mono umelb the civil jurisdiction of the local courts of

THE CIVIL JURISDICTION

OE THE

LOCAL COURTS OF SOUTH AUSTRALIAWITH

NOTES ON THE ACTS RELATING TO SUCH COURTS,AND ON

DECISIONS BY THE ENGLISH COURTS

ON

VARIOUS POINTS RAISED UNDER THE ENGLISH COUNTY COURTS ACTS,

CONTAINING

PROVISIONS ANALOGOUS TO THOSE OF THE LOCAL COURTS ACTS OF SOUTH AUSTRALIA.

BY

CHARLES FENTST,A PRACTITIONER OP THE SUPREME COURT OP SOUTH AUSTRALIA.

INTENDED PRINCIPALLY POR THE USE OE MAGISTRATES.

ADELAIDE:PRINTED BY W. C. COX, GOVERNMENT PRINTER, NORTH-TERRACE.

TO THE

HONORABLE SIR RICHARD DAVIES HANSON, KNIGHT,

CHIEF JUSTICE OF THE SUPREME COURT OF SOUTH AUSTRALIA,

AND TO THE

HONORABLE EDWARD CASTRES GWYNNE,

ONE OF THE JUDGES OF THE SAID COURT AND PRIMARY JUDGE

IN EQUITY, AND TO THE

HONORABLE WILLIAM ALFRED WEARING,ONE OF THE JUDGES OF THE SAID COURT,

m* little «Kotfcf

ON THE LOCAL COURTS ACTS OF SOUTH AUSTRALIA,

is,

BY PERMISSION,

RESPECTFULLY DEDICATED BY

Adelaide, August, 1872.THE AUTHOR.

PREFACE.

Not long since, the South Australian Justices’ Manual was compiled by- Mr. Daly, and published under the auspices of the Government of this Colony for the information and guidance of Magistrates, their Clerks, and others. _ ‘

Six years ago, I had commenced a work on the Civil Jurisdiction of Magistrates sitting in Local Courts; but, for various reasons, the publication has been delayed.

I now submit the work to the Magistrates and the Profession, in the hope that it may tend to promote uniformity of practice in the various Local Courts—if it serves no other useful purpose.

Although I have compiled the work with all the attention I could bestow, and to the best of' my ability, I have no dbubt that some errors and omissions exist; and I shall feel obliged by having any such errors or omissions pointed out to me, so that in any supplementary work they may he corrected or supplied.

It will be observed/that I have omitted many of the Schedules to the Act of 1861, as to have inserted them would simply have had the effect of enlarging the hook without affording any information to Magistrates and the Profession; these forms are supplied to the Clerks of all. the Local Courts, and are filled up by them. I have retained, only the Schedule containing a list of the Local Courts, with, the time of sitting,, &c., and the Schedule relating to Court fees,. Bailiff’s fees, and Practitioners’ fees.

Adelaide, August, 1872.C. F.

TABLE OF CASES REFERRED TO,The numbers have reference to the pages of the text.

Page.Acraman v. Bates .............................. 86Ackroyd exparte in re Grimsby .. 23Adams v. Wor dley ..........................106Allen v. Pink .. .. 107Allen v. Sharp...................................... 87Atkins v. Curwood..........................112Anld v. Murray...................................... 26Avards v. Rhodes .. 18

Beard v. Perry...................................... 18Behn v. Bnrness................ . .. ..IllBennett v. Peninsular Steam Boat Co. 108Bentley v. Dawes . .........................107Beswick v. Capper ................... 17Biccard v. Shepherd .. 113Bird v. Holbrook ., 109Bouillon v. Lupton .. 113Boorman v. Nash ..........................107Bowen v. Owen.................................... IllBruce v. Nicolopulo.............................114Brunskill v. Powell.............................. 23Buckler v. Jarratt .. 109Ruggin v. Bennett .. :.....................38Bullen v. Sharp .. .. •....................... 20

Cawthorne v. Campbell.......................87Chambers v. Wiles.............................. 29Cooper v, DeTastet.............................. 86Coxe\ Hickman...................................... 20Cox v. Burhidge.................................... 1G9Colling v. Treweek.............................114€rosse v. Seaman ........................... 29Cumber v. Wane .............. 58Cutter v, Powell...................................... 23

Dempster v. Purnell.............................. 52Dixon v. Saddler .. ..... .. 113Doe dem.----- v. Slight................... * 9Doe v. Somerton.................................... 114Dunstan v. Paterson................. .. 13Durrant v. Tomlin.............................. 37Dwyers. Collins 114

Edwards v. Scott ................. .. 86Embrey v. Owen .........................110Evans v. Gills .. .....................61Evans v. Judkins .. ., .,111

Page.' Fawcett v. Fawcett ".................. ... 85Filliter v. Phippard.............................109Fitch v. Sutton...................................... 58Fresburg v. Carrick ...............................85Fuller v. Mackay .. .. .« ,. 21

George v. Chambers...................... 87Gibson v. Kirk............................. 108Geill v. Jeremy............................. 112Goss v. Nugent............................. 105Greenslade v. Dower.............................. 20Grimsby v. Ackroyd .. ,.. .. .. 23Guthrie v. McEllister ...................... 26

Haig v. Gray ...................................... 50Hamilton v. Bell .................. ., 86Harland v, Bromley.............................108Harvey v. Mitchell.............................114Hedley v. Bainhridge .. ., .. 20Henry v. Leigh............................. 114Heslop v. Baker.............................. 85Heslop exparte re Atkinson . „ .. 85Hough v. May..............................IllHousego v. Cowne.............................112How v. Hall .................................... 109Hudspeth /o. Yarnold....................... 18Hunt v. Hewitt .. .. .. 10Hutchinson v. Leeworthy..................26,

Jackson v. Smithson.............................109Jeffrey v. Walton .............................105Johnson v. Simms .............................112Jones v. Owen...................................... 38Jeans v. Lammey .................. t, 70Jones v. Johnson .............................. 87Jordan v. Crump .................. .. 109Josling v. Irvine .. ..107

Laing v. Meader.. IllLammey v. Jeans .. .. .. 70Lechmere v. Carlisle.............................. 22Leeds v. Cook.................................... 114Lenighan, exparte ., ,. .. ,, 64Levy v. Lord Herbert .. .. ,. 107Lewis v. Gompertz.............................112Line v, Taylor ., ., ., ,, ,, 109

TABLE OF CASES REFERRED TO.viii.

Page,MacDonald v. Longbottom .. .. 107Marsden v. Wardle......................38Maying v. Todd .. .. .... ., 108May v. Burdett .. .. ................. 109MelLor v. Leather ., ., .. .. 87Millard v. Cafhn ...................... 87Morse v. Sine............................. 108Mortimer v. McCallan .................... 114

Northam v. Hurley .. .............110

Ord v. Fawcett.............................. 10

Pasley v. Freeman..................... IllPears v. Wilson.............................. 21Peterson v. Eyre ......................... 107Phillips ,v. Gould ......................... 112Phillips v. Phillips.......................50Pickering v. Noyes.................. .. 9Pollock v. Stacey ......................... 108Pontifex v. Bignold......................IllPreston v. Merceau................. ..124Price v. Price .. .. .. .. .. 37

Quartermaine v. Bittleston .. .. 85

Rambert v. Cohen.....................IllRawson v. Johnson......................107Reid v. Blunt.................................. 22R. v. Fursey .. .. .................114R. v. Hall ............................... .. 36R. v, Inkes.............................. .. 36

Page.R. v. Inhabitants of Curry .. .. 64R. v. Morely ................. .. .. 36Reid v. Teakle .. .. 112Robinson v. Lenaghan .................... 38Rowe v. Tapper.. ... 112Rutland’s case.................. ,. ..106

Smith v. Bewes................................. 26Sinclair v. Stevenson,. *...................114Squier v. Hunt.................................... 107Stancliffe v. Clark .............................. 52Stansfeld v. Cubitt...............................85Strong v. Harvey .............................IllStyan v, Smith...................................... 86

Thompson v. In gham.............................. 38Turner v. Beriy.................................... 18Twyne’s case .. .. 85

Valpy v. Oakeley .............................107Yaughan v. Menlove.............................109

Walesby v. Goulston.. 18"Waterhouse v. Skinner .....................107"Wedlake v. Sargent......................... 52"Whalley v, McConnell .................... 65Wickham v. Lee ................. .. 23"Williams v. Smith.............................112"Wilson v. Lancashire and Yorkshire

Railway Co. .. .... .... 107Woodhams v. Newman.................... 17

INDEX TO LOCAL COURTS ACTS.The numbers refer to the clauses in the Act, 1861, unless otherwise mentioned.

Act, Short title of, 2 ; division of, 3; Act No. 10 of 1852 not applicable, 125.Additional Courts may be established, 5.Adjournment of Court, 15; of hearing, 110.Alteration of day of holding Court when such day is a holiday, 16 ; forms in Schedule

may be altered or amended by Special Magistrate or Clerk, Act No. 12 of 1870.Action, Cause of, not to be divided, 26; Supreme Court may order. certain actions

commenced in such Court to be tried in Local Court, 28; if in an action in Supreme Court the amount is reduced to £100 by payment into Court, plaintiff may abandon action, and try in Local Court for balance, 29, 30; second for same cause not allowed, 109; in ejectment, not to abate by death of plaintiff or

* defendant, 178. . .Appeals : A refusal to grant a writ of certiorari, or prohibition by a Judge, may be

appealed against to the full Court, if the amount exceeds £20, 53; appeals allowed to Supreme Court where claim exceeds £30, 56 ; notice of appeal not to be a stay of proceedings unless security given, 57; mode of giving notice of appeal, 58; Supreme Court may dismiss appeal for want of prosecution, 62; costs of appeal recoverable under judgment of Local Court, 63; as to security, 60, 65.

Abandonment: Plaintiff may abandon part of his claim in order to try in Local Court, 26; action in Supreme Court may be abandoned by a plaintiff if amount reduced to £100 by payment into Court, and the balance sued for in Local Court, 29, 30.

Abatement of Suit: Death of one or more plaintiffs or defendants not to abate suit, 77 ; insolvency of plaintiff not to abate suit if assignees elect to proceed, 79 ; action of ejectment not to abate by death of plaintiff or defendant, 178; proceedings thereon, 179, 180, 181, 182, 183, 184, 185, 186.

Accommodation Bills and Notes, Defence to actions on, must be specially pleaded, 87.Affidavits : Before whom to be sworn, 12 of 1870, secs. 10, 11.Appearance: Defendant to appear within certain periods, 86; mode and effect of

appearance in certain cases, 87; statement of defence required, 87 ; if special summons issued, defendant must file affidavit of the truth of defence, 88 ; in case of non-appearance where claim is for a debt or liquidated demand, plaintiff may sign judgment, 89 ; in case of non-appearance to any other claim, plaint to be set down for assessment of damages, 90 ; if neither party appear on the trial, cause to be struck out, 101 ; if defendant does not appear, Court to proceed exparte, 102; Court may award compensation to defendant when plaintiff does not appear at the trial, 103 ; practitioner of the Supreme Court, or by leave of the Court, any other person may appear for a party to a suit, 112; unsatisfied judgments, proceedings if defendant appears, 137, 138 ; if he does not appear, 137, 138.

Appraisement, 18, Subdivision ix., 145, and Part xi. replevins.Arbitration, Court, by consent, may refer matters to, 98.

X. INDEX to local couets acts.

Amendments: Court may allow amendment by adding parties, 71; Court, Judge, or Special Magistrate, may allow amendment of proceedings, 114.

Accused Person may mate full answer and defence, 118.Arrest: Persons arrested to be discharged on payment of debt and costs, 135; ab

sconding debtors, 193, 194, et seq. : See Absconding Debtors, infra.Adjudication of claims under interpleader summons, 144.Absconding Debtors: Defendant about to abscond may be arrested, 193 ; defendant

arrested to be lodged in gaol, or, at bis request, be brought before a Special Magistrate, 194; plaint to be entered at the time of issuing warrant, 195; bailiff arresting to endorse time and. place of arrest on warrant, 196; party arrested to be discharged on payment of debt and costs, 197; Special Magistrate may adjudicate on claim by consent of defendant, 198; if judgment given for plaintiff, defendant may be committed to gaol, 199; compensation may be awarded to defendant if improperly arrested, 200. ,

Attorney, Pees allowed to, 204; costs between attorney and client, 205.Assault upon officers, Penalty for, 210.Assessment of damages when judgment in default of appearance, 90.

Bailiffs to give security, 10 ; duties of, 20 ; of Local Courts, other than that in which judgment is recovered, may levy execution, 131; warrant to be a justification for entering premises to give possession, 155. See as to alteration in duties of No. 12 of 1870.

Bond, Appellants to give security by, if required by the Court, 60 ; to be given to the opposite party, 65; condition of replevin bonds, 149.

Bills of Exchange, Bank Notes, &c., may be seized under an execution, 129; bills of exchange may be sued upon by execution creditor in his own name, 130.

Bills of Exchange and Promissory Note*, In actions on, the drawing, endorsing, or accepting by way of accommodation, must be specially pleaded, 87; also want of notice of dishonor, 87.

Courts, Local, existing, may be continued, 4 ; additional may be established, 5; may be abolished, 6; and jurisdiction limited, 6; style and seal of, 7; adjournment of, when Court cannot be formed, 15 ; alteration of day of holding, when day of sitting a holiday, 16 ; Special Magistrate, or two Justices, may act alone if both consent, 17; to have jurisdiction without limitation as to amount of claim by consent, 25 ; Supreme Court may order certain actions, commenced in such Court, to be tried in Local Court, 28 ; if action brought in Supreme Court for a cause within the jurisdiction of any Local Court, no costs unless presiding Judge shall certify, 32; Judge may certify in other cases, 33 ; as to causes commenced in one Court, and tried in another, 46 ; actions in, may be removed into Supreme Court, and on what conditions, 48; judgments of, may be removed by certiorari, if amount exceeds £20, 54; may reserve points in civil cases for consideration of Supreme Court, 55; to what Court defendant to be summoned, 97; by consent may refer matters to arbitration, 98 ; may award compensation to defendant when plaintiff does not appear at the trial, 103; may adjourn hearing at the instance of either party, on terms, 110; may give time for payment when judgment recovered for more than £20, 111; practitioner of Supreme Court, or by leave of the Court, any other person, may appear in Local Court for a party to a suit, 112; Local Court to have power to nonsuit, 113 ; may allow amendments, 114 ; jurisdiction of in criminal cases, 115; power of to punish offenders on conviction, limitation, 116; may order restitution of stolen property, 122; may reserve points in criminal cases for decision of Supreme Court, 123; may commit on hearing in criminal cases, 139; power to commit for contempt, 209.

Cross Judgments, in case of execution, to issue for balance of larger sum, 106.

INDEX TO LOCAL COURTS ACTS. xu

Courts Supreme: If action brought in for a cause within the jurisdiction of any Local Court, no costs unless presiding Judge shall certify, 32; Judge may certify in other cases, 33; may grant writs of certiorari, prohibition, and mandamus, in term or vacation, 47 ; actions in Local Courts may be removed into Supreme Court, and on what conditions, 48; a refusal to grant a writ of certiorari or of prohibition, by a Judge, may be appealed against to the full Court, if amount exceeds £20, 53 ; judgments of Local Court for amounts exceeding £20 may be removed by certiorari into Supreme Court, 54; Local Courts may reserve points for consideration of, 55; appeals to allowed where claim exceeds £30, 56; proceedings on appeal to, 57, 58,. 59 ; may dismiss appeal for want of prosecution, 62; costs of appeal, how recovered, 63; security on appeal to, 65; Local Courts may reserve points for consideration of in criminal cases, 123.

Concealment must be specially pleaded, 87.Costs: If action brought in Supreme Court for a cause within the jurisdiction of any

Local Court, no costs unless presiding Judge shall certify, 32 ; Judge may certify for in other cases, 33 ; of appeal recoverable under judgment of Local Court, 63; plaintiff to pay costs if he recovers no more than is confessed, or paid into Court, 95 ; to abide the event, unless Court shall otherwise order, 202 ; Court may make special directions as to costs at the hearing, 202 ; rules of practice may direct as to payment of, 202 [see Local Court Rules] ; scale of costs, 204, Schedule K; between attorney and client may be taxed, 205 ; security for may be ordered, when, Act 12 of 1870; of examination of witnesses out of jurisdiction, &c., No. 4 of 1863; of certiorari, No. 4 of 1863.

Clerics of Local Courts, Duties of, 19; to prepare jury lists, 39 ; to subscribe jury lists, 39; to summon jury, &c., 41; writ of certiorari or of prohibition to be lodged with, 50 ; plaint book to be kept by, 82; to grant replevins where rent or damage does not exceed £100, 147; to give security, 10; to tax costs, 204.

Certifying for Costs: See Costs.Certiorari, Writs of, may be granted by Supreme Court in term of vacation, 47; actions

in Local Courts may be removed into Supreme Court, and on what conditions, 48 ; rule or summons for to be a stay of xmoceedings, 49; writ of to be lodged with Clerk of Local Court, and notice given to opposite party, 50 ; refusal to grant by a Judge may be appealed against to the Full Court, 53; judgments of Local Courts may be removed by into Supreme Court if amount exceeds £20, 54 ; costs of, No. 4 of 1863.

Contribution; If one of several persons sued satisfy the debt he may recover contribution from other persons liable, 72.

Commencement of Suit: In what manner suit commenced, 81.Confession: Defendant may confess debt or any part, 93; judgment thereon, 93 ;

plaintiff to pay costs if he recovers no more than is confessed, 95 ; defendants in ejectment may confess, 188; one of several defendants may confess, proceedings thereon, 189.

Consent, Judgment by, terms of payment, 96; Court by consent may refer matters to arbitration, 98; in case of arrest of defendant, Special Magistrate may adjudicate on claim by consent, 198.

Conviction : Power of Court to punish offenders on, 116 ; form of, 119, 215 ; conviction to have same effect as conviction in Supreme Court, 120 ; not to be quashed for want of form, 141. Schedule L.

Creditor : Judgment creditor may sue on bills of exchange and other securities taken in execution, 130.

Compensation : Court may award compensation to defendant when plaintiff does notappear at the trial, 103; may be awarded to defendant if improperly arrested, 200,

Commitment: Court may commit on hearing summons on unsatisfied judgment, 137,139; as to warrants of commitment, 140; date of warrant, 141; if judgment given against absconding debtor he may be committed to gaol, 199; Court may commit tor contempt, 209. x

XU. INDEX TO LOCAL COURTS ACTS.

Condition of replevin bonds, 149.Coparcener may defend as snob in ejectment brought by coparcener, 176, 177.Co-tenant may defend ejectment brought by his joint tenant, proceedings thereon. 176,

177. 'Counterfeiting seal of Court, Punishment for, 206.Contempt, Court may commit for, 209. *Coverture must be pleaded specially, 87.Cross Judgments, 106.

Duties of Special Magistrates, 18; of Clerk, 19; of Bailiff, 20. [See No. 12, 1870.]Division of cause of action not allowed, 26.Defendants, Misjoinder of, may be amended, 73; when several defendants are sued

judgment may be given against one or more, 74; may avail themselves of set-off or other defence, notwithstanding the misjoinder or nonjoinder of plaintiffs or defendants, 75; may set-off debts due to them jointly with other persons, judgment may be given for defendant where set-off exceeds debt due to plaintiffs for such excess, 76 ; death of not to abate suit, 77; death of after judgment not to prevent proceedings on the judgment, 78 ; to appear within certain periods, 86 ; in what cases to file statement of defence, 87 ; if special summons issued must file affidavit of truth of defence, 88; if defendant does not appear, plaintiff may sign judgment where claim is for a debt or liquidated demand, 89 ; in other cases damages to be assessed against, 90; where judgment signed by default, defendant may be permitted to defend on terms, 91 ; may confess debt or any part, 93 ; may pay money into Court, 94; to what Court defendant to be summoned, 97; not entitled to further costs if plaintiff gives notice of discontinuance, 99 ; if neither plaintiff nor defendant appear on trial, cause to be struck out, 101; if defendant does not appear on trial, Court to proceed exparte, 102; compensation may be awarded to defendant if plaintiff does not appear on trial, 103; may require evidence to be taken in writing, 104 ; may require the ruling or direction of the Special Magistrate to be reduced into writing, 105 ; proceedings against on unsatisfied judgment if defendant appears, 137, 138; if he does not appear, 137, 138 ; may be committed on hearing, 139; imprisonment of, not to extinguish debt, 142 ; defendant in ejectment to be summoned to nearest Court where property situate, 163; form of defence, 165; defendant in ejectment may limit defence to part of the premises, 166; persons not named in summons may defend by leave of Court or Special Magistrate, 167; judgment by default against, how signed, 168 ; action of ejectment not to abate by death of defendant, 178; proceedings in ejectment in case of death of one of several defendants, 182 ; in case of death of sole defendant or of all the defendants,

J 183 ; in case of death of one of several defendants, 184 ; in case of one of several defendants who defends separately, the person in possession, or the legal representative of deceased, defendant may defend, 185; in case of death of sole defendant, or of all the defendants after verdict, plaintiff entitled to judgment, 186; action against one or more defendants may be discontinued by plaintiff before verdict or judgment, 187 ; defendants in ejectment may confess, 188; one of several defendants may confess, proceedings thereon, 189; defendant about to abscond may be arrested, 193 ; defendant arrested to be lodged in gaol, or at his request be brought before a Special Magistrate, 194; to be discharged on payment of debt and costs, 197 ; by consent of defendant, Special Magistrate may adjudicate on claim, 198 ; if judgment given for plaintiff, defendant may be committed to gaol, 199 ; compensation may be awarded to, if improperly arrested, 200. .

Death of one or more plaintiffs or defendants not to abate suit, 77; after judgment, not to prevent proceedings on the judgment, 78; if sole plaintiff or defendant in ejectment, not to abate suit, 178; proceedings in case of death of one of several plaintiffs, 179, 180; in case of death of sole plaintiff, 181; in case of death of

‘ one of several defendants, 182 ; in case of death of sole defendant or of all the

INDEX TO LOCAL COURTS ACTS. xiii.

defendants, 183; in case of death of one of several defendants, 184; in case of death of one of several defendants who defends separately, person in possession, or legal representatives of deceased defendant may defend, 185; in case of death of sole defendant or of all the defendants after verdict, plaintiff entitled to judgment, 186.

Debt, Where claim for, or liquidated demand in case of non-appearance by defendant, plaintiff may sign judgment, 89 ; imprisonment not to extinguish, 142.

Discontinuance : Plaintiff may discontinue by giving notice to defendant and Clerk of Court, 99 ; plaintiff in ejectment may discontinue as to one or more defendants before verdict or judgment, 187.

Damages, As to assessment of, 90 ; replevins may be granted by Clerks of Local Courts where damage does not exceed £100, 147.

Direction of Special Magistrates to be reduced into writing at the request of either party, 105.

Detention of goods, In actions for, execution may issue for return of chattel detained, 107.

Delivery of goods : In actions for breach of contract to deliver specific goods, executionmay issue for delivery of such goods, 108 ; mode of enforcing execution, 128.

Date of warrant of commitment, 141.Distress for rent or damage feasant: Replevins may be granted, 147; party distrained

upon to give security, 148 ; condition of replevin bonds, 149.

JExemption from jurisdiction, No [see Erivilege\ 22; from seizure under execution of wearing apparel, &c., to the value of £5, 129.

Excess of plaintiff’s claim may be abandoned in order to try in Local Court, 26.Exceptions from jurisdiction, 27; Court of full jurisdiction may, but Court of limited

jurisdiction shall not, have cognizance of any action in which the title to any corporeal, or incorporeal hereditament or easement shall be in question, nor where the validity or effect of any devise or limitation under a will or settlement, &c., may be disputed, no cognizance of any action of ejectment except land under Real Property Act 27, 159.

Easement: No jurisdiction in any case to try right to easement, 27.Ejectment, No cognizance of action of, unless land under Real Property Act, 27;

proceedings in, 159, 160, 161; by summary process, small tenements, 150, 151, 152, 153, 154, 155, 156, 157, 158; rent and mesne profits may be recovered in same action, 162; defendant to be summoned to nearest Court where property situate, 163; mode of serving summons, 164; form of defence, 165; defendant may limit his defence to part of premises, 166 ; persons not named in summons may defend by leave of Court or Special Magistrate, 167; plaintiff entitled to judgment if no defence, 168 ; judgment by default, how signed, 168 ; questions to be tried in ejectment, 169 ; proof of title in one or more of the plaintiffs sufficient to entitle to a verdict, 170; proceedings if plaintiff or defendant do not appear, 171; in ejectment for non-payment of rent, where judgment has gone by default, what sufficient to ascertain amount of rent due, 172; as to issuing

. execution in habere facias, 173; proceedings on finding for defendant, 174; one or more warrants of execution may issue on a judgment in, 175; any joint tenant, tenant in common, or coparcener, may defend as such, 176 ; proceedings on trial of ejectment by one joint tenant, &c., against his co-tenant, 177; action not to abate by death of plaintiff or defendant, 178 ; proceedings in case of death of one of several plaintiffs, 179, 180; of death of sole plaintiff, 181 ; of death of one of several defendants, 182 ; of death of sole defendant, or of all the defendants, 183; of death of one of several defendants, 184; of death of one of several defendants who defend separately, 185; the person in possession, or legal representatives of deceased defendant may defend, 185; in case of death of soJe

a

XIV. INDEX TO LOCAL COURTS ACTS.

defendant, or of all the defendants, after verdict, plaintiff entitled to judgment, 186; plaintiff may discontinue as to one or more defendants before verdict or judgment, 187; defendant may confess, 188; one of several defendants may confess — proceedings thereon, 189 ; effect of judgment in, same as in Supreme Court, 190 ; other provisions of Local Court Act to extend to actions of ejectment so far as applicable, 191; form of warrant of possession, Schedule P, 192.

Evidence: Either party may require the evidence to be taken in writing, 104; witness confined in Gaol may be brought up to give evidence, and in what manner, 201; persons giving false, guilty of perjury, 208; of witnesses out of jurisdiction, or about to leave the Province, or residing more than 100 miles from Court, how taken, No. 4 of 1863.

Execution: In case of cross judgments execution to issue for the balance of the larger sum, 106; may issue for return of chattel detained in actions of detinue, 107; judgment may be enforced by, 126 ; may issue for the whole if default made in any instalment, where debt made payable by instalments, 127; mode of enforcing execution for delivery of chattels, 128 ; what goods may be taken in execution, 129; judgment creditor may sue upon bills and other securities taken in execution, 130 ; may be levied by Bailiff of Local Court other than that in which judgment recovered, 131; may be suspended in certain cases, with consent of judgment creditor, 132 ; goods taken in, not to be sold until expiration of five days, unless of a perishable nature, 133 ; to be superseded on payment of debt and costs, 134 ; how rent recovered when goods taken in execution, and what amount recoverable, 143; how claims adjudicated upon when goods of third persons sold under execution, interpleader summons, 144; claimant to deposit value of goods, or pay Bailiff’s expenses of keeping possession, otherwise goods to be sold, 145; proceedings in support of claim to goods taken in execution, 146; in ejectment, habere facias, 173.

Fees, in criminal proceeding, 124, Schedule Q,; in civil cases, 203, Schedules H and I; practitioner’s fees, 204, Schedule K; between attorney and client may be taxed, 205 ; penalty on officers taking unauthorized fees, 212.

Fraud must be specially pleaded, 87.Forging signature of Magistrate, Punishment for, 206.Fines on Justices not attending Court, 207.False Evidence, Persons giving, guilty of perjury, 208.

Governor may constitute Courts and assign powers, 5 ; may extend or limit jurisdiction of, or abolish Courts, and alter time and place of holding, 6; t© appoint Special Magistrates, 8; to appoint officers, 9; to issue commission for making general rules, 21; may alter time for sitting of Court in jury cases, 35.

Goods: Specific delivery of goods sold may be ordered, 108; what may be taken under execution, 129.

Holidays: Sunday, Christmas Day, Good Friday, and Monday in Easter week, 12; alteration of day of holding Court when such day is a holiday, 16.

Hearing of cause: Court may adjourn hearing at instance of either party on terms, 110; Court may commit on hearing if defendant personally appears, 139 : See Trial.

Habere facias in ejectment, 173.

Insolvency of plaintiff not to abate suit if assignees elect to proceed, 79 ; of plaintiff or defendant must be pleaded specially, 87.

Instalments, where judgment debt payable by, execution may issue for whole debt if default made in payment of any instalment, 127.

INDEX TO LOCAL COURTS ACTS. xv.

Imprisonment; Persons arrested or imprisoned to be discharged on payment of debt and costs, 135 ; not to extinguish debt, 142.

Interpleader summons: How claims adjudicated upon as to goods of third persons sold under execution, 144 ; claimant to deposit value of goods, or pay Bailiff’s expenses of keeping possession, otherwise goods to be sold, 145.

Irregularity: In recovery of small tenements, landlord not to be deemed a trespasser when he has lawful right to possession, by reason of irregularity, 158.

Illegality not apparent in the particulars must be pleaded specially, 87.Infancy must be pleaded specially, 87.

Joint Tenants in possession, may defend in ejectment as such, 176; proceedings in ejectment by one joint tenant against his co-tenant, 177.

.Jurisdiction of Courts, full or limited, may be assigned by Governor, 5; maybe extended or limited by Governor, 6; full jurisdiction to be exercised by a Judge of the Supreme Court with a jury, or by a Special Magistrate and two Justices, or a jury, 13 ; limited jurisdiction to be exercised by a Special Magistrate only, or two Justices, 13; limited jurisdiction confined to claims not exceeding £20, 13; no

'jurisdiction where Magistrate has a direct or personal interest, 13 ; no privilege of exemption from jurisdiction, 22 ; full jurisdiction in all personal actions where debt or damage claimed is not more than £100, 23 ; as to claims reduced by set off, 23 ; in cases of partnership account, share under an intestacy, legacy under a will, 24 ; to any amount by consent of the parties, 25; Courts of full jurisdiction to have cognizance of actions where title to corporeal or incorporeal hereditaments or easement in question, 27; also in which the validity or effect of any devise, bequest, or limitation under any will or settlement may be disputed, 27; Local Courts of limited jurisdiction not to have cognizance of such actions, 27; no Local Court, of either full or limited jurisdiction, to have cognizance of actions of ejectment, unless land under the Real Property Act, 27, 159 ; actions in Courts of full jurisdiction may be tried before a jury, 36 ; as to criminal jurisdiction, 115 ; limitation of powers of punishment, 116; Act No. 6 of 1860 applicable to pro-, ceedings under this Act, 124; jurisdiction in interpleader cases, 144, 145, 146. [See Act No. 12 of 1870, sec. 8.]

Jury: Governor may alter time for sitting of Court in jury cases, 35; plaintiff or defendant in any action of full jurisdiction may demand a jury, 36 ; party requiring a jury to pay £2, 37; Clerk to prepare jury lists, 38; to subscribe lists, 39 ; lists how revised, 40 ; Clerk to summon jury, 41 ; penalty on juror for non-attendance, 42; four jurymen to form jury, verdict of three sufficient, 43; tales may be prayed, 44; jurymen to be paid 10s. each, 45. [See the notes to Part ii. of Act of 1861; and see Act No. 12 of 1870 J .

Ixidgment of Local Court for sums exceeding £20 may be removed by certiorari into Supreme Court, 64 ; not to be removed except as provided in Local Court Act, 64, 65, 66; where several persons sued, judgment may be given against one or more, 74 ; judgment may be given for defendant for excess where set-off exceeds debt due to plaintiff, 76; death of one or more plaintiffs or defendants after judgment, not to prevent proceedings on the judgment, 78 ; in case of nonappearance, where claim is for a debt or liquidated damages, plaintiff may sign judgment, 89 ; in any other cases, 90; defendant may be permitted to defend on terms after judgment signed, 91; by confession as to whole or part of claim—how judgment signed, 93,; by consent—terms of payment, 96; in cases of cross judgments, execution to issue for the balance of the larger sum, 106; when judgment for more than £20, Court may give time for payment, 111; may be enforced by execution against goods, 126 ; judgment creditor may sue upon bills, and other* securities taken in execution, 130; unsatisfied judgments—proceedings on, 136, 137, 138, 139, 140, 141, 142; judgment in ejectment by default, how •signed, 168; what sufficient to ascertain amount of rent due in ejectment for non-payment of rent, where judgment by default, 172; one or more warrants of

XVI. INDEX TO LOCAL COURTS ACTS.

execution may issue on a judgment, 175 ; effect of judgment in ejectment same as in Supreme Court, 190 ; if judgment given for plaintiff against absconding debtor, be may be committed to gaol, 199.

Justices to attend Courts in rotation, 14; may commit to Local Court, 117.Justification: "Warrant a justification to Bailiff for entering premises, 155.

Limitation, Statute of, must be pleaded specially, 87; of power to punish offenders, 166.Lien must be pleaded specially, 87.Landlord may claim for rent where goods taken in execution—in what manner, and for

what amount, 143; possession may be recovered by—for non-payment of rent— in what cases, 152; sub-tenant to give notice to his immediate landlord, 153; not to be deemed a trespasser for irregularity when he has lawful right to possession, 158 ; ejectment by, 159, et seq.

Magistrates, Special, how appointed, 8 ; may act alone if both parties consent, 17; powers and duties of, 18; may allow amendments, 114; no action against for issuing warrant for recovery of possession of small tenements, 157.

Mandamus, Writ of, may be granted by Supreme Court in term or vacation, 47 ; rule or summons substituted for, 52.

Money may be deposited in lieu ot bond, 66; may be taken in execution, 129 ; securities for, may be taken in execution, 12.

Minors may sue for wages, 68.Misjoinder, of plaintiff’s, no objection, 69 ; no other action to be brought by a plaintiff

misjoinded, 70; of defendant maybe amended, 73; defendants may avail themselves of a set-off, or other defence, notwithstanding misjoinder of plaintiffs or defendants, 75.

Married woman may sue and be sued if she has lived apart from her husband for twelvemonths, 80.

Mutual credit must be pleaded specially, 87.Misrepresentation must be pleaded specially, 87.Mesne profits, not exceeding £52, may be recovered in ejectment to obtain possession of

small tenements, 151; may be recovered in same action of ejectment, 162, 171.Malpractices, remedy against officers for, 211.

Notice of appeal, how given, 58; of dishonor of bill of exchange—want of to be pleaded specially, 87 ; may be given by telegram in certain cases, No. 4 of 1863.

New trial may be granted by Special Magistrate, 18; terms of rule nisi for, 60; mode of proceeding on arguments of, 61.

Nonjoinder of plaintiffs may be amended, 71; defendants may avail themselves of set-off, or other defence, notwithstanding nonjoinder of plaintiffs or defendants, 75.

Non-appearance, In case of, where claim is for a debt or liquidated demand plaintiff may sign judgment, 89 ; in other cases plaint to be set'down for assessment of damages, 90 ; in case of non-appearance of both parties at trial cause to be struck out, 101; if defendant does not appear, Court to proceed exparte, 102; Court may award compensation to defendant in case of non-appearance of plaintiff at trial, 103; of defendant on unsatisfied judgment summons, Court may proceed exparte, 137; in case of non-appearance of plaintiff at trial, if the defendant appears, cause to be struck out, 171; in case of non-appearance of defendant at trial, if plaintiff appears, cause to be proceeded with, 171; of witnesses, penalty on,213.

Nearest Court: Defendant to be summoned to Court nearest to which defendant, or- one of the defendants, dwelt, or carried on business, at the time of action brought,.

INDEX TO LOCAL COURTS ACTS. XVII.

or to which the cause of action arose, 97; in replevin, to Court nearest to place where distress taken, 97; in certain cases defendant may he summoned to Adelaide Local Court, 97; defendant intending to take objection to the Court to which he is summoned, as not being the nearest Court, &c., to file memorandum of objection at the time of entering appearance, 97.

Nonsuit: Court, or Special Magistrate, in jury cases to have power to nonsuit, 113; plaintiff may elect to be nonsuited at any time before judgment or verdict, 113.

Officers of Local Courts to be appointed by the Governor, 9; remuneration of, 11; penalty for assaulting, 210; remedy against for malpractices, 211; penalty on taking unauthorized fees, 212; protection of and proceedings against, 216, 217, 218.

Offices to be open daily, except Sunday, Christmas Day, Good Friday, and Easter Monday, 12.

Ordinary summons, In what cases, must be issued, 83, 84 ; form of, Schedule C.

Powers of Magistrates, 18; of Local Courts to reserve points for consideration of Supreme Court, 55; to punish offenders on conviction—limitation, 116; may order prisoner confined in gaol to be brought up as a witness, 201.

Privilege: No privilege of exemption from jurisdiction, 22.Penalty on juror for non-attendance, 42; for assaulting officers, 210; rescuing

goods, 211; on officers taking unauthorized fees, 212; on witness not appearing, or refusing to give evidence, 213 ; penalties how enforced, 214.

Prohibition, Writ of, may be granted by Supreme Court in term or vacation, 47 ; to be lodged with Clerk of Local Court, and notice given to opposite party, 50; pleadings in abolished, 51 ; refusal by Judge to grant may be appealed against to full Court, if amount in dispute exceeds £20, 53.

jHeadings in prohibition abolished, 51; certain defences must be specialty pleaded, 87.Proceedings, Notice of appeal not to be a stay of, unless security given, 57; copies of

to be sent to Master of Supreme Court in case of appeal, 59 ; in support of claim to goods taken in execution, 146 ; if plaintiff or defendant do not appear in ejectment, 171 ; in ejectment on finding for defendant, 174 ; on trial of ejectment by one joint tenant against his co-tenant, 177 ; in case of death of one of several plaintiffs, 179, 180 : in case of death of sole plaintiff, 181; in case of death of one of several defendants, 182; in case of death of sole defendant, or of all the defendants, 183; in case of death of one of several defendants, 184; in other cases in ejectment, 185, 186, et seq.; against officers, 216, 217, 218.

Plaintiff may join in one plaint a claim by himself and a claim in right of his wife, 67 ; misjoinder of, no objection, 69 ; no other action be be brought by a plaintiff misjoined, 70; nonjoinder of, may be amended, 71; may discontinue, 99; may obtain summonses for witnesses, 100; not appearing at trial, cause to be struck out, 191.

Plaint: Claim by plaintiff on behalf of himself and in right of his wife may be joined in one plaint, 67 ; plaint book to be kept by Clerk, 82.

Payment must be specialty pleaded, 87 ; judgment by consent, terms of payment, 96; where judgment for sum not exceeding £20, Court has discretionary power to give time for payment, or to order debt to be paid by instalments; when sum exceeds £20, Court must order same to be paid forthwith, or within fourteen days, unless plaintiff consents to give time, 111; execution to be superseded on. payment of debt and costs, 134 ; persons arrested or imprisoned to be discharged on payment of debt and costs, 135.

Payment into Court: In case of plea of tender, money to be paid into Court, 87;. defendant may pay money into Court, 94.

XV111. INDEX TO LOCAL COURTS ACTS.

Postponement: Court or in jury cases Judge or Special Magistrate may postpone hearing, 110.

Practitioner of Supreme Court may appear for any party to a suit, 112; practitioner’s fees, 204. ■

Perishable goods may he sold under execution immediately, 133.Possession of small tenements, how recovered, 150; possession may he recovered by

landlord for non-payment of rent in certain cases, 152; form of warrant of possession, Schedule P, 192.

Prisoner confined in gaol may be brought up as witness, 201.Perjury, Persons giving false evidence guilty of, 208.Penalties: Assaulting officers, 210 ; rescuing goods, 210 ; how enforced, 214.Protection of Officers, 216, 217, 218.

Quashing conviction: Not for want of form, 121.Questions to be tried in ejectment, 169.

Repeal of Ordinances, 1.Remuneration of officers, 11.Replevin, actions of, may be brought in Local Court in cases of distress for rent, or

damage feasant, 34; Clerks of Local Courts to grant replevin where rent or damage does not exceed £100, 147 ; condition of replevin bonds, 149.

Removal of actions: Actions may be removed into Supreme Court, and on what conditions, 48.

Rule or summons substituted for mandamus, 52.Preservation of points for consideration of Supreme Court, 55, 123.Release must be specially pleaded, 87.Ruling or direction of Judge, or Special Magistrate, either party may require to be

reduced into writing, 105.Return of chattels in action of trover or detinue; execution may issue for, 107.Restitution of stolen property, Court may order, 122,Rent: IIow recovered when goods taken in execution, and what amount recoverable,

143 ; replevin may be granted in cases of distress for, 147 ; rent, or mesne profits, may be recovered to the extent of £52 under the clauses for the recovery of small tenements, 151; possession may be recovered for non-payment of rent in certain cases, 152; sub-tenant to give notice to immediate landlord, 153 ; how summons to be served, 154, et scq.; mesne profits and rent may be recovered in same action of ejectment when land under the Peal Property Act, 162 ; in ejectment for nonpayment of rent, where judgment has gone by default, what sufficient to ascertain amount of rent due, 172.

Recovery of possession of small tenements, 150, et seq.Real Property Act: Ejectment may be brought for recovery of possession of land under

Real Property Act -where value does not exceed £100—proceedings thereon, 159, 160, 161; mesne profits and rent may be recovered in same action, 162.

Rescuing goods levied under process, penalty for, 210.Reviewing taxation of costs, 204.

Special Magistrates to be appointed by Governor, 8; may act alone if both parties consent, 17; powers and duties of, 18; confirmation of appointments of Act No. 6 of 1865.

INDEX TO LOCAL COURTS ACTS. xix.

Supreme Court may order actions commenced in such. Court to he tried in Local Court, 28 ; may grant writ of certiorari, prohibition, or mandamus, in term or vacation, 47; actions in Local Courts may be removed into Supremo Court, and on what conditions, 48 ; judgments in Local Courts, for sums exceeding £20, may be removed by certiorari into Supreme Court, 54; points may be reserved for consideration of Supreme Court, 55 ; may dismiss appeal for want of prosecution, 62; judgments, &c., not to be removed into Supreme Court except as provided by Act, 64. .

Set-off, Defendants may avail themselves of, notwithstanding the misjoinder or nonjoinder of plaintiffs or defendants, 75; defendants may set-off debts duo to them jointly with other persons, judgment may be given for defendant for excess where set-off exceeds debt due to plaintiff, 76 ; must be specially pleaded, and particulars filed with plea, 87.

Suits, in what manner commenced, 81.Summons to be either ordinary or special, 83 ; when special summons may issue, 84 ;

how to be served, 85 ; if special summons issue defendant must make affidavit of truth of defence, 88; how summons in ejectment, for recovery of possession of small tenements to be served, 154.

Second action for same cause not allowed, 109.Stolen property, Court may order restitution of, 122.Securities taken in execution may be sued upon by judgment creditor, 130.Security on appeal, how to be given, 57, 65, 66.Security for Costs may be ordered, No. 12 of 1870, sec. 9. .Special pleas or defences: What defences must be specially pleaded, 87.

Tender: As to money paid into Supreme Court under plea of tender, action may be brought in Local Court for residue, proceedings thereon, 31; must be specially pleaded, 87 ; money must be paid into Court under plea of, 87.

Trial: When cause to be tried, notice of trial, 92; if neither party appear on trial cause to be struck out, 101 ; at the trial, Court may order sum recovered, if £20 or under, to be paid by instalments, 111; if above that sum to be paid forthwith, or within fourteen days, 111.

Tenements, Recovery of possession of small, 150, 151, 152, 153, 154, 155, 156, 157, 158.Tenant: Joint tenants, tenants in common, and co-parceners in possession, may defend

as such in ejectment, 176; proceedings in ejectment by one joint tenant, &c., against co-tenant, 177.

Title, Proof of, in one or more of the plaintiffs, sufficient to entitle to a verdict, 170.Taxation of costs, between party and- party, 204; between attorney and client, 205 ;

may be reviewed by Special Magistrate, 201, 205.

Unseaworthiness must be pleaded specially, 87.Unsatisfied judgments, proceedings on, 136; if party appears he may be examined as to

his ability to pay, &c., 137; if party does not appear Court may hear evidence exparte, 137; Court may rescind or alter any order made on, 138; imprisonment not to operate as an extinguishment of debt, 142. ■

Wife: Plaintiff may join in one plaint a claim by himself and a claim by him in right of his wife, 67 ; may sue and be sued if she has lived apart from her husband for twelve months, 80.

Wages, Minors may sue for, 68.

XX. INDEX TO LOCAL COTTBTS ACTS.

Witnesses, plaintiff may obtain summonses for, 100 ; Judge, or Special Magistrate, may order prisoner confined in gaol, to be brought up as a witness, 201; penalty on witnesses not appearing, or refusing to give evidence, 201; examination of witness out of tbe jurisdiction, or resident 100 miles from Court, &c., Act No. 4, 1863.

Writing: Either party may require evidence to be taken in writing, 104 ; or ruling or direction of Judge or Special Magistrate, 105.

Warrant: As to warrants of commitment, 140; date of, 141; a justification to Bailiff for entering premises, under the. clauses for recovery of possession of small tenements, 155; such warrants to be in force three months, 156; one or more warrants of execution in ejectment may issue, 175 ; form of warrant of possession in ejectment, Schedule P, 192.

LOCAL COURTS ACTS.

LOCAL COURTS ACTS,

THE LOCAL COURT ACT, 1861, 24 & 25 YICT. A.D. 1861.

Ho. 15.An Act to amend the Laws relating to the Jurisdiction

of Local Courts.[Assented to, 29tli November, 1861.

Whereas it is expedient to extend the jurisdiction of Local Preamble. Courts, and to consolidate and amend the Ordinances and,Acts relating thereto—Be it therefore Enacted by the Governor-in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament .assembled, as follows :—

1. The following Ordinances and Acts shall be repealed: Repeal of Ordi- —“An Ordinance to facilitate the Recovery of Possession No*8 of of Tenements, after the Determination of the Tenancy, within the Province and its Dependencies/’ being No. 8 of 1843; “An Ordinance for the Recovery of Small Debts and Trial and Punishment of Minor Offences in South Australia,” Repeal of Ordi- being No. 5 of 1850; an Act to amend the last-mentioned ”|^0ce No-5 Ordinance, being No 7 of 1851; “An Act to enable the Repeal of Act Judges of the Supreme Court, or either of them, to hold No*7 of 1851, Courts in any parts of the Colony, for the Recovery of Small Debts, and Trial and Punishment of Minor Offences in South Australia,” being No. 21 of 1853; except so far as may be Repealof Act necessary for supporting any proceedings taken before the ‘ 'commencement of this Act: Provided that no Act or Ordinance thereby repealed shall be hereby revived.

The provisions of the Act No. 8 of 1843 are embodied in this Act. [See the Twelfth Part, clause 150 to 158]. Most of the provisions of the other repealed Acts are also contained in this Act — the jurisdiction of Local Courts being enlarged.The other Acts relating to the civil jurisdiction of, and proceedings in, Local Courts, which are still in force, are the Acts No. 4 of 1863, No. 6 of 1865, No. 7 of 1865-6.The Act No. 8 of 1869-70 only repeals the clauses which relate to the criminal jurisdiction of Local Courts, viz., sections 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, and 125 of Local Court Act, 1861, and substitutes other modes of procedure in Local Courts; but as these notes are intended only to refer to the civil jurisdiction of Local Courts no reference need here be made to the criminal

4 LOCAL COURTS ACTS.

Short title and commencement of Act.

Division of Act.

jurisdiction of these Courts, more particularly as Mr. J. GL Laly has, at the cost of the Government, compiled an elaborate hook upon the general jurisdiction of Magistrates in criminal matters. See p. 467, Daly’s Justices’ Manual. Mr. Daly in his remarks on the Act ISTo. 8 of 1869-70

• states 'that the criminal jurisdiction of Local Courts hasbeen abolished by that Act, hut omits to state that the Act referred to provides for the criminal jurisdiction of Local Courts, and merely amends the mode of procedure. The last Act passed, relating to Local Courts, is the Act No. 12 of 1870, which effects some important alterations as regards the practice of Local Courts established under the Act of 1861, respecting which see the notes on the Act 1870, infra.

