule, and be served upon the defendant, not less than one clear day before the day on which the court shall be holden at which the cause is to be tried; and no misnomer or inaccurate description of any person or place in any such plaint or summons shall vitiate the same, so that the person or place be therein described so as to be commonly known.
2. The particulars shall be annexed to and be deemed part of the summons.
3. Such summons may issue in any district in which the defendant or one of the defendants dwelt, or carried on his business, or was employed at the time the cause of action arose.
4. Any summons which may be required to be served out of the district of the court from which the same shall have issued, may be served by an officer of any other court of summary jurisdiction, which service shall be proved by affidavit of the officer who served the summons.
5. The service of the summons shall be either personal or by delivering the same to some person apparently sixteen years old, at the house or place of dwelling, or place of business or of employment of the defendant, or at the office of the employer for the time being of the defendant.
Hearing. 6. No notice shall be required to be given by a defendant of any set-off or counter-claim that he may wish to advance at the hearing against the claim of the plaintiff.
7. If upon the day of the return of any summons, or at any continuation or adjournment of the said court, the plaintiff shall not appear, the cause shall be struck out, and the court may award to the defendant, by way of costs and satisfaction for his attendance, such sum as it in its discretion shall think fit.
8. If on the day named in the summons, or at any continuation or adjournment of the court, the defendant shall not appear or sufficiently excuse his absence, or shall neglect to answer when called into court, the court upon due proof of service of the summons, may either adjourn the cause from time to time or proceed to the hearing of the cause on the part of the plaintiff only, and the judgment thereupon shall be as valid as if both parties had attended; provided that the court in any such case, at the same or any subsequent court, may set aside any judgment so given in the absence of the defendant, and the execution thereupon, and may grant a new trial upon such terms, if any, as it may think fit.
Judgment Summons. 9. No order of commitment under the Debtors Act, 1869, shall 38 & 39 Vict. be made unless a summons to appear and be examined on oath, c. 90. hereinafter called a judgment summons, shall have been personally served upon the judgment debtor, which service when made out of the district shall be proved by affidavit.
10. A judgment summons may issue although no distress warrant has been applied for.
11. Every judgment summons shall be according to the form in the schedule, and be served not less than two clear days from the day on which the judgment debtor is required to appear, except the judgment debtor is stated to be about to remove, or is keeping out of the way to avoid service.
12. The hearing of a judgment summons may be adjourned from time to time.
13. Any witness may be summoned to prove the means of the judgment debtor, in the same manner as witnesses are summoned to give evidence upon the hearing of a plaint.
14. An order of commitment made under the Debtors Act, 1869, shall be according to the form in the schedule, and shall on whatever day it may be issued bear date on the day on which the order for commitment was made, and shall continue in force for one year from such date, and no longer.
15. When an order of commitment for non-payment of money is issued, the defendant may at any time before his body is delivered into the custody of the gaoler, pay to the officer holding such order the amount indorsed thereon, as that on the payment of which he may be discharged; and on receiving such amount the officer shall discharge the defendant and shall forthwith pay over the amount to the clerk of the court.
16. The sum indorsed on the order of commitment as that upon payment of which the prisoner may be discharged, may be paid to the clerk of the court from which the commitment order was issued, or to the gaoler in whose custody the prisoner is. Where it is paid to the clerk he shall sign and seal a certificate of such payment, and upon receiving such certificate by post or otherwise the gaoler in whose custody the prisoner shall then be shall forth with discharge such prisoner. And where it is paid to the gaoler, he shall, upon payment to him of such amount together with costs sufficient to pay for transmitting by post office order or otherwise, such amount to the court under the order of which the prisoner was committed, sign a certificate of such payment, and discharge the prisoner.
17. A certificate of payment by a prisoner shall be according to the form in the schedule.
38 & 39 Vict. c. 90.
18. All costs incurred by the plaintiff in endeavouring to enforce an order shall be deemed to be due in pursuance of such order, under sect. 5 of the Debtors Act, 1869, unless the court shall otherwise order.
Costs. 19. The costs to be paid in the first instance by any person seeking the assistance of the court, shall be those contained in the schedule B. to these rules annexed.
20. The court may in its discretion allow any party in respect of any expense he may have incurred in the employment of a solicitor any sum not exceeding 103. where the sum claimed exceeds 408., and not exceeding 15s. where it exceeds £5.
Forms. 21. The forms given in the schedule shall be used with such variations as may be necessary to meet the circumstances of each court.
CAIRNS, C. 13th August, 1875.
The forms to be used under the act will be found in Oke's “ Formulist,” 6th ed., pp. 766—774.
By a note at the foot of Form 1 it is declared that, that and all other summonses issued under “The Employers and Workmen Act, 1875,” may be signed by the clerk to the justices, where such justices shall by a general direction authorize their clerks to sign them in lieu of one of themselves.
23 & 24 Vict. c. 114.
EXCISE. Complaints of Overcharge by Excise.] These may be made to justices (4 & 5 Will. 4, c. 51, s. 27); and an appeal is allowed to quarter sessions from their determination by 28 & 29 Vict. c. 96, s. 25, where the sum in dispute does not exceed £50.
Spirits and Licence.] Three justices may grant a certificate that applicant for a licence, to keep or use a still for making or distilling spirits, is a person of good character, and that the premises are of the yearly value of £10 (23 & 24 Vict. c. 114, s. 9). If the commissioners refuse to grant the licence, they are to state the grounds in writing to the justices (s. 10).
Upon oath made of grounds to suspect any private, concealed still or private distillation, a justice may grant a warrant to break open the suspected house and to seize such stills, spirits, &c. (s. 48).
A justice upon information upon oath that spirits are kept and disposed of in any gaol, &c. may enter and search, or authorize by warrant any constable to enter and seize the same (s. 194).