2. This Act may be cited as the “ Local Court Act, 1861,”and shall take effect from the 31st day of March, 1862.

3. This Act shall he divided into seventeen*' parts—The First Part, relating to the Establishment and Constitu

tion of Local Courts; the Appointment of Officers; their Functions and Duties :

The Second Part, to the Ordinary Jurisdiction of Local Courts and the Concurrent Jurisdiction of the Supreme Court in such matters :

The Third Part, to Trials by Jury:The Fourth Part, to the Prerogative Jurisdiction of the

Supreme Court:The Fifth Part, to the Appellate J urisdiction of the Supreme

Court:The Sixth Part, to Parties to Actions :The Seventh Part, to the Commencement of Actions and

Proceedings to Judgment in the Local Court:The Eighth Part, to the Criminal Jurisdiction of the Local

Court:The Ninth Part, to Executions and Unsatisfied Judgments :The Tenth Part, to Interpleaders :The Eleventh Part, to Replevins:The Twelfth Part, to the Recovery of Small Tenements:The Thirteenth Part, to Action of Ejectment:The Fourteenth Part, to Absconding Debtors:The Fifteenth Part,- to Evidence :The Sixteenth Part, to Costs:The Seventeenth Part, to Penalties:The Eighteenth Part, Protection to Officers and General

Matters.

* This should he eighteen parts.

LOCAL COURTS ACTS. 5

Part i.—And with regard to the Establishment and Consti- Part i. tntion of Local Courts, the Appointment of Officers, their Functions and Duties, Be it Enacted—

4. That the several Local Courts established under the Continuance of provisions of the second repealed Ordinance,* and specified aiready°esta- in Schedule A to this Act, shall be continued as if established Wished, under this Act, and all proceedings commenced under thesaid Ordinance shall he proceeded in, heard, and determined, under the provisions hereof; and all judgments and records ■of each of such Courts shall continue to he judgments and records of such respective Courts, and such Courts shall he holden at such respective places, and shall have such jurisdiction, whether full or limited, or both, and the sittings thereof respectively shall take place on such days, and at such periods as are specified in such Schedule. '

5. The Governor may, from time to time, by Proclamation Establishment in the South Australian Government Gazette, constitute and courts!*1011*1 establish additional Local Courts, and shall assign to eachCourt so to be established the powers of full and limited jurisdiction, or of limited jurisdiction only, and shall appoint a place, day, and period for the sittings thereof.

See the notes to Schedule A, as to the establishment of additional Local Courts, and the days of sitting of such Courts; and see the Act of 1870, No.t 12, infra.

6. The Governor may, in like manner, extend or limit AUeration^of the jurisdiction of, or may abolish any Local Court, or may oca 0U1 * alter the place, day, or period of holding any such Court.

See the notes to Schedule A, as to the abolition of some Local Courts, and as to the alterations which have been made in the days of sitting, &c., of others.

7. Local Courts shall be Courts of Record, and each Court style of Courts, shall be styled by the name mentioned in Schedule A, or inthe Proclamation establishing the same, and shall have a seal Seal of Courts, wherewith are to be sealed all summonses and process issuing out of such Court. *

A Court of Record is defined by Blackstone (vol. iii, p. 24) to he a Court where the Acts,and judicial proceedings are enrolled in parchment* for a perpetual memorial and testimony ; which, rolls are called the records of the Court, and are (he says) of such high and supereminent authority that their truth is not to he called in question. If this he a true definition of a Court of Record, it seems clear that Local Courts are not Courts of Record; hut it perhaps is of little consequence whether they are so or not. [See the Imperial Act 9 & 10 Viet., c. 95, sec. 3.] It is prohahle that the draughtsman of the Act did not know the precise definition of the term.

* No. 5 of 1850.

6 LOCAL COUETS ACTS.

PART *• 8. The Governor, in the name and on behalf of Her Ma-Appointment of jesty, shall from time to time, nominate and appoint, during totes!1 Magls" Her Majesty’s pleasure, such and so many Justices of the

Peace for the said Province, as he shall deem fit and proper* to be Special Magistrates, who, with those nominated,"under the repealed Ordinancesshall preside at Local Courts, and shall exercise the powers conferred on them by this Act.

It will be seen from tbis clause that the Judges of Local . . Courts only hold office during Her Majesty’s pleasure ; so

' that they are removable at the will of the Governor.This provision differs materially from that of the English County Courts Act; the Judges appointed under which hold their offices for life, and are only removable for inability or misbehaviour; there is another essential distinction between the English and Colonial Acts. Under the English Act, 9 & 10 Yic., c. 95, no person is eligible for the appointment of Judge unless he be either a barrister or an attorney. In the Colonial Act there is no such

‘ provision, and no such appointment has ever been made,with the exception of the appointment of Presiding Magistrate at the Adelaide Local Court.

Appointment of 9. Local Courts shall have such Clerks, Bailiffs, and other officers. officers as shall be necessary for the due administration of

justice, who shall be appointed and may be suspended or removed by the Governor at pleasure.

10. The Clerk and Bailiff of every Local Court, who may receive any moneysfin execution of his duty, shall give security for such sum, and in such manner and form, as the Governor from time to time shall order, for the due performance of their several offices, and for the due accounting and payment of all moneys received by them under this Act, or which they may become liable to pay for any misbehaviour in their office.

Remuneration of 11. Such Clerks shall be remunerated by a fixed salary, officers. and gucj1 by feeSj as specified in Schedule I to this

Act annexed.

Clerks and Bailiffs to give security.

* A question might arise on tbis portion of the enactment which is italicised, whether, the repealed Ordinance referred to having been repealed with only certain saving clauses, which do not comprise a provision for the continuance in office of the then Presiding or Stipendiary Magistrates, the authority of such Presiding or Stipendiary Magistrates is preserved, and whether there should not have been a fresh appointment under the provisions of this Act. Clause No. 8 provides only that those Special Magistrates nominated under a repealed Ordinance shall act, and “exercise the powers conferred upon them by this Act” (No. 15 of 1861). The Editor is not disposed to offer an absolute opinion on the construction which might be placed on this clause if the question were to come before the Supreme Court, but contents himself by observing that it suggests a difficulty as to whether any powers are conferred on Stipendiary or Special Magistrates by the present Act, except such as are appointed under this Act.


12. The offices of each Court shall he open for the dis- Paet i. patch of business daily throughout the year, Sundays, Christ- offices of Courts, mas Day, Good Friday, Monday in Easter week, and days wlien t0 °Pen* appointed for public fast or thanksgiving, or days which shall >be gazetted as public holidays, excepted; and the Court shall j?00^tsS°f sit for dispatch of business at such places, and on such days, * and at such periods, as shall have been appointed for that purpose.

See the Act No. 12 of 1870, infra.

13. All causes and matters cognizable under this Act by a Constitution of Court of full jurisdiction shall be heard and determined in Couropen Court in a summary way, according to equity and good conscience and the substantial merits of the case, by and before a Judge of the Supreme Court of the said Province, with a jury, or by and before a Special Magistrate and two Justices of the Peace for the said Province, or a jury; and all causes and matters cognizable under this Act by a Court of limited jurisdiction shall be heard and determined in a summary way, according to equity and good conscience and the substantial merits of the case, by and before a Special Magistrate only, or two Justices of the Peace for the said Province:Provided that a Court of limited jurisdiction shall not adjudicate upon any matter when the claim shall exceed Twenty Pounds, exclusive of costs : Provided that no Justice of the Justices interPeace shall act judicially in any matter in which he has any estednotto act* direct personal interest.

There appears to be a glaring inconsistency between this clause and other parts of the Act. Clause 87 requires , certain matters of defence to be specially pleaded; and, it . is conceived, that the Court cannot go into any matter of dispute except such as is raised by the issue. It can never be intended by the words “ equity and good conscience, and the substantial merits of the case,” that the Courts shall have the power to decide questions according to what may happen to be the particular notions of equity which the members of the Court may entertain, or that they should have the power to decide .contrary to law. In some cases the defence set up of the Statute of Limitations may be considered contrary to equity and good conscience where there is an undisputed existing debt due—yet by the 87th clause of the Act such defence is specially permitted; and so with .many other defences of a strictly legal character. It is almost needless to say that no such absurd and unintelligible provision is contained in the English County Courts Act, ’from which the provisions of the Colonial Act are principally taken, f See clause 18, and the notes on such clause.] If these words have any meaning they give to the Local Courts an extensive equitable jurisdiction, such as is exercised by the Court of Chancery to relieve where the remedy or defence at law fails. But such a construction would be inconsistent ^ with other parts of the Act.

'8 LOCAL COIJETS ACTS.

Part i.

Justices to attend Courts rotation.

Adjournment when Court n< formed.

Besides the 87th clause before referred to, clauses 55 and — 56 provide impliedly for the determination of all questions

by the rules of law, and not of equity. • The former clause gives power to Local Courts to reserve “ any point of law for the decision of the Supreme Court,” and the latter clause provides for an appeal “ if either party shall be dissatisfied with the determination or direction of the Local Court on a point of law.”The mode in which causes shall be heard and determined by a Court of Full Jurisdiction is as follows :

1. By or before a Judge of the Supreme Court with a jury.

2. By or before a Special Magistrate and two Justices of the Peace,

3. By a Special Magistrate and a jury.So that a Judge of the Supreme Court cannot sit except in jury cases. It will be observed that no provision is made, for a not improbable case, of the members of the Court consisting of a Special Magistrate and two Justices of the Peace differing in opinion, or of the jury being unable to agree.

14. The Clerk of the Court shall cause to he summoned, ^ one week before the first day of the sitting of the Court of

Full Jurisdiction, not less than two such Justices, being resident within ten miles, to attend at the time and place of holding such Court by regular rotation, according to a list to be kept by him for that purpose, and which shall be annually forwarded to the Attorney-General of the Province and be approved by him; and the Justices so attending shall act with the Special Magistrate during the sitting, or shall each procure some other Justice of the Peace for the said Province, who shall so attend and act as a substitute for the Justice so summoned and not attending : Provided that no officer in the service of Her Majesty, or of the Colonial Government, and no Member of the Legislature, during the Legislative Session shall be summoned to attend after claiming exemption.

See clause 207, which imposes a penalty of £5 on Justices not attending when summoned; but it is thought that this penalty could not be inflicted, as the lists required to be kept by the Clerks of the Local Courts are seldom, if ever, prepared and forwarded to the Attorney-General, as is required by this clause; nor are the Justices summoned in rotation; and therefore it is presumed that it is optional with them to attend or not.

15. Where, by reason of the absence of a Special Magis- (t trate, or a Justice of the Peace, a competent Court cannot be

formed, the Magistrates then present, if any, or if none, then the Clerk of the Court shall adjourn the Court to such day as may be deemed convenient, and shall enter in the minute book a memorandum of such adjournment, and the cause thereof.


16. Where the day appointed for holding any Local Court Part i. falls upon a Holiday, it shall he lawful for the Attorney- Postponement of General, by notice in the South Australian Government ^General Gazette, to alter the day for holding such Court, to a day to °rne> eneia ’ be named in such notice.

17. In any action in a Local Court, the Special Magistrate, Special Magis- 1or two Justices of the Peace for the said Province, attending act alone*1*’ such Court, shall s have power to hear and determine such ’action, if both parties shall consent in writing, in the formset forth in Schedule It to this Act, signed by them, or their attorneys, which shall not be revocable, that the Special Magistrate, or two Justices, shall have such power, and such consent may be entered into, whether the complement of Justices shall be then present or not, and the judgment of the Special Magistrate, or two Justices, shall be entered as the judgment of the Court.

18. A Special Magistrate, in addition to the particular Powers and duties imposed upon him by this Act, shall have and exercise Magistrate.pecial

the following powers:i. The Special Magistrate present at any Court shall To preside at

preside at such Court, and shall, in jury cases, direct Courts‘ the jury upon all matters of law, and decide upon the admission or rejection of evidence :

See the note to Part .XV., and the notes in the Appendix on the subject of evidence.

ii. A Special Magistrate may order the inspection of To order inspec- documents by any party to an action, in the custody ^ents!doca' or power of the opposite party, and to the inspectionof which the party applying is legally or equitably entitled: .

The decisions upon a similar clause in the Imperial Common Law Procedure Act of 1854 (clause 50) show that the test, as to the right of the party requiring inspection of documents in the custody or power of the opposite party is, whether the one party was quasi trustee for the other as to the document. As where a lease is in the hands of a tenant, and it appears that no counterpart was ever executed, or, if executed, cannot be found, the Court will permit the landlord to inspect and take a copy of the lease, Doe. dem. v. Slight, 1 JDoivl. Pract. Cases, 163. But the Court refused to allow inspection of a party’s title deeds by a person who supposed such deeds contained a reservation in his favor of certain rights, Pickering v. Noyes, 2D.&R.,386,1B. & C.,262, in such a case it must be made to appear to the Court that the party in whose possession the deeds are hold them as trustee for the applicant.It will be observed that this clause provides for the inspec- 'fion of documents in the custody or power of an adverse

LOCAL COURTS ACTS.10 j

Part i. . party to a suit, in tlie case of the opposite party "being■----------------- entitled to such inspection either equitably, or legally; so

that in all cases in which a decree for discovery would he made in a suit in equity the Court may make an order under this enactment..In HuntY. Hewitt, 21 Law J., Ex. 210, the rule is thus laid down:—“ To obtain such inspection it must he shown that an action or legal proceeding is pending; that there are circumstances sufficient to establish a prima facie case ; that the documents are in the possession or under the control of the opposite party, and that they relate to such action or legal proceeding; and that the applicant would, by a bill of discovery, or other proceeding in equity, obtain an inspection. The right of a plaintiff in equity to a discovery is limited to a question in the cause, and to such material documents as relate to proof of applicant’s case on the trial, and does not tend to discovery of the manner in which the opponent’s case is to he established, or to evidence which relates exclusively to his case. Under this Statute the applicant must, therefore, show the nature of

* the question to be tried, and state with sufficient distinctness the reason of the application and the nature of the documents, in order to satisfy the Court or Judge that the documents are desired to enable the party to support his own case, and not to find a flaw in the case of his opponent; and the opponent may admit or deny the possession of the

. documents, or excuse their production on the ground that they relate exclusively to his own case, or that he is privileged from producing them.” So books of account may be ordered to be produced for inspection, Ord v. Fawcitt, 13 Jurist, 456.

' Inspection of documents must be applied for on summonsto show cause, supported by an affidavit setting forth what documents are required to be produced, and that they are in the custody or power of the opposite party.

To postpone hi. He may, before hearing, order the postponement ofbearing. the hearing of a cause upon any terms he may think

fit:The usual ground for an application for a postponement of the hearing is the absence of a material witness. If the application be made by a defendant, the terms imposed, would, in most cases, be payment into Court of the sum demanded to abide the event; and if on the application of either party, the costs of the application, and of. the postponement would properly be ordered to be paid by the party seeking the indulgence.An application for a postponement of the hearing should be made without delay, on a summons to show cause, sup

’ ported by affidavit. It may, however, be made at the - heating without affidavit.

To require re- rv. He may order the re-service of a summons where he monsf °f SUm* is satisfied that the summons has not come to the

knowledge of the defendant, and that the defendant has not absented himself to avoid process; or that


knowledge of the service of the summons has not Part i. been wilfully or intentionally withheld:

See the notes to clause 97 ; in the case there mentioned, it is apprehended that the Judge of the County Court was wrong in imposing terms on the defendant, the service was a nullity, and the defendant-was not properly before the Court. The hardship upon a defendant in a case of this kind is, that until an execution is issued he would know nothing of the proceedings against him, and it is thought that on an affidavit of merits the judgment and execution should in all cases he set aside, and in a case similar to that referred to in the notes to clause 97, the Bailiff should have been ordered to pay the costs occasioned by the irregularity in the service of the summons, see clause 20, subdivision vii. This clause empowers a Special Magistrate to order

, re-service of a summons, even if such summons has been left at the defendant’s place of abode, but on account of absence from home, or some other cause, the service has not come to his knowledge. An application for re-service of a summons should be made on a summons to show cause, supported by an affidavit of the facts to be made by any person cognizant of them.

v. He may, if necessary, set aside any judgment by de- To set aside fault, signed m any action, upon such terms as he may default, think fit:

An application to set aside a judgment must be made on a summons to show cause, supported by affidavit, stating a sufficient reason for the non-appearance by the defendant, * and that he has a good defence on the merits. The terms imposed would probably be the payment of the costs of 1 signing judgment and of the application to set the same aside. ‘ .

yi. He may permit the amendment of the particulars of To amend plead* demand or defence in any action, and may require the lllgs* delivery of better particulars of demand or set-off in any action:

This would be ordered on a summons to show cause, without affidavit. An amendment may also be allowed at the trial, in which case the Court would allow a postponement of the trial if the opposite party would be prejudiced by the trial being proceeded with at once. [See subdivision in, supra, and see also clause 114, which gives power to the Court to impose terms.] The money might be ordered to be brought into Court, if the application for a postponement .of the trial came from the defendant.

Vii. He may order a new trial of any action, on such T9 order new terms as he may think fit, and stay proceedings in the tlial‘ meantime:

An application for a new trial should be made on a summons to show cause, within fourteen days from the day of hearing, setting forth the grounds for the application, or it may be made on the day of hearing if both parties be


• Part i.

To review decision of Clerk.

To authorize Bailiffs to sell by auction.

To appoint special Bailiffs.

Provisionally to appoint a substitute for Clerk.

Other duties.

present. See Rule of Court, No. 55. Tlie usual grounds lor a new trial are as follow:—

1. Misdirection, or mistake of the presiding Magistrate.2. Wrong nonsuit.3. Improper admission or rejection of evidence.4. Default or misconduct of the jury.5. Perverse verdict.6. Verdict against the weight of evidence.7. That the damages are excessive.8. Misleading,, or taking by surprise the opposite party.9. Default Or misconduct of witnesses.10. Perjury Of witness.11. The discovery of fresh evidence that is material.

Tin. He may review any decision of the Clerk of hisCourt:

Cases for review principally arise on taxation of costs, hut under the replevin clauses of the Act in all probability the Special Magistrate would review the Clerk’s decision as to the sufficiency of the securities.

ix. He may authorize a Bailiff of the Court to act as appraiser or auctioneer, for the purpose of valuing or selling any goods, chattels, or effects taken in execution under this Act, and the person so authorized may, without other licence in this behalf \ do and perform all the duties of appraiser or auctioneer, as the case may he:

A person acting under an authority given by a Special Magistrate under this clause would he exempt from the penalties imposed by the Acts No. 10 of 1843, and No. 9 of 1862 ; but it is supposed that he would not be allowed to

' make any charge for services rendered as appraiser or . auctioneer, except he acts in the latter capacity, when he

would be perhaps entitled to £5 per cent, under ScheduleI. As to appraising goods, see clause 145.

x. He may, in any case, at the instance of the party interested, appoint a special Bailiff for the purpose of serving any process of the Court, or for the purpose of executing any warrant against the goods, or for the apprehension or committal of the person named in such warrant:

xi. He may temporarily appoint any fit person to act as Clerk of the Court in case of the death, suspension, or removal of any clerk, or in case of the illness or absence of any such Clerk :

xn. He may do all other matters necessary to carry out this Act:

The 4th and 5th Rules of the 'Court provide for other matters to be done by a Special Magistrate ; but the words of this clause are sufficiently comprehensive to include many powers not expressly given by the Act or the rules of Court.


19. The Clerk of each Local Court, in addition to the special Paut i. duties imposed by this Act, shall have the custody of all Duties of Clerk, hooks, records, process and other proceedings, and of the seal of the Court, and shall have an office at or contiguous to office of Clerk, the place where the Court is holden, whereat shall he issued all summonses, subpoenas, and warrants, and where he shall receive and pay all money paid in and out of Court, as hereinafter provided:

See, as to a modification of this clause, the Act No. 12 of 1870.

I. He shall cause a note of all plaints and summonses, To keep Record and of all orders, and of all judgments and execution, and returns thereto, and of all fines, and of all other proceedings of the Court, to he fairly entered from time to time in a book belonging to the Court to be called the “ Record Book,” which shall be kept at the office of the Court:

ii. He shall, within twenty-four hours of the issuing any To deliver summons or warrant, or receiving any summons or Banur?t0 warrant from the Clerk of any other Court, deliver the same to the Bailiff, or in case the defendant resides nearer to some other Court, he shall, within the like period,.forward through the General Post Office the summons and duplicate to the Clerk of the Court nearest to which the defendant resides :

See 66th, 67th, 68th, and 69th Rules of Court, and see JDunstan v. Paterson, 4 Jurist, N.S., p. 1024 ; and see the Act No. 12 of 1870, which provides for service of summons by the plaintiff or his attorney. .

hi. He shall forthwith, after receiving from the Bailiff To enter services or the Clerk of any other Court the duplicate of any i^rd^ook11

‘ summons issued by him, enter in the Record Book the date of the service, or the report of non-service, and the cause thereof:

See the Act No. 12 of 1870, which alters this provision to some extent.

IV. He shall forthwith, after receiving from the Bailiff To return

the duplicate of any summons, or any warrant for- tScSStfrom* warded from any other Court for service or execution, which they were return the same to the Clerk of the Court from which received‘ it was received:

See the Act No. 12 of 1870.v. He shall, within twenty-four hours after receipt of To give notice of

any notice of appearance, give notice thereof, and oftria1’ the day of trial to the plaintiff*:

See 66th, 67th, 68th, and 69th Rules of Court. See clause 92 as to what notice of trial is necessary.


Part i.

To j>ost notices.

To forward warrant to Clerk of nearest Court for execution.

To notify receipt of warrant.

To note time wlien warrants applied for.

To deliver warrants in rotation.

To affix seal to all documents.

vi. Unless otherwise specially directed by tbis Act or by tbe Rules of Court, be shall forward all notices by this Act required to be delivered to the opposite party, by transmitting the same to such party by post, to the address of such party as given to him, unless applied for earlier:

See 69th Rule of Court—all letters to he prepaid.vii. He shall, when a warrant of execution shall have

been issued against the goods and chattels of any party at a distance from the Court of which he is Clerk, or an order for the commitment of any such party shall have been made, send such warrant or order to the Clerk of any Local Court nearest to the place where such party or his goods and chattels shall then be, or be believed to be, requiring execution of the same:

yin. When a warrant of execution or an order of commitment shall be sent to the Clerk of any other Local Court, the Clerk receiving the same shall notify thereon the date of its receipt, and shall seal or stamp it with the seal of his Court, and shall deliver it to the Bailiff of his Court:

ix. He shall make a minute of the precise time when he shall have been requested to issue any warrant against the goods of a defendant, and he shall notify the same on the warrant:

x. Where more than one warrant of execution against the goods of any party shall be taken out, he shall deliver them to the Bailiff in the order in which they were taken out:

xi. He shall cause all summonses, notices, warrants, and other documents proceeding from the Court of which he is Clerk, to be stamped with the seal of his Court:

To keep books of xh. He shall keep such books of account, and make make returns. such returns of moneys received and paid, fees, and

disbursements, in such form and at such periods, and shall make payment and deposit of money received by him in manner as shall be required by any regulations to be from time to time issued by the Attorney-General:

• And see, as to other duties, Rule of Court No. 6.Duties Of Bailiff. 20. The Bailiff of each Court shall have the service of all

summonses and the execution of all warrants, unless otherwise ordered by a Special Magistrate in each particular case:

Under clause 18 the Magistrate may appoint a special Bailiff in any particular case; hut this section of the Act is

LOCAL COTJETS ACTS. 15

repealed, so far as regards the necessity of service of summonses by the Bailiff by tbe Act No. 12 of 1870, which allows the plaintiff, or any person authorized by him to serve a summons. *

i. He may appoint a sufficient number of able and fit persons as assistant Bailiffs, and at pleasure dismiss any of them and appoint others in their stead; but every assistant Bailiff so appointed may be suspended or dismissed by the Special Magistrate:

ti. The Bailiff shall cause all summonses delivered to him for service to be examined by himself, or the assistant Bailiff making the service, to enable him to prove the correctness thereof; and he shall cause all summonses to be served on the respective defendants within seven days of their delivery to him by the Clerk of the Court, or, in case of their non-service, he shall report such non-service, and the cause thereof, to the said Clerk:

hi. The Bailiff and assistant Bailiffs shall forthwith after service of any summons, endorse on the duplicate summons the day of the month and year of such service and he shall, within four days of the service, swear an affidavit of such service :

iv. The Bailiff shall cause to be executed every warrant of execution against goods, or warrant of commitment within seven days, or sooner if required by the Clerk of the Court after receiving such warrant from him, and shall endorse on every warrant the time and mode of executing the same, and the several amounts received and disbursed, or retained on account thereof; and in case of non-execution he shall report weekly to the Clerk of the Court such fact, and the cause thereof:

T. Where more than one warrant against the goods of any person shall be delivered to him, he shall execute them in the order in which they were delivered to him:

VI. Every Bailiff levying or receiving any money by virtue of his office shall, immediately after the receipt thereof, pay over the same to the Clerk of the Court:

vii. The Bailiff of every Court shall be responsible for all the acts and defaults of himself and the assistant Bailiffs to be appointed by him, in like manner as the Sheriff of the said Province is responsible for the acts and defaults of himself and his officers :

An action will lie against a Bailiff for taking the goods of third parties under an execution, hut he may protect himself under the interpleader clauses of the Act, 144, 145, 146. •

Part i.

To appoint assistant Bailiffs.

To examine summons.

To endorse service.

To execute warrants and make returns of same.

To execute warrants in rotation.

To pay over moneys.

To be responsible for wrongful acts.


Part i.

Governor to issue commission for making general rules.

No privilege allowed.

Part ii.

Jurisdiction of Court.

21. It shall be lawful for the Governor, under the public seal of the said Province, from time to time, as occasion shall require it, to issue a commission, appointing three or more Special Magistrates to frame, such general rules and orders as to them shall seem expedient for regulating the practice of the Courts hereby established, and for executing the process of the said Courts, and generally for carrying this Act into effect; and being confirmed by the Governor, with the advice of the Executive Council, shall be published in the South Australian Government Gazette, and shall have the force of law: Provided that, until such rules and orders shall be in operation, the rules and orders now in force (excepting in so far as they are repealed or modified, or are inconsistent with this Act) shall be binding and operative*

For these Rules, see Appendix Ho. 1. They were published in the South Australian Government Gazette, on the 1st May, 1862. As to the question of inconsistency, see the Notes on the Rules.

22. Except as hereinafter provided, no privilege shall be allowed to any person, whether a practitioner of the Supreme Court or not, to exempt him from the jurisdiction of Local Courts.

This exception stated to he hereinafter provided, nowhere exists in the Act; the clause is taken from the Imperial Act 9 and 10 Viet., c. 95, sec. 67 ; the words “ whether a practitioner of the Supreme Court or not ’’ being added in the Colonial Act. The Imperial Act preserves the privileges and jurisdiction of the Chancellor, Masters, and Scholars, of the Universities of Oxford and Cambridge, and the jurisdiction of the Courts of the Chancellors and Vice-Chancellors of such Universities as holden under their respective charters.

Paet ii.—And with regard to the ordinary jurisdiction of Local Courts in matters civil, and the concurrent juris

, diction of the Supreme Court in such matters, Be it Enacted—

23. That Local Courts, subject to the limitation as to amount in the case of Courts of limited jurisdiction hereinbefore^ mentioned, shall have cognizance of all personal actions where the debt or damage claimed is not more than One Hundred Pounds, whether on a balance of account or otherwise ; and in any action for recovery of a balance of account, the Court shall have jurisdiction, if the original claim shall have been reduced to One Hundred Pounds, or less, by payment, or admitted set off of a debt or demand claimed or recoverable by the defendant from the plaintiff.

In the English County Courts Acts, which provide that

* See clause 13.


the Courts shall he presided oyer by barristers of some standing, the jurisdiction in all eases is limited to £50, and the following actions are excepted:—Ejectment; actions in which the title to any corporeal or, incorporeal hereditaments shall be in question, or in which the yalidity of any deyise, bequest, or limitation under any will or settlement may be disputed; or for any malicious prosecution; or for any libel or slander; or for criminal conversation (this action is now abolished) ; or for seduction or breach of promise of marriage. According to the provisions of the Imperial Act, 9th and 10th Viet., Cap. 95, clause 58, the County Courts had no jurisdiction where the original debt exceeded the amount limited by the Act, unless the balance were a balance struck between the parties, not one the result of the hearing. [See Woodhams v. Newman, 7 C. B., 654.] In this case, Wilde, C.J., in delivering judgment, observed — “ The policy of the Act was to give jurisdiction to these Courts (the County Courts) for the decision of small, disputes without a jury. Here a large sum is in dispute. There was a set-off of £80, leaving a balance of less than £20. This might involve questions of considerable nicety. The case might have turned upon some one item of more than £20, or it might depend on items in the set-off to a large amount. What was the plaintiff’s demand P It exceeded £20 ; therefore if the plaintiff had sued in the County Court and established his case, that Court must have adjudicated upon a sum exceeding £20 ; then it would have had to turn to the defendant’s case, and then would again have to decide on a demand above £20. It would in fact be trying two causes, each above £20.” This case was decided before the jurisdiction of the County Courts was extended to £50 ; but the principle enunciated is applicable to the extended jurisdiction, and is equally applicable to the still more extensive jurisdiction of the Colonial Local Courts. [See also Beswiek v. Capper, 7 C. B., 669.] The Act 9 & 10 Viet., c. 95, under which the case of Woodhams v. Newman was decided, merely provided that “ all pleas of personal actions, where the debt or damage claimed is not more than £20, whether on balance of account or-otherwise, may beholden in the County Court;” but no reference is made to a reduction of the original amount by set-off, the proceedings in which case are, in effect, equivalent to the trial of two actions under one plaint; but, by the amended Imperial Act (19 & 20 Viet., c. 108, s. 24), from which the clause in the Colonial A ct is taken, it is provided that “ where in any action the debt or demand claimed consists of a balance not exceeding £50, after an admitted set-off of any debt or demand claimed or recoverable by the defendant from the plaintiff', the Court shall have jurisdiction to try such action.” An “ admitted set-off” means a set-off for which the plaintiff, in his plaint and particulars, gives the defendant credit; but if the plaintiff’s claim is more than £100, he may try his case in the Supreme Court, although such claim may be reduced, by set-off, below that amount; and he will be entitled to his costs. It is optional with him to admit a set-off or not, as this clause only refers to cases of admitted set-off. On this point a case recently came before the Court of Common Pleas, reported Law Bep., vol. i.,

B

Part ii.


Paht ii. C. P., p. 567, Walesby v. Goulston. It was as follows: —By 19 & 20 Viet., c. 108, s. 24, where in any action the debt or demand consists of a balance not exceeding £50, after an admitted set-off of a debt or demand claimed or recoverable by the defendant from the plaintiff, the Connty Court shall have jurisdiction to try such action. The plaintiff sued in a superior Court for a debt of £51, the defendant pleaded a set-off, and, the case having been

' referred, the plaintiff admitted the set-off, and had anaward for the balance, which was under £20 — Held, that “admitted set-off” meant a set-off admitted hejore action brought; that a County Court therefore had no jurisdiction over the plaintiff’s cause of action, and the plaintiff was consequently entitled to costs. The judgment in this case was delivered by Erie* C. J. The action was brought to recover £51 17s. lid. for work done and materials provided. The defendant pleaded a set-off. The cause was referred to one of the masters, and before him the plaintiff admitted a set-off of £32 3s. 2d., and the master gave a

* certificate for the balance of £19 14s. 9d. A rule havingbeen obtained to show cause why the Court should not, under 15 & 16 Viet., c. 54, s. 4, order that the plaintiff recover his costs of suit, on the ground that no plaint could have been entered in the County Court for the plaintiff’s demand, and the following cases having been cited in support of the rule—Turner v. Berry, 5 Exch., 858 ; Hudspeth v. Yarnold, 9 C. B., 625 ; Beard v. Berry, 2 B. & S., 493 ; Awards v. Rhodes, 8 Exch., 312—Erie, C.J., said, “I am of opinion that this rule should be made absolute. The plaintiff claimed £51, and at the time when the action was brought there was no formal admission before the Court of any set-off; in the final result, however, a set-off was established, and the plaintiff recovered less than £20.”If the defendant proves a set-off, or even pleads a set-off, exceeding £100, it is apprehended that the Court would have no jurisdiction, under the 76th clause of the Act, to give a verdict for the defendant for the balance; and it is questionable whether the Court could enter into an investigation of the defendant’s plea at all; probably the Court would decide the plaintiff’s claim, and stay proceedings on the judgment, if it were in favor of him, for a sufficient period to admit of the defendant establishing his claim upon the plaintiff in the Supreme Court. Personal actions are either on contracts or for wrongs. An action of contract lies on a contract for the sale of real property, on bills of exchange, promissory notes, policies of insurance, on a warranty, on an award, for work and labor and services, on an account stated, on covenants, for not accepting goods, for goods bargained and sold, for not delivering goods, for goods sold and delivered, for money paid to the use or on account of another, for money lent, for money had and

. received to the use of another, for interest, for debt on. specialties - such as bonds, covenants, and judgments—

and for rent, for use and occupation of land or houses, for hire of goods, for carriage of goods and persons by land or water, and for any debt or demand arising out of a special or simple contract which has been broken.Actions for recovery of damages for wrongs lie for a nui-


sance, as for carrying on offensive trades, obstructing a Part ii.way, obstructing or diverting a watercourse, for negligence ------------- - 'generally, for false imprisonment, false representation, for injuries to bouses or land, for a wrongful entry into or trespass upon houses or lands, for assaults and injuries to the person, for an illegal seizure of goods under a distress, or otherwise, for illegally detaining goods the property of •another, for illegally converting the goods of a plaintiff to a defendant’s own use, for libel, slander, for the recovery

. of many penalties imposed by statute upon the performanceof certain acts made illegal by statute, and upon the omission or neglect to' do certain acts prescribed by statute, and for any wrongful act not being of a felonious nature.

24. Local Courts shall also have jurisdiction for the Jurisdiction in recovery of any demand within the amount for which they ship^and^cases shall have jurisdiction, which is the whole or part of the of distribution •unliquidated balance of a partnership account, or the andlsSiegSs. amount, or part of the amount, of the distributive share under an intestacy, or to any legacy under a will.

This is similar to the 65th clause of the 9th and 10th Yic., c. 95, except that the jurisdiction of the English Courts is limited to £50. An unliquidated balance means an unascertained balance. This section gives to Local Courts all the jurisdiction which a Court of Equity has in inquiring into partnership accounts. It is an im

' portant provision, and in the exercise of the power given by it some intricate points of law and equity relating to the liability of partners inter se may be involved. It is not every act of one partner which can bind another, even as regards third parties, although such act may be done in the name of the co-partnership, and purport to be on behalf of the firm; while, as between themselves, there are many dealings by one partner, for which, on taking

. accounts between himself and co-partners, he alone wouldbe liable. This clause relates to suits between partners, but it will perhaps be convenient in this place to append a few remarks on the law of partnership as affecting third parties. The following observations are applicable to this clause, and the law of partnership generally, as well as to, the practice in reference to disputes which arise between partners, and between them and third parties : —

1. If one partner sues for a debt due to him jointly with ,a partner, whose name does not appear in the plaint, the defendant, by simply appearing, may show that'another orothers should be joined as plaintiffs. But under clause 71 the non-joinder of a plaintiff or plaintiffs may be amended without a fresh plaint; but if the defendant would be prejudiced by the cause proceeding immediately, a postponement of the trial would be granted by the Court, and the defendant would be permitted to plead de novo to the amended plaint. [See clause 110.] It is discretionary with the Court to grant permission to add other plaintiffs, or another plaintiff.[See clause 71.] . .

2. One partner can in general bind his co-partner, so as to make him liable to third parties, with regard to all transac-


Part ii. tions within tlie scope of the co-partnership business, hut nototherwise. Thus it has been held that where two persons

. carried on the business of farmers in co-partnership, under a style or firm, one partner could not bind his co-partner by accepting a hill of exchange in the • name of the firm, because the business not being of a commercial character, it was not necessary, or according to the custom of the business, to accept bills, Greenslade v. Dower and another, 7 B. and C. 635. The same rule would apply to professional men, see Hedley v. Bainbridge, 3 Q.B. 316, and to all persons in partnership not being a trading partnership, see Bindley on Partnership. In these cases each individual

- member of the firm must accept, or assent to the acceptance,by and in the name of the firm. As to what constitutes a,

' partnership, so as to render each partner liable to thirdparties, the cases are somewhat conflicting. In a case recently decided in the Exchequer Chamber at the Sittings

. in Error after Trinity Term, 1865, Bullen and another• against Sharp, Law Reports C.P., vol. 1, p. 86, the whole

. law is reviewed, and it was laid down by the majority ofthe Court, consisting of Pollock, C.B., Crompton, J., Bram- well and Channell, B.B., Blackburn, J., Pigot, B., and Shee, J., that a mere participation in the profits of a business by a person advancing money for the purpose of carry

' ing on such business, does not necessarily constitute apartnership,, so as to render the participator liable to third parties. Blackburn, J., thus states the case, and his opinion on the law involved :—“ It appears that in March, 1857, the son of the defendant entered into a written agreement with one Fenn, an underwriter; by this agreement the son was to be an underwriter, but the management of the business was to be confided to Fenn, who, in consideration of a salary of £300 a year, was to act for the son. On the same day on which this agreement was made, the defendant authorized Fenn to state to the Committee of Lloyd’s that he, the defendant, had placed at Fenn’s disposal £5,000, and intended to give his son further aid if needed. In November, 1858, it was resolved to extend the business carried on by Fenn in the name of the son; and by an agreement between them Fenn’s salary was raised to £350. On the 1st January, 1859, the son signed a letter addressed to the defendant, by which, in consideration of the defendant’s guaranteeing the son to the extent of £5,000 in his business of an underwriter, until by such business he should acquire the clear sum of £5,000,.the son promised to pay the defendant during their joint lives, an annuity of £500 a-year, to be increased in case one-fourth of the son’s average annual net profit during the first three years should exceed £500, to a sum equal to one-fourth of such net average annual profits. It was expressly stipulated in the letter that the defendant should not be a partner with his son in his business. This last stipulation is binding on them, but does not affect third parties; and I think that assuming it to represent the real transaction, it did not constitute a partnership.” Pollock, C.B., concurred in this judgment. Channell, B., in delivering judgment (concurring with Blackburn, J., and referring to the case of Cox v. Hickman, H.L.C., 268), says—“ I think that henceforth we may take it that the true test where a person is sought to be made liable on


the ground of his being a partner, is, to see whether he has constituted the other alleged partner his agent in respect of the partnership business; and, that taking a part of the profits, though cogent evidence of this is not conclusive—mere participation in the profits is not sufficient to make a man hound by alleged partnership contracts if the facts show that he had not constituted the other his agent.”

3. In deciding upon questions even between partners, it may sometimes be necessary to bear in mind the law above referred to ; for, although, generally, articles of partnership, or some agreement or memorandum exist, defining the respective rights and liabilities of partners inter se,.yet if no such articles of agreement or memorandum in writing or otherwise exist, and one partner, without the knowledge and consent of his co-partner, expressed or implied, does any act not within the scope of the partnership business, whereby a loss is sustained, the partner doing such act would be chargeable with the loss in taking the partnership accounts.An agreement for a partnership need not be in writing, but may be entered into and a partnership constituted by a verbal agreement.

•A partnership, where no time is fixed for its duration, is a partnership at will, and may be determined at the pleasure of either party without notice. All the jurisdiction of a Court of Equity is given by this clause to the Local Courts to take accounts and give judgment for any balance not exceeding £100. The jurisdiction only arises after a dissolution of the co-partnership ; the Court has no power to order a dissolution.The evidence required on behalf of a plaintiff in an action against partners is the same as that necessary in an action against a sole defendant, except that in some cases the partnership must be proved.Any one partner may sue his co-partner for a debt or claim not arising out of the co-partnership connexion, in the same manner as he could sue a stranger, and even during the existence of the partnership.Another important equitable jurisdiction is given to the Local Courts by this clause, viz.—the power to entertain a plaint where the amount sought to be recovered is “ the amount, or part of the amount, of the distributive share under an intestacy, or to (should be ‘ of’) any legacy under a will.” ..It will be observed, that under clause 27 the validity of the will may also be disputed. [See note to that clause.]An action lies for a legacy or a distributive share, though the claim be in the nature of a trust. Tears v. Wilson, 6 Exch , 833 ; Fuller v. Mackay, 2 Ell. & Blackburn, 573.An action will lie against an executor or administrator for any debt due by the testator; but an executor or administrator is only personally liable to the extent of the assets which come to his hands, unless he has wasted the estate. If an executor or administrator has fully administered the estate, and enters a plea to that effect in an action by £l creditor of the deceased, and supports such plea by evidence, the judgment for the plaintiff, supposing him to establish his claim against the estate of the deceased, would be judgment quando accedcrint (when assets fall in).

Paht ii.


Part ii.

Court to have jurisdiction to any amount by consent.

Plaintiff not to divide cause of action.

The course of distribution of a testator’s or an intestate’& estate is as follows:—

1. Funeral expenses.2. Expenses of proving the will or procuring letters

of administration.3. Debts due to the Crown by record or specialty.

. 4. Debts of record, such as judgments, due as such frontthe deceased.

5. Debts due by specialty and rent.6. Debts on simple contract due to the Crown.7. Debts on simple contract generally, among which

wages of laborers and domestic servants are entitled to priority. Read v. Blunt, 5 Sim 567.All debts, even those on voluntary deeds, are to be paid before any part of the assets can be appropriated to pay legacies or distributive shares. Leehmere v. Carlisle. 3 P. Wins. 222 ; but executors may retain, in the first instance* debts due from the testator to themselves.Legacies are not strictly payable until one year has elapsed after the testator’s death.

25. Any Local Court shall have jurisdiction in any action without any limitation as to the amount of the claim, if both parties shall file with the Clerk of the Court a consent in writing, signed by them or their attorneys, which shall not be revocable, that the Court shall have such jurisdiction \ and, thereupon, all proceedings may be taken, and the judgment of the Court shall be enforced in like manner, and be subject to the like right of appeal, as in an ordinary action.

26. It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more suits in any of the said Courts; but any plaintiff having cause of action for more than the sum for which a plaint might be entered under this Act, may abandon the excess, and thereupon the plaintiff shall, on proving his case, recover to an amount not exceeding the sum competent to be awarded by such Court; and the judgment of the Court upon such plaint shall be in full discharge of all demands in respect of such cause of action, and entry of judgment shall be made accordingly.

The judgment directed by this clause to be entered may be pleaded to any subsequent action for the excess, by way of release.The mode of proceeding by the defendant, in the event of a plaintiff attempting to divide his cause of action, it is suggested should be as follows The plaintiff should be called and asked if the amount claimed by him, is all that he claims to be due to him from the defendant j if he replies in the affirmative, the action would proceed, and the judgment recovered might be pleaded by way of release to any subsequent action; if he replies in the negative, he might then be asked if he abandons the excess; if he consents to do so, and signs a written consent to that effect, the action

' would be within the jurisdiction of the Court, but if he re-

XjOCAL ooubts acts. 23

fuses the Court would have no jurisdiction, and the plaint would be dismissed. There is no provision as to costs in such a case, and it is presumed the Court not having jurisdiction could give no costs to the defendant. In a recent Imperial Act such jurisdiction is expressly given to County Courts, that is the power to award costs on a plea to the jurisdiction. [See sec. 14, 30 & 31 Viet., c. 142.]As to dividing the cause of action, the words “ cause of action” do not mean cause of action on one separate contract only; there may he many contracts and hut one cause of action; this was decided in ex parte Ackroyd, in re Grimby v. Ackroyd, 1 Exch. 409, in which the plaintiff, a grocer, had supplied goods on a railway upon three thousand tickets or orders of the defendant, the contractor of the line. The plaintiff brought two hundred and thirty- eight actions upon them, each, as it would seem, for supplies to one workman. It was decided that these orders amounted to hut one cause of action, and it was also decided that a tradesman’s hill cannot he divided, that is, a hill in which the items are so connected that the dealings are not immediately intended to terminate with one contract, hut to he continuous, so that one item, if not paid, shall be united with another and form one entire demand.But the cause of action must, if consisting of separate contracts, consist of contracts of the same nature in order to bring it within this clause, for although several contracts may he sued upon in one plaint, it is not imperative on the plaintiff to do so ; hut he may, if he has a claim upon the defendant, for instance, for goods sold and delivered, and for money lent, and on a hill of exchange, bring separate actions for each cause of action, these being distinct demands. [See JBrumkill v. Powell, 19 L. J., Exch., 362.] So if a debt be payable by instalments, each instalment is a separate cause of action, and may he sued for separately. In Wiekkam v. Lee, 13 L.J., Q,.B., p. 21, it was decided that separate plaints may he entered in a County Court for causes of action which in a superior Court would render- distinct counts in the declaration indispensable. This seems to he a good test.In determining the right of a plaintiff to recover, it is sometimes of importance to consider the law as to separate and entire contracts. If a person buy goods at auction, each lot forms the subject of a separate contract on the fall of the hammer, and entry, by the auctioneer or his clerk, in the auctioneer’s sale book ; but if a person purchase by private contract, at one time, several different articles, the whole of the articles so purchased form the subject of one entire contract. In the former case the auctioneer or his principal may sue for the recovery of the price of one or more lots without delivering the whole of the goods purchased. In the latter, the seller could not sue the purchaser until the delivery of the whole of the goods, if the purchaser chose to refuse to take delivery of part, or if part only were delivered and he returned them to the seller. So in the case of services performed under an entire contract, where the whole service contracted for has not been completed, the plaintiff cannot recover for the services actually performed. [See Cutter v. Powell, 6 T.B. 320, and Smith’s L.C., vol. 2, and the other cases there collected.] This was an action by

Part ii.

24 LOCAL COXJKTS ACTS.

Part ii. the executors of a deceased mariner for recovery of a sum of----------------- - money as remuneration for services performed as a seaman.

The testator had entered into an agreement with the defendant to perform the duties of a seaman on a voyage from the Port of Kingston, Jamaica, to Liverpool for a lump sum, hut died on the voyage ; it was held that the services could not he apportioned, and that the executors were not entitled to recover compensation for the services rendered on such part of the voyage as had been performed during the lifetime of the testator. But if the defendant puts an end to the contract, or in any manner prevents the completion of it by the plaintiff, the plaintiff can recover not only for the portion of the goods which has been delivered, or for such service as he has performed under his contract, hut also damages for the breach of contract by the defendant.

Exceptions from 27. A Local Court of full jurisdiction, shall, but a Local jurisdiction. Court of limited jurisdiction shall not, have cognizance of

any action in which the title to any corporeal or incorporeal 1 hereditament or easement shall he in question, or in which

the validity or effect of any devise, bequest, or limitation under any will, or settlement, or document in the nature of a settlement may be disputed, and no Local Court shall have cognizance of any action of ejectment save as hereinafter mentioned.

By this clause very extensive powers are conferred on Local Courts of full jurisdiction,; hut it seems doubtful whether

. such could have been the intention of the Legislature ; for,while such Courts are prohibited from trying an action of ejectment in which the right of possession only comes in

• question (unless the property is under the Beal PropertyAct, or unless the case comes within the provisions of

. Part xii.) they are authorized to try the graver question of title to land in all cases where the value does not exceed £100. Thus in an action for the recovery of the purchase

. money of land by a vendor against a purchaser, if the defendant pleaded want of title in the plaintiff, the Court would have to determine the question as to whether a good title had been shewn by the plaintiff; in this question might be involved many complicated points of Beal Property law.It would be impossible, in a short note to this clause, to point out all the questions as to title which might arise in a defence to an action for the recovery of the purchase-

_money of land contracted to be sold; but, amongst other questions, the Court would have to decide, in the first in

.. stance, whether the Statute of Frauds (29 Car. 2, c. 3) hasbeen complied with. The first clause of this Act provides that every agreement for the sale of an interest in land, exceeding the term of three years therein, must be in writing, and signed by the party chargeable therewith, or by his agent.. The agent’s authority need not be in writing. Objections to title may also be raised on the ground of uncertainty, in the description of the property or otherwise, in the contents of the deeds and muniments of title generally, or some of them; and the Court would have to decide as to the legal construction of the deeds, the rules relating to


which are somewhat complicated. There are, however, some important and well-established rules which may here he mentioned.

' 1. “Id est cerium quod cerium reddi potest ’’—that is certain which can he rendered certain. Thus, if a deed is ambiguous in its expressions, and yet, from a fair construction of the whole, without importing into it extrinsic matter, the intention of the parties can he discovered with certainty, the .deed is good; hut if, on the contrary, such intention cannot he made out, the deed would he void for uncertainty.. 2. A deed will he supported if it is possible to construe it intelligibly, the policy of the law being in favor of supporting rather than rejecting or avoiding a deed.

4. A latent ambiguity may he explained by extrinsic evidence, hut not a patent ambiguity; thus a plan may he imported into a deed, even if not referred to in the deed. If it is referred to it becomes, as it were, a portion of the deed itself—as if land were described as Allotment ISTo. 1, in the village of Bowden, the original plan of such village may he produced to show the situation and dimensions of such allotment; hut if the land were described as Allotment No. 1, and the words “ in the village of Bowden” were by mistake omitted, this would he a patent ambiguity, which could not be explained by extrinsic evidence ; so if the wrong number of the allotment were inserted in the deed, evidence could not be received, to show that another number was intended.Then, again, in the exercise of the jurisdiction given by this clause, the Court would have to determine the nature and quality of the estate passed by the deed; as for instance, if there are no words of inheritance, and no limitation of a less estate than a life estate, such estate only would pass.In a conveyance to uses, or upon trust, the Court would be called upon to decide whether the re-lessee to uses or the trustees took the legal fee or not.But the questions which arise as to title to land are of such a complicated character, and are so numerous, that it would be out of place here to refer to them more fully. It is thought that the Local Courts, as at present constituted, would, in every case of objection to title, reserve the points raised for the decision of the Supreme Court, under the 55th clause of the Act. As to marketable titles, see Sugden’s Vendors and Purchasers, and Dart’s Yendors and Purchasers. By the Imperial Act 30 and 31 Viet., c. 142, sec. 12, the County Courts in England have jurisdiction to try the title to land where neither the value of the land nor the rent shall exceed £20 a year.Incorporeal hereditaments and easements comprise rights of way, rights of using -water, rights of support by and usage of walls of adjoining tenement, and all other rights in land or buildings which do not include the right to the possession of the corpus of the property. If a grant of way gives merely a right of passing and repassing with horses and carriages, such grant does not include * a right of stopping in the way to unload carts, or of remaining on the way to the obstruction of passengers, nor does the right of using water permit the obstruction or diversion of the

Part ii.


Part ii. stream; so if a person build to the extremity of bis land,.--------------- and the owner of the adjoining land afterwards builds on

. his own land, he' may carry his foundations down belowthose of his neighbour’s building; and if in so doing his- neighbour’s house falls, the neighbour has no remedy unless he has a grant from the owner of the adjoining land of a right to support, because the rule of law is that the owner of the surface of the soil has a right to all above and below it.A grant of way is sometimes implied, as where growing

• timber is sold, the purchaser has an implied grant of aright of way over the vendor’s land for the purpose of cutting and removing it, because the rule is that “ when anything is granted, all that is impliedly granted without which what is expressly granted would be of no avail to the grantee.”Under the Real Property Act, No. 22 of 1861, the produc-

. tion of a certificate of title is made sufficient as primd facieevidence of title [see clause 115] and the onus of proving

, want of title in the vendor is thrown on the purchaser.He may show [see clause 40 of Real Property Act] —

1st. That some person claims the land, or part of it, under a certificate of title or grant prior in date to that held by the vendor. Hutchinson v. Leworthy, tried in the Supreme Court.

2nd. That there is an omission cr misdescription in the certificate of title of some right of way or easement created in, or existing upon, the land. Anld v. Murray, tried in the Supreme Court. . .

3rd. That the certificate of title has been obtained by fraud. Guthrie v. McEllister, tried in the Supreme Court.

4th. That some portion of the land has been erroneously included in the grant or certificate of title by wrong description of parcels or of boundaries, Hutchinson v. leworthy, supra; and see Smith v. Lewes, 8. A. Law Reports, 1868, in which the same question came before the Supreme Court, and the decision in Hutchinson v. Leworthy would appear to have been overruled.In actions of trespass quare clausiim fregit, under the plea of liberum tenementum, that is, that the land is the freehold of the defendant, the Court would have to decide the question of title; this question frequently arises in cases of disputed boundaries.Another important jurisdiction is conferred on Local Courts by this clause, viz., the power of deciding upon “the validity or effect of any devise, bequest, or limitation under any will, or settlement, or document, in the nature of a settlementthis power, it is presumed, comprises that of deciding upon the validity of the will itself. The manner in which wills are to be made and executed is defined by the Local Acts No. 15 of 6th Yict., and No. 15 of 1862. The provisions of these Acts are taken from the English Wills Acts. A will must be in writing (except in the cases of military and naval men in' actual service), and the signature of the testator must be attested by two witnesses who must sign the attestation in the presence of the testator,

' and of each other ; the testator must also sign the will in the presence of both the witnesses, who must be present at the same time j any interlineation or alteration in the will


must be noticed in tbe attestation. "With regard to a devise of land, the law differs from that which regulates a con- yeyance of land inter vivos. A devise of land to A. B., without any words of inheritance passes the devisor’s whole estate in the land, whether it be a fee simple or a lesser estate. In a conveyance inter vivos the absence of words of inheritance would have the effect of conferring on the grantee a life estate only. The rule as to the construction of wills is the same as that which is applicable to the interpretation of other deeds .and instruments, with the exception that the latter part of a will overrides the former part, the latter portion being considered as the declaration of the last will of the testator.Actions of ejectment made cognizable, by Local Courts are

. those in which the land which is the subject of the action is under the Eeal Property Act. [See clause 159, et. seq.]

28. Where in any action of contract brought in the Supreme Court, the sum endorsed on the writ, or claimed by the plaintiff in the particulars of demand delivered in the action, does not exceed One Hundred Pounds, or where such claim, though it originally exceeded that amount, is reduced by payment into Court, an admitted set-off, or otherwise, to a sum not exceeding One Hundred Pounds, a Judge of the Supreme Court, on the application of either party, after issue joined, may, in his discretion, and on such terms as he shall think fit, order that the cause be tried by and before any Local Court of full jurisdiction which he shall name, and thereupon the plaintiff or defendant shall lodge with the Clerk of such Court, such order, and the issue, or a copy thereof; and the Special Magistrate presiding over such Court, or the Clerk thereof, shall appoint a day for the hearing of the cause, notice whereof shall be sent by post, or otherwise, by the Clerk, to both parties, or their attorneys; and after such hearing, the Clerk shall certify the result to the Master of the Supreme Court, and judgment, in accordance with such certificate, may be signed in the Supreme Court.

It will be observed that it is discretionary with the Judge to make an order under this clause, and that the application for an order cannot be made until after issue joined. This is a similar provision to that contained in the Imperial Act, 19 & 20 Viet., c. 108, sec. 26. This enactment only applies to actions of contract. The application should be made to a Judge in Chambers, on a summons to show cause. [See the note to the next clause.]

29. When in any action of contract brought in the Supreme Court, the amount claimed by the plaintiff is reduced by payment into Court to a sum not exceeding One Hundred Pounds, it shall be lawful for the plaintiff to accept such sum in bar of the further maintenance of the said action, and thereupon to enter a suggestion upon the record, that he claims a further sum, and that the amount so claimed is within the jurisdiction

Part ii.

Supreme Court may order certain actions to tie tried in Local Court.

Amount claimed in Supreme Court reduced by payment into Court.


Part ii.

Plaintiff may s' for balance of claim in Local Court.

Money paid Tinder plea of tender.

Plaintiff suing in Supreme Court not to recorer costs in certain cases.

of a Local Court, and thereupon to abandon all further proceedings in such action, and in that case to tax his costs of suit; and in case of non-payment thereof, within forty-eight hours, to sign judgment for his costs of suit so taxed.

The effect of this clause and that next following, is to give jurisdiction to Local Courts to an unlimited amount; for instance, if a plaintiff brings an action in the Supreme Court for the recovery of £1,000, and the claim is reduced by payment into Court of £900, the Local Courts, in order to decide if there is ariy, and if so what balance due, would have to go into the whole claim of £1,000, and, decide upon it. [See the note to clause 23, supra.~\

30. After the entry of such suggestion, it shall he lawful for the plaintiff to sue for the residue of the amount claimed by him in such action in a Local Court of competent jurisdiction.

This would be an action simply for a balance due for goods sold and delivered, or as the case might be.

31. If the money paid into Court, in any such action in the Supreme Court, shall be paid under a plea of tender, then the plaintiff shall not tax his costs of suit until* such plea is decided, and it shall be lawful for such plaintiff to take issue upon such plea, and thereupon he shall lodge such issue with the Clerk of Court of the Local Court, wherein he may sue for the residue of such amount, and such Court shall try such issue, and shall notify the result of such trial to the Master of the Supreme Court, and judgment in accordance with such certificate may be signed in the Supreme Court.

It is presumed that this clause only applies to the case'of issue taken upon the plea of tender, and that such issue only can be tried by Local Courts under this enactment. If there are other pleas upon the record, so as to raise other issues, it is apprehended that this clause would not be applicable. Rut it would seem that the plea of tender may be tried by a Local Court on the issue joined in the Supreme Court, and that a plaint may be issued in the Local Court for the balance sought to be recovered, and that both actions may be tried simultaneously. This clause has the effect of greatly enlarging the jurisdiction of Local Courts. [See the note to clause 29.]

32. In every action in the Supreme Court for any cause within the jurisdiction of any Local Court, except actions removed into the Supreme Court by a defendant, being in covenant, debt, or assumpsit, where the plaintiff shall recover a sum not exceeding One Hundred Pounds, or, being in trespass, detinue, trover, or case, where the plaintiff shall recover a sum less than Twenty Pounds, such plaintiff shall have judgment to recover such sum only, and no costs, unless he obtain a certificate of the presiding Judge, or an order of the Supreme Court or a Judge thereof, as herein-

LOCAL COTJBTS ACTS. 29

after* provided; and it shall not be necessary to enter any Part ii. suggestion on the roll to deprive such plaintiff of costs. :

The amount recovered in the action is the amount which the plaintiff recovers, whether it he by verdict or otherwise. Thus, it has been held that, a plaintiff recovering £18 by verdict in an English County Court, in addition to a sum of £7 15s. paid into Court, under a plea of tender, recovers a sum exceeding £20 in the action, and is there- .fore entitled to costs. Crosse v. Seamen, 11 C. B. 524.So it has been held that ff a plaintiff suing in a superior Court for a debt exceeding £20 take out and accept in satisfaction of his cause of action a sum under £20, paid in by the defendant, the sum so taken out is not a sum recovered in the action within the meaning of the 13 and 14 Vic., c. 61, sec. 11 (which is similar to this clause), and that the plaintiff is therefore entitled to his costs. [See Chambers v. Wiles, 24 L. J., Q. B..267.] In the judgment delivered in that action it was thus stated: “The law which has extended the jurisdiction of the County Courts left it open to a party where the sum was beyond £20 to sue in a superior Court, subject to the consequences. The right ought not to be construed invidiously. If a party, having taken advantage of, or acted upon, the law as it stands, and sued for a sum over £20 and the defendant pays in a sum under that, and if he took the money out 'and put himself in jeopardy of losing the costs of the action, it put him in an unfair position, because you might

' suppose a case of a man suing for £21 or £22, and the defendant pays £19 19s. into Court, and he goes on and puts himself and the other party to the expense of a trial; that would be a wrong thing to do, and yet he would be bound to do it to have it in his power to receive his costs”(that is, if the Act would bear a different construction to that put upon it in the case cited). There seems to be no doubt that if a plaintiff sues in the Supreme Court for a sum exceeding £100, and the defendant pays in a less sum the plaintiff may take the money out of Court, and would be entitled to his costs; see clause 29. Whether he takes it out in satisfaction of his claim or not would make no difference. He may enter the suggestion on the roll provided for in that clause, and he may proceed for the recovery of the balance or not, as he thinks fit, under the 30th clause. ..

33. If the plaintiff, in any such action as aforesaid, shall Judge or Su- recover a snm less than the sum in that behalf respectively mameiye costs hereinheforef specified by verdict, and the Judge presiding at in certain cases, the trial shall certify, at the back of the record, that the action was fit to be tried by a jury, or whether there was a verdict or not, if the plaintiff shall make it appear to the satisfaction of the said Court; or to a Judge at Chambers, upon summons, that there was sufficient reason for bringing such action in the Supreme Court, then, and in any such case, the said Court or Judge shall make order that the plaintiff shall have

* See clause 33. f See clause 32.


Part ii. judgment to recover his costs, as if this Act had not been passed.

This clause refers both to cases which are tried, and to those where money is taken out of Court by a defendant in satisfaction of his claim - it will be seen that in either case an application may he made to a Judge in Chambers, though when a trial takes place the plaintiff may apply to the presiding Judge to certify on the hack of the record.

Replevin may 34. An action of replevin, in case of distress for rent in LocaiorSupreme arrear> or damage feasant, may be brought in a Local Court, Court. or in the Supreme Court, as hereinafter provided in Part the

Tenth.*There is no provision in the Eleventh Part for an action of replevin to he brought into the Supreme Court; this clause

1 and the division of the Act to which it is intended to refer,seem to have been framed under unfortunate circumstances, besides an erroneous reference to the division of the Act, there is nothing in Part the Eleventh which refers to actions of replevin being brought in the Supreme Court; indeed

, such Part expressly provides that they shall only he broughtin the Local Courts, that being the condition of the replevin bond. "While Part the Eleventh, clause 148, refers to a section of the Act which does not exist. [See the note to clause 148. jActions of replevin are in the nature of actions of trespass for unlawfully taking the goods of another under the pretence of rent being due, or the cattle of another under pretence of trespass.

Part hi. Part iii.—And to enable actions in Local Courts to be tried by a jury, Be it Enacted— .

Many of the sections in this part of the Act have been repealed by the Jury Act, 1862, and the following are the provisions of that Act (25 & 26 Vic., No. 1), so far as they

' relate to trials by jury in Local Courts:—No. 12 of 1843, and No. 8 of 1854 are repealed entirely; and sections No. 38, 39, 40, 41, 42, 43, 44, and 45 of the Local Courts Act, 1861, are also repealed.Section 4, and Schedule C to the Act, relate to the jury districts annexed to Local Courts, from which districts the jurymen required at such Local Courts are to he summoned. Section 6 specifies the disqualifications.Sections 7 and 8 relate to exemptions. t Section 10 provides for the preparation of lists of persons

. liable to serve within jury districts.Section 16 provides for the preparation of Local Court jurors’ rolls, which are to he in force for a year (sec. 17). Section 21 empowers the Governor, on the establishment of any other Local Court, to appoint a jury district from which jurors are to be taken to try causes in such Court.Section 22 empowers the Governor to alter jury districts of Local Courts.Section 23 provides that Clerks of Local Courts shall sum-

* This word should be eleventh .


mon jurors according to tlie order in which their names appear on the roll. “Section 24 provides that Clerks of Local Courts shall write in the jurors’ hook, opposite the name of every juror who shall have served, the time of his so serving; and that such juror shall not again he summoned until all the jurors named in the hook shall have served—jury hooks with records of service to be preserved at least three years.Section 32 is as follows:—“ Whenever a jury shall he required at a Local Court, the Clerk of the Court shall cause so many of the persons named in the jurors’ roll as shall he needed, in his opinion, to he summoned to attend the Court at the time and place to he mentioned in the summons.”Section 33 provides that in Local Court cases four jurymen shall he impannelled and sworn according to the form given in the Jury Act -and being once sworn shall not require to he resworn in each trial; either party to have a right of challenge against all or any of the jurymen not exceeding three in number, except for cause. The finding of any three of the jurymen to he taken as the verdict of the jury. Section 36 provides for causes of challenge. The causes of challenge for disqualification are provided for in sections 6 and 7 of the Jury Act.Section 38 provides for a tales where a sufficient number of jurors summoned shall not he in attendance, or when by challenge the jury is likely to remain untaken, and enacts that “when any cause to he tried by a jury at a Local Court shall he called on, and sufficient number of jurors shall not he in attendance, or in case any of those in attendance shall he challenged by the plaintiff or defendant, and such challenge he allowed, and a sufficient number shall not remain to try such case, it shall he lawful either for the plaintiff or defendant to pray a tales, and the Judge or Special Magistrate in attendance shall thereupon summon as many good and lawful men of the bystanders as shall he necessary; such persons being qualified- and liable to serve as common jurors that is, common jurors within the Jury District of the Local Court. The qualifications for a juror are that he shall he between the ages of twenty-one and sixty years, that he shall reside within the Jury District, and that he shall occupy as owner or tenant any lands or tenements of the yearly value of not less than ten pounds sterling. The disqualifications and exemptions are mentioned in the 6th, 7th, and 8th sections of the Jury Act. It would seem that the Clerk of the Court would not he justified in summoning more than four jurymen for each cause, as the payment of these would absorb the two pounds required to he paid by the party demanding a jury, and in case of challenge, a tales must he prayed; a great inconvenience might, however, result—for inasmuch as each party is allowed to challenge three jurors, ten should he in attendance, so as to leave four unchallenged, hut the six who attended, although not required to serve, would each be entitled to 10s. [See sec. 45 of Jury Act,] Thus an expense of £5 would he incurred, £3 of which would fall upon the Government. The regulations relating to Jury Lists have been further altered by the Act No. 12 of 1870.

PAItT III.


Part hi. 35. That it shall be lawful for the Governor, by Proclama- Govcmor may tion to he from time to time by him issued for that purpose,

and published in the South Australian Government Gazette, at some other to alter the time or place, or both, at which all jury actions than1 thatdepending in any Court held under this Act shall he tried, which the plaint which Proclamation the Governor may in like manner revoke was entered. Qr ^ter.

See clause 45, and notes.

Parties to action 36. A plaintiff or defendant in any action in a Local Courttried hyVa jury full jurisdiction may require such action to be tried oron giving notice damages to be assessed by a jury; in which case the parties to the Clerk. requiring a jury shall give to the Clerk of the Court, or

leave at his office, notice in writing of demand of a jury, such . notice to be given seven* clear days at least before the day

at which the trial would take place, or in the case of a defendant such notice may be given with the notice of appearance; the Clerk of the Court shall immediately cause notice of demand of a jury to be communicated to the other party to the said action, in like manner as a notice of trial; and in case the place for trying jury causes shall have been altered by Proclamation as aforesaid, and it shall have been directed that such causes shall be tried at some other Local Court, or at the Civil Sittings of the Supreme Court, the Clerk shall cause the summons, appearance, and necessary papers in the action to be sent to the Clerk of the Court in which the trial is to take place, Or to the Associate of the Supreme Court, as the case may be, and shall give notice to each party of the day and place of trial.

Party requiring- 37. The party requiring a jury shall, at the time of giving £2 wftb°c1erk.Slt the said notice, and before he shall be entitled to have such

jury summoned, pay to the Clerk of the Court the sum of Two Pounds, and out of the said sum the jurymen shall be paid as hereinafter! provided.

Clerk to prepare 38. The Clerk of each Court having jurisdiction in jury jury lists. causes shall prepare, or cause to be prepared, a jury list as

hereinafter provided. The first jury list shall be prepared within three months after the day on which this Act shall take effect, or after the Proclamation establishing the Court, or authorizing trials by jury at such Court, and the subsequent list in the first week in the month of January in each

* It will be seen by reference to clause 92 that tins would be impossible in many cases, as the trial must take place at the first sitting of the Court after the expiration of two clays after issue joined, and until issue joined the plaintiff would be acting prematurely in applying for a jury.

f The section provides for the payment of £2 only, but it does not provide for payment of extra jurors summoned.


succeeding year; and such list shall contain, in alphabetical Taut iii. order, the names of all persons, residing within twenty miles of the Court, who are qualified and liable to serve on juries (and the qualification, disqualification, and exemption of such jurors shall be the same as for the Supreme Court of the said Province), and shall also contain the particulars* and places of abode of such persons; and the Clerk of the Court preparing such list shall subscribe the same with a declaration that the same contains, to the best of his knowledge and belief, the names of all persons qualified and liable to serve on juries within such limits as aforesaid.

39. The Clerk of the Court shall also, with all reasonable Clerk to subdispatch, cause copies of such list to be affixed to the doors affij tiSsame1 of his Court House ; and he shall subscribe thereto a notice to the doors of of the time when and the place where such list will be revised. Houses.°Urt

Repealed by Act No. 1 of 1862.

40. At the first Local Court of full jurisdiction after the Lists howre. first day of January in each year, the Clerk of the Court shall vised, produce the list, so prepared and verified as aforesaid, and thereupon the Court shall examine such list, and shall strikeout of such list the names of all persons not liable or qualified to serve, or who may be disqualified from serving as jurors, and also of all persons disabled by any permanent infirmity, and shall insert all names improperly omitted, and correct all errors in the said list; and every Magistrate present at any such Court shall sign his name to the said list when so revised ; but, if a sufficient number of Magistrates to form a Local Court of full jurisdiction shall not attend, then such list shall be revised by the Magistrates, or sole Magistrate, attending at the time and place for holding such Court: Provided that, in the case of the first jury list, such list shall be in like manner revised by the said Local Court first holden after fourteen days from the affixing of the list to the Court House door, or by the Magistrates or sole Magistrate,'as aforesaid; and such list, so signed, shall be returned to the Clerk of the Court.

Repealed by Act No. 1 of 1S62.

41. Whenever a jury shall be required the Clerk of the Clerk to summon

Court shall cause so many of the persons named in. the list j^mstcr oattis. as shall be needed, in his opinion, to be summoned to attend Formofsum- the Court at the time and place to be mentioned in the summons ojmois* mons, and shall administer, or cause to be administered, tosuch of them as shall be empamiclied to try any cause or causes, an oath, to the effect that such jurors will give a true verdict according to the evidence ; and every summons shall be in

* Sic — repealed by Act No. 1 of 1862.

34 LOCAL COTTETS ACTS.

Part ixi. writing, signed by tbe Clerk of the Court, and shall be to the following effect:—

Mr. A. B. (naming the juror), you are hereby required to attend as a juror at the Local Court, to be holden at on the day of next, and there to attend fromday to day until you shall be discharged by the said Court.

(Signed) C. D., Clerk.It will be seen that every juryman must take an oath, so that persons who, on account of particular religious scruples, object to take an oath, cannot serve. It is questionable if they would be considered as exempted; but see Jury Act,

. 1862.Eepealed by Act No. 1 of 1862, and re-enacted by section 32 of that Act.

Penalty for jurors duly summoned who shall not attend.

42. If any person, duly summoned as a juror, shall not attend the Court at the time mentioned in the summons, he shall, in default of attendance, forfeit such sum of money as the Special Magistrate shall direct, not being more than Five Pounds for each default; and the delivery of such summons to the person whose attendance is required on such jury, or delivery thereof to his wife, or servant, or any inmate at his usual place of abode, trading, or dealing, shall be considered good service.

Eepealed by Act No. 1 of 1862, and re-enacted by section 48 of No. 1 of 1862. Penalty £10.

Number of 43. Whenever there are any jury trials four jurymen shalljurors. foe empannelled and sworn, as occasion shall require, to give

their verdicts in the causes which shall be brought before them in the said Court, and being once sworn shall not require to be resworn in each trial, and either of the parties in any such cause shall be entitled to his lawful challenge against all and any of the said jurors in the like manner as he would be entitled at the Civil Sittings of the Supreme Court, but neither party shall have the right of challenge, except for cause, against more than three jurymen, and the finding of the jury or any three of the jurymen, shall be taken as the verdict of the jury.

' Eepealed by Act No. 1 of 1862, and re-enacted by section33 of No. 1 of 1862. .

When a suffi- 44. When any cause to be tried by a jury, shall be called jurymen^otpre- on, and a sufficient number of jurors, as aforesaid, shall not sent, bystanders fo© in attendance, or in case any of those in attendance shall mone^i.SUm" be challenged by the plaintiff or defendant, and such chal-

' lenge be allowed, and a sufficient number shall not remain totry such case, it shall be lawful either for the plaintiff or defendant to pray a tales, and the Judge or Special Magistrate in attendance shall thereupon summon as many good and lawful men of the bystanders as shall be necessary.

Eepealed by Act No. 1 of 1862, and re-enacted bv section


38 of No. 1 of 1882. [See note on such section at the head of this sub-division of the Act.] •

45. Every juryman summoned to attend, and attending at a Local Court, shall receive for each day’s attendance the sum of Ten Shillings, and shall be exempt from sitting as a juryman at the Supreme Court, or at any Local Court, for a period of twelve months from the first day of his attendance, upon his producing to the Sheriff, or Clerk of Court, as the case may be, a certificate signed by the Clerk, of such attendance, and which certificate the Clerk is hereby required to give on receipt of the sum of one shilling. Whenever causes are to be tried at any civil sitting of the Supreme Court, or of a Local Court other than the Court in which the cause originated, the jurors summoned for such sittings shall be liable to serve in all Local Court causes there to be tried.

The latter part of this clause, providing for the trial of causes in the Supreme Court, and in a Local Court, other than the Court in which the cause originated, has reference, it is presumed, to two cases.

1st. Where a cause is removed into the Supreme Court for trial by certiorari under clause 48; and

2nd. To jury cases tried in Local Courts where, by Proclamation by the • Governor, as provided for in clause 35, a particular Court or particular Courts may he declared to be the Court or Courts at which all jury cases shall be tried. No such Proclamation has hitherto been gazetted, and jury cases are tried at the ordinary sittings of Local Courts of full jurisdiction.Repealed by No. 1 of 1862. Section 35, above referred to,

. is not repealed.

46. Four days after the trial of any action not commenced in the Court at which such trial was h olden, the Judges’ Associate or Clerk shall tax the costs, and shall certify the result of the trial, together with the amount of costs and by whom to be paid, and shall forward such certificate and the proceedings to the Clerk of the Court in which the plaint was entered, and judgment in accordance with such certificate may be entered up.

This clause is unhappily worded, and it is probable that some verbal omission has occurred either in the preparation of the Act or in the modification of the clause during the passing of the Act by the Legislature. The clause, it is presumed, must, in order to render it consistent with other parts of the Act, be read as follows“ Four days after the trial of any action commenced in a Local Court, and removed for trial by certiorari into the Supreme Court, or removed for trial by a jury to the Court which shall he proclaimed by the Governor as the Court at which such trial shall be held, the Judges’ Associate, or the Clerk of the Local Court, as the case mav require, shall tax the costs of such trial and shall certify the result of the trial, together wdth the amount of costs and by vdiom to be paid, arid shall forward such certificate and the proceedings to

Paut iii.

Jurymen to be paid. .

Result of trial to be certified to Clerk of Local Court in which the plaint was entered.


Part hi.

Part iv.

Prerogative writs may be granted in term time or vacation.

the Clerk of the Court in which the plaint was entered, and judgment in accordance with such certificate may he entered up.”See clause 48 as to the removal of causes in the Local Courts for trial in the Supreme Court. There is no provision in the Act for the removal of a cause commenced in one Local Court for trial in another Local Court. The only mode, therefore, of putting an intelligible interpretation upon this clause is to suppose that, under the 35th

' clause, the Governor might dir ect that all jury cases should he tried in a particular Court or particular Courts—in which case a cause commenced in a Local Court would he removed for trial, if a jury were demanded under the 36th clause, to one of the Jury Courts mentioned in the Governor’s Proclamation.See clause 35 and notes.

Part iy.—And with regard to writs of certiorari, prohibition, and mandamus, Be it Enacted—

47. That every such writ may he granted by the Supreme Court, or a Judge thereof, in term time or vacation, and shall he directed to the particular Local Court; hut it shall not he necessary to serve or give notice thereof to any Justice other than the Special Magistrate.

The following observations as to these writs may he found useful in piactice: —The writ of certiorari is an original writ, issuing from the Court of Chancery, or the Crown side of the Court of Queen’s Bench (all the powers of which Courts are conferred upon the Supreme Court of this Province hy Colonial Statutes, to be exercised within the jurisdiction of such Courts), directed to the Judges or officers of inferior Courts, commanding them to certify, or (in the more modern form) to send the record or proceeding before them to the Court of Queen’s Bench, in order that the Court “ may further cause to he done therein what of right, and according to law, that Court shall see fit to he done.” It is a Common Law Jurisdiction modified hy Statute. By this writ the Court of Queen’s Bench is enabled to exercise its superintending jurisdiction over those inferior tribunals. [See Grady & Scotland’s Crown Practice, p. 128.] The right to issue this writ is so inherent in the Court of Q. B. that they will grant the writ to an inferior Court, though the Statute giving the jurisdiction say that the sentence shall he final and without appeal, for that nothing but the express words of an Act of Parliament taking away their jurisdiction can deprive the Court of its power to issue, or the party to apply for the writ. B. v. Morely and Ano 2 Burr. !L040, 1 W. BL R., 231. R. v. Inkes, 8 T.R., 543. B. v. Ball, 15 East, 376.In case of a certiorari issuing to a Local Court, the proceedings consisting of the plaint note, summons, appearance, and judgment, together with the evidence, must he sent to the Supreme Court, accompanied hy a return to the writ, and the writ itself.An application for a certiorari must he made to the Supreme Court, or to a Judge in Chambers, on an affidavit of the


facts, and the rule may be absolute in the first instance, or an order may be made by a Judge in Chambers without a summons to shew cause first issuing. [See clause 50.] It is usual, however to apply to the Court for a rule nisi only, or to issue a summons to shew cause, when it is intended to apply to a Judge in Chambers for this writ.It is thought that no certiorari will lie to remove proceedings within the Equitable Jurisdiction of Local Courts, as conferred by the 24th section of the Act, inasmuch as the writ is a Common Law writ, and if such proceedings were removed into the Supreme Court on the Common Law side, such Court would not have power to deal with the case, and therefore such removal would in effect be a removal of the cause from a Court which has jurisdiction to one which has none, and would be a nugatory Act. In Durant and others v. Tomlin, 11 L. T., 2G7. Q,. B., Lord Denman refused a certiorari in an action for the bal.nce of a partnership account, on the ground “that the Court of Queen's Bench could not entertain the action in the event of its removal, observing that he did not see how the Court could deal with the cause when it was removed”—such a case could only be dealt with in a Court of equity, and not in a Court of law. No certiorari lies to remove proceedings under the Twelfth Part of the Act, providing for the recovery of possession of small tenements, because the Local Courts possess an original jurisdiction under that part of the Act, which the Supreme Court has not; and where a writ of certiorari had been granted for the removal of similar proceedings from an English Court, Coleridge, J., quashed the writ. Price v. Price, 1 Cox & Mac., C. C. C , 333.Under the 54th section of the Act, a certiorari for removal of a judgment in a Local Court will be granted without notice to the opposite party. [See the notes to that clause.] In other cases six days’ notice of an intention to apply for a writ of certiorari must be given to the Justice whose decision is sought to be impeached. It is in no case necessary to give notice to the opposite party, unless a rule nisi only be applied for, or a summons to show cause be issued, in which cases the rule nisi, or summons, as the case may be, must of course fie served upon the opposite party and the Clerk of the Local Court, in manner provided in the 49th clause of the Act.A writ of proh ibition is an original writ issuing out of any Court of competent authoiity, and directed to the Judge of .an inferior Court, or to a party to the suit in such Court, or any other whom it may concern, commanding that no further proceedings be had in any particular cause. This writ is granted as of right, whenever it can be shewn that an inferior Court has exceeded its jurisdiction. But in some ■cases it will be refused, as where a party lias acquiesced in the jurisdiction of an inferior Court, where such jurisdiction docs not appear on the face of the proceedings to have been exceeded If, however, it appears on the face of the proceedings, that an inferior Court has no jurisdiction, a prohibition may issue at any time, either before or after judgment; because all is a nullity. But where it does not so appear upon the face of the proceedings, Lord Mansfield says—“ If the defendant in an inferior Court will lie by, or suffer that Court to go on under an apparent jurisdiction, it

Paht iv.


Part iy.

Actions in Local Courts may be removed by certiorari.

would be unreasonable to grant tbis writ.” Bug gin v. Bennett, 4 Burr, 2037. Tbe consent of a party cannot give jurisdiction to a Court, except in tbe single case provided for in section 25 of tbis Act. Tbe ground on wbicb Superior Courts bave proceeded in refusing tbis writ to persons wbo acquiesced in tbe proceedings of an inferior Court, in excess of its jurisdiction, is, not that jurisdiction bas been given by acquiescence or consent, but tbat tbe persons wbo bave so acquiesced are estopped from afterwards setting up want of j urisdiction. If there is a total want of jurisdiction in tbe Local Court, no amount of acquiescence will deprive a party of bis right to a prohibition. Jones v. Owen, 5 D. & L. 669. Thompson v. Ingham, 14 Q.B. 710. Marsden v. War die, 3 Ell. & Bl., 695, and see tbe case, of Mobinson v. Lenaghan referred to under section 97.Tbis writ may be granted by tbe Court on motion, or by a Judge in Chambers on summons to shew cause, both wbicb may be made a stay of proceedings, if tbe Court or Judge shall so order. [See clause 49. S.ee as to, time for lodging

' tbe writ with tbe Clerk of Local Court, clause 50.] The- writ may be granted absolutely on an exparte application, in wbicb case tbe party objecting to it may move the Court, or apply to a Judge, on summons, to set tbe writ aside.

. All pleadings in prohibition are abolished by tbis Act. [Seeclause 51.]A writ of mandamus is tbe converse of a writ of prohibition;

• for while tbe latter restrains a Court of inferior jurisdictionfrom doing any act in excess of its powers, a mandamus commands an inferior Court to do tbe act in exercise of its power on a complaint of its refusal to do such act.It will be seen by clause 52 tbat a simple mode of procedure is substituted for tbe writ of mandamus. [See tbe clause and notes.] Tbe issue of the writ of mandamus is practically superseded by tbe provision contained in clause 52.

48. Any action commenced in a Local Court may, subject to the terms and conditions following, be removed, by writ of certiorari, into tbe Supreme Court, if such Supreme Court or a Judge thereof shall deem it desirable that the cause shall be tried in the Supreme. Court, on the following conditions :—If the action be brought for a claim exceeding Thirty Pounds, such writ may be granted at the instance of the defendant, upon the terms that he shall admit such facts or documents, or produce such document, if any, as the Supreme Court or a Judge may think fitor in the case of any other claim upon the terms that the party applying shall give security, to be approved of by the Master of the Supreme Court, for the amount of claim and the costs of the trial, not exceeding in all One Hundred Pounds; and shall further assent to such terms, if any, as the said Supreme Court or a. Judge shall think fit to impose; and provided that, if the- action to be removed shall be an action of replevin, it shall be on the terms and conditions hereinafter provided in Part the Tenth.*

* Tbis word should be Eleventh.


It will be observed that this clause makes it discretionary Part iv.with the Suprme Court, or a Judge thereof, to grant a writ ------------------of certiorari for the removal of an action, depending in a Local Court, into the Supreme Court. Rut it is questionable whether the conditions mentioned in this clause are intended to be attached to the grant of the writ. It would rather seem that where the claim exceeds £30 the only conditions which the Supreme Court or a Judge can impose are, that the defendant “ shall admit such facts or documents, or produce such document, if any, as the Supreme Court or a Judge may think fit” - but that the Judge may grant such writ unconditionally if he thinks proper ; the words used in the clause not being used by way of restraint, and the clause itself not being an enabling clause (except

. as to the power given to the Supreme Court or a Judge to impose terms on granting the writ), inasmuch as all proceedings in an inferior Court may be removed into the Supreme Court, as representing, in this Province, the Court of Queen’s Bench, unless the writ of certiorari is expressly taken away by some Act of the Legislature.In smaller claims than £30, a certiorari may be granted unconditionally, but the Supreme Court or a Judge may impose such terms as such Court or Judge may think fit.The words giving an enlarged power to the Supreme Court or a Judge to impose terms appear only to apply to cases where the plaintiff claims £30 or less.There can be little doubt that the Supreme Court wouhl grant this writ, even where the damages claimed are small, in certain actions—as in an action of trespass quare clausum ' fregit, wrhere the defendant pleads liberum Unementum, and the title to land is thus put in issue."Where the words of a Statute in some cases appear discretionary — as where the enactment is “It shall be lawful,” &c.—if the Statute impose a duty upon the Court or Magistrate, such words will be construed as imperative and not discretionary. [See Dwarris on Statutes.]Where an equitable• jurisdiction is given to the Local Courts, the writ of.certiorari will not lie, because the superior Courts of Law not having jurisdiction in such matters, the removal of such proceedings would be a ,nullity. [See the notes to section 47.] In all cases in which an equitable jurisdiction is given to Local Courts, such jurisdiction is an original jurisdiction, with which the superior Courts of Common Law cannot interfere.

*49. The granting by the Supreme Court, or any Judge Eul gum_ thereof, of a rule or summons to show cause why a writ of mons to show certiorari or prohibition should not issue shall, if the Supreme If^Horarior* Court, or Judge thereof, so direct, operate as a stay of pro- JJo^nofissue ceedings in the cause to which the same shall relate until the L bo a stay of determination of such rule or summons, or until the Supreme Proceedmgs. Court, or a Judge, shall otherwise order; and the Local Court shall, from time to time, adjourn the hearing of such cause until such determination, or until such order be made; but if notice of such rule or summons shall not be given by the party who obtained it to the opposite party, or his attorney, and to the Clerk of the Local Court, two clear days before

40 LOCAL COURTS ACTS,

Paht iy.

Writ of certiorari oi* prohibition to be lodged ■with Cleik of Local Court, and notice given to opposite party.

Pleadings in prohibition abolished.

Writs of mandamus abolished and parties to proceed by rule or summons.

the day fixed for the hearing of the cause, the Local Court may, in its discretion, order the party who obtained the rule or summons to pay all the costs of the day, or so much thereof as they shall think fit, unless the Supreme Court, or a Judge thereof, shall have made some order respecting such costs.

If it is intended that the rule nisi, or summons to show cause why a certiorari or prohibition should not issue, should operate as a stay of proceedings, an application should he made to the Court or a Judge for an order to that effect at the time the rule or summons is applied for, and such order should he embodied in the rule or summons.

50. Where a writ of certiorari, or of prohibition, addressed to a Local Court, or a Special Magistrate, shall have been granted by the Supreme Court, or a Judge thereof, on an cxjiarte application, and the party who obtained it shall not lodge it with the Clerk of the Local Court, and give notice to the opposite party or his attorney that it has issued, two clear days before the day fixed for hearing the cause to which it shall relate, the said Local Court may, in its discretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as it shall think fit, unless the Supreme Court or a Judge thereof shall have made some order respecting costs.

This clause refers to issuing writs of certiorari and prohibition without a previous rule nisi, or summons to show cause, and is merely a repetition of clause 49 assimilating the cases of the grant of these writs absolutely in the first instance, and the determination of an application for such writs on a rule or summons so far as notice to the opposite party and to the Clerk of the Court is concerned.

51. When an application shall be made to the Supreme Court or a Judge thereof, for a writ of prohibition, to be addressed to a Special Magistrate, or a Local Court, the matter shall be finally disposed of by rule or order, and no declaration or further proceedings in prohibition shall be allowed.

This refers to cases where a summons to show cause has been issued, or a rule nisi granted. If the rule or order for a prohibition has been granted on an exparte application, the only course open to the Magistrate or Local Court, and the person affected by the writ, is to apply to the Court or a Judge to set the writ aside.

52. No writ of mandamus, unless specially ordered by the Supreme Court, shall henceforth issue to a Special Magistrate, or an officer of the Local Court, for refusing to do any act relating to the duties of his office ; but any party requiring such act to be done may apply to the Supreme Court, or a Judge thereof, upon an affidavit of the facts, for a rule or

LOCAL COTIM'S* ACTS. 41

summons, calling upon such Special Magistrate, or officer of Part iv.a Local Court, and also the party to he affected by such act, ’or his attorney, to. show cause why such act should not bedone; and if, after the service of such rule or summons, goodcause shall not be shown to the contrary, the Supreme Court,or a Judge thereof, may, by rule or order, direct the act to bedone; and the Special Magistrate, or officer of the LocalCourt, upon being served with such rule or order, shall obeythe same, on pain of attachment; and the Supreme Court, ora Judge thereof, may make such order with respect to thecosts of either party of any such rule or summons as to suchCourt or Judge shall seem fit.

This clause merely substitutes a rule or order of the Supreme. Court, or a Judge, for the writ of mandamus. The affidavit

ki to obtain an order under this provision of the Act would be the same in effect as that required on an application for a mandamus. The meaning of this clause would appear to be that a summons must issue in the first instance, and that, on the hearing of such summons, the Judge may either make an order requiring the Magistrate or officer to do the act required, or may refer the matter to the Supreme Court in lieu of making an order; and that the Supreme Court may then direct a mandamus to issue; for it will be observed that, unlike a certiorari or prohibition, both which can be granted by a Judge, a mandamus can only be issued, under the provisions of this section of the Act, by the Supreme Court.

53. The refusal to grant a writ of certiorari or of prohibi- Second application shall be final; but nothing shall affect the right of unappealing from the decision of a Judge of the Supreme Court hibition not per- to the Court itself, or prevent a second application being ^oumd?n Same made for such writ, or rule, or order to the same Judge, or tothe Supreme Court, on grounds different from those on which the first application was founded.

See Act No. 3 of 18G2, which gives the right of appeal from the decision of a Judge to the Supreme Court, but does not apply to the refusal of a Judge to grant a writ of certiorari or prohibition; such refusal cannot be appealed against.

54. The successful party may cause a writ of certiorari to Judgment of issue without notice to the opposite party to remove a judgment be removed toay of a Local Court, for an amount exceeding Twenty Pounds, Supreme Court, into the Supreme Court; and when removed, it shall have thesame force and effect, and the same proceedings may be had thereon, as in the case of a judgment of such Supreme Court:Provided that such Supreme Court shall not have power to inquire into, set aside, or quash any such judgment for matters adjudicated upon in the Local Court.

This proceeding is necessary in cases where it is sought to arrest a defendant on a ca. sa.} or to levy an execution upon

42 LOCAL COFATS ACTS.

Part iy. Lis lands, the Local Court Act not affording these remedies--------------- to an execution creditor.

29 Yict, No. 12, sec. 7, provides as follows:—“In all cases where a writ of certiorari may issue hy virtue of the 54th section of the Local Court Act, 1861, such writ shall he issued exparte, and, of course, hy the proper officer of the Supreme Court, without the necessity of the

. leave of such Court, or any Judge, upon an affidavit being filed in the Supreme Court, setting forth that there is a judgment of £20 and upwards in the Local Court, and that the period for appealing from such judgment of the Local Court has expired, and that no such appeal is pending, or that the judgment signed in the Local Court was signed in default of appearance, and such writ shall be directed to the Clerk of the Local Court.

Part v. Pakt y.—And with regard to appeals from Local Courts to the Supreme Court, Be it Enacted—

Point may be 55. That any Local Court, or in jury cases the presidingreserved for de- o • i tvt • i. i. . J r &cision of Supreme Judge or Special Magistrate, may m any case reserve anyc<rart» point of law for the decision of the Supreme Court, whose

decision shall he certified to and binding on the Local Court,and the costs consequent on such reservation shall he in thediscretion of the Supreme Court, and being certified hy theproper officer of* the Local Court shall he recoverableagainst the party by whom the same shall be made payable,in the same manner as costs incurred in the Local Court.

It is discretionary with the Court, presiding Judge, or Special Magistrate to reserve points of law for the decision of the Supreme Court. "Where a point is so reserved, the case is sent up by the Local Court to the Court above by way of special case, with so much of the evidence as may be necessary. The usual and proper course of proceeding is for the party, at whose request or in whose favor the point is reserved, to prepare the special case ; this is then settled by the Special Magistrate, and by him sent up to the Court above. Three copies are required—one for each of the Judges.

Supreme Court may order a new trial in a Local Court, or may vary or reverse the judgment.

Mode of procedure.

56. If either party, in any cause in a Local Court for recovery of a claim exceeding Thirty Pounds, or in case of replevin, where the amount of rent or damage exceeds Thirty Pounds, and in all actions for the recovery of tenements where the yearly rent or value exceeds Thirty Pounds, and in proceedings in interpleader, where the money claimed, or the value of the goods and chattels claimed, or of the proceeds thereof, exceeds Thirty Pounds, shall be dissatisfied with the determination or direction of the said Court on a point of law, or upon the admission or rejection of any evidence, such party may, upon giving such notice as hereinafter mentioned, appeal to the Supreme Court, and which

* This word should be to.

LOCAL COURTS ACTS. 43-

appeal shall be in the form of a rule or order, calling upon tbe other party to show cause why the judgment or order of tbe Local Court should not be set aside and a new trial bad between tbe parties, or why the judgment should not be entered for, or varied in favor of, tbe party applying; and every such rule shall state shortly the grounds upon which the rule shall have been granted: Provided that the party so dissatisfied shall, either during the then sitting of the Local Court, or within twelve days thereafter, give notice in writing to the Clerk of the Court of his intention to apply to the Supreme Court for an order or rule, in pursuance of this provision.

This clause applies only to two cases.1st. "Where either party is dissatisfied with the determi

nation or direction of the Local Court on a point of law.2nd. Where there has been improper admission or rejec

tion of evidence.If either party intends to apply to the Supreme Court under this clause, he should require the ruling or direction of the Special Magistrate to he reduced into writing, and signed by him, as provided in clause 105; and he should also require the evidence, or that portion of it to which he objects, to be reduced into writing, as provided in clause 104. And, in case of a Special Magistrate refusing to admit evidence, he should formally tender the evidence, and request the Magistrate to take a note of the nature of such evidence. It will be observed that the appeal given by this clause is to the Supreme Court, and not to a Judge; but, by clause 60, it would appear that a single Judge can grant an order nisi.See Rules of Court, Nos. 50 to 53.

57. Notice of an intention to apply to the Supreme Court for a rule or order shall not operate as a stay of proceedings, unless the Local Court, where the notice is given at the then sitting of the Local Court, shall so order, or unless the party applying shall give security, to the satisfaction of the Clerk of the Local Court, by bond or deposit of money, to the amount of Twenty Pounds over and above the amount of the judgment, for the due prosecution of the appeal, and the payment of the amount of the judgment, if the rule be dismissed, and also of the costs of the appeal, if the Supreme Court order the party appealing to pa)^ the same: Provided that the Special Magistrate presiding at the trial may, in his discretion, after notice of appeal, order further proceedings to be stayed until such security be completed; or, if the judgment shall be enforced, the amount thereof shall be detained in Court until the appeal is disposed of.

As to bond, see Rules of Court, 21 to 26.

58. The notice of appeal shall be in writing, signed by the

Part v.

Notice to be given.

Notice of appeal not a stay of proceedings, except in certain cases.

Mode of giving notice of appeal.


Part y.

Copies of proceedings to be sent to Supreme Court.

Terms of rule nisi for new trial.

Mode of procedure on argument of rule nisi.

Order thereupon.

party appealing, or his. attorney, and shall he lodged with the Clerk of the Court or sent to him by post.

The notice must state the grounds of appeal, and must he sent to the successful party as well as to the Clerk of the Court. See 51st rule.

59. After receiving notice of appeal the Clerk of the Court shall forward to the Master of the Supreme Court a copy of the plaint and defence, and the evidence, if any, taken at the trial.

60. The Court or Judge may grant a rule or order, either unconditionally or upon condition that the appellant shall give security to the satisfaction of the Master of the Supreme Court, by bond or deposit of money, if the same shall* not have been already done in the Local Court, and they or he may order that the rule or order shall operate as a stay of proceedings, upon notice thereof being given to the Clerk of the Local Court.

The rule or order here referred to is a rule or order nisi only [see the next clause, 01], which provides for making such rule or order absolute ; but although the rule or order nisi may, under this section of the Act, he granted hy a Judge, the argument upon such rule or order must take place before the Supreme Court, and cannot he heard and the rule disposed of hy or before a single Judge. [See clause 61.] If the rule or order nisi is to be made a stay of proceedings, where no order to that effect shall have been made by the Local Court, the rule or order should expressly so state, and should be served on the Clerk of the Local Court.

61. The argument upon motion to make any such rule or order absolute, shall take place before the Supreme Court, as well when the same has been granted by the said Court or a Judge thereof, and the Court shall examine the plaint and defence and the evidence, if any, taken at the trial before the Local Court, and the ruling of the Special Magistrate, and if • the Court shall he of opinion that although the ruling objected to may not have been strictly according to law, yet that substantial justice has been done between the parties, they shall discharge the rule or order with or without costs; hut if it shall appear to the said Court that no cause of action, or no sufficient cause of action to the extent recovered by the plaintiff, or that the defence set up and admitted in the Local Court is not valid, wholly or in part, they may order that a new trial he had, and the Court shall express, in such order, their opinion on the law connected with the subject, with a view to the guidance of the Local Court on such trial, and every such order shall be final.

See note to clause 60.


62. If tlie appellant shall not proceed with due diligence Part y.

in the prosecution of the appeal, the successful party in the supreme Court Local Court may apply to a Judge of the Supreme Court may f|miss upon summons, or to the Supreme Court, tor an order dis- of prosecution, missing the appeal for want of prosecution, with costs, whichorder the said Judge or Court is hereby empowered to make.

This application, must he made, if to the Court, on motion? if to a Judge, on summons, and must he supported hy affidavit. It would seem hy the clause that the order for dismissal must he made with costs, such being the only order a Judge or the Court is empowered to make.

63. If the order of the Supreme Court upon any appeal be Costs of appeal that a new trial shall be granted, or the appeal be dismissed, Se^ud^ment the costs of the successful party, if so ordered by the Supreme of Local (fourt!

Court or a Judge thereof, shall be taxed by the Master ofthe Supreme Court; and the Clerk of the Local Court, on receiving the allocatur of the said Master, shall add them to the judgment; and the successful party shall be entitled to proceed on such judgment as on an original judgment of a Local Court.

There is some ambiguity in this clause. If the appeal he ,dismissed the costs of the successful party in the appeal can, of course, be added to the judgment as provided in this clause; hut if a new trial he granted, there is no judgment to which they can he added ; and supposing on a new trial the verdict to he still against the appellant, neither the appellant nor the respondent can get costs in the manner provided in this clause, because the appellant, although the successful party in appeal, has no judgment ' to which his costs can he added, and the respondent, who has the judgment, can get no costs because he was not the successful party in appeal.

64. Except in manner herein provided, no judgment, order, judgment of or determination given or made by a Local Court, nor any Court cause or matter brought before it, or pending in such Court, * shall be removed into the Supreme Court.

65. Where a party is required to give security, such Form of security, security shall be at the cost of the party giving it, and in theform of a bond, with a surety or sureties, to the other party, or intended party, in the action or proceeding: Providedthat the Court in which any action on the bond shall be brought may, by rule or order, give such relief to the obligors as may be just, and such rule or order shall have the effect of a defeasance of such bond.

See Rules of Court Nos. 22, 23, 24, 26, as to the modo of giving security. This clause is similar to the 70th clause of the Imperial Act 19 and 20 Viet., c. 108."Where an action is brought on a bond, the condition of 'which has been performed, this section of the Act affords a summary mode of obtaining relief by the obligor, by ,


Part v. rule of the Supreme Court, or byan order of tbe Local_ Court, as tbe case may require. If an action is brought

in tbe Supreme Court it would seem tbat an application must be made to such Court on motion; it cannot be made to a Judge in Chambers. If an action is brought in a Local Court tbe application must be made to the Court when sitting; a Special Magistrate cannot give relief under tbis clause any more than a Judge; tbe application should be supported by an affidavit of tbe facts.

deposftedmlfeu . 66* ^liere a Party is squired to give security he may, in of bond. lieu thereof, deposit with the Clerk of the Court, if the

security is required to he given in a Local Court, or with the Master of the Supreme Court, if the security is required to he given in that Court, a sum equal in amount to the sum

. for which he would be required to give security, togetherwith a memorandum, to be approved of by such Clerk or Master, and to be signed by such party, his attorney, or as ent, setting forth the conditions on which such money is deposited; and the Clerk or Master shall give to the party paying a written acknowledgment of such payment; and the Local Court, when the money shall have been deposited in such

* Court, or a Judge of the Supreme Court, when the money shall have been deposited in that Court may, on the same evidence as would be required to enforce cr avoid such bond as in the last preceding section is mentioned, order such sum so deposited to be paid out to such party or parties as to him shall seem just. *

See tbe twenty-fifth Rule of Court.Tbis section refers to tbe course of proceeding where money is paid into Court as security in lieu of a bond, and to tbe mode of procuring the payment out of Court of such money. Tbe only difference as to the mode of procuring

• tbe payment of money, as provided in tbis clause, and tbat of procuring relief on tbe condition of a bond being fulfilled, as provided in clause 6d is, tbat under tbis clause, 66, an application may be made to a Judge in Chambers, whereas under clause 65 tbe application must be to tbe Supreme Court.

Part vi. Part ti. And with regard to parties to actions in Local Courts, Be it Enacted—

Plaintiff may join 67. That a plaintiff may join in one action a claim or onVactiom™8m debt due to him in right of his wife, and a claim or debt in

his own right: Provided that, in the case of the death of either plaintiff, such suit so far only as relates to the causes of action of any which do survive shall abate.

Tbis clause is wholly unintelligible as it stands; and I must confess has not a little puzzled me bow an action could abate against a survivor, and yet be carried on by a deceased person, seemed to me an extraordinary provision,

. and I searched in vain for anything resembling it in theEnglish County Courts Acts, It appears to be an attempted


adoption of the 40th clause of the Imperial Common Law Taut vi.Procedure Act of 1852 (37th section of the Colonial Act, ------- -----------No. 5 of 1853), with the important word not between the words “ do” and “survive” omitted. This omission renders the latter part of the clause a nullity, if it does not make the whole section so. The word “of” where it lastly occurs in the clause before the word “any” is a misprint for “ if.”

68. Any minor may sne for recovery of money due to him Minors may sue for wages or piece work, or for work as a servant, in the same for wa£es* manner as if he were of full age.

This is similar to a provision in the Imperial Act, 9 & 10 Viet., c. 95, s. 64. In all other actions by a minor, except those provided for in this clause, he must sue by his next friend, who may be any person, whether a relation or not, who permits his name to be used; but, in case the action fails, the next friend is liable for defendant’s costs. [See second and third Rules of Court.]

69. Every action may be brought in the name of all the Misjoinder ofpersons in whom the legal right may be supposed to exist, mayand judgment may be given in favor of the plaintiffs by whom *the action is brought, or of such one or more of them as theCourt may adjudge to be entitled to recover: Provided that the defendant, though unsuccessful, shall be entitled to his costs occasioned by the joinder of any person or persons in whose favor judgment is not given, unless otherwise ordered by the Court.

This enactment is from the Imperial Statute for amending the Common Law Procedure Act, and will be found in the Colonial Act, No. 3 of 1862, s. 12. ,An action will not fail by reason of the misjoinder of a plaintiff or plaintiffs; but if judgment be given for one or more of several plaintiffs in an action, such judgment will bar the plaintiff or plaintiffs who do not recover, from proceeding further against the defendant [see clause 70] for the same cause of action. It is suggested that the proper course for a defendant to adopt where one or more of several plaintiffs is or are improperly joined, would be to . plead that as to such one or more of the plaintiffs the defendant never was indebted, or as the case may be, and as to the other or others of the plaintiffs, the defence upon which

. the defendant intends to rely. [See section 75 of this Act,and sec. 13 of jSTo. 3 of 1862.] -

70. No other action shall be brought against the defendant no second actionby any person so joined as plaintiff, in respect of the same °ffsam®cause cause of action. allowed*

See the note to the preceding section, 69 : and see section JNo. 14 of No. 3 of 1862. .

71. In case it shall appear on the hearing that some person Nonjoinder of or persons not joined as plaintiffs ought to have been so joined,the Court may, if it shall see fit, order such person or persons


Part vi.

One of several persons liable may be sued.

Misjoinder of defendants may be amended.

to be so joined, and the cause shall thereupon proceed as if he or they had been originally joined in the action.

Tbe Court has a discretionary power under this section and might order costs, and an adjournment on an application to amend the plaint. [See clause 114.]

72. Where a plaintiff shall have any demand against two or more persons jointly answerable, it shall be sufficient if any of such persons be served with process, or sued, and judgment may be obtained, and execution issued, against the person or persons so served and sued, notwithstanding that others jointly liable may not have been served or sued, or may not be within the jurisdiction of the Court: Provided that every person against whom judgment shall have been so obtained, and who shall have satisfied such judgment, may recover contribution from any other person jointly liable withhim. ^ #

Where an action is brought against several defendants, it' is sufficient if only one ho served with process, and the action may proceed to trial although the other persons named in the plaint have not been served ; judgment, however, can only he given against such of the defendants as have been served. An action may also he brought against one of several defendants liable, and the plea of abatement for nonjoinder of defendants, allowed in the Supreme Court, is not available in Local Courts. If the defendant who is served defends the action, and ultimately pays the demand on a verdict being given against him, he cannot recover contribution from the person or persons jointly liable with himself for costs incurred, unless he is expressly authorized hy such person or persons to defend the action. An action may he maintained for recovery of contribution for a sum paid hy one partner on behalf of himself and co-partner after the dissolution of the co-partnership, hut the defendant would he at liberty to plead a set-off due to him on the partnership account, supposing such setoff not to exceed £100 in amount. A clause similar to this is contained in the Imperial Act 9 & 10 Viet., c. 95, sec. 68.

73. In case it shall appear either before or on the trial of a cause, in any action on contract, that defendants have been improperly joined, the Court or a Judge may, if they or he shall see fit, and upon such terms as shall be thought proper, order that the name or names of one or more of such defendants be struck out, and the cause shall proceed as if he or they had not been originally joined in the action.

This is provi :ed for hy a rule of Court under the Imperial Act, hut not in the Act itself, and the rule only provides that the amendment can he made at the hearing. It is difficult to see how that part of this clause which permits the amendment to be made before the heading or trial can he carried into effect, except on the application of the plaintiff on discovering that he has made a mistake in joining too many defendants, as the question of a co-defendant’s liability would ho matter of evidence.


74. Where two or more persons shall he sued as joint con- Part vi.

tractors, the plaintiff shall he entitled to a judgment (or to a judgment may " verdict or judgment, as the case may he) against such of the besiven against defendants as shall appear to he liable, although one or more defendants?of the persons made a defendant for defendants shall appear not to he liable: Provided that, in every such case, the defendant or defendants not liable shall have judgment, and he entitled to costs against the plaintiff, and to the like remedy for the same as a defendant as** any ordinary case. ,

This clause applies to cases in which several defendants appear, and a verdict is given on the trial against one or

. more of such defendants, and also to cases where one ormore of several defendants suffer judgment by default.

75. A defendant or defendants may avail himself or them- Defendant i a >■ selves of any set-off or other defence to which he or they set-off debt?97 would he entitled if some persons had not been improperlyjoined as plaintiffs, or if all the persons answerable were made defendants, or if the persons named as defendants had been properly joined. '

See the remarks on section 69. This clause also permits one or more of several persons liable, who may be sued, to set up a defence in the same manner as if all the parties liable had been sued; or as if, in the case off persons not liable being joined as defendants, those defendants only who were liable had been sued; or in case too many plaintiffs are joined, the defendant may set up such defence as he may have against the plaintiffs who ought only to have sued. A defendant or defendants should plead in these

• eases specially. In the first case that other persons, thatis to say (setting out the names of the other persons liable), .were jointly liable with the defendants named in theplaint, and then pleading a set-off or other special matterof defence as though it were the defence of all the partiesliable, and in the same manner as if they had been namedin the plaint. In the second case the plea should be thatas to one of the defendants never indebted, or the generalissue; and as to the other defendant the set-off or otherspecial defence. And in the last case as to one or more ofthe several plaintiffs never indebted, as to the other plainstiff or plaintiffs the special defence. ~See No. 3 of 1862, sect. 13.

76. If a debt shall be due to a defendant by tbe plaintiff Defendant may ; and one or more persons, jointly answerable, the defendant pij^ffan111 may set-off such debt; and where a defendant shall claim a sums to winch set-off, and at the hearing shall prove a debt due to him by tie^n a Sncs the plaintiff exceeding the amount, if any, found to be due of accounts.by-the defendant to the plaintiff, the Court shall award to the defendant the overplus to which he may be entitled on a balance of accounts, and give judgment accordingly.

A defendant under this clause may set-off a debt due to

D* Should be in.


Part vi. him by a plaintiff and another person, and thus avoid thenecessity of a cross action. As to what claims may be the subject of set-off, see the notes to section 87. There is another important provision in this clause, namely, that which allows the Court to award the defendant the overplus found to be due on a plea of set-off. Tt will be observed that the jurisdiction of the Court is not limited as to the amount to be awarded to a defendant on a plea of set-off. As no similar provision to that contained in this g ec- tion of the Act is contained in any of the Imperial County Court Acts, there have, of necessity, been no decisions on questions which may arise upon the construction of this section of the Act, as to the extent of the jurisdiction conferred upon the Courts in. dealing with a set-off where the defendant claims, beyond the amount of the plaintiff’s demand, a sum exceeding £100. Section 23 of the Act gives

; to Local Courts (except Courts of Limited Jurisdiction)cognizance of personal actions where the debt or damage

• claimed is not more than £100. A strict interpretation of this clause would limit its operation to claims by a plaintiff, and thus an unlimited jurisdiction would be given to Local Courts in deciding upon the claims of defendants under the provisions of this clause. [See the notes to section 23]. Rut, perhaps, the better and safer construction to put upon the clause would be to read it as intended to exclude claims of set-off where they exceed £100, leaving the defendant to bring his action in the Supreme Court, in which case the defendant might obtain a stay of proceedings in the Local Court, or a postponement of the hearing of the cause pending the action in the Supreme Court. [See Subdivision in. of clause 18].

On death of one 77. Where one or more of several plaintiffs or defendants tiffs^o^defen?1" shall die before judgment, the suit shall not abate if the cause to ahateCti°n n0t ac^on surv^ve 1° or against the surviving parties respectively.

* As in the case of partners, or where the debt is due to orfrom two or more parties jointly. The surviving partner of a firm is the proper person to get in and give receipts

. for debts owing to the firm, Haig v. Gray, 3 De Gex & Sm., 741; Phillips v. Phillips, 3 Hare, 286. So under section 72, a plaintiff might sue any one or more of the partners in a firm; if one die, therefore, before judgment, proceedings may be carried on against the survivors or survivor. This applies only to actions of contract.

On death of one 78. Where one or more of several plaintiffs or defendants tiffs'ordefend^nts shall die after judgment, proceedings therein may he taken after judgment, by the survivor or survivors, or against the survivor or survi- be°tatonagainst vors, without leave of the Court.survivors. Rut execution cannot be issued on the judgment against

the goods of the deceased defendant or defendants, as the proceedings authorized by this section of the Act are limited to proceedings against the survivor or survivors.

in case of insol- 79. The insolvency of the plaintiff in any action in a Local actionifot t?1^ Court which the assignees might maintain for the benefit of abate if assig- the creditors shall not cause the action to abate, if thenees elect to proceed.

LOCAL COUBTS ACTS. 51

assignees shall elect to continue such action, and to give secu- Part vi. rity for the costs thereof within such reasonable time as a Special Magistrate shall order, hut the hearing of the cause may be adjourned till such election is made ; and in case the assignees do not elect to continue the action, and to give such security within the time limited hy the order, the defendant may avail himself of the insolvency as a defence to the action.

The proper course for a defendant to adopt in the case referred to in this clause would he to take out a summons calling upon the assignees to show cause why they should not elect to continue the action, and to give security for costs within days [a reasonable time], and why, indefault thereof, the defendant should not he at liberty td plead the insolvency of the plaintiff in abatement of the action. There is no express provision in the Act for pleading a defence in the nature of a plea puis darrein con-

' tinuance, after plea pleaded, except in this section. Bat itis thought that such a defence would be allowable in all cases where new matter of defence arises after a plea filed, or an appearance entered, or the plea would be allowed to be amended, by inserting the new matter of defence under the power given to a Special Magistrate by Subdivision vi. of clause 18. The application to be allowed to plead a fresh plea, or to amend, should fie made on an affidavit of the facts.

80. A married woman, and a married woman who hr s for Married women twelve months next preceding the date of any plaint, keen ^certain.6 living separate and apart from her husband, may sue and he cases! sued, and if judgment pass against her, execution may issue in like manner as if she were a femme sole, and thereunder ,any goods may he seized which shall he left hy the husband in the possession of the wife, or which she may have acquired . since the separation: Provided, that a married woman shall he allowed to defend on the ground that the credit was given to her husband, and not to herself.

There is an evident mistake in this clause; as it stands it is . insensible. The fourth, fifth, sixth, and seventh words in

the section should be struck out. But for this clause, a married woman (except in a few cases, as that of conviction of the husband for felony, and where the death, of the husband from long absence is presumed, &c.), is incapacitated from bringing an action unless the husband be joined, and is not liable to be sued. [See the remarks on clause 87—coverture,'] Where a married woman, who is, liable to be sued under this clause, that is to say, when she has been living apart from her husband for twelve months, .intends to defend on the ground that the credit was given to her husband, and not to herself, she can do so under clause 87, by entering a common appearance, as that will ■ operate as a denial of the particular contract, dealing, or ,transaction between the defendant and the plaintiff,. out of ‘

. which the alleged debt or liability arises. But in addition to the entry of a common appearance, she should also plead coverture, and it would be safer also to plead specially that


Part vi.

Paut vii.

Plaintiff to furnish names of parties and particulars.

' Cause to commence by plaint

the credit was given to her husband, and not to herself. The principle upon which the liability of a husband for debts contracted by his wife proceeds is that of presumed agency—the wife being considered at law the agent of her husband in certain transactions, and the husband is not liable for debts contracted by his wife unless such agency can be shewn, either by express evidence, or as a presumption of law. Where a wife has been in the habit of dealing

* with particular tradesmen, and the husband has paid accounts for debts contracted by such dealing, it will be presumed that her authority to continue such dealing exists, until the husband countermands it, and he will be liable for all debts so contracted. So for necessaries supplied to the household of the husband, the wife’s authority to contract debts will be presumed, but such authority will not be presumed in cases where the wife contracts debts for the adornment of her person, as for jewelry, and female finery.

Pakt yii. And with regard to the commencement of actions and proceedings to judgment in the Local Courts, Be it Enacted—

81. That any person intending to bring a suit shall furnish the Clerk of the Court with the names and places of abode of the parties, and a memorandum containing a clear and concise statement of the particulars of his claim, with as many copies thereof as there are defendants.

Under this clause it has been held that it is not sufficient to furnish particulars in the following manner: —To amount (or balance) of account delivered,” but the items must be

. set out in the particulars—sed quere whether this would not be sufficient if the subject matter of the action were mentioned as u for goods sold and delivered,” or as the case might be, and a notice were given to the defendant to produce such account, secondary evidence being supplied on the trial of the contents of the account delivered in the event of the defendant failing to produce it in pursuance of the notice, and evidence of its delivery being also given. See the remarks on Evidence as to notices to produce. [See Dempster v. Darnell, 1 Dowl., JST.S., 168;. Stancliffe v. Clark, 7 Exch., 439; Wedlake v. Sargent, 11 C.B., 732.] In the latter case, however, it was held that after the defendant has pleaded (and an appearance operates as a plea in most cases) he caneot take objection to the sufficiency of the summons and particulars.

82. The Clerk shall thereupon enter in a hook to he kept for that purpose, called a plaint hook, a plaint, stating the names and places of abode of the parties, or their respective attorneys or agents, and the amount of the plaintiff’s demand, and the sum paid hy him for fees; and every plaint shall be numbered progressively in each year, according to the order in which it is entered; and a note of such plaint shall he furnished to the plaintiff, in the form, and containing the particulars and directions, contained in Schedule B.


83. The Clerk shall forthwith issue a summons, hearing the number of the plaint on the margin thereof, to each defendant, either in the form in the Schedule C, and hereinafter called 44 Ordinary Summons,” or, at the instance of the plaintiff, in the form in Schedule D, and hereinafter called 44 Special Summons,” if he shall consider such summons to be applicable to the claims of the plaintiff; and he shall append to each summons a copy of the plaintiff’s claim.

See the notes to the next succeeding section 84.

84. In all cases where the claim is for a debt, or liquidated demand in money, with or without interest, as, for instance, upon a bill of exchange, promissory note, cheque, or for work and labor done, or goods sold and delivered, where the price or amount has been ascertained or fixed, or for money lent, money paid, rent, money due on an account stated in writing, or on a bond or contract under seal for payment of a liquidated amount of money, or on any Act, Ordinance, or Statute, where the sum sought to be recovered is a fixed sum of money, or in the nature of a debt, or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, the plaintiff may, at his option, require the Clerk to issue a special summons.

A defendant cannot appear to a summons issued in the special form unless he makes an affidavit of defence as provided in section 88, which see. A special summons must he served personally on the defendant. The Imperial Act, 19 & 20 Viet., c. 108, contains in clause 28 a somewhat similar provision.A special summons may issue only for a debt or liquidated (i.e., ascertained) demand in money, with or without interest, and the following illustrations of the cases in which such summons may issue are given in the above clause 84.

1. Bill of Exchange, Promissory Note, or Cheque.—The first two hear interest from the day they become due, hy mercantile usage, in this Province. Ten per cent, per annum is the rate allowed. A cheque does not hear interest unless there has been an agreement to pay such interest, or unless notice has been given hy the plaintiff to the defendant under the Statute 3 & 4, "Win. 4, c. 42, hy the 28th and 29th sections of which Act it is provided “ that upon all debts or sums certain, payable at a certain time or otherwise, the jury on the trial of any issue or any inquisition of damages may, if they shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise than from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until payment: Provided that interest shall be payable in all cases in

Paht vii.Summons to issue to defendant.

When special summons may issue. "


Part vii.

Service of summons.

Defendant to appear within certain periods.

■which it is now payable hy law.” The same Statute also ~ enacts “that the jury, on the trial of any issue, or on any

inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure, in all actions of trover or trespass, de bonis asportatis, and over and above the money recoverable in all actions on policies of assurance, made after the passing of this Act.” It will he seen that the Act 3 & 4, "Wm. 4, c. 42, applies only to cases tried by a jury. The Act has been held hy the Supreme Court. to apply to this Province, although it contains many provisions of a local character which can only he applicable to cases tried in England—such provisions, of course, being rejected.

2. Work and labor done (and, it is presumed, “ materials for the same provided”), or goods sold and delivered where the price or amount has been ascertained or fixed.—These words, “ ascertained or fixed,” relate, it is presumed, to work and labor as well as to goods sold and delivered, notwithstanding the use of the disjunctive conjunction; the words would he read distrihutively. By the expression “ ascertained or fixed” is meant “ agreed upon between the parties.”

3. Money lent, <%■<?.—The remainder of the causes of action mentioned in this section, in respect of which a special summons may issue, are all for the recovery of fixed sums of money. Such summons cannot he issued for recovery of unliquidated (unascertained) damages—as for breach of the condition of a bond where the damages sustained hy the plaintiff by reason of the breach have to he assessed or ascertained by the Court or a jury, nor in any case where the claim sounds in damages and not in debt, and the intervention of the Court or a jury is necessary before a plaintiff can sign final judgment. [See sections 89 and 90.J

85. A summons shall be served personally, or in the case of an ordinary summons, by delivering the same at the house or place of business of the defendant, with some person there of the apparent age of fourteen years, or, in special cases, in such other manner as shall he specified in the Pules of Practice : Provided that no place of business shall be deemed the place of business of the defendant unless he shall be the master, or one of the masters thereof.

See as to service of an ordinary summons on defendants, in special cases, the Rules of Court, Nos. 9 to 20. A special summons must in all cases be served personally on the defendant. [See sec. 85 of the Act; and see the notes to

• section 97, and the case of Robinson v. Ltnaghan, 2 Exch jR., 333, referred to in such notes.]

86. The period to be allowed to a defendant to appear to a summons shall be as follows : —Where the defendant has been served personally, and resides within twenty miles of the office of the Court, a period of six days; where a defendant has not been served personally, and resides within twenty miles of such office, or where he has been served personally,


and resides within fifty miles of such office, a period of eight Part yii.days, and so on in like manner, an additional two days forevery fifty miles beyond the first fifty miles : Provided that adefendant may appear at any time before judgment, or theplaint set down for assessment of damages, as the case maybe.

Seethe Rules-of Court, Nos. 10 to 21 inclusive, and the notes to these rules. It will he observed that the Rules of Court as to service of process are at variance with this section of the Act, and, of course, are so far nugatory.

87. A defendant, desirous of appearing to a plaintiff's Mode and effect claim, shall give notice thereof to the Clerk, and such appear- of aPPearance- ance, in case of a debt, whether by simple contract or specialty, shall operate as a denial of the particular contract, dealing, or transaction between the defendant and the plaintiff out of which the alleged debt or liability arises; and in the case of a claim for damages for a breach of duty or wrongful act, the appearance shall operate as a denial as well of such breach of duty or wrongful act as of the right, property, or possession of the plaintiff, or*4 of the circumstances out of which the alleged cause of complaint arises, unless the defendant shall by the memorandum of defence expressly limit such operation; but if the defendant intends to dispute the character in which the plaintiff claims, or to rely on any special defence, such as set-off, tender before action, payment, release, illegality not apparent on the particulars, fraud, infancy, coverture, statute of limitation, insolvency, whether of the plaintiff or defendant, or drawing, endorsing, or accepting bills or notes by way of accommodation, want of notice of dishonor, want of notice of action, set-off, mutual credit, lien, unseaworthiness, misrepresentation, concealment, and other like defences, he shall, at the time of giving notice of appearance, file, in duplicate, a memorandum containing a clear and concise statement of the grounds of his defence :Provided that if the defendant relies upon a set-off he shall ,also file particulars of such set-off; and if he relies upon a tender before action brought, he shall pay the amount into Court with the appearance.

The provisions of the English County Courts Acts in references to defences differs very materially from those of the Local Courts Act of this Province. By the English practice no notice of appearance is necessary except in the case of a summons issued in the special form, or in case the defendant intends to set up one of the following defences, viz.:—Infancy, coverture, Statute of Limitations, or a discharge under the Bankrupt or Insolvent Act; hut the defendant appears in Court personally or by his attorney or counsel and pleads orally—the proceedings being in the

* Should be and.


Tart vii. nature of a summons to show cause. By the South Australian Act, in every case a notice or entry of appearance to an action is required; the form of entry of appearance usually adopted is as follows:—In the Local Court of-----A.B. Plaintiff \

against > The defendant appears to this action. C.D. Defendant.;

Dated the day of 18 .[,Signature of defendant or his attorney.']

A strict compliance with the enactment would, perhaps, require a different form. The notice is required to be given to the Clerk of the Court, and should perhaps be directed to him, and it is to be a notice of a desire to appear; but the clause, it will be observed, does not require the notice to be in writing, and it is presumed that any form will suffice which sufficiently indicates the intention of. the defendant to defend the action. The Imperial County Courts Act, 19 and 20 Vic., c. 108, sec. 28, requires such notice to be in writing, and to be signed by the defendant or his attorney or agent, and the following form is given:—“ In the [Title of Court]

“A. B. v. C. D.“ I intend to defend this cause.

“ Dated this day of , 18 .“ [Signature of the defendant,

, his attorney, or agent]”And at the time of entering the appearance, notice of the special defence must be given to the Clerk.The entry of a common appearance to an action brought in any Local Court in this Colony has the effect, in actions of contract, of a denial of the contract, and puts the plaintiff to the proof of such contract, the performance of it on the plaintiff’s part in some cases, the breach of it on the part of the defendant, and the damages sustained by the plaintiff. Thus, in an action for goods sold and delivered by a plaintiff to a defendant, the entry of a simple appearance will put the plaintiff to the proof of the delivery of the goods, the price agreed upon (or, if no price has been agreed upon, then of the value of the goods), and put in issue the contract generally ; but if the defendant intends to set up any other defence he must file a memorandum of such defence at the time of entering an appearance. [And see the notes infra on special defences.]In actions of tort, as, for instance, in trover for the wrongful conversion of the plaintiff’s goods, an appearance has a greater effect than a plea of the general issue to an action in the Supreme Court, as it puts in issue the right of property and the right to possession of the plaintiff to the goods. So in an action of trespass quare clausum fregit, for unlawfully entering the land of the plaintiff, the defendant, by entering a common appearance, puts the plaintiff to proof of his right to the possession of the premises, and the mere fact of possession by the plaintiff at the time of the committing the alleged trespass will, it is apprehended, not be sufficient evidence of the plaintiff’s right; but if the defendant intends to justify the alleged trespass, he must plead specially to the plaintiff’s demand. [See infra,


“ justification.”] So in actions for nuisances, and in all actions of trespass or on the case—as for obstructing a way, careless driving, libel, slander, malicious prosecution, or arrest, breach of promise of marriage, assault, &c., the defendant, by entering a common appearance, may set up any defence be may think proper, except justification, the Statute of Limitations, and some other very special defences.This section provides that the following defences must be specially pleaded, and the Local Courts cannot admit evidence of such defences unless they are so pleaded, but nn amendment would be allowed at the trial on terms—that is to say, if the plaintiff showed that be would be prejudiced by a defence being set up at the trial, which be was not prepared to meet, the Court might order the trial to be postponed on the defendant paying the costs of such postponement, and perhaps the Court would order payment into Court of the sum demanded, to abide the event of the trial. [See sec. 110.]Where the defendant disputes the char deter in which the

plaintiff claims.—As where the plaintiff sues as executor or administrator, or as the assignee of an insolvent’s estate, or as the assignee of a chose en action under the Act No. 6 of 1860, which provides as follows (s. 19) :—“Every person shall have the power to assign any chose in action, and the assigneee thereof for the time being may bring every such action thereupon, or in respect thereof, in his own name, as the assignor, or the first of the assignors, could have brought if no such assignment had been made, without prejudice, nevertheless, to any equity of the defendant as against the plaintiff or any such assignee.” Prior to the passing of this Act, a chose en action was not assignable at law, and no action could he brought except in the name of the person 07 iginally entitled to the benefit of the contract. Bills of exchange and promissory notes were an exception, the right of action being transferable by endorsement to the endorsee.Set-off.—This defence is mentioned twice in this clause. The law relating to this plea is contained in 2nd Geo. 2, c. 22, sec. 13, made perpetual by 8 Geo. 2, c. 24, sec. 4. The former Act allows mutual debts only to he set-off, the latter allows debts of a different nature to be set-off—as, for instance, debts on specialty may he set-off against simple contract debts, hut a debt cannot he set-off against a cfaim for unliquidated damages, nor can unliquidated damages he set-off against a debt. The defendant, at the time of filing this plea, must file particulars of the set-off. [See the notes to sec. 23.]lender before action.—This plea must he accompanied by payment into Court of the sum alleged to have been tendered. As to evidence to support this plea, see the notes on evidence, Part xv.Payment.—The form is generally that before action brought, the defendant satisfied and discharged the plaintiff’s claim by payment.Release must ordinarily he by deed, for, if a debt is once contracted, it can only be cancelled by a consideration equal in value to the debt, or by an instrument under seal, which requires no consideration to support it. A simple

Part vii.


Part yii. receipt in full of all demands can be impeached, and does not operate as a release if it can be shown that it was given under a mistake of fact, as where an item has been omitted in an account, &c. [See as to payment of a smaller sum in satisfaction of a larger sum admitted to be due, Climber v. Wane, 1 Strange 426, &c., and the notes to this case in Smith’s Leading Cases, vol. i.] In this case, the defendant appears to have pleaded “ accord and satisfaction”—in respect to which the law is somewhat different to that which applies to an admitted debt between the parties. In the case of Cumber v. Wane, the defendant pleaded that he gave plaintiff a promissory note for £5 in satisfaction of his debt, which was of a larger amount, and that the plaintiff received it in satisfaction. The plea was held to be bad. In Fitch v. Sutton, 5 East, 230, Lord Ellenborough says “ there must be some relinquishment of the residue —something collateral, to show the possibility of benefit to the party relinquishing his further claim, otherwise the agreement is nudum pactumThe simple principle enunciated was that £5 can never pay £10—unless with the payment of the £5 there is some other benefit given to the creditor; as where a person unable to pay a debt agrees with his creditor to accept a smaller sum guaranteed by a third person in satisfaction of the larger debt—in this case a new consideration arises. But the proper plea would not be a release but a accord and satisfaction.” There are, however, cases whore a composition has been allowed as a satisfaction of a debt, as where all the creditors of a debtor agree to such composition, because in such cases a new consideration arises—viz., a mutual agreement between the creditors, which they consider to be for their benefit —this is in accordance with the decision in Fitch v. Sutton.Illegality not apparent on the particulars.—If the plaint shows upon the face of it an illegal transaction, a common appearance is all that is necessary to enable the defendant to dispute the plaintiff’s demand, because a Court of law will not entertain a suit where the plaintiff himself shows that he has been a party to an illegal transaction; in fact, an alleged contract, if illegal, is no contract in law. But if the illegality of the transaction does not appear on the face of the plaint, the defendant must plead specially, as in claims arising out of gambling transactions, such as betting, lotteries, raffles, &c., where the plaint does not disclose the nature of the transaction, and in actions by licensed victuallers, where the right to recover is barred by the Licensed Victuallers’ Act, so in the case of a trading contract entered into on a Sunday, and in all cases of immoral contracts, whether such contracts are prohibited by express legislation or are in themselves of an illegal character. Illegal transacti®ns are divided into two classes —viz , mala prohibita and mala in se—but both are regarded in the same light in law.Fraud, misrepresentation, concealment.—These defences belong to the same class, implying generally deceit on the part of the plaintiff, by which the defendant has been induced to enter into the alleged contract. The term fraud does not necessarily imply a criminal act: legal fraud generally implies simply deceit, or withholding knowledge of a


defect which, ought in good faith to he made known to the Other party to the contract, or exaggerating or misrepresenting circumstances affecting the value of property sought to he disposed of, as is frequently done by auctioneers, brokers, land agents, horse dealers, salesmen, and persons of a similar class. See Evidence, Part xv.Infancy.—This can only he pleaded to an action on contract, and is a bar to any such action.Coverture.—This also can only he pleaded to an action on contract, and is a har to such action, except in the cases provided for in clause 80 of the Act. In actions against married women for torts, the husband should he joined as defendant. As to actions against the husband for debts contracted by the wife, see the remarks on Evidence, Part xv. Statute of limitations.—The time within which actions may be brought is regulated by the Colonial Act, No. 14 of 1868-7, which limits the right of action to recover possession of land to twenty years from the time of such right accruing; to the recovery of debts on specialty to twenty years; to actions for the recovery of simple contract debts, and for damages for direct injuries to real and personal property, actions for taking away, detention or conversion of property, goods, and chattels, actions for libel, malicious prosecution and arrest, and seduction, and actions for other causes which would be brought in the form of actions called “trespass on the case,” to six years ; to actions for assault, trespass, menace, battery, wounding, and imprisonment, to three years. But this Colonial Statute is so badly drawn, and many of its clauses are so unintelligible, that it is doubtful whether any reasonable construction can be placed upon them; and, until there have been some judicial decisions upon it, it is difficult to say what operation it can have. One of the clauses of the Act provides that a person shall commence an action within six months after his death. Insolvency, whether of the plaintiff or defendant.—Insolvency of the plaintiff is a bar to an action, inasmuch as the cause of action passes by the insolvency to the assignee. The insolvency of the defendant is not a sufficient defence to an action unless the insolvent shall have obtained his certificate or the plaintiff shall have proved his debt under the adjudication ; but as no effects of the defendant could be taken in execution under a judgment obtained against an insolvent — such effects having passed by the adjudication to the assignees—any proceedings upon the judgment would be nugatory so far as regards anything which might be seized under an execution.Drawing, endorsing, or accepting hills or notes hy way of accommodation. -These defences can only be set up as an absolute bar to the action where the action is between the immediate parties to the transaction; but where a plaintiff sues as endorsee of an accommodation bill or note he may maintain an action for the recovery of so much as he has actually paid for or on account of such bill or note.Want of notice of dishonor.—This is an absolute defence to an action by an endorsee against any of the parties to the bill or note, except the acceptor or maker, unless such notice is waived by any act of such endorsee, or unless the endorsee is the* holder without value and knew that the bill

Part vii.


Part yii. was an accommodation bill—that is to say tliat the acceptor------------------ received no value for it.

' Want of notice of action.—This applies generally to actions"brought against public officers who are entitled by Statute to notice before action brought for neglect of duty or the improper exercise of an authority given by law.Mutual credit.—The same observations will apply to this class of cases as to cases in which a set-off is pleaded.Lien.—It is apprehended that the defence of lien would he a defence under a plea of not possessed. It could only arise in an action of trover. It is altogether a novel plea; hut, as it is contained in the Act, probably it would be deemed

. to be necessary to be pleaded specially., TTnseaworthiness.— This defence is applicable to an action

on a charter-party, where the defence goes to the whole v cause of action. If the defendant has derived any benefit

from the contract, but has sustained damage by reason of the unseaworthiness of the ship, he must bring a cross action. A claim for damage, occasioned by improper stowage on board a vessel, can be defended on a common appear-

/ ance being entered, as that puts in issue the breach of dutyor wrongful act of the plaintiff, and the circumstances out

• of which the alleged cause of complaint arose.. Misrepresentation.— See the note to fraud, &c., supra: mis

representation is fraud. -Concealment.—See the note to fraud, &c., supra: concealment is fraud, but it must be shown that the plaintiff was cognizant of the fact concealed.And other like defences.—These words are very wide in their signification, and it is difficult to attach a definite meaning to them. Perhaps, amongst other matters of defence, the following would come within this class of defences: accord and satisfaction, negligence, unskilfulness, credit’not expired, leave and licence, lis pendens, j udgment recovered, payment into Court, justification, denial of partnership, puis darrien continuance; although, with regard to the last-mentioned plea, it is not free from doubt as to whether there is any mode of pleading it.

Defendant not 88. If the summons shall he in the special form., the de- withmit-1 affidavit fendant shall not be allowed to appear, unless at the time of of good defence, giving notice of appearance, he, or some person cognizant summonsCissued. with the facts of the case, shall make oath that he has a good

defence to the action on the merits, and shall show upon oath the grounds of such defence; and it shall be lawful for a Special Magistrate to set aside an appearance entered upon such oath if he shall consider the defence frivolous, subject to an appeal from his decision to a Judge of the Supreme Court; and the costs of such appeal shall be in the discretion of the Judge : Provided that all sums paid in or levied in the action shall be detained in Court until the appeal is disposed of.

Where the appearance is set aside on the ground that the defence is frivolous—which it is presumed can only occur in cases where a special plea has been filed, and .not in cases where a simple appearance has been entered—it seems by


no means clear in case of appeal—but it would seem that pending tbe appeal, execution may issue, and the amount levied under tbe execution should be detained in Court. It will be seen that an appeal to a Judge of tbe Supreme Court is allowed in all cases under tbis section of tbe Act, irrespective of tbe amount of tbe judgment; tbe appeal is not to tbe Supreme Court. There is no provision in tbe Act for tbe mode of proceeding in appeal under tbis section of tbe Act; and it would appear that tbe regulations relating to appeals, contained in Part v. of tbe Act are not intended to be applicable to tbis clause, because those provisions relate entirely to tbe determination or direction of tbe Court on a point of law, or upon tbe admission or rejection of evidence at tbe trial. [See particularly sec.59 of tbe Act.] And it will be observed that tbe whole of Part v. relates to appeals to tbe Supreme Court, and not to a single Judge. Probably a Judge of tbe Supreme Court would entertain an application under tbis clause, upon summons and affidavit. In tbe case of a defence be'ing set aside on tbe ground of frivolity, and an appeal being allowed, it would in all cases be advisable to make tbe summons a stay of proceedings, so as to prevent an execution issuing. [And see as to Appeals, tbe Rules of Court 31, 32, 33.]

89. In ease of non-appearance by tbe defendant, where the claim is for a debt or liquidated demand, such as to entitle a plaintiff to cause a special summons to be issued, the Clerk of the Court, upon due proof of the service of the summons, shall, at the instance of the plaintiff, sign judgment for the amount.

As to when a special summons may be issued, see sec. 84 of tbe Act, and see also secs. 85 and 88.

90. On non-appearance by the defendant in the case of any other claim, the Clerk of the Court shall, at the instance of the plaintiff, set the plaint down for assessment of damages, and afterwards the defendant shall not be at liberty to give notice of appearance.

See tbe next clause of tbe Act.91. Where, in either of the preceding cases, the plaintiff

shall have signed judgment, or set a plaint down for assessment of damages, a Special Magistrate or the Court may, on such terms as he or they may think fit, permit a defendant to .appear and defend the action.

The permission to appear and defend will be granted on a summons to shew cause, supported by an affidavit. The affidavit should set forth that. the defendant has a good defence to tbe action on tbe merits, and also tbe ground of defence, a purely legal defence — such as tbe Statute of Limitation is a defence on tbe merits [See Evans v. Gills, 1 B. & P. 52]—that being a defence on legal merits. An order would, in most cases, only be made on terms of tbe defendant paying tbe costs occasioned by his having neglected to enter an appearance in due time, and tbe affidavit .should also give some reason for tbe defendant’s neglect.

Part vii.

Final judgment by default in certain cases.

When judgment not final, ‘ damages to be assessed.

Special Magistrate, or Court, may permit defendant to defend, although judgment may have been entered.


Paht vii. 92. After the defendant has appeared, the trial of the cause When cause to shall take place at the .first Court to be holden after the he tried. expiration of the time hereinbefore allowed for the defendant

to appear, or two clear days after the appearance of the defendant, whichever shall last happen ; hut if the plaintiff shall reside at a distance from the Court in which the plaint is entered, he may, at the time of entering the plaint, give notice to the Clerk that he will require an extended notice of trial, to be named by him, not exceeding the period which he would have been allowed if he had been the defendant, and served personally.

This clause is not very happily worded, hut it is generally - read thus—“The trial shall take place at the first Court

(having jurisdiction) to he holden after the expiration of . the time within which the defendant is required by the

summons to appear; hut in any case the defendant shall he entitled to two clear days’ notice of trial”—so that if the next sitting of the Court after the expiration of the time within which the defendant is required by the summons to appear, would not admit of such notice being given, the trial could not take place until the next Court day hut one. The latter part of the clause, relating to an extended notice of trial, if required by the plaintiff, is also obscure—whether it relates to the provisions of sec. 86, which refer to the time within which a defendant is required to appear, or whether it relates to the notice of trial to which a defendant is entitled, is by no means clear, but the words “ if he had been the defendant, and served personally,” seem to have no application. There is a serious omission in this section

, of the Act as to notice of trial injury cases. It will be. seen that in such cases it would be- impossible to comply

with the provisions of the Act as to notice of trial. The only course open to either party to a suit requiring a jury appears to be an application on summons to a Special Magistrate, under Division in. of the 18th section of the Act, for a postponement of the hearing.

Defendant may 93. Any defendant may, if he think fit, at the time of part thereof, and entering his appearance, or at any other time before trial, judgment therewith the Clerk of the Court a confession of the debt or

’ demand, or a part thereof, and which shall be attested by aClerk of a Local Court, or a Justice of the Peace for the said Province, or shall be under the hand of a practitioner of the Supreme Court, and which confession shall be appended to the duplicate summons, and a copy thereof shall be sent to the plaintiff in like manner as a notice of trial; and the Clerk of the Court shall, at the instance of the plaintiff, enter judgment to the extent of the amount confessed : Providedthat, if the defendant confesses a portion of the debt only, and the plaintiff shall not sign judgment as aforesaid, the cause shall proceed. '

It would seem that if the defendant confesses only a portion of the debt or demand claimed by the plaintiff, and

LOCAL COUETS ACTS. 6$

the latter signs judgment for such portion, he relinquishes Part vii. all further claim. ■----------------

94. Any defendant may, if he think fit, at the time of Defendant may entering his appearance, pay into Court such sum of money g^£oneymto as he shall think a full satisfaction for the demand of the plaintiff, together with the costs incurred by the plaintiff upto the time of such payment, and notice of such payment shall be communicated by the Clerk of the Court in like manner as a notice of trial, and the said sum of money shall be paid to the plaintiff, and in case of a sum less than the amount claimed being paid, and the plaintiff shall not send to the Clerk of the Court a notice of his acceptance of the amount paid in full, the cause shall proceed.

There is no provision in this clause as to the time within which the plaintiff shall send a notice of his acceptance of the amount paid into Court in full of his demand, nor when the cause shall proceed. It is somewhat difficult to see how the provisions of this section can he carried into effect.

95. If the plaintiff shall recover no further sum than shall Plaintiff to pay have been so confessed or paid into Court, the plaintiff shall cases.m certain pay or allow to the defendant the costs incurred by him inthe said action, after such payment, or after he had notice of such confession, such costs to be taxed by the Clerk of the Court; but if a defence of tender before action brought has been found for defendant, then the plaintiff shall pay the whole cost of the action.

Under a plea of tender before action the defendant must, however, pay into Court the sum alleged to have been tendered at the time of entering an appearance. [See sec. 87.]

96. If the defendant can agree with the plaintiff upon the judgment when amount of the debt or demand, and upon the conditions upon toamountan^ which the same shall be paid or satisfied, and a statement of terms of pay- the debt or demand so agreed upon, and of the terms and mentf conditions upon which the same shall be paid and satis-fled, signed by the plaintiff and the defendant, and attested by a Clerk of a Local Court, or a practitioner of the Supreme Court, be filed with the Clerk of the Court, he shall enter up judgment for the plaintiff for the amount of the debt or demand so agreed on, upon the terms and conditions mentioned in such statement.

Tbis proceeding is analogous to that of a cognovit actionem in tbe Supreme Court. -

97. A defendant shall be summoned to the nearest Court To wbat Court a in a direct line, having jurisdiction to the amount claimed, to defendant shall which the defendant, or one of the defendants shall dwell, or e summonec ■ carry on business, at the time of the action brought, or towhich the cause of action arose, or, in the case of replevin,


Part vii. in the Local Court nearest in a direct line to the place where the distress was taken; or, if the plaintiff dwells more than twenty miles from where the defendant dwells, or where the cause of action did not arise wholly or in some material point within the like distance of the Court nearest to which the defendant dwells, or carries on his business at the time of the action brought, a defendant may be summoned to the Adelaide Local Court; but no defendant shall be allowed to object that the Court to which he is summoned is not the nearest Court, unless he shall file a memorandum of such objection at the time of entering an appearance.

This section of the Act provides in effect for the jurisdiction * of the several Courts.

Ah action must he commenced in the Court nearest in a direct line to which the defendant, or one of the defendants shall dwell or carry on business at the time of action brought. There is a similar enactment in the Imperial County Courts Act which has given rise to considerable discussion (except that the Imperial Act does not refer to the distance in a direct line, but every County Court has its districts defined within which it may exercise jurisdiction). The provision as to a direct line seems to necessitate the production of maps and skilled witnesses in order to determine whether the Court has jurisdiction. It may be useful to inquire what interpretation the superior Courts have placed on provisions of Acts of Parliament similarly framed. In Rex v. Inhabitants of Ourry, 4 B. & C., 159,* it was observed by the Judge that the word residence, where there is nothing to show that it was used in a more extended sense, denotes the place where an individual eats, drinks, and sleeps, or where his family or servants eat, drink, and sleep. But it seems that where the officer who serves the process makes the usual affidavit of service, a superior Court will not issue a prohibition to restrain proceedings, even on proof that the summons was not left at the residence of the defendant—exparte Lenaghan, in re Robinson v. lenaghan, 2 Exch. E. 333. The facts where as follow:— The defendant, on returning to his house in Islington, found an officer in possession of his goods, under a County Court execution. He had never been served with a summons, nor had he received any other notice of the action till this execution was put in. The Judge (of the County Court), refused to set aside the proceedings on the defendant’s application for that purpose, except on terms which he

* The case of Hex v. Inhabitants of Carry, before referred to, is not reported in 4 B. & C., and I have been unable to find a report of it in any other Reports, nor is there any reference to it in Harrison’s Digest or any of the works published on the subject of the Practice in the County Courts. I found it in a treatise published in Victoria, and give it as there stated, as it would appear that the definition as to residence is correct. It will be observed that our Colonial Act does not contain the word residence—the words are house or place of business ; but the word “ house” is defined by Johnson as “ a place of human abode,” and the later lexicographers have followed that definition. There appears to be some difficulty in placing a clear meaning on the word as here used. There would seem also to be a difficulty in pleading to the jurisdiction, as the entry of a plea to the jurisdiction would imply that the service of the summons had come to the defendant’s knowledge. Perhaps the proper course to adopt would be for the person with whom the summons was left, to apply to the Special Magistrate on affidavit to set the service aside.

LOCAL COUETS ACTS. 65

refused. It appeared that the summons had been directed to, and served at No. 8, PauTs-terrace,. where he had never resided, and was not known, and notice of the judgment and order for payment, had been left at the same place. The owner of the house had informed the officer that the defendant was not even known there, hut he persisted in leaving the documents. The execution proceeded on affidavit of the summons having been left at the dwelling- house of the defendant. It was held on appeal that it was for the County Court to decide whether the service was good, and that such Court (as to this matter), had jurisdiction. Pollock, C.B., in his judgment says—“If the Judge he satisfied that the service of the process has been made, he has jurisdiction.” It is suggested that in this case the Judge of the County Court did not exercise a proper discretion ; hut the ground on which the Court above refused prohibition, was that this writ will not lie where an inferior Court has jurisdiction, but exercises it in an improper manner. Should not the Special Magistrate, in all cases where there is satisfactory proof of an irregularity in the service of a summons, set the service aside P [See Division iv. of section 18, of the Colonial Act.] Otherwise, as has been remarked by an annotator on the case above cited, a Judge of an inferior Court could give judgment and award execution against a person who had really not been sued, and was never before the Court. The chief difficulty in a case of this kind is that there is no point of law involved, but only a point of 'practice. Perhaps in such a case a mandamus might lie, commanding the inferior Magistrate to hear the cause on proper affidavits of defence, and setting forth the facts. It will be observed that the only question which came before the Court of Exchequer in Robinson v. Lenaghan, was one of jurisdiction. [And see Whalley y. McConnell, 19, L. J., Q,. B., 162.] ^ .The place of business' of the defendant is where he carries on an independent business, not where he attends daily merely as a clerk or servant.At the time of the action brought, or to which the cause of action arose.—The option is with the plaintiff. A cause of action on contract is said to arise in the place where the contract is entered into, and not where the breach was committed; as, for instance, in the case of a breach of contract for the sale and delivery of goods entered into within the jurisdiction of one Local Court, where the delivery is to be made within the jurisdiction of another Local Court, an action for non-delivery should be brought in the Local Court nearest to the place where the contract was entered into, and not where the breach occurred. In torts, as in trover for goods, the cause of action would be the conversion of the goods to defendant’s use, which is generally evidenced by a demand and refusal to deliver— the place where the refusal takes place would be the place where the cause of action arose—because until a refusal, to deliver there has been no wrongful act on the part of the defendant. As in actions of trover, it is assumed that the defendant obtained possession of the goods innocently, and as the word trover implies by finding. The same remarks apply to the action of detinue, if, indeed, such an action can be brought in a Local Court, which seems E •'

Part vii.

'66 LOCAL COURTS ACTS.

Part vii. doubtful. An action of detinue lies generally for tbe------------------ wrongful detention of title deeds, and not for damages as

an action of troyer ; but tbe jury assess tbe value of tbe deeds, which would be tbe value of tbe property to which they relate, and tbe judgment is entered for tbe return of tbe deeds or for damages for their detention, with nominal damages in case tbe deeds are given up. It is true that by tbe 107th section of tbe Act a power is given to tbe Court to order an execution to issue for tbe return of tbe chattel, but it does not appear bow such an execution can be put in force. An attempt has been made by tbe rules of Court to provide a mode of enforcing such an execution, but it may be questioned whether such rule, which provides tbe form of execution, is not ultra vires.

‘ In the case of replevin.—Tbe action is to be brought in tbeLocal Court nearest in a direct line to tbe place where tbe distress is taken; because an action of replevin is in tbe nature of an action of trespass for unjustly taking tbe plaintiff’s goods, and tbe place of taking is the place where tbe cause of action arose.An action may, however, be brought in tbe Adelaide Local Court where the plaintiff dwells more than twenty miles from tbe dwelling-place of tbe defendant, or where tbe cause of action did not arise wholly or in some material point within twenty miles of tbe Court nearest to which tbe defendant dwells or carries on bis business at tbe time of tbe action brought. What is a material point has been much discussed, but has never been actually decided; perhaps from the vagueness of tbe expression, it is too much to expect that it ever will be. The provision occurs in tbe Imperial County Courts Act, and it would have been well if it bad not been introduced into tbe Colonial Act without some definition of its meaning.

Court, with con- 98. The Court, or tbe Judge at tbe trial, or a Special mattersYoTrbi- Magistrate may, with tbe consent of botb parties to tbe suit, tratiou. which shall not be revocable, order tbe same, witb or without

other matters within tbe jurisdiction of tbe Court, in dispute between such parties, to be referred to arbitration, to such person or persons, and in such manner, and on such terms as may be reasonable; and tbe award of tbe arbitrator, or arbitrators, or umpire shall be entered as tbe judgment in tbe cause : Provided that if tbe award of such arbitrators or umpire be not given within one month of tbe order of reference, either party may, on giving notice to tbe opposite party or bis attorney, apply to the Court to revoke tbe order of referenceProvided also, that the Court may, if it think fit, on application to it on tbe first sitting thereof, held after tbe expiration of one week after tbe entry of such award, set aside such award so given as aforesaid; in either of which events tbe Court may order another reference to be made in tbe manner aforesaid.

There is no provision in tbis clause as to tbe costs of an arbitration, which are frequently much greater than a trial at law, as the Magistrate receives no fees from tbe suitors


•while arbitrators’ fees are often heavy. "Whether under the words “ on such terms as may he reasonable,” would give power to the Court or a Special Magistrate to make an order that the costs of the arbitration should he paid by the unsuccessful party, or otherwise, may be questioned, hut see clause 202. Perhaps it might he done hy the consent of the parties to the suit, hut who is to tax them P In case the order of reference is revoked under the power given in this clause, it is presumed that the action would proceed as in ordinary cases, hut there is no special provision to that effect, nor is there any provision as to what is to become of the other matters in difference, supposing such matters to have been referred. In setting aside an award, it is presumed that the Court would he guided by the same rules as the superior Courts have fixed as their mode of procedure in similar cases, where a cause has been referred to arbitration by an order or rule of a Judge of the Supreme Court, or of the Court itself; the award made in pursuance of such order or .rule will not be set aside, except for error apparent on the face of the award— as where the award has been made in respect of matters not submitted to the arbitrator—but the Court will not interfere with the exercise of the discretion of an arbitrator where he has jurisdiction. [See Russell, on the Power and Duty of an Arbitrator, and Watson on Awards.] It may, perhaps, be as well to point out that this clause provides for three modes of reference, namely—

1. To a single arbitrator.2. To more than one arbitrator.3. To an umpire.1. The first is a simple mode of determining a dispute.

The award of a single arbitrator is final, if made within the limits of his authority under the reference. In all cases an arbitrator should be an indifferent person, uninfluenced by either party.

2. The usual mode of reference, where more than one person is named, is for each party to the reference to name an arbitrator, who are to appoint a third arbitrator, and the decision of any two of the three referees so appointed is to be the award. In the case of a reference of this kind, it is perhaps unnecessary to remark that each arbitrator should act as an impartial judge, and should not act as an advocate of the claim of the party by whom he is nominated, nor as a partisan on his behalf; but those who are acquainted with the common practice of lay arbitrators will be aware that the course pointed out is not always that which is pursued. Lay arbitrators are too commonly found to have a bias in favor of the person by whom they are nominated, and to act as though they were bound to support the cause of the party by whom they are appointed. They too frequently forget that they occupy the position of judges—to do right between the parties, without favor or affection to either side.

3. In case of an umpire being appointed, where the reference is to two arbitrators or to an umpire to be appointed by them, the duties of the arbitrators become functi officio, and the umpire must go into the whole case, and the award must be made by the umpire alone. It is suggested that this is an inconvenient and expensive mode of conducting a reference, and it is seldom now adopted in practice. A refe-

Past vii.


Part vii.

Plaintiff may discontinue.

Witnesses may be summoned.

Proceedings if neither party appear at trial.

Defendant appearing may admit debt, and judgment thereupon.

If defendant does not appear, plaintiff may proceed exparte.

rence is usually made to one arbitrator, or to three arbitrators —the decision of any two of whom decides the question submitted. [See Russell on Arbitration, before cited.]

99. A plaintiff in any action may discontinue, by giving notice thereof to the Clerk of the Court and to the defendant, by post or otherwise, and after the receipt of such notice the defendant shall not be entitled to any further costs than those incurred up to the receipt of such notice, unless the Special Magistrate shall otherwise order.

100. Any party to a suit or other proceeding may obtain at the office of the Clerk of the Court summonses to witnesses, and in any summons any number of names may be inserted.

101. If, at the day appointed for hearing the cause, neitherparty shall appear when the cause is called on, or if the defendant only appears, then, by his consent, the Court, or, in jury cases, the presiding Judge or Special Magistrate shall order the cause to be placed at the bottom of the cause-list; and if, before the conclusion of the sitting, neither party shall appear, the Court shall order the cause to be struck out, and thereupon the action shall be discontinued: Provided, thatif the defendant shall appear by himself or his attorney, and pay the Court fees, in the first instance payable by the plaintiff, and shall admit the plaintiffs claim, the Court may give judgment in like manner as if the plaintiff had appeared.

There is a singular omission in this clause. It provides for the case of neither party appearing at the trial, and for the case of the defendant appearing and admitting the plaintiff’s claim, but it does not provide for the defendant appearing and the non-appearance of the plaintiff, nor do any of the succeeding clauses of the Act, except that clause 103 gives power to the Court to award costs and compensation to the defendant when the plaintiff does not appear on the trial; but, it is presumed, that in case the plaintiff should not appear at the trial, the cause would be a remanet, and probably fresh notice of trial should be given, but the proceedings would be still pending in the Court, and there is no express enactment that fresh notice

*of trial is necessary, nor is there any provision which assimilates the practice in the Local Courts to that of the Supreme Court, where judgment, after a certain time by way of nonsuit, may be obtained against the plaintiff in the event of his not proceeding to trial.

102. If, at tbe day appointed for tbe bearing of tbe cause, tbe defendant shall not appear at tbe calling of tbe cause, personally or by bis attorney, or shall neglect to answer the claim or demand, tbe Court may proceed to tbe trial or bearing of tbe cause on tbe part of tbe plaintiff only.

This provides for an exparte hearing when the plaintiff appears and the defendant does not. The plaintiff, however, must prove his case. [See the Imperial Act, 9 & 10 Yict., c. 95, sec. 80.]


103. In every case where the plaintiff shall not appear, Paht vii.

either by himself or his attorney, upon the day of the return Court may award of any summons for hearing, or at any continuation or ad- ^defeMant011t0 journment of the said hearing, and the defendant shall appear, when plaintiff either by himself or his attorney, upon such day of hearing, does not appear- continuation, or adjournment, it shall be lawful for the Court,or, in Jury cases, for the presiding Judge or Special Magistrate, to award to the defendant, or to his attorney, by way of costs of his attendance, and satisfaction for his trouble, in addition to the ordinary costs payable by virtue of this Act, such sum as the Court, or, injury cases, the presiding Judge or Special Magistrate, in its discretion think fit; and the sum so awarded shall be recoverable as a judgment of the Court.

As before mentioned in tbe note to sec. 101 of tbe Act, tbis clause only provides for tbe case of a plaintiff not appearing at tbe trial, when tbe Court has power to award costs, and compensation to tbe defendant, if tbe latter appears, but tbe cause still remains undisposed of; there is no authority given to tbe Court to strike out tbe cause from tbe list merely in tbe event of tbe plaintiff not appearing.See tbe Imperial Act, 9 & 10 Viet., c. 95, sec. 70.

104. Either party may require the evidence in a trial to be parties may retaken down in writing, and signed by the presiding Judge or ^®Stenme Special Magistrate; and either party, in the case of a new writing, trial, may tender the same in evidence, subject to any generalrule or regulation, to be made in respect to the mode and conditions of using the same.

No rule has been made as to tbe mode and condition of • *using evidence taken on a first trial, and proposed to be used on a new trial; tbe wording of tbis clause is somewhat remarkable; it merely allows either party to tender tbe evidence taken at a former trial on the new trial. But tbe Act does not say that it shall be admissible, or that tbe Court shall be bound to receive it. A plaintiff or defendant would be at liberty, without tbis provision, to tender any ■evidence he might think proper, but it would be for tbe Court to receive it, or reject it if it were deemed inadmissible. Tbis. section of tbe Act does not even give power to tbe Court to receive tbe evidence referred to in it.

’ 105. Either party may require the ruling or direction of Magistrates may

the Judge or Special Magistrate, or any particular point to reduc^ruUngto be reduced to writing, and signed by such Judge or Special writing. Magistrate.

It is frequently necessary that tbis should be required in tbe event of a probability existing that a new trial may be applied for, and in tbe case of an appeal to tbe Supreme Court, either on a point reserved or otherwise, or where it may be deemed necessary to apply for a prohibition.

106. If there shall be cross judgments between the parties, in case of crossexecution shall be taken out by that party only who shall Contois™!;'have obtained judgment for the larger sum, and for so much for the balance

0 ° of the larger.


Pabt vii.

Court may order return of chattels detained.

Specific delivery of goods sold may he ordered.

only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered, as well as satisfaction on the judgment for the smaller sum; and if both sums shall be equal, satisfaction shall be entered upon both judgments. .

The only question which can arise on this section of the Act is that of costs, that is to say—Can the attorneys he deprived of their liens on the judgment for their costs, and will the Court allow the parties to the cross action to add their costs to the amount of the verdict, and set off both debt and costs, one against the the other. In the Supreme Court cross judgments cannot he set off one against the other without satisfying the attorney’s liens for costs, hut it has been held by one of the Judges of the Supreme Court that this rule does not apply to Local Courts, \_Lammey v. Jeans, and Jeans v. Lammey, tried in the Adelaide Local Court in 1869] per G Wynne, J. Sed quere, is this good law ?

107. The Court shall have power, if they think fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed.

See as to the mode of enforcing this order, section 128, infra.

108. The Court or jury shall have power, if they think fit so to do, upon the application of the plaintiff in any action for breach of contract to deliver specific goods for a price in money to find—

i. What are the goods, in respect of the nondelivery of which, the plaintiff is entitled to recover, and which remain undelivered :

ii. What (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof:

in. What damages (if any) the plaintiff would have sustained if the goods should be delivered under execution as hereinafter mentioned: And

iv. What damages, if not so delivered.Thereupon, if judgment shall be given for the plaintiff, the Court, on the application of the plaintiff, shall have power to order execution to issue for delivery, on payment of such sum (if any) as shall have been found to be payable by the plaintiff as aforesaid, of the said goods, without giving the defendant the option of retaining the same, upon paying the damages assessed.

The Imperial Act 19 & 20 Viet., c. 97, sec 2, from which part of this clause is taken, enacts as follows:—“ In all actions and suits in any of the Superior Courts of Common Law at Westminster or Dublin, or in any Court of Becord


in England, Wales, or Ireland, for breach of contract to Part vii.deliver specific goods for a price in money, on tbe applica- ------------ - ~tion of tbe plaintiff and by leave of tbe Judge before whom tbe cause is tried, tbe jury shall, if they find tbe plaintiff entitled to recover, find by their verdict: —

1. What are tbe goods in respect of tbe non-delivery of which tbe plaintiff is entitled to recover and which remain undelivered.

2. What (if any) is tbe sum tbe plaintiff would have been liable to pay for tbe deliveiy thereof.

3. What damages (if any) tbe plaintiff would have sus- (tained if tbe goods should be delivered under execution, astherein provided.

4. What damages if not so delivered.Tbe remainder of tbe clause in our Colonial Act is not, however, in tbe Imperial Act, and in many cases tbe provisions would be impracticable, as in tbe event of tbe defendant not being in possession of tbe goods at tbe time

. of tbe execution issuing they could not be specificallydelivered. [See sec. 128, and tbe forms of execution in tbe Rules of Court.]It may be remarked that there seems some incongruity in tbe Imperial Act purporting to establish Courts of inferior jurisdiction, and defining such jurisdiction, providing for an extended jurisdiction of the superior Courts wholly unconnected witb tbe Courts established by tbe Act. Tbis is, however, merely a remark en passant, and has no bearing upon tbe operation or construction of our Colonial Act.[See as to tbe forms for proceeding under tbe provisions of tbis section Lloyd’s C.C. Practice, pp. 519, 520, and see tbe forms in tbe Rules.]

109. If any party shall sue another in any Local Court for Second action for

any debt or other cause of action, for which he had already aii^wedUSQ n0t sued him and obtained judgment in that or any otherCourt, the proof of such former suit having been brought and . judgment obtained, may be given, and the party so suing shall not be entitled to recover in such second suit, and shall be adjudged to pay such compensation to the opposite party as the Local Court, or in jury cases, the presiding Judge, or Special Magistrate, may award.

In tbe case supposed, a plea of judgment recovered in that or any other Local Court, would it is presumed, be an answer to the action.

110. The Court may, in any case, make orders for granting Court may ad- time to proceed in the prosecution or defence of any suit; the^stance ofat and the Court, or in jury cases, the Presiding Judge, or^e^Stiff°r Special Magistrate, also may, from time to time, continue, or ae en a * adjourn any Court, or the hearing or further hearing of anycause, in such manner and upon such terms as to the Court may seem meet.

An adjournment would, it is presumed, only be allowed on terms of payment of costs of tbe day. [See tbe note to tbe next section ]


Part vii. 111. Where judgment has been obtained in a Local Court in case of judg- for a sum not exceeding Twenty Pounds, exclusive of costs, Court^ma^order Court, and in jury cases, the Presiding Judge or Special payment by in- Magistrate may, at the trial, order such sum and the costs «talments. to be paid at such time or times, and by such instalments (if

any) as he shall think fit; but in all other cases the Court, a Judge, or Special Magistrate as aforesaid, shall order the full

. amount for which judgment has been obtained, to be paideither forthwith, or within fourteen clear days from the date of the judgment, unless the plaintiff or his attorney will consent that the same shall be paid by instalments, in which case the Court shall order the same to be paid at such times, and

‘ by such instalments as shall be consented to.This, and the preceding section (110), are so interwoven that it may he convenient to consider them together. The powers given to the Court to give time to proceed in the prosecution or defence of an action, it would appear, are entirely discretionary, and could scarcely be exercised except on terms of payment of costs by the applicant. See sec. 18, Division hi. The powers given to the Court to order payment of a judgment debt by instalments, and to grant time for payment of the whole of the amount of the judgment recovered, is a large power, and if not exercised with discretion might deprive a plaintiff of the fruits of his judgment, inasmuch as other judgments might be recovered against the defendant, both in the Supreme Court (where no such power of deferring execution exists) or in other Local Courts (which might not choose to exercise the discretion here given), and thus deprive a prior judgment creditor of the fruits of his judgment. Probably the Court, in the wise exercise of the discretion here given, would not grant an application of this kind unless security were given. It will be observed that the power by this section given to Local Courts is restricted to

. judgments not exceeding £20, as in cases exceeding thatsum the judgment may be removed into the Supreme Court.

• [See section 5 A]

Who may appear 112. Any party to a suit or other proceeding, or a practi- at hearing. tioner of the Supreme Court, or by leave of the Court, any

other person instead of the party may appear and conduct a cause in Court.

If any person, other than a practitioner of the Supreme Court, were to appear for a defendant (which he can only do by leave of the Court), he would not be entitled to any costs. And so with the plaintiff. It is presumed that if

. both or either of them appeared by deputy, the party soappearing would not be entitled to even the costs which are usually allowed for his personal attendance as a witness; and one.cogent reason for this presumption is that if a party to a suit is in Court at the time of the trial he may he called by the opposite side as a witness and examined, and would then be entitled to his costs as a witness. However, this does not appear to be a matter of much.importance, except in small cases, where the costs sometimes ex-


' ceed the sum recovered. No person can appear and defend Part vii.or conduct a case for another in any Local Court, even hy leave of the Court (except gratuitously), without rendering himself liable to the penalty under the Act to regulate the . profession of the law—No. 6 of 1845.

113. Every order and judgment of any Court holden under Court may not this Act, except as herein provided, shall be final and con- pJXSffmay elusive between the parties, hut the Court, or in jury cases, elect to be non- the presiding Judge or Special Magistrate, shall have power to sult* nonsuit the plaintiff in every case in which satisfactory proofshall not be given, entitling either the plaintiff or the defendant to the judgment of the Court; and every plaintiff shall he entitled, at any time before the judgment of the Court is pronounced, or in jury cases before verdict, to elect to be nonsuit.

It will he observed that this clause gives a special power to Local Courts to nonsuit, whether the plaintiff elects to be nonsuit or not. In actions in the superior Courts a plaintiff cannot be nonsuited unless he consents, and in case of his so consenting the presiding Judge usually reserves to the plaintiff the right of moving the Full Court to set the nonsuit aside. In case of a nonsuit being directed to be entered by a Local Court, it seems that the only course open to the plaintiff is by appeal to the 'Supreme Court, where the amount of the claim involved is sufficient to allow of an appeal. However, in case of nonsuit, the action may be brought on again, it does not determine the rights of the parties. •

114. The Court, or any Judge, or Special Magistrate, at Amendment of all times, may amend all defects and errors in any proceed- Proceedins8- ings ; .and all such amendments may be made, with or without costs, and upon such terms as to the Court, Judge, orSpecial Magistrate may seem fit; and all amendments necessary to determine in the existing suit the real question between the parties shall be so made.

. The power given in this section to allow amendments ofthe pleadings would, it is assumed, not be exercised in cases where either party would be prejudiced by the amendment, except on terms of a postponement of the trial and payment of costs by the party seeking to amend, because each party is supposed to appear at the, trial prepared to support his case only on the issue joined. [See sec. 18, Division vi.] The superior Courts of Common Law ■ have now very much enlarged powers of ordering amendments in pleadings by recent Imperial enactments to those existing before the passing of the Common Law Procedure Act, and it is presumed that the Local Courts would be inclined to follow the practice in the Supreme Court, more particularly as a demurrer is unknown in the Local Courts.

Pabt yiii.—[115 to 125 inclusive—Criminal jurisdiction.] Part viii.

This portion of the Act has been lately repealed by the ActNo. 8 of 1869-70 ; but as it relates not to the civil but the criminal jurisdiction of the Local Courts, it is not intended to comment upon it, as not being within the scope of these notes.


Part ix.

Execution to issue against goods.

On default of payment of any instalment execution to issue for the whole judgment.

When specific delivery is ordered, if defendant make default, he may be distrained. upon until compliance.

Pabt ix.—And with regard to the enforcing judgments and orders of Local Courts, Be it Enacted—

126. That the judgment or order of the Court for the payment of moneys shall be enforced in case of default, or failure of payment thereof forthwith, or at the time or times, and in the manner thereby directed, by execution against the goods and chattels of the party liable to pay the same; and the Clerk of the said Court, at the request of the party prosecuting such judgment or order, shall issue a warrant of execution to the Bailiff of the Court, who, by such warrant shall he empowered to levy, or cause to he levied by distress and sale of the goods and chattels of such party, such sum of money as shall he so ordered, wheresoever they may he found, and also the costs of the execution; and all constables, and other peace officers within their several jurisdictions, shall aid in the execution of every such warrant.

An execution out of the Local Courts can only issue against the goods and chattels of the defendant, and not against his lands as in the Supreme Court; a leasehold interest in land being a chattel can, however, he taken in execution. As to claims of third parties to goods taken in execution, see the notes to the interpleader clauses of the Act, Nos. 144, 145, 146. If it is sought to take the lands of a defendant in execution, this may he done by removing the judgment (if of sufficient amount) by certiorari into the Supreme Court, under the provisions of the 54th section of the Local Court Act.

127. If the Court, Judge, or Special Magistrate, as aforesaid, shall have made any order for payment of any sum of money by instalments, execution upon such order shall not issue against the party until after default in payment of some instalment according to such order, and then the Clerk of the Court, at the request of the person prosecuting such order, shall issue execution for the whole of the sum of money and costs remaining unpaid, unless the Court, Judge, or Special Magistrate, at the time of making the said order otherwise direct, in which case successive executions may issue.

Requires no comment.128. When the Court shall have ordered an execution to

issue for the return or delivery of any specific chattels or goods, if such chattels or goods so ordered to be returned or delivered, or any part thereof cannot he found, and unless the Court shall otherwise order, the Bailiff of the Court shall distrain the defendant by all his chattels, until the defendant deliver such chattels or goods, or, at the option of the plaintiff, cause to be made of the defendant’s goods, the assessed value or damages, or a due proportion thereof: Provided that the plaintiff shall either by the same or a


separate warrant be entitled to have made of tbe de- Part ix.

fendant’s goods tbe damages, costs, and interest in sucb action.

Tbe meaning of tbis clause is somewhat obscure, and it would seem to be a species of retrograde legislation—in effect tbe first part of tbe clause assimilates tbe law to tbe old common law right of distress for rent, under which tbe goods of a tenant can be taken and held by bis landlord until tbe rent was paid, but they could not be sold—they were merely taken as a pledge or security for tbe rent.Tbe power to sell a distress was afterwards given by Statute (2 ¥m, & Mary, sess. 1., c. 5, s. 2), and has been given by tbe Colonial Ordinance No. 14 of 1862. but tbis clause in tbe latter part gives tbe plaintiff tbe option of issuing an execution against tbe defendant’s goods for tbe assessed value or damages, or a due proportion thereof —that is, it is presumed, for tbe value of sucb of tbe goods as shall not be delivered. Supposing, however, an execution to issue in tbe first instance for tbe return or delivery of any specific chattels or goods, and they cannot be found, it is presumed a return of non sunt inventi must be made before any fresh warrant could issue for a distraint upon the whole of tbe defendant’s goods and chattels until tbe defendant should deliver tbe specific goods and chattels; but, in tbe event of tbe defendant having previously disposed of tbe goods and chattels to a bond fide purchaser, without notice of any contract which affected their ownership, bow could tbe defendant comply witb tbe warrant? Then, bow long is tbe Bailiff to bold possession of all tbe defendant’s goods and chattels?If it is meant that be shall bold them until tbe defendant complies witb an impossibility, by having put it out of bis power to deliver tbe specific goods and chattels, tbe enactment is an absurdity. Then tbe plaintiff has the option of issuing execution for tbe assessed value or damages, or a due proportion thereof; but does tbis mean that he must exercise tbe option in the first- instance, or that be can do so after failing to obtain tbe goods in tbe first instance by a warrant for their delivery, or in tbe second instance by a distraint upon tbe whole of tbe goods of the defendant ?There is no decision, that I am aware of, in any of tbe English Courts, to guide tbe practice under this clause, although a similar provision is contained in tbe Imperial Act; and tbe rules are silent. It would be monstrous to <suppose that it could be intended that tbe whole of a merchant’s stock-in-trade could be distrained, and bis business stopped, until be delivered a particular article, which be bad sold to a plaintiff, and to tbe delivery of which tbe plaintiff bad a right, but which tbe merchant bad, since tbe sale to tbe plaintiff, disposed of to another person. [See tbe several subdivisions of section 108.]

' Tbe proviso seems to refer, in tbe word “ damages,” to tbe damages mentioned in Subdivision in. of section 108, which are damages in tbe nature of damages for detention or deprivation of tbe use or possession of tbe goods.

129. Every Bailiff or officer executing any process of exe- What goods may cution against the goods and chattels of any person may, by executiem1


Paht ix.

Judgment creditor may sue upon securities seized in execution. ‘

virtue thereof, seize and take any of the goods and chattels of such person (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade to the value of Five Pounds, which shall, to that extent, he protected from such seizure); and may also seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money belonging to such person, against whom any such execution may have issued as aforesaid.

130. The Clerk of the Court shall hold any cheques, bills of exchange, promissory notes, specialities, or other securities for money, which shall have been so seized or taken as aforesaid, as a security or securities for the amount directed to be levied by such execution, or so much thereof as shall not have been otherwise levied or raised, for the benefit of the person in whose favor the judgment was given or made; and such person may sue, in his own name, and recover upon such securities, in like manner as the person from whom such securities were seized might have sued.

These sections cannot well be considered separately, as they are interwoven one into the other.It does not appear very clearly in what manner an execution creditor can sue in his own name and recover upon such securities, hut he cannot recover upon such securities “ in like manner as the person from whom such securities were seized might have sued.” There seems to have been a mistake made in framing this clause. The Imperial Act is plain and clear; it provides that the plaintiff may sue in the name of the defendant, or in the name of any person in whose name the defendant might have sued. It is apprehended that the proper course would be for the Clerk of the Court to endorse these securities to the judgment creditor sans recours, who could then sue as the endorsee or holder of the bill or note, but there is no express power given for such a proceeding. In the County Courts Acts of Victoria—16 Viet., No. 11, 17 Viet., No. 21—which are based upon the Imperial Act, there are special provisions for realizing securities seized under the power here given. The power contained in the South Australian Act seems analogous to the old power of distress at Common Law— except that the party entitled to the fruits of his judgment has no control over the pledge taken—the Clerk of the

’ Court is to put all the cheques, bills, &c., into his pocket; the Court seems to have nothing to do with it, nor is there any provision as to realizing the securities or the application of the proceeds when realized. It is apprehended that under this section of the Act the Clerk of the Court would, in the event of a seizure of bills, notes, &c., under this section of the Act, be a bailee for both parties, without power of realizing unless the parties to the bills, notes, or other securities voluntarily paid the same. [See the prae-

' tice in the Supreme Court in the case of a seizure of bills,&c., by the Sheriff; Archbold’s Practice.]

LOCAL COUETS ACTS, 77

131. Any person who shall be in a position to cause a Part ix. warrant of execution against tbe goods or order of commit- ^armntsmay ment to issue, may, on taking out tbe same, require tbe Clerk Ba.nfffof another of tbe Court to send tbe warrant or order to tbe Clerk of Court.some other Court for execution in tbe first instance.

There is an evident mistake in this clause, and it will he observed that the marginal note differs from the text. The marginal note probably points out what was intended to be provided for in the text, viz., that the Clerk of one

. Court may direct a warrant of execution to the Bailiff, not the Clerk of another Court. The Clerk could not execute the warrant; it is no part of his duties, as defined in the 19th section of the Act.

132. In case of a judgment for a sum not exceeding in case of sick- Twenty Pounds, exclusive of costs, and in all cases witb tbe coStmaysus- consent of tbe person in whose favor tbe judgment has been pend execution, obtained, if it shall appear to tbe satisfaction of the Court, byoath or affirmation, or otherwise, that any defendant is unable, from sickness or other sufficient cause, to pay or discharge tbe debt or damages recovered against him or any instalment thereof, ordered to be paid as aforesaid, it shall be lawful for tbe Court, in its discretion, or a Special Magistrate, to suspend or stay any judgment, order, or execution, given, made, or issued, in such action, for sucb time, and. on sucb terms, as tbe Court or Special Magistrate shall think fit, and so, from time, to time, until it shall appear, by the like proof as aforesaid, that sucb temporary cause of disability has ceased.

This section of the Act gives a large discretionary power to the Court. What “ other sufficient cause” may mean seems to he left to the interpretation of the Court or a Special Magistrate. Perhaps some of the Magistrates who administer the law in Local Courts might consider that it would be a sufficient cause to stay “ judgment, order, or execution,” if the defendant were to prove to-the satisfaction of the Court that he was unable to pay the debt.Under the provisions of this clause in the Act the question as to the ability of the defendant to pay the debt could not be disposed of under the clauses relating to proceedings on unsatisfied judgments,. because the Court has power to prevent a judgment being entered. [See the sections of the Act 110 and 111 and the notes thereon.] This section of the Act seems to be directly at variance with those sections.

133. No sale of any goods wbicb shall be taken in execu- No sale tote tion, as aforesaid, shall take place until after tbe expiration taken in execu- of five days at least, next following tbe day on which such tion until the goods shall be so taken, unless sucb goods be of a perishable ^g^cept in 6 nature, or upon tbe request, in writing, of tbe party whose certain cases, goods shall have been taken; and until sucb sale tbe goods shall be deposited by tbe Bailiff* in soi^e fit place, or they


Part ix.

Execution to be superseded on payment of the sum endorsed upon the warrant, together with fees.

Party arrested to be discharged on payment.

may remain in the custody of a fit person, approved by the Bailiff, to be put in possession by the Bailiff; and no goods taken in execution under this Act shall be sold for the purpose of satisfying the warrant of execution, except by auction, or in such other manner as shall be authorized by any general rules in pursuance hereof.

There is no provision in the Act for the bailiff having the goods seized under an execution appraised, and giving a hill of sale of the goods in the nature of a Sheriff’s hill of sale, although hy the Ninth Division of the 18th section of the Act he may he appointed an appraiser hy a Special Magistrate, hut for what purpose does not appear—there would he no object in appraising goods taken in execution except for the purpose of assigning them to a judgment creditor in lieu of selling. And it will he seen that not only cannot the Bailiff execute a hill of sale to the judgment creditor, hut he is compelled to hold the goods for five days before sale, and he may (it would seem) hold them as much longer as he pleases. The words of the Act are “ five days at the leastso that a plaintiff after having issued execution may lose the fruits of his judgment hy the insolvency of the defendant. [See the notes to the interpleader clauses, Tenth Part.] There are no general rules in reference to the sale of goods taken in execution; hut a Special Magistrate may authorize a Bailiff to act as auctioneer for the purpose of selling goods taken in execution. [See section 18, Subdivision ix.]

134. The party against whom any execution shall have been issued, shall, before an actual sale of his goods and chattels, be at liberty to pay, or caused to be paid, or tendered unto the Bailiff or other officer holding the warrant of execution, such sum of money and costs, endorsed on the warrant, or such part thereof as the person entitled thereto shall agree to accept in full of his debt or damages, and costs, together with the fees herein directed to be paid, whereupon the execution shall be superseded, and the goods and chattels of the said party shall be discharged and set at liberty.

It will he observed that this clause contains no provision for payment hy the defendant of the expense of advertising and auctioneer’s charges. The fees payable are those mentioned in Schedule I to the Act, and on payment of debt and costs, and these fees, an execution must be superseded, although other necessary charges may have been incurred hy the plaintiff or the Bailiff acting on his behalf, the Bailiff would he liable to the auctioneer; hut how the Bailiff is to he repaid his expenses does not seem clear.

135. Any person arrested or imprisoned by virtue of this Act shall be entitled to be discharged out of custody on payment to the party arresting, or, if in prison, to the gaoler, of the amount mentioned in the warrant of commitment.

This clause needs no comment.


136. Any party who has obtained any unsatisfied judgment ^AIlT IX- or order in a Local Court, held by virtue of this Act, or any Summons may " Act or Ordinance hereby repealed, for the payment of any an unsatisfied1 debt or damages, or costs, may obtain a summons from the judgment. Court (having jurisdiction to the amount claimed) nearest to which any other party shall then dwell, or carry on his buiness, or by leave of a Special Magistrate from the Court, by which such judgment was given, which summons shall be in the form in Schedule E, and served personally upon the person to whom it was directed, requiring him to appear at such time as shall be directed by the said rules, to answer such things as are named in such summons, and if he shall If party appears appear in pursuance of such summons, he may be examined maybe examined upon oath touching his estate and effects, and the manner es?atein&c?1S and circumstances under which he contracted the debt or ’ incurred the damages or liability, which is the subject of the action in which judgment has been obtained against him, and as to the means and expectations he then had, and as to the property and means he still hath, of discharging the said debt, or damages, or liability, and as to the disposal he may have made of any property ; and the person obtaining such summons as aforesaid, and all other witnesses whom the Court shall think requisite, may be examined upon oath touching the inquiries authorized to be made as aforesaid, and the costs of such summons, and all proceedings thereon, shall be deemed costs in the cause.

This clause, it will be seen, applies only to cases where the defendant appears in obedience to the summons. In practice, the mere service of a summons on a defendant, under the unsatisfied judgment clauses of the Act, has been found to be unavailable for the purposes contemplated by the Local Courts Act. A defendant so summoned need not appear and submit himself to be examined as a witness; in most cases it is against himself, as to his property and means of paying the plaintiff’s judgment debt, &c. The only way to compel a defendant’s attendance to answer an unsatisfied judgment summons is, by subpamaing him as a witness in the ordinary way, and paying him hit expenses. If he does not choose then to appear, which in many cases he does not, the Court has the power of imposing a penalty of £10, but how the payment of this penalty can be enforced against a defendant who has been served wih an Unsatisfied judgment summons, and is assumed to be a pauper, it is difficult to see. It will be observed that personal service of the summons is necessary.

137. If tbe party so summoned shall attend, and shall Party appearing refuse to be sworn, or to disclose any of the things aforesaid, be sworn,not or if he shall not make answer touching the same to the answering satis- satisfaction of such Court, or if it shall appear to such Court, b^commiUed to either by the examination of the party or any other evidence, eao1- that such party, if a defendant, in incurring the debt or


Part ix.

If party summoned do not appear, Court may proceed exparte.

Court may alter or rescind orders, and may make other orders.

liability, which is the subject of the action in which judgment ' has been obtained, has obtained credit from the plaintiff under false pretences, or by means of fraud or breach of trust, or has wilfully contracted such debt or liability without haying had at the same time a reasonable expectation of being able to pay or discharge the same, or shall have made or caused to be made, any gift, delivery, or transfer of any property, or shall have charged, removed, or concealed the same with intent to defraud his creditors, or any of them; or if it shall appear to the satisfaction of the Court, that the said party so summoned has then, or has had since the judgment obtained against him, sufficient means and ability to pay the debt, or damages, or costs so recovered against him, either altogether by any instalment or instalments, which the Court in which the judgment was obtained shall have ordered, and if he shall refuse or neglect to pay the same, as shall have been so ordered, or as shall be ordered pursuant to the powers hereinafter provided, it shall be lawful for such Court if such Court shall think fit, to order that any such party may be committed to the Adelaide Gaol, or to such other place as the Governor may direct as the place of confinement of persons committed by any Local Court, to be named in such order, for any period not exceeding forty days, but no order of commitment shall be drawn up or served : Provided that, if the party so summoned shall not attend, as required by such summons, or a sufficient excuse shall not be alleged for his non-attendance, it shall be lawful for the Court to proceed exparte, and upon hearing the evidence adduced, to make the same order as if the party so summoned had appeared.

This clause refers to cases where the defendant appears, hut refuses to he sworn, or disclose the matters in respect of which he has been summoned to answer; or where, on examination, the Court finds that defendant has, or had since the judgment against him, sufficient means to pay the debt, damages, or costs recovered against him, or when he neglects to pay the debt, damages, or costs recovered against him, or where he neglects to pay a claim when ordered to be paid by instalments, or when the debt was originally contracted under false pretences, or by means of fraud or a breach of trust, &c. It also refers to cases where the party summoned does not attend, in which case the party taking out the summons must make out his case before the Court can adjudicate.

138. Any Court before whom sucb summons shall be heard, if it shall think fit, whether or not it shall make any order for the committal of the defendant, to rescind or alter any order that shall have been previously made against any defendant so summoned before such Court, for the payment, by instalment or otherwise, of any debt or damage recovered,


^nd to make any. further or other order, either for the pay- Part ix.

ment of the whole of such debt or damages and costs forthwith, or by any instalments, or in any other manner, as such Court may think reasonable and just.

An order under this clause of the Act should be applied for on summons to show cause, supported by affidavit. For instance, a plaintiff may show on affidavit that the defendant is well able to pay the judgment debt recovered against him, and thus obtain an order for payment forthwith, instead of by instalments ; or a defendant may offer to pay a portion of the debt, and obtain a release from imprisonment, if the Court shall think fit so to order, or he may give security for payment.

139. When the defendant in any suit shall personally Court may com -appear at the trial of the same, the Court, at the hearing of “mnakfali^ the cause, or at any adjournment thereof, if judgment shall £J^rattlie be given against the defendant, shall have the same power ria'and authority of examining the defendant, and the plaintiff, and other parties, touching the several things hereinbefore mentioned, and of committing the defendant to prison, and of making an order as the Court might have and exercise under the provisions hereinbefore contained, in case the plaintiff had obtained a summons for that purpose, after the judgment obtained, as hereinbefore mentioned.

This clause seems to have been much overlooked, for it appears to have been seldom acted upon. In some cases it might he of use to examine the defendant at the trial after judgment obtained by a plaintiff, in order to save the expense and delay of issuing a summons on an unsatisfied, judgment.

140. Whenever any order of commitment shall have been warrants of com- made, as aforesaid, the Clerk of the Court shall issue a war- totheBai- xant of commitment, in the form in Schedule F, under his liff.hand and the seal of the Court, directed to the Bailiff of his own Court, and to the Bailiffs of all other Local Courts, who by such warrant shall be empowered to take the body of the person against whom such order shall be made; and all Constables and other Peace Officers within their several jurisdictions shall aid in the execution of every such warrant, and the gaoler or keeper of every gaol and prison mentioned in any such order shall be bound to receive and keep the defendant therein until discharged in due course of law.

141. Every warrant of commitment which shall issue from Date of warrant a Local Court shall, on whatever day it may be issued, bear of commitment, date on the, day on which the order for commitment wasmade, and shall continue in force for one year from such date,>and no longer.

No comment on the last two sections seems necessary.F

82 LOCAL COUBTS ACTS.

Part ix.Imprisonment not to satisfy or extinguish a debt.

Provision for landlord in case of rent in arrear.

142. No imprisonment under this Act shall in anywise operate as a satisfaction or extinguishment of the debt, or other cause of action on which a judgment has been obtained,, or protect the defendant from being anew summoned and imprisoned for any new fraud or default rendering him liable to be imprisoned under this Act, or deprive the plaintiff of any right to take out execution against the goods and chattels of the defendant, in the same manner as if such imprisonment had not taken place.

A new commitment, it will be seen, can only be made for a new fraud or default; but a new default has been construed to be a continued default in payment in pursuance of the order.

143. Section one of the Act of the eighth year of the reign of Queen Anne, chapter fourteen, shall not apply to goods taken in execution under the warrant of a Local Court; but the landlord of any tenement in which any such goods shall be so taken, may claim the rent thereof at any time within five clear days from the date of such taking, or before the removal of the goods, by delivering to the Bailiff or officer making the levy any writing, signed by himself or his agent, which shall state the amount of rent claimed to be in arrear, and the time for and in respect of which such rent is due; and if such claim be made, the Bailiff or officer making the levy shall, in addition thereto, distrain for the rent so claimed, and the costs of such distress, and shall not within five days next after such distress sell any part of the goods taken, unless they be of a perishable nature, or upon the request in writing of the party whose goods shall have been taken; and the Bailiff shall afterwards sell such of the goods under the execution and distress as shall satisfy—first, the cost of and incident to the sale; next, the claim of such landlord, not exceeding the rent of four weeks where the tenement is let by the week, the rent of two terms of payment where the tenement is let for any other term less than a year, and the rent of one year in any other case; and, lastly, the amount for which the warrant issued: And if any replevin be made of the goods so taken, the Bailiff shall, notwithstanding, sell such portion thereof as will satisfy the costs of and incident to the sale under the execution, and the amount for which the warrant issued, and, in either event, the overplus of the sale, if any, and the residue of goods shall be returned to the defendant, and the poundage of the Bailiff for keeping possession and sale under such distress, shall be the same as would have been payable if the distress had been an execution of the Local Court; and no other fees shall be demanded or taken in respect thereof: Provided that, if the goods taken in execution and distress shall appear to the Bailiff to be


insufficient or not more than sufficient to satisfy the distress and the costs thereof, he shall go out of possession without making any sale, removal, or disposition thereof.

The section 1, 8 Anne, c. 14, referred to in the text, enacts as follows:—“ That no goods or chattels whatsoever, lying or being in or upon any messuage, lands, or tenements which are or shall he leased for life, or lives, term of years, at will, or otherwise, shall he liable to be'taken by virtue of any execution, on any pretence whatsoever, unless the party at whose suit the said execution is sued out shall, before the removal of such goods from off the said premises by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking of such goods or chattels by virtue of such execution, provided the said arrears do not amount to more than one year’s rent; and in case the said arrears shall exceed one year’s rent, then the said party at whose suit such execution is sued out, paying the said landlord, or his bailiff, one year’s rent, may proceed to execute his judgment, as he might have done before the making of the Act;

' and the sheriff or other officers are hereby empowered andrequired to levy, as well the money so paid for rent as the execution money.”The proviso at the end of the clause refers of course to cases where no replevin has been made of the goods; if the tenant replevies, the execution would proceed as though no rent were due. [See the Imperial County Courts Act, 19 & 20 Viet, c. 108, sec. 75, and see Lloyd’s C.C. practice, p. 533, et $eq.~\

Part x.—And with regard to interpleader summonses, Be it Enacted—

144. That where any third person shall have any claim to or in respect of any goods or chattels taken in execution under the process of any Local Court, or in respect of the proceeds or value thereof, such claim shall he made before the actual sale thereof, if the return of the specific goods he claimed, or if the claim be for the proceeds or value thereof, then before the amount received under the execution shall have been paid over or distrbuted, and thereupon it shall be lawful for the Clerk of the Court, upon the application of the officer charged with the execution of such process, as well before as after any action brought against such officer, to issue a summons calling before the said Court as well the party issuing such process as the party making such claim; and thereupon any action which shall have been brought in the Supreme Court, or any other Court, in respect of such claim, shall be stayed, and the Court in which such action shall have been brought, or a Special Magistrate thereof, on proof of the issue of such summons, and that the goods and chattels were so taken in execution, may order the party bringing such action to pay the costs of all proceedings had upon such action after the issue of such summons,,

Part ix.

Part x.

Claims to goods taken in execution to be adjudicated upon by the Court.


Part x. and the Court issuing such summons shall adjudicate upon such claim, and make such order between the parties in respect thereof, and of the costs of the proceedings, as to such Court shall seem fit; and such order shall he enforced in like manner as any order made in any suit brought in such Court: Provided that any person whose goods have been improperly sold under any such process shall have the right to recover from the plaintiff, the amount realized by such sale as money had and received by the plaintiff for the use of such person.

The claims of third persons generally arise as follows:1. By assignees of ah insolvent’s estate.2. By persons claiming under a hill of sale, or assignment

of personalty.3. By persons claiming to he the actual bona fide owners

' of goods in the possession of the execution debtor.1. "With regard to claims by assignees of an insolvent,

the 82nd section of the Insolvent Act, 1860, provides as follows:—“ That if any insolvent, at the time he becomes insolvent, shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the Court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the insolvency: Provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof made as security for any debt or debts, either by way of mortgage or assignment, duly registered according to the provisions of an Act of the Imperial Parliament, made and passed in Session of Parliament holden in 17th and 18th years of the reign of Her Majesty, called ‘ The Merchants Shipping Act, 1854,’ or shall invalidate or affect any purchase or security duly perfected under the provisions of an Act of the Governor and Legislative Council of the said Province, passed on the 5th day of March, 1856, being No. 4 of 1855-6, intituled ‘An Act to give a preferable lien on wool from season to season; make mortgages of .sheep, cattle, and horses valid, without delivery to the mortgagee,’ so far as regards mortgages executed at least sixty days before the filing of any petition for adjudication of insolvency, or the consideration for which shall be an advance or loaa made at the time of the execution of such mortgage.”The decisions on the clauses of the Imperial Bankruptcy Act as to reputed ownership which affect the law in this Province, except as provided in this section of the Act, are numerous; and it may be stated as a primary result and decided law upon this point, that a previous demand of possession by the holder of a bill of sale before insolvency, that is, before a declaration, or other act of insolvency, preserves the right of the bargainee or holder of a bill of sale, supposing that such bargainee or holder had a right to demand possession—this would depend, of course, upon the conditions expressed in the security. The law as to this question so much depends upon the circumstances of


tlie case that it would require an elaborate note to state them. They are all collected, and will he found under the head of reputed ownership, in Shelford on the Law and Practice of Bankruptcy and Insolvency, and the cases therein referred to.

2. As to persons claiming under a hill of sale, or assignment of personality, where no question of insolvency is involved, the rule of law differs from that which obtains in insolvency. The questions in the case of an ordinary bill of sale are generally of two kinds, namely — that of bond fides, and whether the possession of the person giving the bill of sale is consistent with the conditions of the bill of sale. The leading case on this subject is Twyne’s case, reported in Smith’s Leading Cases, vol i, and the notes to this case supply the whole law upon the subject. It may be stated generally that if the possession of the goods is inconsistent with the conditions of a bill of sale at the time of execution issuing, the bill of sale would not affect the rights of the execution creditor.

3. These claims in fact are embraced in the claims to goods under bills of sale, except that in the case of goods lent, either on hire, or otherwise, by one person to another, the question may be raised as to whether the holder of the goods appears to be the reputed owner,It will be observed that the question in these cases (except in case of insolvency) turns upon the point of the bona fides of the transaction, and even in case of insolvency an order for the sale of the goods claimed by the person pretending. to be the true owner must be first obtained by the assignees in insolvency from the Commissioner acting under the adjudication before the assignees can dispose of such goods. See sec. 89 of the Insolvent Act, 1860, which enacts that “ all executions and attachments against the goods and chattels of any insolvent bona fide executed by seizure and sale before the filing of such petition (that is, the petition for adjudication, not the declaration of insolvency, or other act of insolvency) before the date of the filing of such petition shall be deemed valid, notwithstanding any prior act of insolvency by such insolvent committed, provided the- person at whoso suit, or on whose account such execution or attachment shall have been issued, had not, at the time of so executing, or levying such execution or attachment, or any sale thereunder, notice of any prior act of insolvency by him committed.”It would not be within the compass of a.short work, which this is intended to be, to go into the various decisions on the question of reputed ownership which have been given in the English Courts. The cases upon this subject which point out the law are, amongst others, Fawcett v. Fawcett,6 Q.B., 20; Stansfeld v. CubiH, 2 JDeGr. & J. 222, 27 L. J., Ch. 266; FLeslop v. Baker, 6 Exch., 350; Quartermaine v. Bittleston 13, C. B. 133 ; Freshney v. Carriclc, 1 H. & N. 653 (in the order for sale made by the Court of Insolvency the specific goods must be named); and see the case of Ffeslop v. Balcer above referred to, which afterwards came before the Court in 8 Exch. 411; and see the case which appears to have been of some importance and singular in character, exparte Heslop re Atkinson, '1 DeGr. McN. & Gr. 477.

Paht x.


Part x. It is laid down in all the decided cases, that whether or not—>---------------- an insolvent was, at the time of his insolvency, the

reputed owner of particular property, is a question of fact, depending on the consideration of all the circumstances of the case, and particularly as to possession. The mere fact of possession is not sufficient to give the assignees a right

‘ to avail themselves of the fact of an insolvent being in thepossession of the goods of others, so as to entitle the assig-

. nees to dispose of them for the benefit of the creditors of the insolvent. See the following cases on this subject:— Edwards v. Scott, 1 Man. & Gr., 962 ; 2 Scott, N. R., 266; Coopery. De Tastet, 2 M. & S., 714; Hamilton v. Bell, 10 Exch., 54-5 ; Acraman v. Bates, 29 ; L. J\, Q. B., 78 ; 6 Jurist, N. S., 294 ; and see as to whether the question of reputed ownership is a question of law or a question of fact,

, so as to allow it to be decided by the Court on a specialcase, Styan and Smith, 2 'W. D. & D., 219. [See Act No. 4 of 1863, sec. 14.] (Claims may be made by telegram).

Claimant must 145. Where any claim shall be made under the last pre- oFttf^goodsôr ce(^ng section, the claimant may deposit with the Bailiff pay cost of * either the amount of the value of the goods claimed, such sioôtiierîse" value f° he fixed by appraisement in case of dispute, to be by goods to be sold, such Bailiff paid into Court, to abide the decision of the

Court upon such claim, or the sum which the Bailiff shall be allowed to charge as costs for keeping possession of such goods, until such decision can be obtained; and in default of the claimant so doing, the Bailiff shall sell such goods, as if no such claim had been made, and shall pay into Court the proceeds of such sale, to abide the decision of the Court.

- There appears to be no power given in the Act for theBailiff to act as appraiser, unless specially appointed under the 9th subdivision of section 18 of the Local Court Act No. 15 of 1861. In other cases a licensed appraiser must

, be employed. (Every person holding an auctioneer’s licence, is a licensed appraiser.) [See as to this clause Act No. 4

of 1863, sec. 15.]

Proceedings in 146. Where any claim shall be made to or in respect of any goodsêized in g°°ds and chattels taken in execution under the process of execution. any Court held under this Act, or in respects of the proceeds

or value thereof, by any landlord for rent, or by any person, not being the party against whom such process has issued, and summonses have been issued on the application of the officer charged with the execution of such process, such summonses shall be served at such time and in such manner as hereinbefore directed for a summons to appear to a plaint, and the case shall proceed as if the claimant were the plaintiff, and the execution creditor, the defendant, and the claimant shall, five clear days before the day on which the summonses are returnable, leave with the Clerk of the Court a particular of any goods or chattels alleged to be the property of the claimant and the grounds of his claim, or in the case of a


claim for rent, of the amount thereof and for what period, and in respect of what premises the same is claimed to be due, and the name, address, and description of the claimant, shall be fully set forth in such particular. .

This section of the Act is not very clear. Under an ordinary execution against the goods of a defendant issuing out of the Supreme Court the Sheriff would he hound to inquire if any rent were due, and to satisfy the claim for rent before paying oyer the proceeds of the execution to the execution creditor, and so with regard to goods taken in execution and claimed hy a third person, the Sheriff would call upon the claimant to interplead.

Part xi.—And with regard to actions of replevin, Be it Enacted—

147. That the powers and responsibilities of the Sheriff with respect to replevin bonds and replevins, when the rent or damage in respect of which the distress was taken shall not exceed One Hundred Pounds, shall henceforth cease; and the Clerk of the Local Court nearest to the place where any such distress subject to replevin shall be taken shall be empowered, subject to the regulations hereinafter contained, to approve of replevin bonds, and to grant replevins, and to issue all necessary process in relation thereto.

It will he observed that this section of the Act confines the .remedy hy replevin to cases of rent only, where the remedy hy distress lies. The remedy, it is suggested, would not lie in a Local Court for damage feasant; neither would it lie for the unlawful taking of the goods other than the defendant’s. The Clerk of the Court is to approve of •replevin bonds. [As to which, see the remarks on the .next section of the Act; and see Allen v. Sharp, 2 Exch., 352; George v. Chambers, 11 M. & W., 149; Mellor v. Leather, 1 Ell. & R , 619; Jones v. Johnson, 5 Exch., 862; Cawthorne v. Campbell, 1 Anstr., 212; Millard v. Coffin, 2 W. El., 1330.]

148. Such Clerk shall, at the instance*of the party whose goods shall have been distrained, cause the same to be replevied to such party on his giving one or other of such .securities as are mentioned in the next two succeeding sections.

It will he observed that, although reference is made to the next two succeeding sections of the Act, there is, in fact, only one succeeding section contained in the Act having reference to actions of replevin. Probably, there might have been another section contained in the original draft of the Act, which possibly might have thrown a little light upon the subject. As it is, however, the course pointed out is sufficiently clear; but the reference to a clause which does not 'exist in the Act is irregular and perplexing, to say the least of dt.

149. The replevisor shall at the time of replevying give security, to be approved by the Clerk of the Court, for such

Part x.

Part xi.

Clerks of Local Courts to grant replevin.

Party distrained upon to giye security.

If action brought in Local Court,


Part xi.condition of security to be given.

Part xii.

Possession of small tenements maybe recovered in Local Court by landlord, where the term has expired, or been determined by notice.

an amount as such Clerk shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the cause in the Local Court, conditioned to commence an action of replevin against the distrainer in the Local Court nearest to the place in which the distress shall have been taken, within one month from the date of the security, and to prosecute such action with effect and without delay, and to make return of the goods if a return thereof shall be adjudged.

[See section 34 of the Act, and the 23rd Rule of Court.] There appears to he no provision as to the nature of the security to he given. In cases of replevin in the Supreme Court, a bond is given to the Sheriff, who has to approve of the sureties; and it is somewhat remarkable that the Act does not provide as to whom the security is to he given. It may be a question, supposing the Bailiff or the Clerk of the Court took a bond, whether he could assign it, or what would he the claimant’s remedy in the event of a refusal to assign. [See the Imperial Act, 19 & 20 Viet., c. 108, s. 66, which provides for these cases.]

Pabt xii.—And with regard to the recovery of small tene- _ ments, Be it Enacted—

150. That when the term and interest of the tenant of any corporeal hereditament, where neither the value of the premises, nor the rent payable in respect thereof, shall exceed Fifty-two Pounds by the year, and upon which no fine or premium shall have been paid, shall have expired or shall have been determined, either by the landlord or the tenant by a legal notice to quit, and such tenant, or any person holding- or claiming by, through, or under him, shall neglect or refuse to deliver up possession accordingly, the landlord may enter a plaint at his option either against such tenant or such person so neglecting or refusing, in the Local Court nearest to which the premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person so neglecting or refusing; and if the defendant shall not, at the time named in the summons, show good cause to the contrary, then, on proof of his still neglecting or refusing to deliver up possession of the premises, and of the yearly value and rent of the premises, and of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons, if the defendant shall not appear thereto, the Court may order that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff, either forthwith or on or before such day as the Court shall think fit to name ; and if such order be not obeyed, the Clerk of the Court, whether such order can be proved to

LOCAL COUETS ACTS. 8$

liaye been served or not, shall, at the instance of the plaintiff, Part xii. issue a warrant authorizing and requiring the Bailiff of the Court to give possession of the premises to the plaintiff; and if the costs shall not have been sooner paid, the Clerk shall likewise issue execution for such costs, as in the case of an ordinary plaint.

151. In any such plaint against a tenant, as in the last pre- Landlord may ceding section is specified,, the plaintiff may in the summonsadd a claim for rent, or mesne profits, or both, down to the & *day appointed for the hearing, or to any preceding day named in the summons, so as the same shall not exceed Fifty-two Pounds, and any misdescription in the nature of such claim may be amended at the trial.

152. When the rent of any corporeal hereditament, where possession may neither the value of the premises, nor the rent payable in J^ndi^cmnon- "respect thereof, exceeds Fifty-two Pounds by the year, shall payment of rent for one half-year be in arrear, and the landlord shall have in ccrtam cases* right by law to re-enter for the nonpayment thereof, he may,without any formal demand or re-entry, enter a plaint in the Local Court nearest to which the premises lie, for the recovery of the premises, and thereupon a summons shall issue to the tenant, the service whereof shall stand in lieu of a demand and re-entry; and if the tenant shall, five clear days before the return day of such summons, pay all the rent in arrear and the costs, the said action shall cease; but if he shall not make such payment, and shall not at the time named in such summons show good cause why the premises should not be recovered, then, on proof of the yearly value and rent of the premises, and of the fact that one half-year’s rent was in arrear before the plaint was entered, and that no sufficient distress was then found to be on the premises, to countervail such arrear, and of the landlord’s power to re-enter, and of the rent being still in arrear, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons, if the defendant shall not appear thereto, the Court may order that possession of the premises mentioned in the summons be given by the defendant to the plaintiff on or before such day, not being less than four weeks from the day of hearing, as the Court shall think fit to name, unless within that period all the rent in arrear and costs be paid; and if such order be not obeyed, and such rent and costs be not so paid, the Clerk of the Court shall, whether such order can be proved to have been served or not, at the instance of the plaintiff, issue a warrant authorizing and requiring the Bailiff of the Court to give possession of the premises to the plaintiff, and the plaintiff shall from the time of the execution of such warrant hold the pre-


Part xii.

Sub-tenant served with summons to give notice to his immediate landlord, who may come in and defend.

How summons to be served.

Warrant a justification to Bailiff for entering premises.

Warrants to be in force for three months.

Magistrates, Clerks, Bailiffs, and other officers not liable to action on account of proceedings taken.

mises discharged of the tenancy, and the defendant, and all persons claiming by, through, or under him, shall, so long as the order of the Court remains unreversed, be barred from all relief in equity or otherwise.

153. Wherfe any summons for the recovery of a tenement shall be served on, or come to the knowledge of any subtenant of the plaintiff’s immediate tenant, such sub-tenant being an occupier of the whole, or of a part of the premises sought to be recovered, he shall forthwith give notice thereof to his immediate landlord, under penalty of forfeiting three years’ rack rent of the premises held by such sub-tenant to such landlord, to be recovered by such landlord, by action in the Court from which such summons shall have issued, and such landlord, on receipt of such notice, if not originally a defendant, may be added or substituted as a defendant to defend possession of the premises in question.

154. A summons for recovery of a tenement may be served like an ordinary summons, and if the defendant cannot be found, and his place of dwelling shall either not be known, or admission thereto cannot be obtained for serving any such summons, a copy of the summons shall be posted on some conspicuous part of the premises sought to be recovered, and such posting shall be deemed good service on the defendant.

The few remarks which it is thought necessary to make on this Part (xii.) of the Act will he found at the conclusion of the Part; hut with respect to this paiticular section (154) it may he observed that a special summons cannot he issued, and that there are special provisions made for service of the summons under particular circumstances, assimilating the practice to that of actions of ejectment brought in the Superior Courts in cases of vacant possession.

155. Any warrant to a Bailiff to give possession of a tenement shall justify the Bailiff named therein in entering upon the premises named therein, with such assistance as he shall deem necessary, and in giving possession accordingly; but no entry upon any such warrant shall be made except between the hours of nine in the morning and four in the afternoon.

156. Every such warrant shall, on whatever day it may be issued, bear date on the day next after the last day named by the Court in the order for the delivery of the possession of the premises in question, and shall continue in force for three months from such date, and no longer, but no order for delivery of possession need be drawn up or served.

157. No action or prosecution shall be brought against the Special Magistrate or against the Clerk of the Court by whom such warrant as aforesaid shall have been issued, or against any Bailiff or other person by whom such warrant may be

LOCAL COUKTS ACTS. 91

executed, or summons posted for issuing such warrant, or Part xii.

executing the same respectively, or posting such summons, by reason that the person by whom the same shall be sued out had not lawful right to the possession of the premises.

158. Where the landlord, at the time of applying for such When landlord warrant as aforesaid, had lawful right to the possession of the he^haT/nofbe’ premises, or of the part thereof so held over as aforesaid, deemed a tres- neither the said landlord, nor any other person acting in his of irregularity?11 behalf, shall be deemed to be a trespasser by reason merelyof any irregularity or informality in the mode of proceeding for obtaining possession under the authority of this Act, but the party aggrieved may, if he think fit, bring an action on the case for such irregularity or informality, in which the damages alleged to be sustained thereby shall be specially laid, and may recover full satisfaction for such special damage, with costs of suit: Provided that if the special damage so laid be not proved, the defendant shall be entitled to a verdict; and that if proved, but assessed at any sum not exceeding Five Shillings, the plaintiff shall recover no more costs and damages, unless the Judge, Special Magistrate, or Court before whom the trial shall have been holden, shall certify that full costs ought to be allowed.

This section of the Act (Part xii.) is in fact a re-enactment (with the exception of some references to the Magistrates and Clerks of Court, and an increased jurisdiction as regards the amount of rent) of the repealed Act No. 8 of 1843, and a re-enactment of that Act, simply transferring the jurisdiction from ordinary Magistrates to Local Courts.No. 8 of 1843 is a transcript of the Imperial Act 1 & 2 Yict., c. 74. But a question has arisen, and so far as I am aware has never been decided, as to whether a Court of limited, jurisdiction can adjudicate upon an action brought under this section of the Act. The English Statute limits the jurisdiction to tenements the rent of which shall not exceed £20 a year. But the South Australian Act extends the jurisdiction of Local Courts in these cases to tenements where the rent shall not exceed £52 a year. [See secs. 13 and 27 of Local Court Act, 1861. J It would seem that cases brought under this part of the Act can only be disposed of by a Court of full jurisdiction, for it will be observed that the words of the Act (152nd clause) are not only where the rent is £52 a year, or not exceeding that sum, but refers to the value of the premises. It is not very often that proceedings are taken under this section of the Act, as great difficulties have arisen in proceeding under the adopted Imperial Act.

Paet xiii.—And with regard to the action of ejectment, Be Part xiii. it Enacted—

159. That when any person shall claim possession of land, Proceedings on under 44 The Beal Property Act, I860,” and such land shall ^ereSadis be of the value of not more than One Hundred Pounds, and under Real Pro-


Part xiii.

Clerk of Court to enter in Plaint Book particular?.

Summons to issue.

Plaintiff may claim damages for loss of mesne rent.

Non-payment of rent.

Defendant to be summoned to Court nearest to land, or to Adelaide Local Court.

Mode of serying summons.

such person shall he desirous of recovering possession of the same hy means of a. Local Court, such party shall furnish the Clerk of the Court with the names and places of abode of all the persons in whom the title is alleged to he, as plaintiffs, and the name of the immediate tenant, or any one tenant in possession as defendant, and shall also furnish the description of the property sought to be recovered, as contained in the certificate of title, or such other description as shall, in the opinion of the Court, be sufficient to identify the property claimed with reasonable certainty.

It will be observed that tbe action of ejectment provided for in this part of tbe Act, refers only to tbe recovery of possession of land which is subject to the provisions of “ The Eeal Property Act, I860,” commonly known as Torrens’s Act; and is limited to land not exceeding in value £100, and it appears to be optional with a plaintiff to avail himself of the remedy in a Local Court, or to resort to the Supreme Court, the words in this section of the Act being, when a person claiming possession of land “shall be desirous of recovering possession of the same by means of a Local Court f'

160. The Clerk of the Court shall enter in the Plaint Book a plaint stating the same particulars as in a personal action, and also a short description of the property sought to be recovered, and shall furnish a note thereof to the plaintiff.

161. The Clerk shall forthwith issue a summons bearing the number of the plaint in the margin thereof, requiring the defendant and all persons concerned to appear within twelve days after the service thereof, to defend the possession of the property sought to be recovered, or such part thereof as they may think fit.

162. The plaintiff in any such action may claim damages not exceeding, with the value of the land, One Hundred Pounds, for the loss of mesne rents and profits of the land sought to be recovered, in which case the plaintiff shall furnish to the Clerk a memorandum of the sum so claimed and damages ; and in the case of ejectment for non-payment of rent, he shall in like manner furnish a memorandum containing full particulars of the rent due, and of all credit to which the defendant shall be justly entitled, and which summons shall be in the form in Schedule M, or the like effect.

163. A defendant in an action of ejectment shall be summoned to the nearest Court to which the property sought to be recovered is situate, or to the Local Court of Adelaide.

164. The summons shall be served in like manner as an ordinary summons, or in such manner as a Special Magistrate


may order; and in case of vacant possession, by posting tbe Part xiii. duplicate summons upon tbe door of tbe dwelling-house or other conspicuous part of tbe premises.

The above sections, 160 to 164, need no comment.

165. Every defence to a summons in ejectment shall be in Form of defence, tbe form in Schedule N, or to the like effect; and everydefence to an ejectment for non-payment of rent, shall set forth the substantial ground of the defence, as, for example, whether the title of the plaintiff, as landlord, is disputed, or the fact of the rent being due if in dispute; and such defence shall contain particulars of any payments made, and may be in the form in Schedule N, or to the like effect.

It may be observed, in reference to this section of tbe Act, that a tenant cannot in ejectment dispute bis landlord’s title, but he may show that, since tbe demise, his landlord’s title has expired or been parted with.

166. Any person taking defence as aforesaid to an eject- person taking ment on the title shall be at liberty to limit his defence to a defence to eject- part only oi the property mentioned m the summons, de- defence to part scribing that part with reasonable certainty, otherwise the only °f property, defence shall be deemed to apply to the whole ; but a defence #to an ejectment for non-payment of rent shall be a defence j^ectment for6°f for all the land and premises in the summons mentioned; non-payment of and in case a defendant shall be desirous to take defence for rent' part only of the premises, upon the ground that such part was not included in the lease, he shall make a special application to the Court on the hearing for that purpose.

Tbe same remark as that made in reference to tbe next preceding section of tbe Act applies to tbis section, so far as it relates to disputing a landlord’s title.

167. Any other person not named in or served with such Persons not summons shall, by leave of the Court or a Special Magistrate, monsmay1defend be allowed to defend on filing an affidavit showing that he is action.in possession of the land, either by himself or his tenant; and the Court or a Special Magistrate shall have power to strike out or confine any defence set up by a person not in possession by himself or his tenant. '

168. In case no appearance be entered within the time plaintiff entitled appointed, or a defence filed be limited to a part only, the nVdcfence^5 if plaintiff shall be entitled to judgment for recovery of possession of the land, or of tbe part thereof to which the defencedoes not apply; and such judgment shall be entered in the record book if for the whole, then generally; and, if for a part, then with the addition of the words, “For part;” and the plaintiff shall be at liberty at any time thereafter to draw up a “ Judgment order” to be filed in Court; and such judgment order, if for all, may be in the form in Schedule 0, or Proceedings.


Part xiii. to the like effect, without any award of costs; but without prejudice to the plaintiff’s right to have such costs taxed, and to proceed for the recovery of mesne profits and costs, or either of them; and the judgment order for part may be in the form in the said Schedule O, or to the like effect.

In an action of ejectment in the Supreme Court, in case the defendant does not appear, no costs can he obtained; hut if he has been in possession of the land, an action must he brought for the recovery of mesne profits, in which the costs of the action of ejectment may be recovered. Formerly the action of ejectment was of a fictitious character; but it is now simplified by the Comm-on Law Procedure Act.

what to be ques- 169. The question at the hearing of every action of eject- ejectment!011^ ment, except in the case hereinafter mentioned, shall be

whether the statement of the title of the plaintiff in the summons is true or false, and if true, then which of the plaintiffs, if more than one, is entitled, and whether to the whole or $art, and if to part, then to which part of the property in question, and whether if any and to what damages by way of compensation for loss of mesne profits ; and upon the hearing of any action of ejectment for non-payment of rent, the amount due to the plaintiff shall be found by the Court or jury, as the case may be.

This section of the Act is calculated in some measure to mislead. It must be borne in mind that an action of ejectment does not try the title to land, but simply the right to possession. See section 27 of the Act, in which the distinction between a title to land and a right to possession is made; and the form of summons in ejectment given in Schedule M to the Act merely refers to the right of possession, and not to the title, the former being the only question triable in this action.

Proof of title.

Proceeding if plaintiff or defendant do not appear.

170. The proof of title in any one or more of the plaintiffs in ejectment shall be sufficient to entitle a verdict to be entered for such plaintiff or plaintiffs.

The same remark as is appended to section 169 applies to this section of the Act. Instead of the words “ proof of title,” it would better have expressed the intention of the clause if the words had been “proof of right to possession.”

171. If the defendant appears, and the plaintiff does not appear at the hearing, the cause shall be struck out, and thereupon the action shall be discontinued; and if the plaintiff appears, and the defendant does not appear, the cause shall be proceeded with and adjudicated upon; and in the case of ejectment on the title, shall be entitled to prove the amount of damages sustained by reason of the loss of the mesne profits, and in case of an ejectment for nonpayment of rent, shall be entitled to prove the amount of rent actually due, and to have a judgment for the same.

This section appears to provide for the recovery of mesne-


profits, notwithstanding they are not claimed in the particulars of demand; the same remark as is appended to section 169 applies to this section of the Act.

172. In ejectment for nonpayment of rent, where judgment shall have gone hy default, or the defendant shall not appear at the hearing, it shall he Sufficient for the purpose of ascertaining the amount of the rent due, and to satisfy the provisions of the statutes with respect to ascertaining the rent, that an affidavit of the plaintiff or one of them, or their or his agent, to the effect slrthat an amount of rent, not less than one year’s rent, and specifying the same was due at the time of the entering the plaint, after all just allowances shall have heen made.

173. Upon a finding for the plaintiff, judgment may beentered, and the plaintiff may draw up a “ Judgment order,” and execution may issue for the recovery of possession of the property, or such part thereof as the Court or a jury shall find the plaintiff entitled to, and in case of an ejectment on the title for such damages for loss of mesne profits as shall Tbe found by the Court or jury, and in case of ejectment for nonpayment of rent, for the recovery of so much rent as shall he found to be due, and costs. '

174. Upon a finding for the defendants, or any of them, or when a nonsuit or discontinuance, judgment may be entered, and execution issue for costs against the plaintiffs named in the summons, and the defendant shall be at liberty to draw up a judgment order at any time.

175. Upon any judgment in ejectment there may be either one or several warrants of execution for the recovery of the possession, and for the damages or rent ascertained to be due, and costs, at the election of the plaintiff.

The four last preceding sections require no comment.

176. In case of an action of ejectment being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession, may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property ; and upon trial, the additional question of whether an actual ouster has taken place shall be tried.

177. Upon any trial as last aforesaid, if it shall be found that the defendant is joint tenant, tenant in common, or coparcener with the plaintiff, then the question whether an

Part xiii.

If default made in ejectment for nonpayment of rent, what sufficient for ascertaining rent due;

On finding for plaintiff, judgment may he entered and execution issued;if for possession of property;

if for nonpayment of rent.

Proceedings on finding for defendant.

Several warrants of executionmay -issue on judgment in execution.

Any joint tenant, &c., may defend as such, and admit right of plaintiff to an undivided share of property, and deny ouster.

On trial, question of ouster to he tried.

On such trial, if it he found that defendant is j oint tenant, &c., with

*96 LOCAL COURTS ACTS.

Part xiii.plaintiff, question of ouster shall be tried. Unless ouster proved, defendant entitled to judgment.If defendant is not joint tenant, &c., or if ouster lias taken place.

If plaintiff or defendant die, action not to abate.

If right of deceased plaintiff survive to another plaintiff.

If right of deceased plaintiff does not survive to another plaintiff.

actual ouster has taken place shall he tried, and unless such actual ouster shall he proved, the defendant shall be entitled to judgment and costs ; but if it shall be found either that the defendant is not such joint tenant, tenant in common, or coparcener, or that an actual ouster has taken place, then the claimant shall be entitled to such judgment, for the recovery of possession and costs.

A joint tenant, or a tenant in common, could not at common law maintain an action of ejectment against his co-tenant, because the possession of one was deemed to be the possession of both; but by the 3 & 4 ¥m. 4, c. 27, sec. 12, it is enacted, that the possession of one coparcener, joint tenant,

. or tenant in common, shall not be deemed the possession ofanother; and see as to proceedings, the Common Law Procedure Act (Imperial), 15 & 16 Viet., c. 76, sec. 188 ; and the Colonial Act, 1853, No. 5, secs. 142, 143, but actual ouster must be proved. -

178; The death of a plaintiff or defendant in ejectment shall not cause the action to abate.

179. In case the right of a deceased plaintiff shall survive to another plaintiff, the Clerk of the Court shall, at the instance of the surviving plaintiff, make an entry of the death, and add to the name of the surviving plaintiff the word “ survivor,” but which entry shall be subject to be set aside if untrue, and the action shall thereupon proceed at the suit of the surviving plaintiff; and if such entry shall be made before the trial, then the plaintiff shall have a verdict, and recover such judgment as aforesaid, upon its appearing that he was entitled to bring the action either separately or jointly with the deceased plaintiff.

There is some difficulty in placing a construction on the two last-mentioned sections of the Act; but the succeeding clauses in some measure explain the meaning.

180. In case of the death before trial of one of several plaintiffs whose right does not survive to another or others of them, where the legal representative of the deceased plaintiff shall not become a party to the suit in the manner hereinafter mentioned, the Clerk of the Court shall, at the instance of the surviving plaintiff, make an entry of the death, but which entry shall be subject to be set aside if untrue, and the action shall thereupon proceed at the suit of the surviving plaintiff, for such share of the property as he is entitled to, and costs.

It is presumed that no proceeding could be taken by one of several plaintiffs in ejectment, until bis right to a particular. portion of the land had been determined by a partition suit, in which the metes and bounds would have to be settled. The clause as it stands, it is suggested, is unintelligible and cannot be brought into practical operation.

LOCAL COUKTS ACTS. 97

181. In case of the death of a sole plaintiff, or before the Fart xiii.

trial of one of several plaintiffs, whose right does not survive on death of sole to another*or other of them, the Clerk of the Court, at the êforeniaiof instance of the legal representative of such plaintiff, and by one of several order of a Special Magistrate, shall make an entry of the ngSês'not56 death and that he is such legal representative, and the action survive, shall thereupon proceed; and if such entry be made beforethe trial, the truth of the entry shall be tried thereat, together with the title of the deceased, plaintiff, and such judgment shall follow upon the verdict in favor of or against the person causing such entry to be made, as hereinbefore provided with reference to a judgment for or against the plaintiff; and in case such entry, in the case of a sole plain- Proviso with, tiff, be made after trial and before execution, executed by judgment for or delivery of possession thereupon, and such entry be denied against plaintiff, by the defendant, within eight days after notice thereof, or such further time as the Court or a Special Magistrate may allow, then the truth of such entry shall be tried, and if upon the trial thereof, a verdict shall pass for the person causing such entry to be made, he shall be entitled to such judgment as aforesaid, for the recovery of possession and for the costs of and occasioned by such entry; and in case of a verdict for the defendant, such defendant shall be entitled to such judgment as aforesaid, for costs ; and in case the truth of the said entry shall not be denied within the time aforesaid, the said personal representative shall, on producing an affidavit of the service of the notice, be entitled to proceed to judgment and execution in his own name.

This proceeding is analogous to an entry of a suggestion on the Foil in the Supreme Court.

182. In case of the death, before or after judgment, of in case of death, one or several defendants in ejectment who defend jointly, defendants1nCia the Clerk of the Court shall, at the instance of the plaintiff, êctmcnt wh° cause an entry to be made of the death, which entry may be e 'n< Jom set aside if untrue, and the action may proceed against the surviving defendant to judgment and execution.

See the note to the last preceding clause. It is scarcely necessary to extend the notes on these sections, as the cases which are likely to occur under this part of the Act will he rare; it is believed that very few cases (if any) have occurred. . .Most suitors would adopt their remedy in ejectment by an

- action in the Supreme Court, which is one of the most inexpensive remedies that can be tried in a superior Court, and such remedy is specially reserved to a plaintiff by the 159th section of this Act, as has been before observed.[See the note to that section.] It is needless to say how much more satisfactory to parties a decision in cases of .this nature by the Supreme Court would be than any judgment of a Local Court. .G

LOCAL COURTS ACTS.$8

Part xiii.In case of death of sole defendant or of all defendants in ■ejectment.

In case of death, before trial, of one of several defendants in ejectment, who

'defend jointly.

In case of death, before trial, of one of several defendants in ejectment, who defends separately.

183. In case of the death of a sole defendant, or of all the defendants in ejectment, before trial, the Clerk of the Court shall, at the instance of the plaintiff, cause an entry to he made of the death, which entry shall be subject to be set aside if untrue, and the plaintiff shall be entitled to entry of judgment for recovery of possession of the property, unless seme other person shall take defence, within a time to be appointed for that purpose by the order of a Court or Special Magistrate, to be made upon the application of the plaintiff; and it shall be lawful for the Court, or a Special Magistrate, upon such entry being made, and upon such application as aforesaid, to order that the plaintiff shall be entitled to entry of judgment within such time as the Court or a Special Magistrate may think fit, unless the person then in possession, by himself, or his tenant, or the legal representative of the deceased defendant, shall within such time defend the action, and such order may be served in the same manner as the writ; and in case such person shall take defence, the same proceedings may be taken against such new defendant as if he had originally appeared and defended the action; and if no defence be made, then the plaintiff shall be entitled to entry of judgment pursuant to the order.

The proceeding here pointed out is analogous to an entry of a suggestion on the roll or a plea to a further maintenance, in the nature of a plea “puis darrein continuance.u

184. In case of the death, before trial, of one of the several defendants in ejectment, who defends separately for a portion of the property for which the other defendant or defendants do not defend, the same proceedings may be taken as to such portion as in the case of the death of a sole defendant, or the plaintiff may proceed against the surviving defendants in respect of the portion of the property for which they defend.

The remarks on the preceding clauses of this part of the Act apply to this section.

185. In case of the death, before trial, of one of several defendants in ejectment, who defends separately in respect of property for which surviving defendants also defend, it shall be lawful for the Court or a Special Magistrate at any time before trial to allow the person at the time of the death in possession of the property, or the legal representative of the deceased defendant, to defend on such terms as may appear reasonable and just, upon the application of such person or representative, and if no such application be made or leave granted, the plaintiff causing an entry to be made of the death in manner aforesaid may proceed against the surviving defendant or defendants to judgment and execution.

It is presumed that the Court, or a Special Magistrate,


would, upon a proper representation of tlie facts, supported Part xiii.by affidavit, allow tbe applicant to defend without imposing------------------terms.

186. In case of the death of a sole defendant, or of all the in case of death,defendants in ejectment after verdict, the plaintiff shall, soieVefendant0/ nevertheless, be entitled to judgment as if no such death had ^nts in^eft taken place, and to proceed to execution for recovery of ment. 3 ’possession, and to proceed for the recovery of the costs in likemanner as upon any other judgment for money against the legal representative of the deceased defendant or defendants.

There seems a vagueness in this clause of the Act, and it is somewhat difficult to arrive at its meaning. It is presumed ' that it is intended that an action must be brought upon *the judgment, when the defendant dies after verdict against him, against his personal representatives.

187. The plaintiff in ejectment shall be at liberty at any pontiff in ejecttime before verdict or judgment against him to discontinue adtonthe action as to one or more of the defendants, by giving to as to one or the defendant or his attorney, and also the Clerk. of the ^°any1tim<fantS’ Court, a notice signed by the plaintiff or his attorney stating before verdict or that he discontinues such action, and thereupon the defendantto whom such notice is given shall be entitled to and forthwith may sign judgment for costs, and any one of several plaintiffs desirous to discontinue may apply to the, Court or a Special Magistrate to have his name struck out of the proceedings, and an order may be made thereupon upon such terms as to the Court or Special Magistrate may seem fit, and the action shall thereupon proceed at the suit of the other plaintiffs.

This section of the Act needs no comment.188. A sole defendant, or all the defendants in ejectment, Defendants in

shall be at liberty to confess the action, as to whole or part confess^may of the property, by .giving to such plaintiff a consent for judgment, signed by the defendant or defendants, such signature to be attested by his or their attorney, or by the Clerk of the Court, and thereupon judgment may be forthwith entered, and execution may issue for the recovery of possession and costs; and in case one of several defendants in ejectment, who defends separately for a portion of the property, for which the other defendant or defendants do not „ ■ ,defend, shall be desirous of confessing the plaintiff’s title to defendants " such portion, he may give a like consent for judgment to the confess- plaintiff, and thereupon judgment may be forthwith entered, and execution issued for the recovery of possession of such portion of the property, and for the Gosts occasioned by the defence, relating to the same, and the action may proceed as to the residue.

This section of the Act needs no comment.


Part xiii. 189. In case one of several defendants in ejectment, who if one of several defends separately in respect of property for which other defendants, who defendants also defend, shall be desirous of confessing the ateiy in respect plaintiff s title, he may give a like consent for judgment, and wiSotherfde- thereupon judgment may be entered against such defendant fendants defend, for the costs occasioned by his defence, and the plaintiff may desne to confess. procee(j *n ac^on against the other defendants to judg

ment and execution.This section of the Act is hardly'intelligible as it stands; it is presumed that it means that a defendant shall he allowed to withdraw his plea or appearance, as the clause not only refers to one of several defendants, hut to one who defends.

Effect of judgment in ejectment under this Act same as judgment in the Supreme Court.

190. The effect of a judgment in ejectment under this Act shall be the same as that of a judgment in an action of ejectment in the Supreme Court.

That is, it is presumed, it determines the right to possession, hut nothing else.

Ail provisions in 191. All other provisions herein contained shall extend tothis Act to ex- ejectments mutatis mutandis, unless where the same shall tend to eject- *> ’ _ment. not be applicable, or where the subject matter thereof shall

have been herein otherwise provided for.It is impossible to put any intelligible construction on this clause of the Act. [See the note to section 159 of the Act.] That section defines and limits the powers of Local Courts in respect of actions of ejectment.

Form of warrant 192. Warrant of possession shall be in the form, or as of possession. near ag may jn Schedule P.

This clause needs no comment, except that it allows of a . departure from the express words of the form given in the

Schedule P. (The words of the section are “ as near as may be.”)

Paht xiv. Part xiv.—And for the purpose of facilitating remedies against debtors about to abscond, Be it Enacted—

Ary Justice of 193. That any Justice of the Peace for the said Province, grai^wSrant of on application by or on behalf of any creditor upon due arrest against a proof by affidavit of the creditor applying, or of some other to abscond? °U person, to the satisfaction of such Justice of the Peace, that

, a debt of Five Pounds or upwards is due to such creditor, either alone or jointly with some other person or persons, and that there is probable cause for believing that the debtor or debtors, unless he or they be forthwith apprehended, is or are about to quit the said Province, with intent to avoid or delay the said creditor or creditors, or with intent to remain out of the jurisdiction of the Courts of Law of the said Province, so long that thereby the said creditor or creditors will or may be delayed in recovery of the said debt, may grant a warrant for the arrest of the debtor or debtors,


requiring him or them to he brought before some Special Part xiv.Magistrate, or to be otherwise dealt with according to thisAct, and which warrant shall be addressed to the Bailiff ofthe Court in which the plaint is or shall he entered, and hisassistants, and in the execution of which all other Bailiffsand all constables and peace officers are hereby required to .aid and assist; such warrant shall be in the form, andendorsed in the manner specified in Schedule G, and shall beexecuted within one calendar month after the date, of suchwarrant, including the day of such date, in any part of thesaid Province, and the party arrested shall be served with acopy thereof at tfie time of arrest: Provided that if anyperson so arrested shall prove to the satisfaction of a SpecialMagistrate that he had, three weeks at least before the issuingof such warrant, given public notice by advertisement in twonewspapers published in Adelaide, of his intended departure, •and the time and manner thereof, such Special Magistratemay, if 'he think fit, order such person to be discharged uponhis entering an appearance to the action.

194. The Bailiff or other person executing such warrant ®a}oJgea^fen^ffshall arrest the person or persons therein named, and shall dant in Gaol forthwith lodge him or them in the Adelaide Gaol, or in such reque^to^e11 other prison as the Governor may direct as the place of brought before a confinement of persons arrested by warrant issued from the Magls~Court in which the plaint is or shall be entered, unless he orthey shall request to be brought before a Special Magistrate, in which case the Bailiff shall bring him or them before the nearest Special Magistrate as soon as possible after such request, or unless he or they shall be discharged as hereinafter mentioned : Provided that the person or persons so arrested may make deposit with the Bailiff of; the sum endorsed on the warrant, and Five Pounds for costs, in lieu and stead of continuing in custody of the Bailiff.

195. The creditor at whose instance the warrant shall have Plaintiff to enter issued, if no action be then pending respecting the said time of1 issuing claim, shall, at the time of issuing such warrant, cause a warrant, plaint to be entered in a Local Court for recovery of the saiddebt, otherwise such warrant shall be wholly void and of none effect whatsoever, as a protection to the person or persons at whose instance or on whose behalf it shall have issued.

196. The person to whom the warrant hereby authorized Bailiff arresting to be issued shall be directed, shall immediately on the same ^teo?time^" being executed, endorse a certificate thereupon of the time and place of and place where the debtor was arrested, and the production arrest*of such, warrant and certificate to the Keeper of the Adelaide


Part xiv. Gaol, or other prison, shall he sufficient authority to him to detain such debtor or debtors until he or they shall be discharged in due course of law.

ufbe7dSarged 197. ^ lawful for any person arrested upon anyon payment of such warrant to pay the debt and costs endorsed on the war- into security^ ran^j or enler i^0 sureties, or to deposit securities to the

satisfaction of a Special Magistrate for the payment of the amount of the judgment of a Local Court, or for the rendering of the debtor or debtors to the Bailiff of the Court, to be dealt with as directed by any order of the Court, and thereupon such person shall be entitled to be discharged

. from custody, and such Bailiff is hereby authorized to discharge him accordingly.

Special Magis- 198. It shall be lawful for a Special Magistrate, upon a dicateupon^11" defendant being brought before him under authority of any ofadefend.aiitSeilt warran^’ anc^ uPon a consent being signed by the defendant

' or his attorney, and upon his entering an appearance to the plaint, to hear and determine the action, and the decision of such Special Magistrate shall be entered as the judgment of the Local Court in which the plaint was entered ; and in case of a judgment for the plaintiff, such Special Magistrate may make the like order for the committal of the defendant as the Local Court is hereby empowered to do on the hearing of the cause.

Defendant may 199. On the hearing of a cause, if judgment be given for Gaofcmnon-?t0 Pontiff? and the Court, or in jury cases the Presiding payment of Judge or Special Magistrate, shall be satisfied that the plain- judgment. tiff kad g00(j cause for believing that the defendant was in

tending to quit the said Province with the intent hereinbefore mentioned, shall order the defendant to be committed to the Adelaide Gaol, or other prison as aforesaid, for a period not exceeding forty days, unless the judgment and costs shall be sooner paid, or until he shall be charged in execution by virtue of a writ capias ad satisfaciendum out of the Supreme Court, by reason of the said judgment having been removed into the Supreme Court as hereinbefore provided.

Compensation may be ordered to defendant improperly arrested.

200. If, upon hearing a cause, the Court, or in jury cases the Presiding Judge or Special Magistrate, as the case may be, shall give judgment for the defendant, or shall be of opinion that the plaintiff had not good cause for making or causing to be made the affidavit, upon which the warrant was founded, it shall be lawful for such Court, Judge, or Special Magistrate to order the plaintiff to pay to each defendant a sum not exceeding Twenty Pounds, and which order may be enforced in like manner as a judgment upon the hearing of a cause.

These sections of the Act are re-enactments of portions of

LOCAL COTTETS ACTS. 103

the repealed Act, No. 7 of 1851, with some variations, and Part xiv.require little comment. It will he seen that section 193 —--------------only gives a remedy in case of a debt; the proceeding, it is thought, could not be adopted in the case of a claim for unliquidated damages. The Imperial Act 14 & 15 Yiet., c. 52, contains nearly the same provisions as the Local Court Act of South Australia in reference to proceedings against absconding debtors. The affidavit, however, in cases under the Imperial Act are entitled in one of Her Majesty’s Supreme Courts of Common Law, although such affidavit may be made before any Commissioner of the Court of Bankruptcy acting for any district, and before a County Court Judge (except those acting in Middlesex and Surrey). In this Province any Justice of the Peace may take the. affidavit, and grant a warrant of arrest. The following is stated in Lloyd’s County Court Practice as the meaning and effect of the Enactment: — ■ *

1. The application must be made by or on behalf of the creditor.

2. It must be proved by affidavit, to the satisfaction of the Judge, that a debt of £20 or upwards is due and payable to the applying creditor. [In our Local Court Act the existence of a debt of £5 or upwards is sufficient to entitle a creditor to apply for a warrant, and the application may be made to any Justice of the Peace, who, if he is satisfied with the affidavit, may grant the warrant.]

3. It must also appear on affidavit, to the satisfaction of the Judge [in South Australia, any Justice], that the debtoris about to quit England [South Australia], with intent to ’ delay, &c., the said creditor.See Eules of .Court in reference to securities to be taken under the 197th section of the Act, Nos. 18,19, 20, and 21.

Paet xy.—And with regard to evidence in Local Courts, Paht xv.

Be it Enacted—201. A Judge or Special Magistrate, in any case where he special Magis-

shall see fit, upon application hy affidavit by either party, ^oner to°beer may issue an order under his hand and the seal of the Court, brought up for for bringing up before such Court any prisoner or person of^confined in gaol, prison, or place, under any sentence, or ° *under commitment for trial, or under process in any civil action, suit, or proceeding, to be examined as a witness in any cause or matter depending or to be inquired of or determined in or before such Court; and the person required by any such warrant or order to be brought under the same care and custody, and be dealt with in like manner in all respects as a prisoner required by any writ of habeas corpus awarded by the Supreme Court to be brought before such Court, to be examined as a witness in any cause or matter depending before such Court, is now by law required to be dealt with: Provided that the .person having the custody of Expenses to bo such prisoner or person shall not be bound to obey such order paid t0 gaoler* unless a tender is made to him of a reasonable sum for the


Patit xv. conveyance and maintenance of a proper officer, and of the prisoner or person, in going to, remaining at, and returning from, such Local Court.

This is a very meagre enactment, and scarcely deserves the ■ heading. This part of the Act only provides for one par

ticular as to evidence, viz.—that of producing a witness who may happen to he a prisoner. The Act No. 4 of 1863 gives power to examine witnesses out of the jurisdiction, or who are about to depart out of the jurisdiction, which see infra. It will be observed that there is no provision in any of the Local Courts Acts for the examination of a party to a suit, and it is questionable whether such evidence is admissible. In the Act No. 5 of 1850 such a provision was contained, and the power to examine parties to a suit was expressly given; but this has been omitted in the existing

. Acts, probably because between the passing of the Act of 1850 and the Act of 1861 the Law of Evidence Act was passed (No. 2 of 1852) ; but it is thought that this Act refers only to Courts then established, and not to those subsequently constituted. In practice parties to actions are constantly examined as witnesses; but it seems very doubtful whether their evidence should be received. There is, I believe, no judicial decision on the subject, but it would be very desirable that there should be.It would enlarge this little work to too great an extent if an attempt were made to set out fully the law of evidence. For a handy book the reader is referred to “ Roscoe’s Digest of the Law of Evidence at Nisi Trias,” and for a more elaborate treatise, “ Taylor on the Law of Evidence.” A few of the common rules applicable to evidence in civil cases may perhaps, however, be found useful to those who have not access to the works referred to.All actions are either on contract or for wrongs, and the evidence applicable to these two classes of actions is necessarily of a distinct character.Actions on contracts may be divided into two classes, viz.:—Actions for the recovery of liquidated (ascertained) damages, and actions for the recovery of unliquidated (unascertained) damages. To the former class belong actions for goods sold and delivered, for money lent on bills of exchange, and all other actions where the actual money value of the damage sustained by the plaintiff can be clearly proved. To the latter class belong actions for not delivering goods, for not accepting goods, warranty, breach of promise of marriage, and all actions of contract, where the precise money value of the damage sustained by the plaintiff cannot be proved with certainty. In these latter cases the Court, or a jury, must assess the damages according to their discretion; but where excessive damages, and, in some cases where the damages awarded are too small, a new trial may be granted.In actions of contract, the contract must be proved, that is, an express or implied contract; and where by the Statute of Frauds (29 Car. 2, c. 3), the contract is required to be in writing, the written contract must be produced. The sections of this Statute of most frequent application are the 4th and 17th. The former provides that “no action shall he brought whereby to charge any person upon any con-


tract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall he in writing, and signed hy the party to he charged therewith or some person thereunto by him lawfully authorized.” The same section of the Act also provides that no action will lie “ to charge any person upon any agreement that is not to he performed within one year from the making thereof, unless the agreement on which the action is brought, or some memorandum or note thereof he in writing, signed hy the party to he charged, or some other person thereunto hy him lawfully authorized.” The authority in either of the above-mentioned cases, however, need not he in writing. The 17th section of the Statute provides that “ no contract for the sale of any goods, wares, or merchandize, for the price of £10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment; or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.” If the contract be within the provisions of the Statute of Frauds it cannot be varied -by parol— that is by any verbal agreement, after it has been reduced into writing ; but if it does not come within the operation of the Statute, it is competent to the parties, at any time before breach of it, by a new contract not in' writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to or subtract from, or vary or qualify the terms of it, and thus make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted on what will then be left of the original agreement. Goss v. Nugent, 5 B. & Ad. 58, 65. "Where there was a written contract “ for the hire of a horse for six weeks at two guineas per week,” Lord Ellenborough permitted parol testimony to be given, that, at the time of the hiring, it was expressly stipulated that as the horse was used to shy, the hirer, if he took him, should be liable for all accidents, Jeffrey v. Walton, 1 Stark, 267. The case was as follows - A person applied to a horse dealer, who also let out horses for hire, for the loan of a horse ; the dealer told him that he had only one horse to let, and that he “shied,” and that if he took him he must be liable for all accidents. The horse was engaged on these terms; the horse maintained the character he had received from his owner, and accordingly “shied,” came down upon the road, and cut his fetlock with a glass bottle. After the agreement for hiring had been verbally entered into, a memorandum was made upon a card, in pencil, by the defendant, the hirer, and was given by him to the plaintiff, the owner of the horse. The memorandum upon the card was as follows—“ Six weeks at two guineas. William Walton, junior,” a concise form of agreement— not a word too much. It was contended by defendant’s counsel that this was to be considered as the real contract between the parties, but Lord Ellenborough said that “ the written agreement merely regulates the time of hiring

Paht xv.


Part xv. and the rate of payment, and I shallnot allow any evidence: to be given by plaintiff in contradiction of these terms,

but I am of opinion, that it is competent to the plaintiff to give in evidence suppletory matter as part of the agree

' ment.” A verdict was given for the plaintiff. Thisdecision, which however, was only an expression of the Judge’s opinion, is not of equal weight with the case of Goss v. Lord Nugent, before remarked upon. If this case is correctly reported, it goes further than the case of Goss v. Nugent. In the latter case, it was merely held that after the written agreement was entered into it might he varied by parol. The rule is thus laid down in Roscoe on Evidence, “The rule of law is clear that, where a contract is reduced into writing, it is presumed that the writing contains all the terms of it, and evidence will not be admitted of any previous, or contemporaneous oral agreement which would have the effect of adding to, or varying it in any way.” And Mr. Taylor in his Treatise on the Law of Evidence, Part n, chap. 19, states the law of evidence to be in accordance with the rule laid down by Mr. Roscoe. He says, “ The first general rule which it will be necessary to notice, respecting the admissibility of extrinsic evidence to affect what is in writing, is, that parol testimony cannot be received to contradict, vary, add

' to, or subtract from, the terms of a valid written instrument.This rule of the common law, which may be traced back to a remote antiquity, is founded on the obvious inconvenience and injustice that would result, if matters in writing, made by advice and on consideration, and intended finally to embody the entire agreement between the parties, were liable to be controlled by what Lord Coke expressively calls, ‘ the uncertain testimony of slippery memory/ Lady Rutland's case, 5 Rep., 26 a., 1st Res. ■ When

■ parties have deliberately put their mutual engagements■ into writing in such language as imports a legal obligation,

it is only reasonable to presume that they have introduced into the written instrument every material term and eir- cumstance; and, consequently, all parol testimony of conversations held between the parties, or of declarations

. made by either of them, whether before or after, or at thetime of the completion of the contract, will be rejected, because such evidence, while deserving far less credit than the writing itself, would inevitably tend, in many instances, to substitute a new and different contract for the one really agreed upon, and would thus, without any correspondsg

- benefit, work infinite mischief and wrong.” Preston v.Merceau, 2 W. Rl. 124. Adams v. Wordley, 1 M. and W. 374. . . #A few remarks on the nature of the evidence required in support of various causes of action, may not be deemed out of place.In all actions on contract, the contract must be proved (either an express or implied contract), and the amount of damages sustained. As an illustration, it may be stated that an express contract, say for the sale and purchase of goods, where the evidence is clear as to the contract— as well in reference to the description and quality of the goods, the price agreed upon between the parties, and a delivery of the goods, and an acceptance by the buyer—


may be proved by direct evidence of facts. An illustration Part xv.of what is an implied contract may be thus given—A----------------person orders of a tradesman certain goods to be sent to bis residence, without any previous agreement as to price, and they are delivered accordingly. In such a case, there is an implied contract, on the part of the buyer, to pay a reasonable price for the goods, which must be proved by the plaintiff.In actions for work and labor done, the performance of the work must be proved, and its value ; if there was an agreed price, that will fix the sum recoverable; but if no price was agreed upon, then the plaintiff must prove the reasonableness of his charges, and if any materials were supplied by the plaintiff, and the action were brought for work and labor and materials, in addition to the proof before mentioned, .the value of the materials supplied must be proved.In actions on Bills of Exchange and Promissory Notes, if the acceptance of the bill or the making of the note is denied by the defendant, the plaintiff must prove the defendant’s handwriting ; if the defence is want of notice of dishonor by any party to the bill or note, other than the acceptor or maker, the plaintiff must prove the notice. The acceptor of a bill, or the maker of a promissory note is not entitled to notice.In actions for wages, the hiring must be proved, of which service will be evidence, the length of time of service, and the amount of wages due.

' In actions for the price of land sold, the contract must beproved, and also that the Statute of Frauds has been com

, plied with (vide supra).In actions on a warranty,—The warranty may be proved by

, parol evidence, although there was a written contract not containing a warranty, Allen v. Pink, 4, M. & W., 140, so parol evidence is admissible to show to what particular goods the written contract points. MacDonald Y.Longbottom,28 L. J., Q,. B., 293 ; 29 L. J., Q. B., 286.For not delivering goods.—The plaintiff must prove the contract and the breach, the performance of all conditions precedent on his part, his readiness and willingness to accept the goods and pay, and the amount of damages. If the contract be within the provisions of the Statute of

t Frauds, it must be shown that they have been compliedwith. In proof of the plaintiff’s readiness and willingness to accept the goods, and to pay for them, a demand of the goods by the plaintiff is sufiicient evidence ; no tender of the price need be proved. Rawson v. Johnson, 1 East,203 ; Waterhouse v. Skinner, 2 B. & P., 447 ; Levy v. Lord

' Herbert, 7 Taunton, 318; Squier v. Hunt, 3 Price, 68;Bentley v. Dawes, 9 Exch., 666 ; 23 L. J. (Ex.), 220.The measure of damages is the difference between the contract price and the market' price of the goods on the day when they ought to have been delivered. Boorman v. Nash, 9 B. & C., 145 ; Valpy v. Oakeley, 16 Q. B., 941;Peterson v. jEyre, 13 C. B., 353 ; Josling v. Irvine, 30 L. J.,Exch, 78; 6 H & N., 512; Wilson v. Lancashire and Yorkshire Railway Company, 30 L. J., C. P., 232 ; 9 C. B.,

3ST. S., 632.For not accepting goods.—On a contract for the sale of goods, the obligations of the seller are—1st. To deliver, or


Part xy. preserve for delivery, to the buyer. 2nd. To performwarranties express or implied. 3rd. Neither wilfully to misrepresent nor fraudulently to conceal anything relating to the thing sold. The obligations of the buyer are—1st. To accept the article sold; and 2nd. To pay the price. And such facts must he proved as are sufficient to show that the obligations on the part of the plaintiff have been fulfilled, and that the defendant has refused to perform the obligations imposed upon him. The proof required, however, will much depend upon the nature of the defence as set out in the defendant’s plea. [See infra defences.]Use and occupation of lands or tenemints. - The evidence in support of this action must show that the defendant occupied by permission of the plaintiff—the time of the occupation and value of the use of the premises—if no agreement has been entered into fixing the sum to be paid. Jf there has been an agreement between the parties, that will be evidence. [See 11th Geo. 2, c. 19; and see Gibson v. Kirk, 1 Q,. B., 850; Jiarland v. Bromley, 1 Stark; Bollock v. Stacy, 9 Q,. B., 1033. j An adverse occupation by the defendant will not entitle the plaintiff to recover in this action. The plaintiff’s remedy in such case is by action of ejectment, in which action may be joined a claim for mesne profits, which are in effect the profits or advantages supposed to accrue to the defendant by the use and occupa-

, tion of the property. [See section 162 of the Local CourtAct, 1861.] * 'Actions against common carriers and bailees.—A common carrier is a bailee; and this class of actions comprises actions against innkeepers, agents entrusted with goods

. for sale, and all others to whom the care of personal property belonging to another is confided. It may be stated generally that a bailee intrusted with the property of another for the custody, carriage, or disposal of which he is to be remunerated, is bound to take the same care of such property as he would be expected to do if the property were his own. lie is not liable if the property be taken from him by force or robbery. Owners of carts, waggons, &c., are common carriers—so are railway pro

' prietors (that is to say in this Colony; in England there isa particular statute, “ The Eailway and Canal Traffic Act, 1854/’ which regulates the obligations of Companies as carriers on rails and canals) and so are shipowners. In ■some cases a bailee is liable in any event and under any circumstances, for loss, as in the case of innkeepers in reference to the goods of their guests. [See for full infor-

' ination on this subject, Story on the Law of Bailments'],Morse v. Slue, 2 Lev., 69; Bennett v. Peninsular Steam Boat Co., 6 C. B., 775; Maving v. Todd, 1 Stark, 72, and the numerous cases referred to in Story on Bailments.The above remarks apply to actions on contracts, and are not intended to give more than a cursory idea of the law of evidence applicable to the several causes of actions before referred to. The following remarks apply to actions for the recovery of damages for torts or wrongs sustained by a plaintiff from the acts or omissions of a defendant.In trover.—To recover the value of goods, the wrongful conversion must be proved. If the defendant has put it out of his power to return the goods to the owner, as by


sale or other disposition of them, no demand is necessary Part XV.previous to bringing an action; but if the defendant has---------------possession of the goods, or the plaintiff is uncertain •whether or not the defendant has them in his possession, a demand must be made for the delivery of them, and on refusal the action lies. Some care is requisite in framing the demand, so as to enable a plaintiff to prove an implied refusal where there has been no direct refusal.In detinue.—Although probably this action will never be brought in a Local Court, on account of the greater facilities afforded by the Common Law Procedure Act for enforcing a judgment, and the difficulties which present themselves to the bringing such an action in a Local Court, it may be as well to observe it generally lies for the recovery of a written instrument, and that the plaintiff must prove the general nature of it so far as is necessary to prove its existence and identity, and the possession of it by the defendant, and also the right to the possession of it by the plaintiff, if such be put in issue by the defendant’s plea. Bucher v. Jarrait, 3 B. & P., 143; Sow v. Sally 11 East, 275.Action for negligence.—This action comprises a large class of cases, such as negligent driving, accidents on railways occasioned by negligence; in these cases the action may be brought in the former, against the master, supposing the vehicle to have been driven by his servant; in the latter, against the railway company. The action lies also for injuries sustained by a plaintiff against the owner of a ferocious animal, as a dog, bull, -horse, or other domestic animal; but in these cases a u scienterf must be proved, that is it must be shewn the owner knows that the animal is accustomed to do mischief, or that his vicious propensity was known to the owner. Jackson v. Smithson, 15 M & W.f 563; May v. Burdett, 9 Q,. B., 101; Cox v. Burbidge,13 C..B., N. S., 430. [See as to the principle of these cases, Birdy. Holbrook, 4 Bing, 628; but see Jordan v.Crump, 8 M. & W., 782.] In Line v. Taylor, 3 F. & F.,731, which was an action for injuries sustained by the plaintiff from the bite of a dog; the dog was allowed to be brought into Court and inspected by the jury, in order that they might judge of its disposition. There is an exception to this rule so far as relates to injuries to sheep and cattle by dogs. [See Dog Act, JSTo. 6 of 1857, sec. 20.] The action also lies for the negligent lighting and keeping a fire. lilliter v. Bhippard, 11 Q,. B., 347; and see Vaughans.Menlove, 7 C. & P.,'525, which was a case where a neighbor’s property was injured by reason of the defendant’s hayrick having ignited, from its having been carelessly / put together. There are a number of other cases of negligence for which a defendant may be liable, but it is thought that the instances above given will be a sufficient guide in most cases.Action for a nuisance.—This action also includes a great variety of cases, such as obstructions of light and air, disturbance of way or passage, disturbance of watercourse, &c.The evidence must show the existence of the right of way in the plaintiff, and the disturbance by the defendant; unless special damage can be proved the Court, or injury cases, may give such damages as such Court or jury may


Paht xy. think fit. Embrey v. Owen, 6JExch., 353 ; Northern v.--------------- Hurley, I E. & B., 665.

Trespass.—This action may be divided into two classes, trespass to the person and trespass to property. To the former class belong actions for assault and battery; to the latter actions for injuries to real or personal property. The causes of action arising out of these injuries are of such various kinds, that it would be out of place in a small work of this nature to attempt anything approaching an enumeration of them. It may be stated generally that any unauthorized entry upon the lands of another constitutes a trespass, if in addition to such entry any property is taken away hy the trespasser, the value of such property may be recovered in this action, as well as damages for the

- trespass, if the plaint be properly framed. This is styled“ trespass with an asportavit,” and the plaint should allege the asportavit as well as the trespass, and a general description of the property taken, and its value. An ordinary trespass to land is termed an action of trespass Square clausum fregit,” and it is not necessary to prove that the land is the actual property of the plaintiff; a proof of possession by the plaintiff is sufficient evidence of property against a wrong-doer.Ejectment.—This is in the nature of an action of trespass. It will be seen by the Act .(Part xiii.) that this action can only be brought in a Local Court where the property, possession of which is sought to be recovered, is subject to the provisions of an Act known as the Eeal Property Act. If the action is against a tenant, it will merely be necessary to prove the tenancy, and that it has expired or has been lawfully determined; no proof of title in the plaintiff is requisite. If, however, the person in possession does not claim to hold as tenant of the plaintiff, the latter must prove his title, which in ordinary cases can be done

' by the production of the certificate of title; but, as hasalready been mentioned, this is not absolute proof, as a

'certificate of title can be impeached. [See the notes to Part xm. of the Act.]Actions for false imprisonment, malicious arrest, and malicious prosecution.—It is not thought necessary to remark upon the evidence necessary to support these actions, as they are very rarely brought in Local Cotirts. Defamation or slander.—These actions comprise two distinct classes, oral and written, and the law relating to them and the evidence required in support of each is different. With regard to oral slander, the rule is generally that some charge, or accusation, against another is only actionable if it is such as would subject the person accused to a criminal prosecution and punishment, unless the slander is spoken of him in reference to his trade, business, profession, or occupation, or where special damages can be proved; but with regard to written slander, usually termed libel’ any reflection upon another which has a tendency to hold him up to hatred, ridicule, or contempt is actionable. There is an exception to the rule above stated as to oral slander with regard to a charge of want of chastity in a woman. Formerly such a charge, if made orally, was not actionable (except in the City of London, because there was an old law which made such an offence punishable there by whip-

LOCAL COUETS ACTS. Ill

ping); but now, by a Colonial Act, No. 7 of 1865, oral Part xv.slander reflecting upon tbe chastity of women is made---------------actionable.In considering tbe evidence necessary to support tbe defences wbicb tbe 87tb section of tbe Act require to be specially pleaded, some of tbe necessary proofs in support of other causes of action will be incidentally mentioned.Tbe defences will be remarked upon in tbe order in wbicb they are referred to in tbe 87th section; some of these have already been remarked upon in tbe notes upon that section, and it seems only necessary in this place to notice affirmative pleas, or those wbicb set up new matter, by way of defence.Set-off.—The same evidence is required in support of this plea as would be required in support of an action by tbe defendant against tbe plaintiff for recovery of the claim.[See tbe note to sec. 87.] Before tbe Statute 8 Geo. 2., c. 24, a set-off could not be pleaded, but the defendant was compelled to bring a cross action. Tbe Statute referred to permits, in effect, two actions to be tried in one suit.Tender before action. — Tbe evidence in support of this plea must shew an unconditional tender. A tender of money on condition that it is accepted as tbe sum due is no tender in law. Evans v. Judkins, 4 Camp., 156; Strong v. Harvey,3 Bing, 304 ; Hough v. May, 4 Ad. & El., 954; Bowen v. Owen, 11 Q,. B., 130. A person tendering money cannot even make it a. condition that tbe person to whom tbe money is tendered shall give a receipt for it. Laing v.Meader, 1 C. & P., 257. .Payment.—This may be proved by oral testimony, although

ra written receipt has been given. Rambert v. Cohen< 4 Esp., 213.Release.—It is thought that tbe note, under tbe bead of release, to tbe 87th section of tbe Act will sufficiently point out tbe nature of tbe evidence required in support of this plea.Fraud, misrepresentation, concealment.—These grounds of defence are so intimately connected tbe one with the other that it is a difficult matter to separate them. Misrepresentation is, in all cases, a fraud. Concealment may not be so.So much depends upon facts that it would be impossible to convey, in a short note, to what cases these pleas might be made available. They imply deceit on tbe part of tbe plaintiff, and it may be said generally, that tbe rules of evidence applicable to tbe maintenance of an action for .deceit by a plaintiff apply to a defence on tbe same ground.Tbe cases upon this subject decided in tbe superior Courts of England are numerous, and extend over a long period.Tbe following cases seem to be those generally applicable: —Fasley v. Freeman, 3 T. E., 51; Pontifex v. Bignold, 3 M. & Gr., 475; and see as to a representation made in ignorance as to its truth, Behn v. Furness, 32 L. J., Q,. B.(Exch.), 204.Infancy.—This may be proved by tbe oral testimony of any one present at tbe birth, or by entries in family Bibles, or certificates from tbe Eegistrar ot Births, Deaths, and Marriages. Of course tbe mother’s testimony is admissible.Coverture.—A husband is not liable for tbe, payment of all debts contracted by bis wife. Tbe wife is considered in


Part xy. law as the agent of her hnshand when she incurs a debt--------------- for necessaries only, hut not for articles of luxury or adorn

ment of her person, such as jewelry, &c.; Reid y. Teaklet ■--------------------13 C. B., 627. What are necessaries depends in some

measure on the husband’s position in society, Atkins y. Curwood, 7 C. & P;, 756 ; Johnson y. Sumner, 3 II. & N., 261, 27, L. J., Ex., 341. A married woman at common law could not bring an action, nor was she liable to be sued; but under the provisions of the Matrimonial Causes Act, 1867 (31st Viet., No. 3), a wife who has obtained a decree for a judicial separation from her husband, or who, being deserted by her husband, has obtained from the Supreme Court, or a Judge, or the Local Court of full jurisdiction nearest to which she is resident, an order to

. protect her property, is liable to be sued, and may sue asif she were a femme sole. [See secs. 6, 18, and 19.]Statute of Limitations.—This plea, if proved, is a bar to the action. It may, generally, be made out by the facts

. brought forward in support of the plaintiff’s case. [See sec. 87 of the Act, and the notes on this Statute appended.] Insolvency is proved by the production of the records in the

' Court of Insolvency.Accommodation Bills, §c.—[See sec. 87 of the Act.] The facts may be proved by the oral testimony of the defendant, notwithstanding such testimony amounts to an explanation

. and even a contradiction of the terms of the agreement,which is in writing by parol testimony. It may be remarked that the onus probandi is on the defendant.Want of notice of dishonor.—The burden of proof on this issue is on the plaintiff; no special form of notice is required. Parke, B., in Lewis v. Gompertz, 6 M. & W., 403, says it is enough if the notice conveys to the mind of the receiver, by reasonable intendment, the following facts :—

1. That the bill has been presented when due.2. That it has been dishonored; and3. That the party addressed is held liable for payment.

In some cases notice is unnecessary. [See Byles on Bills of Exchange, and Chitty on Bills.] It is in no case necessary to give notice of dishonor to the acceptor of a bill of exchange or the maker of a promissory note. A notice of dishonor need not be in writing, ILousego v. Cowne, 2 M. & W., 348 ; Phillips v. Gould, 8 C. & P., 355. Notice of dishonor should be sent by post or given personally to

• the parties to the bill or note, against whom the holderintends to preserve his remedy, on the following day or by the next post after the bill or note falls due; notice sent on the day a bill or note falls due is irregular. Williams v. Smith, 2 B. & A. 496; Geill v. Jeremy, Mood & M., 61; Mowe v. Tipper, 13,C. B., 249. [See the notes to sec. 87 of the Act].Want of notice of action.—[See note to sec. 87]. The notice must be in writing, and the service'of it must be proved by the person serving it; it should be served personally, unless any other mode of serving it is provided in the Statute, which provides for notice being given.Mutual credit.—This plea can be pleaded in the same manner as a set-off, and the evidence in support of it will be similar. [See sec 87, note to mutual credit]. Mutual credit refers principally to proofs in insolvency; and the


mode in which, assignees and debtors and creditors of an Part xy.insolvent’s estate can avail themselves of mutual debts and '---------------credits is provided for in thInsolvent. Act, 1860, sec. 148.In an action at law, the plea of set-off enables a defendant to avail himself of the right given by the Insolvent Act; and a defendant may avail himself of this plea notwithstanding his claim arose after the insolvency, provided he had not notice of a prior act of insolvency.Lien.—[See the note to sec. 87, p. 56.] The evidence required would principally rest with the plaintiff; but the defendant may show that he, or some other person, is entitled to possession of the goods. A common appearance puts the question of the right of possession in issue; and if such a novel, it might be said, such an unknown, plea were pleaded, it would simply have the effect of a common appearance. TTnseaworthiness.—In the remark on this plea in the note to section 87 of the Act, it is stated that this defence is applicable to an action on a charter party. It should also have been stated that it is a defence to an action on a policy of insurance, there being an implied warranty on the part of the insurers that the ship is seaworthy, Dixon v.Saddler, 5 M. & W., 414; Biccard v. Shepherd, 14 Moo.,P. C., 494; Boulton v. Lupton, 14 C. B., N. S., 113.It now only remains to make a few general remarks as to some points of practice in reference to evidence. It is not intended that these notes shall form anything like a complete epitome of the rules of evidence—it would be far beyond the scope of this little work, but there are a few general rules which it may not be out of place to refer to.It is sometimes of importance to have the inspection of a document in the possession of the opposite party. The mode of obtaining liberty to inspect such a document, and the nature of the document which an opposite party has the right to inspect, are referred to in the note to Subdivision ii. of sec. 18 of the Act. As a general rule, primary evidence must be produced; but if a document of any kind, having reference to the matters in dispute between the parties to the action, is in the possession of one of the parties to the suit, secondary evidence can be given of its contents, on a notice to produce being given, vide infra. And now that parties to a cause can be examined as witnesses, a subpoena duces tecum has the same effect as a notice to produce ; but the former must be served upon the opposite party personally, while the latter may be left at the office of the attorney of the party.Brocuring documentary evidence.—There is no provision .either in the Act or in the Rules of Court as to the admission of documentary evidence by notice to admit before trial similar to the practice in the Supreme Court. Costs will, therefore, be allowed for proving the documents produced at the trial.Notice to produce.—When any instrument or document is in the hands of the adverse party, he should be served with a notice to produce it at tbe trial, otherwise no secondary evidence of the contents of such instrument will be admitted on the trial; but if it is not produced pursuant to the notice, and it is shown to be in the possession, or under . the control of the adverse party, secondary or parol evidence may be given of its contents. The object of a


Part xy. notice to produce is only to give tlie opposite party suffi----------------- cient opportunity to produce it if he pleases, and not that

he may prepare evidence to explain, nullify, or vary it; and, therefore, where the instrument is in Court at the

' time of the trial, a notice to produce it immediately issufficient to render secondary evidence—that is, a copy, or oral testimony of its contents, admissible if it be not produced. Dwyer y. Collins, 7 Exch., 639. "Whether there is sufficient proof that the adverse party has in his possession the instrument or document required to be produced is a question for the Judge, who may hear evidence to disprove his possession, Harvey y. Mitchell, 2 M. & E., 366. Where the document, belongs to the adverse party, slight evidence is sufficient to prove possession, Henry v. Leigh, 3 Camp, 502; and if the document were in the possession of the party at the time of the service of the notice, he cannot afterwards voluntarily part with it, so as to get rid of the effect of the notice. Where a document is in the hands of an agent of the party, a notice to produce it should be served on the party, and not a subpoena on the agent, Sinclair y. Stephenson, 1 C. & P., 582. Put if a party or person has in his possession any document which the plaintiff or defendant requires to be produced on the trial, the party requiring such production may serve a subpoena duces tecum on the person in whose possession the document may happen to be, and such person must attend in Court with the document. If, however, he declines to produce it, and gives a reason for the non-production to the satisfaction of the Judge, secondary evidence may be given of its contents. The question for the Judge is, whether the person subpoenaed wrongfully or rightfully refuses to produce the document. In the former case he will be liable for the penalty for disobeying the subpoena; in the latter, his refusal will let in secondary evidence. A person subpoenaed to produce a document, but for no other purpose, need not be sworn as a witness.There are several cases in which a notice to produce is unnecessary, and where the production of the original writing is dispensed with and secondary evidence is admissible, among which are the following :—

1. Where the document which is in the possession of the adverse party, and that tendered in evidence, are counterparts, or duplicate originals. Colling y. Treweek, 6 B. & C., 398.

2. Where the document required is itself a notice, as a notice to quit, a notice of dishonor of a bill, a notice to produce, &c. Doe v. Somerton, 7 Q. B., 58, per Bayley, J.

. 3. Where from the nature of the action the defendantmust know that he is charged with the possession of it, as in trover for a bond. How v. Hall, 14 East, 274.

4. Where the adverse party has obtained the document by force or fraud. Leeds v. Cook, 4 Esp., 256.

5. Where the production of the original writing is either physically impossible or highly inconvenient. Thus, inscriptions on walls and fixed tables, mural monuments, gravestones, surveyors’ marks on trees, notice boards warning trespassers, and the like, as these cannot be conveniently produced in Court. Mortimer v. McCallan, 6 M. & W., 68 ; Lt. T.-Fursey, 6 C. & B., 84 ; Bruce v. Nicolopulo, 11 Exch., 129; and see Taylor on Evidence, sec. 410, et seq.


Part xvi.—And, with, regard to fees of Court, and costs of Paht xvi.

. actions in Local Courts, Be it Enacted—202. That the costs in every action or proceeding shall Costs to abide

abide the event, unless the rules of practice shall direct a eyent* different course to be adopted in particular instances, to betherein specified, or unless the Court, at the hearing, shall make some special directions respecting them.

The 31st Rule of Court provides for the payment of costs exactly as provided for in this section of the Act; that is, that they shall abide the event unless the Court shall otherwise order. There is no provision in any of the Local Courts Acts for giving costs to the defendant when a plea to the jurisdiction is pleaded, and the defendant makes out his plea; and it is thought that no costs can he recovered in such a case, because the Court not having jurisdiction to hear the cause cannot adjudicate on the question of costs.In the Imperial Act 30th & 31st Viet., c. 142, , sec. 14, this power is expressly given to County Courts.

203. The fees set forth in Schedules H and I shall be paid Court fees to be m respect oi the matters therein specified, and no others, and except in inter- such fees shall, except in interpleaders, or where such fees Pleader cases* shall be payable in respect of keeping possession or sellinggoods seized, be paid in the first instance by the party in whose behalf any such proceeding is to be taken before such proceeding is taken ; and in default of the payment of any fees, payment thereof maybe ordered by the Special Magistrate, which order shall be enforced in like manner as an order of the Court; and a table of all fees shall be posted in some conspicuous place in every Court House and in every Clerk’s office.

It will be observed that there is no provision in any of the Acts for the allowance of costs in arbitration cases, which are often attended with more expense than a proceeding at law. As to costs of examination of witnesses do hem esse, and out of the jurisdiction, and costs of certiorari, see ISTo.4 of 1863. ,

204. Practitioners of the Supreme Court shall, as between practitioners on-*party and party, be entitled to receive from the party liable coststo pay them their costs find charges according to the scale certain scale, set forth in Schedule K, and such costs and charges shall betaxed by the Clerk of the Court, but his taxation may be reviewed by the Special Magistrate presiding over his Court.

This section refers, it will be observed, to costs betweenparty and party, only; but the next section, 205, whichprovides for the payment of costs between attorney andclient,, also limits the right of a practitioner to costs onlysanctioned in Schedule K, unless there has been a special .agreement between the attorney and his client.

205. All costs and charges as between attorney and client Costs of practi-shall, on the application of either the attorney or the client, attomey^ndbut not otherwise, be taxed by the Master of the Supreme client to be taxed

. * * before action.


Part xvi. Court, or by tbe Clerk of tbe Court in wbicb sucb costs and charges were incurred; but the taxation of sucb Clerk may be reviewed by tbe Special Magistrate presiding over that Court, on tbe application of either party, and no costs and charges shall be allowed on sucb taxation wbicb are not sanctioned by tbe same scale, unless tbe officer taxing shall be satisfied that tbe client has agreed to pay them, in wbicb case they shall be allowed ; and no attorney shall have a right to recover from bis client any costs and charges in respect of any proceeding under this Act, unless they shall have been allowed on such taxation, or on tbe taxation of tbe Master of tbe Supreme Court.

See tbe remarks on tbe last preceding section.

Part xvii. Pabt xvii.—And with regard to penalties in Local Courts, Be it Enacted—

Punishment for 206. That if any person shall forge tbe signature of any o°/Magistrafe,U16 Magistrate, or of tbe Clerk, Bailiff, or other officer of tbe fe%*n°rsCeainorr" ^our^5 or f°rge or counterfeit tbe seal of the Court, orservin{?Sfofged any process of tbe Court, or shall knowingly concur in using process, or any Sucb forged or counterfeit signature or seal for tbe purposein evidence. of authenticating any sucb process, or shall serve or enforce

any such forged process, knowing the same to be forged, or , deliver or cause to be delivered to any person any paper falsely

purporting to be a copy of a summons or other process of the Court, knowing tbe same to be false, or shall tender in evidence any such process with a false or counterfeit signature of any sucb Magistrate, or of tbe Clerk, Bailiff, or other officer, or a false or counterfeit seal of the Court subscribed or attached thereto, knowing tbe same signature or seal to be false or counterfeit, or who shall act or profess to act under any false color or pretence of tbe process of tbe Court, every sucb person shall be guilty of felony.

This section of tbe Act requires no comment.

if Justice shall 207. If any Justice of tbe Peace for tbe said Province find a1 substitute summoned to attend any Court shall not personally or by Special Magis- ’ substitute attend sucb Court on tbe day on wbicb be shall trate to impose kave ]3een s0 summoned, without alleging a sufficient excuse

to tbe satisfaction of the Special Magistrate, or attending, shall not continue and act during tbe sitting of tbe Court, the Special Magistrate then present shall impose a fine on sucb Justice so summoned, of Five Pounds.

This enactment seems to have been universally considered a dead letter, and indeed it is bebeved that tbe fists provided for in section 14 of tbe Act are never prepared, and therefore tbe Justices are not summoned “by regular rotation,” according to tbe provisions of that section, and a fine could not therefore probably be imposed.


208. Every person who, in any examination upon oath, or Part xvii. solemn affirmation before any Court, or before any arbitrator, Persons giving shall wilfully and corruptly give false evidence, or who, before false evidence any Magistrate, or before the Clerk of any Local Court, gm y° peijmy’ acting in pursuance of this Act, shall wilfully make any falseaffidavit or statement on oath or affirmation, shall be guilty ofperjury. .

This section of the Act requires no comment.

209. If any person shall wilfully insult the Court, or any power to commit Clerk, or officer of the Court for the time being, during the for wmterapk sittings or attendance in such Court, or in going or returningfrom such Court, or shall wilfully interrupt the proceedings,or otherwise misbehave in Court, or shall refuse to obey anylawful order of such Court, it shall be lawful for any Bailiffor officer of the Court, with or without the assistance of anyperson, by the order of the Court, to take such offender into -custody, and detain him until the rising of the Court; and theCourt shall be empowered, if it shall think tit, by a warrant,to commit any such offender to any prison to which the Courthas power to commit offenders under this Act, for any timenot exceeding seven days, or to impose upon any such offendera fine not exceeding Five Pounds for every such offence.

This section of the Act requires no comment.

210. If any officer or Bailiff of any Court shall be assaulted Penalty for while in the execution of his duty, or if any rescue shall be oSceJs^for made or attempted to be made of any goods levied under rescuing gooto process of the Court, the person so offending shall be liable tion.n 1U execil~ to a fine not exceeding Five Pounds; and it shall be lawfulfor the Bailiff of the Court, or for any Peace Officer in any such case, to take the offender into custody (with or without warrant), and bring him before the Court or Special Magistrate accordingly.

This section of the Act requires no comment.211. If any Clerk, Bailiff, or officer of the Court, acting Remedy against

under color or pretence of the process of the said Court, shall officers guiltyU-1 , _ * . ,. \ , 1 • i of extortion, orbe charged with extortion, or having received or levied any other mis- money under the authority of this Act, shall be charged with conduct, not duly paying or accounting for the same, or shall be charged with any misconduct in his office, it shall be lawful for the Court to inquire into such matter in a summary way, and for that purpose to summon and enforce the attendance of all necessary parties in like manner as the attendance of witnesses in any case may be enforced, and to make such order thereupon for the repayment of any money extorted, or for the due payment of any money so levied or received as aforesaid, and for the payment of such damages and costs as the Court shall think just; and also, if the Court shall think fit, to


Part xyii. impose such, fine upon the Clerk, Bailiff,' or officer, not exceeding Twenty Pounds for each offence, as shall he deemed adequate.

It is not stated in this clause of the Act what Court has the power to proceed in the matters therein referred to, whether a Court of full or limited jurisdiction. It will he observed that the proceeding referred to is quasi criminal, and it seems uncertain whether, although the Court is empowered to proceed in a summary way, how the proceedings are to be conducted, whether under the Summary Jurisdiction Act by information (Ho. 6 of 1850), or in what manner. But see section 214.

Penalty on taking 212. Every Clerk, Bailiff, or other officer employed in put-aiiowed.deStllOSe ting this Act, or any of the powers thereof, in execution, who

shall wilfully and corruptly exact, take, or accept, any fee or reward whatsoever, other than and except such fees as are or shall he appointed and allowed respectively as aforesaid, for or on account of anything done or to he done hy virtue of this Act, or on any account whatsoever, relative to putting this Act into execution, shall, upon proof thereof before the

. , said Court, and on allowance of the finding of the Court bythe Governor, he for ever incapable of serving or being employed under this Act in any office of profit or emolument, and shall also be liable for damages, as herein provided.

There is no mode of proceeding pointed out in the section , of the Act.

Penalty on wit- 213. Any witness duly summoned, and to whom payment' monednotUm" or a tender of payment of his expenses shall have been made, appearing. and who shall refuse or neglect, without sufficient cause, to

appear, and also every person present in Court who shall be required to give evidence, or who shall refuse to be sworn and give evidence, shall forfeit and pay such fine, not exceeding Ten Pounds, as the Court, or, in jury cases, the presiding Judge or Special Magistrate shall impose, and the whole or any part of such fine shall, at the discretion of the Court, be applicable towards indemnifying the party injured by such refusal or neglect. ,

This section of the Act seems to require no comment.

Penalties, how 214. The payment of any fine imposed by any Court, enforced. Judge, or Special Magistrate under the authority of this Act,

may be enforced upon the order of the Court, Judge, or Special Magistrate, in like manner as an order of a Justice made

. under the provisions of an Act intituled “ Ah Ordinance tofacilitate the performance of the duties of Justices of the Peace out of Session, with respect to summary convictions and orders,” being No. 6 of 1850, or, at the discretion of the Court, by the committal of the offender to any prison to which the Court has power to commit under this Act, for a period

LOCAL COTJKTS ACTS. 119

not exceeding three calendar months, unless payment thereof Part xvii. shall be sooner made.

This section of the Act refers to all cases where fines which ■are authorized by the Act can he imposed. An information . under No. 6 of 1850 must of course be laid; it is not, therefore, a summary proceeding of the Local Court, but the proceedings may be before any Magistrate. •

215. In all cases where any conviction shall be had for any Form of convic- offence committed against this Act, the form of conviction tl0n-may he in the words or to the effect in Schedule L.

• This section of the Act seems to confuse matters again. If the proceedings are to be under the Summary Jurisdiction Act, they cannot be conducted under the Local Courts Acts.

Paht xyiii.—And with regard to the protection of officers Part xviii. of Local Courts, and general matters, Be it Enacted— -------------

216. That where any distress shall he made for any sum Distress not .of money to he levied by virtue of this Act, the distress itself ^niTof form shall not be deemed unlawful, nor the party making the ‘ *same be deemed a trespasser, on account of any defect orwant of form in the information, summons, conviction, warrant of distress, or other proceeding relating thereto; nor shall the party distraining be deemed a trespasser from the beginning on account of any irregularity which shall afterwards be committed by the party so distraining; but the person aggrieved by such irregularity may recover full satisfaction for the special damage in an action upon the case.

This section of the Act seems merely to provide that aBailiff executing a warrant of execution shall not be deemeda trespasser ah initio, but be liable' only for any unlawful 'act committed by himself personally. The irregularityreferred to in this section seems to refer to any irregularityor wrongful act of the Bailiff committed by him underpretence of the warrant of execution issued by the Court.[See the next clause and the notes.]

217. No action shall be brought against any Bailiff, or No action to be against any person or persons acting by the order and in aidof any Bailiff, for anything done in obedience to any warrant actmg'under under the hand of any Clerk of a Local Court and the seal of court,Without such Court, until demand hath been made, or left at the n°tge, and ^ office of such Bailiff, by the party or parties intending to the court a ° bring such action, or by his, her, or their attorney, or agent, defendant, in writing, signed by the party demanding the same of the perusal and copy of such warrant, and the same hath been refused, or neglected by the space of six days after such demand, and in case, after such demand and compliance therewith by showing, the said warrant to and permitting a copy to be taken thereof by the party demanding the same, any action shall be brought against such Bailiff, or other


Part xviii.

Protection to officers.

person or persons acting in his aid, for any such cause as aforesaid, without making the Clerk or Clerks of the said Court who signed or sealed the said warrant, defendant or defendants; that, on producing or proving such warrant at the trial of such action, the Court or jury shall give their judgment or verdict for the defendant or defendants, notwithstanding any defect of jurisdiction or other irregularity in the said warrant ; and if such action he brought jointly against such Clerk, and also against such Bailiff or person or persons acting in his or their aid, as aforesaid, then, on proof of such warrant, the Court or jury shall find for such Bailiff, and for such person or persons so acting as aforesaid, notwithstanding such defect or irregularity as aforesaid; and if the verdict shall he given against the said Clerk, that in such case the plaintiff or plaintiffs shall recover his, her, or their costs against him, to be taxed in such manner, by the proper officer, as to include such costs as such plaintiff or plaintiffs are liable to pay to such defendant or defendants for whom such verdict shall be found, as aforesaid; and if any action shall be brought the defendant or defendants shall and may plead the general issue, and give the special matter in evidence at any trial had thereupon.

This section of the Act requires that before an3r action can he brought against any Bailiff, &c., for anything done in obedience to a warrant of the Court, until demand has been made of a copy of the warrant [see the clause], and the Clerk of the Court, it seems, must be made a party to the suit against the Bailiff. The Clerk of the Court being a merely ministerial officer this enactment seems to impose upon him a very onerous duty—in fact, judicial, instead of merely ministerial, functions.This is a strange provision, and seems very like joining in one action two persons, for distinct causes of complaint, against each.

218. All actions and prosecutions to be commenced against any person for anything done in pursuance of this Act, shall be commenced within three calendar months after the fact was committed, and not otherwise, and notice in writing of such action, and the cause thereof, shall be given to the defendant one calendar month at least before the commencement of the action; and the defendant in any such action may plead the general issue, and give this Act and the special matter in evidence at any trial, and the plaintiff shall not recover in such action, if tender of sufficient amends shall be made before action brought, or if after action brought, the defendant shall pay into Court sufficient amends ; but in such last-mentioned case, the plaintiff shall recover his costs of suit up to the time of payment into Court, and if a verdict shall pass for the defendant, or the plaintiff become nonsuit, or discontinue, the defendant shall recover full costs, as


between attorney and client, and have bis remedy for tbe same Part xviii.

in tbe usual way. ~Tbis section needs no comment, it is tbe ordinary clause

- inserted in Acts of Parliament to give dne protection toofficers acting bona fide, but making a mistake, as every one is liable to do. Tbis section provides that one calendar month’s notice of action shall be given to any person acting under tbe presumed authority of tbe Act, before action ' brought, in order that tbe defendant may have tbe opportunity of tendering amends. Tbe Act further provides that the defendant may, under a plea of tbe general issue, wbicb is usually tbe plea of “ not guilty,” give tbe Act and tbe special matter in evidence at tbe trial. Tbe formal mode of pleading tbe general issue in sucb cases is as follows: —

{Title of Court.]On tbe day of , A.D. 18 .

Defendant's name ats.

Plaintiff's nameand in tbe margin of tbe plea say—By statute No. 15 of 1861, tbe “Local Court Act, 1861, section 218. .It may be observed that in certain cases notices may be given by telegram. See Act No. 4 of 1863, infra, but tbis enactment would not apply to notices required to be given under tbis section of tbe Act.

| Tbe defendant says be is not guilty.

122 LOCAL COURTS ACTS,

SCHEDULES REFERRED TO.

ASeveral alterations have been made as to tbe sittings of Local Courts since tbe Act

of 1861 was passed, and some bave been abolished, under tbe authority contained in tbe 5th and 6th sections of tbe Act of 1861. The following Schedule shows what Local Courts are now in existence, with the days of sitting, &c.:—

Name of Court. Wlxere to be holden.Jurisdiction and period of bolding Court.

Full Jurisdiction. Limited Jurisdiction.

The Local Court of Adelaide

Tlie Local Court of Angaston

The Local Court of Auburn

The Local Court of Blinman

The Local Court of Clare

The Local Court of Clarendon

The Local Court of Cawler

The Local Court of Goolwa

The Local Court of Gumeracka

The Local Court of Kapunda

The Local Court of Kadina

The Local Court of Kingston

The Local Court of Morphett Yale

The Local Court of Moonta

The Local Court of Mount Barker

The Local Court of Mount Gambier'

The Local Court of Mount Ilemarkable

The Local Court of Mount Pleasant

The Local Court of Naracoorte

The Local Court of Penola

The Local Court of Port Adelaide

The Local Court of Port Augusta

The Local Court House, Adelaide

The Local Court House, Angaston

The Local Court House, Auburn

Mr. Young’s House, Blinman

The Local Court House,. Clare

The Local Court House, Clarendon

The Local Court House, Gawler

The Local Court House, Goolwa

The Local Court House, Gumeracka

The Local Court House, Kapunda '

The Local Court House, Kadina

The Koyal Mail Hotel, Kingston '

The Local Court House, Morphett Yale

The Local Court House, Moonta

The Local Court House, Mount Barker

The Local Court House, Mount Gambier

The Local Court House,Mount Ilemarkable

The Police Station, Mount Pleasant

The Local Court House, Naracoorte

The Local Court House, Penola

The Local Court House, Port Adelaide

The Local Court House, Port Augusta

First and third Wednesday in each month

First Thursday in each month

Tuesday after first Wednesday in each month

Second'Tuesday in every alternate month

Second Wednesday in each month

Second Monday in each . monthThird Tuesday in each

monthSecond Wednesday after

first Tuesday in each month

First Friday after first Monday in each month

First Wednesday in each month '

First Wednesday in each month

Third Thursday in every alternate month

First Thursday after first Tuesday in each monthFirst Friday in each

monthFirst Monday in each

monthLast Tuesday in each

monthSaturday after first

Thursday in every alternate month

First Thursday after first Monday in each month Fourth Thursday in every alternate month Second Thursday in

each monthFirst Tuesday in each

monthFirst Thursday in every

alternate month

Second, fourth, and fifth Wednesdays in each month.

First Thursday in each month.

Tuesday after first Wednesday in each month. Second Tuesday in each

month.Second Wednesday in

each month.Second Monday in each

month.First and third Tuesdays

in each month. Second Wednesday after

first Tuesday in each month.

First Friday after first Monday in eachmonth.Third Wednesday in

each month.First and third Wednesday in each month

Third Thursday in every alternate month

First Thursday after first Tuesday in each month

First and third Friday in each month.

First Monday in each month.

Second Monday in each month.

Saturday after first Thursday in every

_ alternate month.Fii st Thursday after first Monday in each month.

Fourth Thursday in every alternate month.

Second Thursday in each month.

First and third Tuesdays in each month.

First Thursday in every alternate month.

LOCAL COIJETS ACTS. 123

A (continued).

Name of Court. Where to be holden.Jurisdiction and period of holding Court.

Pull Jurisdiction. Limited Jurisdiction.

The Local Court of Port Elliot

The Local Court of Port Lincoln

The Local Court of Port MacJDonnell

The Local Court of Port "Wakefield

The Local Court of Port Wallaroo

The Local Court of Redruth

The Local Court of Riverton

The Local Court of Robe

The Local Court of Salisbury

The Local Court of ■ Strathalbyn

The Local Court of Stockport

The Local Court of Tanunda

The Local Court of Teatree Gully

The Local Court of Two Wells

The Local Court of Willunga

The Local Court of Woodside

The Local Court of Yankalilla

The Local Court House, Port Elliot

The Local Court House, Port Lincoln

The Local Court House, Port MacDonnell

The Local Court House, Port Wakefield

The Local Court House, Port Wallaroo

The Local Court House, Redruth .

The Local Court House, Riverton

The Local Court House, Robe

The Local Court House, Salisbury

The Local Court House,. Strathalbyn

The Stockport Hotel, Stockport

The Local Court House, Tanunda

The District CouncilChamber, Teatree Gully

The Two Wells Inn, Two Wells

The Local Court House, Willunga

The Local Court House, Woodside

The Local Court House, Norman ville

Third Thursday after first Tuesday in each month

First Wednesday in each month


Second Friday in each month

First Monday in each month

Friday after second Wednesday in each month

Monday after first W ed- nesday in each month


Second Wednesday in each month

First Wednesday after second Monday in each month

Third Thursday in each month

Friday after first Thursday in each month

First Monday in each month

Third Wednesday in each month

First Wednesday after ' first Tuesday in each

monthFirst Wednesday after

first Monday in each month

First Tuesday in each month '

Third Thursday after first Tuesday in each month.

First Wednesday in each month.


Second Friday in each month. .

First and third Monday in each month.

Friday after second Wednesday in each month.

Monday after first Wednesday in each month.


Second Wednesday in each month.

First Wednesday after second Monday'in each month.

Third Thursday in each month.

Friday after first Thursday in each month.

First Monday in each, month.

Third Wednesday in each • month.

First Wednesday after. first Tuesday in each month.

First Wednesday after first Monday in each month.

First Tuesday in each month.

HCourt Fees.

Up to vl to Up to Up to Up to£10. 0. £30. £50. £100,

5. d. s. d. s. d. s. d. £ s. d.Entering every plaint, and issuing every summons ... 1 0 2 0 3 0 5 0 0 7 0Entering an appearance, inclusive of notice for)

plaintiff and defendant.............................................J 2 0 2 0 2 0 3 0 0 3 0Hearing fee at trial of cause ......................................... 5 0 8 0 12 0 15 0 10 0Signing judgment in default of appearance ............. 3 0 5 0 8 0 10 0 0 15 0Taxing costs ....................................................................... 1 0 2 0 3 0 4 0 0 5 0Order of every description ............................................. 1 0 2 0 3 0 4 0 0 5 0Writ or warrant of execution.................................. . 1 6 3 0 5 0 10 0 0 15 0Warrant of every description (except executions) ... 2 0 3 0 6 0 9 0 0 12 0Subpoena (any number of witnesses)............................. 1 0 2 0 3 0 4 0 0 5 0Swearing affidavit ............................................................ 1 0 1 0 1 0 1 0 0 1 0Receiving and paying money out of Court (each)...... 2 0 2 0 3 0 4 0 0 6 0Bond of every description................................................ 1 0 3 0 5 0 7 0 0 10 0


Bailiff’s Fees.

Up to £10.

Up to £20.

Up to £30.

£30 and above.

s. d. s. d. s. d. s. d.2 0 3 0 3 0 5 01 6 3 0 5 0 10 01 6 2 6 3 6 5 0

10 0 10 0 10 0 10 0

7 0 7 0 7 0 7 0

- - - -

Serving every summons, notice, and order .................................Serving writ of execution...............................................................Subpcening witnesses (if required) each witness..........................Mileage for service of process whether summons, subpoena,)

warrant, or order (Is. per mile beyond the distance of one >mile) ............................................................................................... )

Every arrest within seven miles....................................................Beyond seven miles (a mileage of Is. per mile, unless officer)

travels by railway or water, then the actual charges, and >10s. Gd. a day if more than one day) ..................................... )For conveying defendant to gaol (Is. a mile, unless conveyed)

by railway or water, then the actual charge) ..................... )Possession of goods on the premises under execution, per day Cartage on removal of goods and storage (amount actually)

paid).............................................................................................../If goods sold (five pounds per centum on the amount realized, 1

to include all charges oi the auctioneer......... I...................... /

KPractitioners’ Fees.

For taking instructions, letter before acting, issuing summons)and entering appearance ................................................................/

Getting up case for trial, preparing summons for witnesses,) notice to admit and produce, and also for interlocutory pro- j ceedings, unless a Special Magistrate sha'l order the payment > of the costs of such interlocutory proceedings, and then suchsum as the Magistrate shall order...................................................J

Attending trial ......................................................................................Counsel’s fee .................... .....................................................................Attending for unsatisfied judgment, summons, and appearing at >

hearing ...............................................................................................jNotice by claimant to Bailiff with particulars to be filed under )

Part IX. (other charges, same as in ordinary action).............. )Instructions for, and affidavit under, Part XII. (if tried before)

Magistrate, other charges, same as in ordinary action) .............)Taking instructions for new trial, drawing notice thereof, and)

affidavits in support ........................................................................jAttending making application ............................................................Replevin bond under Part X. (other charges'are the same as an)

ordinary action) ................................................................................)

£5 and under £20.

£20 and under £30.

£30 and over. >

£ s. d. £ s. d, £ s. d. ’0 10 0 1 0 0 2 0 0

- 0 10 0 1 0 0

0 10 0 1 0 0 1 0 0— — 2 2 0

0 10 0 1 0 0 1 0 0

0 3 0 0 7 6 0 10 0

0 3 0 0 7 6 0 10 0

— 0 10 0 1 0 00 10 0 1 0 0 1 0 00 10 0 0 10 0 1 0 0

Rent under £10.

Rent under £20.

Rentunder £30.

Rent does not exceed

£52.

£ s. d. £ s. d. £ s. d. £ s. d.0 10 0 0 10 0 1 0 0 j £5 per

| centum— 0 10 0 1 0 0 10 00 5 0 0 5 0 0 6 8 0 10 0

Summons under Part XI.* ........................Attending, hearing, and drawing up order Attending for and drawing up warrant......

Eor service of all documents, the same as allowed to Bailiff. No charge to be allowed where action is for less than Five Pounds, except for services. The above charges are to be ascertained by the amount claimed if the defendant succeeds, andby the amount recovered if the plaintiff succeeds, except under Part XI.,* when the rent is to be calculated at per annum without reference to whether the premises are let by the year or not.

For proceedings in ejectment, fees will be of the highest scale.* The references should Tbe to Part XII.


EIn the Local Court of

Between . _ plaintiff, and defendant.It is agreed that the decision of the matters in dispute in this cause shall he left to

this Court.Dated _ . '

A.B., plaintiff (or attorney for plaintiff).C.D., defendant (or attorney for defendant).

Note.—This consent is to be filed with the particulars of demand and pleas.

126 LOOAL COTTLTS ACTS.

LOCAL COURT AMENDMENT ACT, 2G&27 YICT. A.D. 1863.

No. 4,An Act to amend the Local Courts Act, 1861.

[Assented to 12th November, 1863."]Preamble. . Whereas great difficulties and delays are often experienced

in actions depending in tbe Local Courts of tbe Province of * . South Australia, by reason of a want of authority in sucb

Courts to order and enforce the examination of witnesses when tbe same may be required before the trial of a cause, and to issue commissions for tbe examination of witnesses out of tbe said Province, or who may be resident at a distance from tbe Court wherein tbe cause is to be tried; and it is expedient that sucb authority should be conferred on tbe said Courts— Be it therefore Enacted by tbe Governor-in-Chief of tbe Province of South Australia, with tbe advice and consent of tbe Legislative Council and House of Assembly of tbe said Province, in tbis present Parliament assembled, as follows :

Tbe objects of tbis Act are threefold—1. To provide for the examination of witnesses who are

about to leave tbe Colony.2. For tbe examination of witnesses ont of tbe Colony,

or resident more than one hundred miles from the place where tbe trial is to be held.

3. For tbe examination of witnesses who may be unable to attend at tbe trial from illness, or other sufficient cause, Tbe provisions are in most respects analagous to proceed* ings for tbe examination of witnesses under similar circumstances in actions in tbe Supreme Court.

short title of 1. This Act ’may be cited for all purposes as tbe “ Local Act* Courts Amendment Act, 1863.”interpretation 2. In the construction of tbis Act tbe words “ Special

* Magistrate ” shall, unless inconsistent with tbe context or subject matter, mean the Special or Stipendiary Magistrate or other proper officer appointed to preside o^er any of tbe Local Courts now established, or hereafter to be established, in tbe said Province.

Special Magis- 3. In every action depending in any Local Court, where tbe ordeerforyexSaS-or damage claimed shall exceed Twenty Pounds, tbe nation of wit- Special Magistrate, upon tbe application of any of tbe parties ieeaveSthe°Coiony such action, and upon being satisfied that any material attend^rom witness is about to quit tbe said Province, or is unable to illness. attend on tbe trial of such action from illness or other suffi-

LOCAL COUETS ACTS. 12?

cient cause, may, by writing under bis band and tbe seal of tbe said Court, order tbe examination of sucb witness upon oatb, upon interrogatories or otherwise, before sucb Special Magistrate himself, or before tbe Clerk of sucb Court, or . other person or persons to be named in sucb order ; and may by tbe same, or any subsequent order or orders, give all such directions touching tbe time, place, and manner of sucb examination, and all other matters and circumstances connected with sucb examinations as may appear reasonable and just.

4. If, in any action depending in any of sucb Courts, where special Magis- tbe debt or damage claimed shall exceed Twenty Pounds, it Emission for shall be made to appear to tbe satisfaction of tbe Special examination of Magistrate, upon tbe application of any of tbe parties to sucb th^Pro^ince! or action, that any material witness is resident out of the said who may reside Province, or more than one hundred miles from tbe place hundiSfmiies where tbe Court for tbe trial of sucb cause is situated, sucb ^SeCcause to Special Magistrate may order a commission to issue under tbe be tried.seal of the said Court for tbe examination of sucb witness on oatb, by interrogatories or otherwise, and may, by tbe same or any subsequent order, or orders, give all sucb directions touching the time, place, and manner of sucb examination, and all other matters and circumstances connected with such examinations as may appear reasonable and just.

5. The order or commission mentioned in tbe two lastpre- order or com- ceding sections may be made or issued at any time eitherbefore or after appearance has been entered. time before or

after appearance.6. When any order shall be made for the examination of compelling at-

witnesses within the said Province, tbe Special Magistrate may, tendance of wit- in and by tbe first order to be made in tbe matter, or any sub- ductionoi^docu- sequent order, command the attendance of any person, to be ments- named in sucb order, for tbe purpose of being examined, or of producing any writings or other documents, to be mentionedin sucb order, and may direct tbe attendance of sucb person to be at bis own place of abode, or elsewhere, if necessary or convenient so to do ; wbicb order shall be served personally upon tbe person so required to attend, together with an appointment of tbe time and place of attendance, in obedience thereto, signed by tbe person or persons appointed to take tbe examination, or by one or more of sucb persons; and if tbe person named in sucb order shall, after being so served as aforesaid, neglect or fail to attend at the time and place mentioned, or to produce tbe writings, or other documents therein mentioned, and shall not give a good and sufficient excuse for bis non-attendance, or tbe non-production of sucb writings or other documents, to be allowed by tbe person or persons so appointed to take tbe examination as aforesaid, he shall forfeit and pay a sum not exceeding One Hundred Pounds,


to be recovered by tbe party aggrieved by action in any Court of competent jurisdiction: Provided always, that every person whose attendance shall be so required, shall be entitled to the like conduct money and payment for expenses and loss of time, as upon attendance at a trial: Provided also, that no person shall be compelled to produce, under any such order, any writing or other document that he could not be compelled to produce at a trial of the cause.

Special Magistrate may issue order to bring up prisoner for examination.

7. The powers and authorities contained in the 201st section of the “ Local Courts Act, 1861,” shall apply to any prisoner required to be examined under any order or commission issued under the authority of this Act; and any Special Magistrate is hereby authorized to issue an order as in such section mentioned, in the same manner as if such prisoner were required as a witness on the trial of any cause before the Court; and any Sheriff, Gaoler, or other officer, having the custody of any prisoner, is hereby required to obey such order in the same manner as if the same were issued under the authority contained in the said 201st section.

Examination of 8. Every person authorized to take the examination of takenupon°oath. witnesses by any order or commission made and issued in

£ * pursuance of this Act, may, and he or they are hereby authorized and required to, take all such examinations upon the oath, or affirmation of the witnesses, to be administered by the person so authorized; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury.

Persons ap- 9. The Special Magistrate, if he shall take the examination?ointeaminations himself, or the Clerk of the Court, or any other person to be may report to named in any such order or commission as aforesaid for thl conductor31 taking any examination in pursuance thereof, may, and he and absence of they are hereby required to make, if need be, a special report witnesses. the Court, touching such examination, and the conduct

or absence of any witness or other person thereon or relating thereto ; and the Court may thereupon institute such proceedings, and make such order and orders upon such report as justice may require, and as may be instituted in any case of contempt of Court.

Examinations to 10. In all cases in which such order or commission shall evidence without issue(^ as hereby authorized, the examinations or deposi- pTOofof6 sign a- tions certified under the hand of the Special Magistrate, Clerk sione°/&°cmmiS’ the Court, or other person taking the same, shall, and may,

’ without proof of the signature of such certificate, be receivedand read in evidence, saving all just exceptions.

The lastly mentioned sections need no comment.


11. Tlie costs of every order to be made for tbe examina- Costs, tion of witnesses under any commission or otherwise by virtue of this Act, and of the proceedings thereupon, shall,for all business transacted within the said Province, be allowed as between party and party, according to the lower scale of costs in the Superior Courts of Common Law at Westminster; and as to business transacted out of the said Province fair and reasonable costs shall be allowed, according to the amounts actually and bond fide paid and expended in and about transacting such business ; and all such costs shall be costs in the cause, unless otherwise directed by the Special Magistrate making the order for the examination, or by the Court, on the trial of the cause.

This section, it will be observed, gives additional costs to those allowed by tbe Act of 1861, wbicb does not provide for tbe cases comprised in tbis Act.

12. In all cases not otherwise herein provided for, the Practice to be practice as to applying for an order for the examination of pr^i^Com?" witnesses, or for a commission, and the proceedings to be thereupon had, shall, as far as possible, be the same as the practice in the Supreme Court in like cases.

It is presumed that tbe form of commission, as well as tbe proceedings thereunder, would be tbe same (mutatis mutandis) as those in tbe Supreme Court.

13. When any judgment shall be removed into the Su- Costs of remo- preme Court by certiorari under the 54th section of theLocal Courts Act of 1861, the costs of removing such judg- Court, ment shall be recoverable by the party removing the said judgment from the opposite party in the same manner as the costs of a writ of execution from the Supreme Court are now recoverable.

This section is not very clear. How can tbe costs of removing a judgment be recoverable in tbe same manner as tbe costs of a writ of execution ? It is presumed that the meaning is that tbe costs of tbe certiorari (to be taxed, it is presumed, by tbe Master of tbe Supreme Court) shall be added to tbe amount of tbe judgment debt and costs in tbe Court below, and that execution may be issued for tbe total amount, as well as for tbe usual costs of a writ of execution.

14. All claims mentioned or referred to in the 144th sec- Claims to goods tion of the said Local Courts Act of 1861, to or in respect of ^maySSe any goods or chattels taken in execution, may be made by by telegram, telegram, and the delivery of the telegram to the Bailiff shallbe held equivalent to the delivery of the signed copy thereof lodged in the telegraph office.

' Some difficulty might arise in tbe proof of delivery undertbe provisions of tbis clause, inasmuch as tbe messengers of tbe telegraph offices are unacquainted with tbe contents of the letters they deliver containing the' messages.I


BaSiff^of comi- 15. ^ deposits referred to in the 145th section of the try Local Courts said Local Courts Act of 1861 to the Bailiff of any Local Seycierk of the Court out of Adelaide, may he made to the Clerk of the Adelaide Local Adelaide Local Court, and the Clerk of the Adelaide Local Court. ■ Qourfc shall, if required, forthwith sign a telegram or certifi

cate to the said Bailiff that such deposit has been made.This refers to deposits made under the interpleader clauses of the Act No. 15 of 1861.


LOCAL COTJET AMENDMENT ACT, 28&29 YICT. A.D. 1865.

Ho. 6.An Act to confirm the Appointment and Jurisdiction of

Special Magistrates in certain cases, and for other purposes, [Assented to 4th. August, 1865.]

Wheeeas by an Ordinance of the Governor of South Preamble. Australia, with the advice and consent of the Legislative Council thereof, being No. 5 of 1850, it was enacted that it No. 5ofi850, should be lawful for Her Majesty, or for the Governor, in the sec‘ 3' name and on behalf of Her Majesty, from time to time, by commission under the Public Seal of the Province, to nominate and appoint, during Her Majesty’s pleasure, such and so many Justices of the Peace as may be deemed fit and proper to be Special Magistrates, with reasonable and sufficient salaries, or without salary, to exercise the powers conferred on them by the now reciting Ordinance, and to execute such other duties as may be assigned to them respectively : And whereas by another Ordinance of the said Governor and Legislative Council, being No. 6 of 1850, any one of the Special Magis- N 6of 1850 trates appointed or to be appointed, under the provisions of sec. 49. ?the last-mentioned Ordinance, were empowered to do alone whatsoever was authorized by the now reciting Ordinance, or by any statute or law then, or thereafter to be in force within the Province, to be done by one or more Justice or Justices of the Peace: And whereas by an Act of the Governor, with the advice and consent of the Legislative Council and House of Assembly of the said Province, being the “Local Court Act, 1861,” the first-recited Ordinance was ^-0i 15 0f 1861. repealed: And whereas since the passing of the last-mentioned Act, divers Justices of the Peace have been appointed necitai of doubts Special Magistrates, who, from time to time, have exercised ^entoYspedai- jurisdiction in all matters conferred upon Special Magistrates, Magistrates in under and by virtue of the said recited Ordinance, No. 6 of certajn cases- 1850, and doubts are entertained respecting the power of . such before-mentioned Justices to exercise such jurisdiction : JfjmS(bctionbof And whereas Special Magistrates have, from time to time, special Magis- been used to exercise singly the jurisdiction, authority, and cases, powers, by which by divers Statutes and Ordinances, are required to be exercised jointly by two or more Justices of the Peace, and the validity of the exercise of such jurisdiction has lately been questioned—Be it therefore Enacted by the Governor-in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House


Commission of Special Magistrate confirmed.

Jurisdiction of Special Magistrate confirmed in certain cases.

Convictions, orders, &c., by Special Magistrate confirmed.

Except in certain eases. ‘

Local Courts established under No. 15 of 18G1 to be Courts of Appeal from summary convictions and orders.

of Assembly of tbe said Province, in this present Parliament assembled, as follows :

1. Every commission, now or hereafter to be issued, by which any Justice of the Peace is or shall be appointed a Special Magistrate, shall be valid and effectual for all purposes whatsoever, and shall be taken and construed to give to the person therein named, all the jurisdiction, powers, and authorities conferred on Special Magistrates by said recited Act No. 6 of 1850, during the period such commission shall remain in force and unrevoked.

, 2. Every Justice of the Peace who is or shall be appointed a Special Magistrate, so long as his Commission remains in force and unrevoked, shall have jurisdiction, power, and authority, to do alone whatsoever any one, two, or more Justices of the Peace may lawfully exercise within this Province in a summary manner, under or by virtue of any Act of the Imperial Parliament in force in the said Province, or under or by virtue of any Act or Ordinance of the Legislature of South Australia.

3. All convictions, orders, warrants, or condemnations already made by any Special Magistrate, shall be deemed to be valid and effectual, as if the same had been made after the passing of this Act; nevertheless this provision shall not be taken to revive any conviction, order, warrant, or condemnation which before the passing hereof has been cancelled, quashed, or set aside by lawful authority, or concerning which proceedings have commenced, or are now pending before the Supreme Court, or has been set aside by consent of parties, for defect in the power of the Special Magistrate to make the same.

4. The several Local Courts, established by virtue of the “ Local Court Act, 1861,” are hereby declared to be Courts of Appeal from summary convictions or orders made by a Justice or Justices of the Peace, in like manner as if such Local Courts had been mentioned in the said recited Act No. 6 of 1850, in lieu and instead of Local Courts established by virtue of the said recited Ordinance, No. 5 of 1850.

This Act was passed to remove doubts as to the validity of the appointment of Special Magistrates. The Act No. 5 of 1850, requires that Special Magistrates should be appointed by a Commission, but no commissions were ever issued, and the Special Magistrates were, therefore, irregularly appointed.Section 4 of the Act is a useful enactment, as it declares the jurisdiction of Local Courts in cases of appeal, and removes doubts as to the jurisdiction given by No. 6 of 1850 to Local Courts in such cases, by the abolition of those

. Courts, and their re-constitution by the Act No, 15 of 1861,

LOCAL COUETS ACTS. 133-

LOCAL COUBT AMENDMENT ACT, 28 & 29 YICT. A,D. 1865,

Ho. 14,An Act to protect Special Magistrates and Justices of the

Peace, and persons acting under them, from actions in consequence of the exercise by them of the poivers conferred upon Local Courts by the 44 Local Court Act,1861,” Part rin.

[Assented to, 4th. August, 1865.]Whereas the 44 Local Court Act, 1861,” Part yin., in-Preamble, tended to confer certain powers upon the Local Courts therein mentioned, and whereas questions have been raised as to the validity of Part viii. of the said Act: And whereas it is expedient to protect all Special Magistrates and Justices of the Peace, and all persons acting under their authority, or under the authority of any Local Court, from all actions, suits, or other proceedings that may have been, and but for this Act might hereafter be commenced against them, for any act, matter, or thing done, or authorized to be done, by such Special Magistrates, Justices of the Peace, or Local Courts in the exercise of the said supposed powers—Be it therefore Enacted by the GovernOr-in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

1. This Act may be cited for all purposes as 46 The Short Title. Protection to Justices Act, 1865.”

2. No action, suit, or other proceeding shall be commenced or prosecuted against any Special Magistrate or Justice of the Peace of the said Province, or any person or persons acting under them, or by virtue of any warrant of commitment or otherwise, issued by them or any of them, or by any Local Court, for any act, matter, or thing heretofore done or authorized to be done by any such Special Magistrate, Justice of the Peace, or Local Court, in the exercise of the powers conferred upon Local Courts and Justices of the Peace, by Part viii. of the 44 Local Court Act, 1861,” by reason only that such powers have not been legally conferred.

No action to be brought against Special Magistrates, &c., for anything done in exercise of powers conferred by Part VIII. of the LocahCourt Act,. 1861.

3. If any such action shall have been commenced before if any such ac- the passing of this Act, the same shall, on the application of Sought,^ame to the defendant by summons to a Judge of the Supreme Court be discontinued, at Chambers, be ordered to be discontinued without costs.

134 LOCAL COIJETS ACTS.

General issue may be pleaded, and Act given in evidence. Defendant to be entitled to costs as between attorney and client.

4. In any such, action which, has been commenced, or which may hereafter he commenced, the defendant may plead the general issue, and give this Act and the special matter in evidence; and if on the trial no cause of action shall he proved other than the exercise by the defendant of any of the powers aforesaid, the plaintiff shall he nonsuited, or a verdict shall he entered for the defendant, in either of which events the defendant shall be entitled to his costs as between attorney and client.


LOCAL COUKT AMENDMENT ACT, 33 & 34 YICT, A.D. 1870.

No. 12.An Act to further amend the “ Local Court Act, 1861

[Assented to, 12th October, 1870.]Whereas the provisions of the “ Local Court Act, 1861,” Preamble, relating to the holding of Local Courts, and the establishment of the same, and the organization thereof, have been found cumbrous and expensive, and it is expedient to amend the same—Be it therefore Enacted by the Governor of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

1. In addition to the powers given to the Governor by the Governor may “ Local Courts Act, 1861,” it shall be lawful for the Governor, court^withfn1 from time to time, by Proclamation in the South Australian Districts to be Government Gazette, to constitute and establish Local Courts defined'to be held within certain parts or districts of the said Province, to be in such Proclamation mentioned, for the trial of causes cognizable by Local Courts of full and limited juris* diction, and to fix the places at which the office of any Local Court shall be situate, and the times and days during which such office shall be opened; and also by Proclamation to appoint a Jury District, from which jurors for the trial of any causes cognizable by the Court, by or before which the cause shall be triable, shall be summoned, and in such Proclamation to appoint the time and place when and where the Jury Lists shall be revised.

The Bill for this Act (No. 12 of 1870) was prepared by the author of the present work, by instructions from the Government, and was intended to obviate the necessity oi .. keeping* offices open for the transaction of business where the business was small, but it was very much altered in Parliament. It will be seen that the power is given to the Government to proclaim Local Courts, and “ to fix the

. places at which the office of any Local Court shall be situate, &c., and to appoint a Jury District,” &c. [See the Jury Act, No. 1 of 1862, and see sec. 7 of this Act.]

2. In every such district there shall be an office of the offices of Local Local Courts appointed to be held within the district, which atTuc^times1^ office shall be open for the dispatch of business on such days Governor shall and times as the Governor shall appoint by notice in the app0Ult*South Australian Government Gazette, and at which officeall plaints, appearances, and pleas shall be entered, and all


ftomesueh office summonses and other process shall he issued relating to in respect of actions arising and triable within the district at any of the theiSstricfc1111 Local Courts established therein, and at which office all

* moneys shall he received and paid in and out of Court inrespect of all actions commenced at any Local Court within the district, and where the Record Book shall be kept, and from which office all warrants of execution shall issue.

3. It shall be lawful for the Governor, by notice in the South Australian Government Gazette, to appoint one or more than one Clerk, and one or more than one Bailiff, to discharge the respective duties of such officers, within the particular district for which he or they shall respectively be appointed.

CatLSG to be tried 4. At the time of entering a plaint in any Local Court, the the district ofm plaintiff shall give notice to the Clerk of the Court within the tiff^haii gfvem" district at which he is desirous that the cause shall be tried; notice. and in the event of the defendant entering an appearance or

defence to the action, the cause shall be tried at such Court and notice of trial given accordingly.

This enactment would not override the provisions of the 97th sec. of the Act No. 15 of 1861.

Summonses may 5. It shall not be necessary for a Bailiff of the Court to plaintiff^r by serve any summons, but the same may be served by the plaintiff Per^n employed or Ly any person appointed or employed by him for the pur-

y xXn’ pose ; and the plaintiff or the person so appointed or employed shall, forthwith after service of any summons, endorse on the duplicate summons the day of the month and year of such service, and shall, within four days of the service, swear an affidavit of such service, and shall as soon after such service as practicable file the said duplicate summons, together with the affidavit of service of such summons, with the Clerk of the Court whence such summons shall have issued.

Forms in Scbe- 6. It shall not be necessary that the several forms contained CourtAct,Ci86i, m the Schedules to the “ Local Court Acts, 1861,” shall be may be altered, strictly adhered to ; but the same may from time to time be

altered or amended by a Magistrate or Clerk of any Local Court to meet the exigency of the. case, and for the purpose of rendering them conformable to the requirements of this Act.

Jury lists. 7. There shall be one juror’s roll prepared for each suchdistrict, and the jurors named in such roll, or a sufficient number thereof, shall be summoned on all causes triable within such district.

actions to bert8 Lvery acrion shall be commenced in the Court havingcommenced. jurisdiction to the amount claimed nearest in a direct line to

Governor to appoint Clerks and Bailiffs.

LOCAL COUETS ACTS. 13T

the place where the defendant or one of the defendants shall dwell or carry on business at the time of the action brought, or where the cause of action arose, or, in the case of replevin,, in the Court nearest in a direct line to the place where the distress was taken, or if the plaintiff dwells more than twenty miles from where the defendant dwells, or where the cause . of action did not arise wholly or in some material point within the like distance of the Court nearest to which the defendant dwells or carries on business at the time of the action brought, the action may be commenced in the Adelaide Local Court, but no defendant shall be allowed to object that the action has not been commenced in the proper Court unless he shall file a memorandum of such objection, setting out the grounds thereof at the time of entering his appearance : Provided always that if, in the opinion of the Court in which the action was commenced, the plaintiff might, at the time the action was commenced, have had any reasonable ground for supposing that such Court was the Court having jurisdiction in the cause, such Court may proceed to hear and determine such cause, and shall have jurisdiction therein.

9. If the plaintiff in any action shall not at the time of Security for entering his plaint be within the said Province, or if he shall * before judgment is signed leave the said Province, a Special Magistrate may order such plaintiff to give security for thecosts, to such amount and in such manner as such Special Magistrate may order, and may stay all proceedings in the action until such security be given,

10. The Bailiff of any Court, or any person having served Affidavit of ser- any process under the “ Local Court Act, 1861,” may swear mSionerf C°m' the affidavit of such service before a Commissioner appointedto take affidavits in the Supreme Court, or before any Justice of the Peace.

11. The service of any notice required in the trial in any Affidavit of ser- action in a Local Court may be proved by affidavit, and such 7106 eyidence* affidavit shall be received in evidence on the trial of anyaction in a Local Court.

, This clause does away with the necessity of .subpoenaing awitness to appear at the trial to prove the service of a notice.

12. The contents of any document in the custody of the certain certified Clerk of any Local Court may be proved in any Court by a copies eyiden°e. certified copy of the same, under the hand of the Special Magistrate or Clerk of such Local Court and the seal of suchLocal Court.

13. Except as herein provided, and except so far as the J°jal1^°1u^d same relates to the place at which the offices of Local Courts Local Courts


Amendment Act, shall be situate, and the time during which such offices shall rated with'this he opened, the “Local Court Act, 1861,” and all the pro- Act< visions and enactments thereof shall continue and be in force,

and the last-mentioned Act (except as aforesaid) and the “Local Courts Amendment Act, 1863,:” shall (except in so far as the same are inconsistent with this Act) be incorporated and read herewith as one Act.

short title of 14. This Act may he cited as the “Local Courts Amend- Act‘ ment Act, 1870.”


RULES OF COURT.

The following are the Rules of Local Courts, as published in the South Australian Government Gazette on the 1st May, 1862 :—

Local Court House, Adelaide, April 16, 1862.In pursuance of Act Ho. 15 of 1861, intituled “An Act to amend the laws relating

to the jurisdiction of Local Courts,” we, the undersigned Special Magistrates, appointed by a Commission issued by the Governor, under the Public Seal of the Province, have framed the following General Rules and Orders for regulating the practice and proceedings of the Courts to he holden under the said Act, as well in civil as in criminal (a) matters, and for executing the process of the said Courts, and generally for carrying the same into effect.

J. W. MACDONALD, S.M.GEO. F. DASHWOOD, S.M.SAM. REDDOME, S.M.

RULES FOR LOCAL COURTS ACT, 1861.Offices.

1. All process of the Local Courts shall be issued and filed at the offices of the Courts respectively, and all such offices shall he open to the public from ten o’clock in the forenoon until two o’clock in the afternoon, and until four o’clock for office business in the afternoon, except on Saturdays when the offices shall be closed at noon.

Infant.2. Where an infant applies to enter a plaint for any cause of action (other than for wages or piece

work, or for work as a servant (b) he shall procure the attendance of a next friend at the office of the Clerk at the time of entering the plaint, and no plaint shall be entered until the next friend has undertaken to be responsible for costs, who, on entering into such undertaking, shall be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit, and the cause shall proceed in the narrle of the infant by such next friend, and the undertaking shall be filed by the Clerk, but no order of the Court shall be necessary for the appointment of such next friend. If the plaintiff fail in, or discontinue his suit, and do not pay the amount of costs awarded by tho Court to be paid by him to the defendant, proceedings may be taken for the recovery of such amount from the next friend as for the recovery of any debt ordered to be paid by the Court.

3. Where an infant defendant appears at the hearing, and names a person willing to act as guardian, and who then assents so to act, such person shall be appointed guardian accordingly ; but if the defendant do not name a guardian, the Special Magistrate may appoint a person in Court willing to become guardian ; or in default of such person, the Special Magistrate shall appoint the Clerk of Court to be guardian; and the cause shall proceed thereupon as if another person had been appointed guardian, and no responsibility shall attach to the person so appointed guardian at the instance of the Court. (<?)

Special Magistrate.4. It shall be discretionary with the Special Magistrate of any Local Court to allow persons to sue

or defend in forma pauperis, in cases where, from extreme poverty, he may consider that justice would be otherwise defeated; but persons wishing to avail themselves of this privilege must apply for that purpose to the Special Magistrate, who shall examine the parties upon oath or otherwise, and he may, if satisfied that the case merits such consideration, direct an order to be made and filed, and the necessary process to issue without payment of the regulated fees of Court.

5. All affidavits shall be taken in Court, or before one of the Special Magistrates, or any Justiceof the Peace for the Province; and all summonses may be issued, and all rules, orders, and other matters and things (except the trial of causes and such things as are required to be done in Court, or by a Special Magistrate or a Justice of the Peace, by these Rules or the Act under which they are made), may be made or done by or before the Clerk of the respective Courts. .

Clerk.6. Whenever any process is sent by the Clerk of a Local Court to another Court for service, on

which the amount charged for mileage is ineorrect, the Clerk of the Court to whom such process is sent, shall make the necessary addition or alteration in the mileage: Provided that no such additional mileage shall exceed the sum of Ten Shillings, and in no case shall the first mile be included in the amount chargeable, (d) .

7. The fee for receiving and paying out of Court shall be charged only once for each case, and shall include both entries, whether paid by instalments or otherwise.

140 LOCAL COUETS ACTS-

. Bailiff.8. The Bailiff of the Local Court, or one of his assistants shall attend at and during the sittings of

the Court.9. The Bailiff of any Court who shall receive any money by virtue of any warrant of execution or

other process issued out of any other Local Court, shall forthwith pay over the same to the Clerk of his Court, who shall immediately forward the same by post to the Clerk of the Court from which such warrant of execution or other process issued.

Service of Summons. (/)10. The person who serves a summons shall return the duplicate to the Court from which such

summons was issued, and such duplicate shall be filed by the Clerk of the Court. .11. Where a defendant is living or serving on board any ship or vessel, it shall be sufficient service

to deliver the summons to the person on board who is, at the time of such service, apparently in charge of such ship ol’ vessel.

12. Where a defendant is a prisoner in a gaol, it shall be sufficient service to deliver the summons at the gaol to the governor or keeper, or the person appearing to be the head officer in charge thereof.

13. Where a defendant is working in any mine or other works under ground, it shall be sufficient service to deliver the summons, at the mine or works, to the engine-man, banks-man, or other person apparently in charge of the mine or works.

14. Where the defendant is employed and dwells in any lunatic or other public asylum, or in any public hospital, it shall be sufficient to deliver the summons to the person appearing to be the head officer in charge thereof.

15. Where a defendant keeps his house, or place of dwelling, or place of business, closed in order to prevent a Bailiff from serving the summons, it shall be sufficient service to affix such summons on the door of such house, or place of dwelling, or place of business.

16. Where a Bailiff is prevented, by violence or threats of the defendant, or of any other person or persons in concert with him, from personally serving such summons, it shall be sufficient service to leave such summons as near to the defendant as practicable.

17. The rules as to the mode, but not those as to the time, of service of summonses to appear to a plaint, shall apply to the mode of service of all summonses whatsoever, except where otherwise directed by statute (<7; or by these Buies.

18. When any summons has not been served, a Special Magistrate may, in his discretion, in order to save the Statute of Limitations, direct another summons, or successive summonses, to be issued, bearing the same number as the first summ’ons.

19. In estimating the period allowed for a defendant to appear to a summons under section 86 of this Act, the following scale shall be adopted :—

Distance.. PersonalService

Non-personalService.

Not exceeding 20 miles ..., Over 20 and not exceeding

“ 50 “* 50 miles................................................... ........

100 “ ____________ _____ ___________

6 days8 “

10 “

8 days10 “12 “

“ 100 <( 150 12 “ 14 ““ 150 (C 200 U 14 “ 16 ““ 200 (( 250 u 16 “ 18 ““ 250 (( 300 (( 18 “ 20 ““ 300 a 350 (( 20 “ 22 ““ 350 « 400 (( 22 “ 24 ““ 400 a 450 (( 24 “ 26 ““ 450 (( 500 {( 26 “ 23 “

And so on in like manner, an additional two days for every additional fifty miles, (h).20. All interlocutory summonses, orders, notices, and other process issuing under the authority of

this Act shall be served not less than two days (i) before the day on which such summons, notice, order, or other process is made returnable; and service upon the attorney of the opposite party in any interlocutory proceeding shall be deemed good service.

21. No summons, notice, order, or other process shall be served on a Sunday, Christmas Day, or Good Triday; but such days shall be counted in the computation of time required by these Buies or the Act under which they are made, unless any of such days shall be the last day of such time, in which case it shall be excluded from such computation.

Security.22. No Clerk, Bailiff, or other officer of the Court shall become surety in any case where by the

practice of the Court security is required.23. In all cases where a party proposes to give a bond by way of security (except when security is

required under the 197th section of this Act) he shall serve, by post or otherwise, on the opposite party and the clerk at his office notice of the proposed sureties, and shall state in the notice to the obligee, that if he should have any valid objection to make to the sureties, or either of them, it must then be made.

24. The sureties shall make an affidavit of their sufficiency, unless the opposite party shalldispense with the affidavit. .


25. The bond shall he executed in the presence of the Special Magistrate, or Clerk of Court, or before a Justice of the Peace. '

26. Where a party makes a deposit of money in lieu of giving a bond, he shall forthwith give notice to the opposite party, by post or otherwise, of such deposit having been made.

27. In all cases where the security is by bond, the bond shall be deposited with the Clerk of the Court until the cause be finally disposed of.

Costs.28. All costs shall be taxed by the Clerk of the Court.*29. The costs of witnesses, whether they have been examined or not, may be allowed if they have

been summoned, but in no case shall their allowance exceed the highest scale of the allowances mentioned in the scale in these rules.

30. Scale of costs to be allowed to witnesses, on taxation of costs :—Laborers ....................................................................... 5s. per diemWomen, and children under fifteen years of age ... 3s. “Persons above the laboring class.............................. 7s. “Travelling expenses per mile, one way ............. 6d.

31. A judgment for the plaintiff or defendant shall, in all cases, carry costs, unless the Court -shall otherwise order.*

Execution.32. Costs of warrants against the goods, whether executed or unexecuted, or unproductive, shall

be allowed againstthe defendant, unless the Special Magistrate shall otherwise direct.33. No possession fee shall be payable when an execution is paid out at the time of levy; but if

the officer shall necessarily remain in possession more than an hour, and the execution shall be paid out on the day of levy, the possession fee for that day shall be charged.

34. No appraisement is to be made until the fifth day of the Bailiff’s holding possession of the goods under an execution, unless when the goods are of a perishable nature, or are sold at the request of the party before the expiration of fourt days, or unless the goods are removed.

35. Warrants of execution against the goods shall bear date on the day on which they are issued, and shall continue in force for twelve calendar months from such date and no longer.

36. The costs of more than one warrant of execution shall not be allowed against the execution debtor, unless by order of the Special Magistrate, (j)

37. Execution on a judgment is not to issue by or against any person not a party to such suitwithout a plaint and summons upon the judgment—the proceedings in which shall be the same as in ordinary cases. '

Unsatisfied Judgment.38. Any party in whose favor any judgment has been given or order has been made, may, by leave

of the Special Magistrate, obtain from the Court by which such judgment was given or order made, or may obtain from the Court nearest to che dwelling of the party defendant, a summons on unsatisfied judgment, either before or after issuing execution, (k) .

39. Every summons on unsatisfied judgment shall be served not less than four clear days before the day on which the party is required to appear to such summons: Provided always, that service of such summons at any time before the day appointed for the appearance of such party may be deemed by the Court to be good service, if it shall be proved to its satisfaction that such party was about to remove out of the jurisdiction of the Court. (1)

Commitment.40. Costs of warrant of commitment, whether executed or unexecuted, shall be allowed against

the defendant, unless the Special Magistrate shall otherwise direct.41. When the Court to which a defendant has been summoned to appear to a plaint is not the

nearest Court to which he dwells or carries on business, he shall not be liable at the hearing of such summons to be committed under section 139 of this Act, whether he appears to such summons or not. (m) ■

- 42. In cases of commitment under sections 137 or 139 of this Act, the amount of the judgment and all costs payable by the defendant shall be endorsed on the warrant.

43. When a warrant of commitment for non-payment of money is issued, or in case of commitment under sections 137 or 139 of this Act, the defendant may, at any time before his body is delivered into the custody of the gaoler, pay to the Bailiff the total amount endorsed on the warrant; and, on receiving such amount, the Bailiff shall discharge the defendant, and shall, within twenty- four hours after receiving such amount, pay over the same to the Clerk of the Court.

44. In all cases of commitment for non-payment of money on production of a certificate, signed by the Clerk, stating that payment or satisfaction of the same, or of the instalment thereof," and costs remaining due at the time of making the order for commitment, together with all subsequent costs has been made, the defendant shall be discharged out of custody without further leave of the Court or Special Magistrate, (n).

* See section 205 of the Act, 1861, which provides otherwise. Tins Buie is ultra vires, and void.* This is provided for in section 202 of the Aet, 1861.* See clause 133 of the Act which provides that no sale of goods taken in execution “ shall take place until after

Khn ovrn'rht.inn of 'fvnp. rlflVfi at Ip.asd. imlpsa thfiv arp nf n iwrishalYIp nafivrA m* imnn roAnoet __


45. The costs of more than one •warrant of commitment shall not he allowed against the sameparty, unless by order of the Special Magistrate. ‘

Hearing.46. It shall be sufficient if a summons to a witness be served a reasonable time before the actual

hearing.47. The parties to any cause, at any time before the cause is called on, may, by consent, postpone

the hearing to any subsequent Court.48. "Where a cause is adjourned, no order of adjournment shall be served on either party, unless

by direction of the Special Magistrate.49. When anything required by the practice of the Court to be done by either party, before or

during the hearing, has not been done, the Special Magistrate may, in his discretion, and on such terms as he shall think fit, adjourn the hearing to enable the party to comply with the practice, (o)

50. Where any defendant or defendants shall have been summoned to appear to any plaint in any .Local Court constituted under this Act, other than the nearest to his or their place of residence or business, such Court being the nearest to the place in which the. cause of action arose, and the plaintiff shall fail to substantiate his claim, the Court may, in its discretion (except in cases provided for by section 97 of this Act (p), make such order for the payment of any sum or sums of money to the defendant or defendants, by way of remuneration for loss of time and travelling expenses, as it may deem reasonable, (q)

. Appeal.51. The twelve days within which notice of appeal may be given shall be reckoned exclusive of

the day of trial.52. The notice of appeal shall state the grounds on which the party appeals, and shall be sent to

the successful party, as well as to the Clerk of the Court, by post or otherwise.53. If, before the notice of appeal is served upon the Clerk, execution shall have issued, and the

amount of the judgment and costs of the execution shall have been paid into the hands of the Bailiff, or levied and not paid over to the successful party, the same shall remain in Court to abide the order of the Court.

54. If, before an appealing party shall have given the required security, execution shall have issued, the Clerk shall, upon the appealing party giving security, forthwith send notice thereof, by post or otherwise, to the Bailiff, and proceedings on such execution shall forthwith be stayed.

New Trial., 55. An application for a new trial, or to set aside proceedings, may be made and determined on the day of hearing, if both parties be present; or such application may be made by summons before the Special Magistrate, at any time within fourteen clear days from such day of hearing, provided the intended applicant deliver to the Clerk of the Court at his office, and also give to the opposite party, by serving the same personally, or by leaving the same at his place of abode, or place of business, a notice in writing, signed by himself, his attorney, or agent, stating that such an application is intended to be made, and setting forth shortly the grounds of such intended application; but such notice shall not operate as a stay of proceedings, unless the Special Magistrate shall otherwise order, (r)

56. Where any money is paid into Court under any execution or order of the Court — if the Clerk receive a notice in writing from any party of his intention to apply to the Court or Special Magistrate to set aside the execution or order under which such money is paid into Court, the Clei'k shall retain the same until after such application has been determined, or until the Court or Special Magistrate shall otherwise order.

Interpleader.57. Interpleader summonses shall be issued by the Clerk on the application of the Bailiff without

leave of the Court. (s).58. Interpleader summonses shall be issued from the Court nearest to which the levy was made,

and the execution creditor and claimant shall be summoned to such Court. (£).59. When the claim to any goods and chattels taken in execution, or the proceeds or value thereof}

shall be decided against the claimant, the costs of the Bailiff allowed by the Special Magistrate shall be retained by him out of the amount levied, if the Special Magistrate shall so order, but without prejudice to the right of the execution creditor for the sum so retained. (u).

. Replevin.60. In actions of replevin, no other cause of action shall be joined in the summons.61. On entering a plaint in replevin the plaintiff must specify and describe, in a statement of

particulars, the cattle or the several goods and chattels taken under the distress, and of the taking of which he complains, {v).

62. All actions of replevin, in cases of distress for rent in arrear, or for damage feasant, shall be tried in a summary way as other actions in the Courts holden under the authority of this Act. (to).

63. When the distress is for rent, and the defendant succeeds in the action, if the defendant require, the Court shall, if the cause be tried without a jury, and the jury shall, if the cause be tried with a jury, find the value of the goods distrained; and if the value be less than the amount of rent in arrear, judgment shall be given for the amount of such value ; but if the amount of the rent in arrear be less than the value so found, judgment shall be given for the amount of such rent, and may be enforced in the same manner as any other judgment of the Court.

64. Where the distress is for damages feasant, and the defendant is entitled to judgment for a return, if the plaintiff require, the Court shall, if the cause be tried without a jury—and the juiy shall,


if the cause he tried with a, jury—find the amount of damage sustained by the defendant, and judgment shall then be given in favor of the defendant in the alternative for a return, or for the amount of damage so found.*

Detinue.65. The judgment in detinue, if for the plaintiff, shall be for the value of the goods detained

together with a sum to be stated in the judgment by way of damages for the detention and costs; but it may be made part of the order, that on payment of damages for the detention and costs, and return of the goods on or before a day to be named, satisfaction shall be entered.

Orders, Notices, &c.66. Orders for payment of money or costs, or both, and orders of adjournment, when directed to

be served, shall in all cases be prepared by the Clerk of the Court; who shall send them, by post or otherwise, to the parties on whom they are respectively directed to be served: Provided always, that it shall not be necessary for the party in whose favor any order has been made to prove, previously to his taking proceedings thereon, that it was posted, or reached the opposite party, (a?)

67. Where the Court gives leave to take any proceeding, it shall not be necessary to draw up any order to warrant such proceeding.

68. In all cases where any notice or thing is required by these Rules to be given or done within a period of twenty-four hours, no part of Sunday, Christmas Day, or Good Friday, or any day appointed for a public fast or thanksgiving, or any day which shall be gazetted as a public holiday, shall be included in the computation of such period, (y)

69. All letters or process sent by post by the officers of the Courts shall be prepaid.- Arrest.

70. The Court, or a Special Magistrate, may, in any case where a defendant is about to leave theProvince, upon affidavit made by the plaintiff to that effect, issue a summons returnable immediately; and upon due proof of the service thereof, should no appearance be entered by the defendant within twenty-four hours after such service, then the said plaintiff shall be entitled to sign judgment and proceed to execution forthwith; and should an appearance be entered therein, the said plaintiff and defendant shall proceed to the trial of such case, at such time and on such terms as the Court or a Special Magistrate may deem fit: Provided, that no such immediate trial shall take place if the defendant shall give satisfactory proof to the Court that he was not about to depart out of the jurisdiction thereof, (z) .

' Interest. '71. Where any judgment shall be upon a debt payable with interest thereon, the said interest shall

be allowed up to the day of the date of the said judgment or decision of the Court, such interest {not being otherwise defined) to be calculated at the rate of £10 per centum per anuum.

1 Executors or Administrators.72. Where a judgment has been given for or against a person deceased, his executors or adminis

trators may in the same manner sue or be sued upon the judgment, (aa)Confession.

73. All confessions under section 93 of this Act shall be delivered to the Clerk of the Court at or within the time allowed for entering an appearance. Provided, that at any time before the cause is called on the defendant may confess and admit the claim; subject, however, to an order by the Special Magistrate to pay such costs as the plaintiff has incurred in consequence of the defendant not having delivered such confession as hereinbefore required, (bb)

General Matters.74. 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 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 Court or Special Magistrate, (cc)

75. In proceedings for which forms are not provided in the Schedule, the Clerks shall frame the forms required, using as guides those so provided, (dd)

76. No warrant against the goods, or summons, or unsatisfied judgment, shall, without leave of the Special Magistrate, issue on a judgment more than six years old, unless some payment has been made into Court under such judgment within twelve months previously; but no notice to the defendant previous to applying for such leave shall be necessary, and such leave shall be expressed on the warrant or summons under the seal of the Court, (ee)

. Interpretation.77. Whenever the singular number is used in these Rules in reference to persons or things, it shall

be understood—when necessary to give full effect to the Rule—to mean several persons or things, and vice versa; and every word importing the masculine gender shall, in like manner, when necessary, be understood to include the feminine gender.

%* Note—It has not been thought necessary to reprint the forms annexed to the above Rules, as forpis are provided at the several offices of the Local Courts. ,

* This Rule is not authorised by the Act, 1861, which gives the Court power to deliver such a judgment in certain cases, but not in cases of replevin. [See section 108 of Act of 1861, and notes; and see section 12, and notes.]


’ NOTES ON THE ABOVE RULES.(a) There is no Rule contained in the above applicable to criminal matters.(&) See Section 68 of the Act.(c) This Rule applies, of course, to actions for wrongs. An infant is not liable on actions of contract;

and if made a defendant in any such action, he may plead infancy — which is a good defence. [See clause 87 of the Act.]

(d) The allowance for mileage is regulated by the Act. [See Schedule I.](/) These Rules apply only to the service of ordinary summonses; a special summons must be served

personally. [See section 85 of the Act, under authority of which these Rules have been framed; and see the 17th Rule.]

(g) See clause 85 of the Act.(h) This Rule (19) it is submitted, is wholly void, as being ultra vires. The Act (clause 86) provides

for the time to be allowed to a defendant to appear, which is different, in every particular, to that allowed by this Rule. For instance — The first provision in the Rule is, as to the service of a summons “not exceeding twenty miles; and six days and eight days are respectively allowed to the defendant when personal or non-personal service has been effected: the Act provides that defendants shall be allowed this time if they reside within twenty miles; but if a defendant resides at a distance of twenty miles, and within fifty miles, he is entitled to eight days if personally served; and he is allowed two days extra time for every fifty miles beyond the first fifty miles—but he is allowed no time for any distance less than fifty miles. It will be

' seen that this Rule is totally at variance with the provisions of the Act.(i) This means one clear day — two days, including the day of service. .(J) There is no provision in the Act for more than one warrant of execution issuing—except in cases

of execution in ejectment; and the plaintiff is entitled to more than one warrant in these cases without any order from the Special Magistrate, and also to his costs. [See section 175 of the Act.] Perhaps, however, this Rule relates to cases where an execution has been returned “nulla bona” and a fresh warrant is issued on goods being discovered: if so, the plaintiff ought to be entitled to his costs.

(k) See clause 136 of the Act. It would appear, from the wording of this clause, that a plaintiff mayobtain a summons on an unsatisfied judgment, without leave of the Court, from a Court where the judgment was not given, but he must apply for leave to the Court where the judgment was given before he can issue such summons out of such Court ; otherwise the defendant must be summoned to the nearest Court to which he resides, or carries on business: whether such application can be made ex parte does not appear; but, at all events, the plaintiff must obtain an order from the Special Magistrate in whose Court the judgment is recorded before such summons can issue. Such has not been the usual practice, but the section referred to (136) clearly points out that such is the course to be pursued. Why this distinction should be made is not easily accounted for.

(l) This summons must be served personally. [See section 136 of the Act; and see, as to jurisdictionof Court, the notes on clause 97.]

(m) See the notes on clause 97.(n) This Rule appears somewhat inconsistent with the Act. [See sections 127 and 137.] If default is

made in payment of anyone instalment, execution may issue for the whole debt and costs. And section 135 provides that a defendant shall only be entitled to be discharged out of custody on payment of the amount mentioned in the warrant of commitment—which would be the whole debt and costs. [See the form of warrant of commitment, Schedule F to the Act.]

(o) This Rule is unnecessary, because a power to adjourn a cause, both before and at the hearing, isgiven to the Special Magistrate or the Court by Sub-division in. of clause 18 and by clause 110 of the Act: in the £ase of an application for adjournment at the hearing, the order must be made by the Court; that portion of the Rule, therefore, which gives this power to the Special Magistrate is inconsistent with the Act, and void. In cases of full jurisdiction, the Court— composed of three Magistrates—must make the order.

(p) The cases referred to are actions of replevin, and actions where the plaintiff and defendant residemore than twenty miles from each other.

.(q) This Rule, giving the Court powrer to grant remuneration to defendants in the case mentioned, is not warranted by the Act, and is ultra vires and void. The powers of the Court are confined to giving costs against the unsuccessful party, and are pointed out by section 202 of the Act; and the 30th Rule of the Court provides for the payment of witnesses. The 103rd section of the Act also provides for the payment of compensation to a defendant when a plaintiff does not appear at the trial. The Court could only make an order for payment to a defendant of his attendance and mileage as a witness. •

(r) Section 56 of the Act provides that new trials may also be granted by the Supreme Court. [Andsee section 18, Division vn.]

(s) This Rule is unnecessary, because section 144 of the Act provides for the issue of an interpleadersummons, as of course. .

;(t) This Rule would appear to be in contravention of the provisions of the Act. [See section 144.] The interpleader summons could only issue out of the Court from which the execution issued, and where all the proceedings were had; and such Court only could dispose of the claimant’s case, and of the officer’s application.

{u) This Rule, it is conceived, is contrary to the provisions of the Act. Section 144 provides for the mode of giving costs to the Bailiff in cases where the claimant does not succeed, and of award-


ing costs to tlie claimant where lie succeeds; and orovides that an order for costs “shall he enforced in like manner as any order made in any suit brought in” a Local Court; but, to allow the Bailiff, where he succeeds — that is, when the Court determines that the claimant has no right to the goods taken in execution — to pay himself his costs out of the proceeds of the defendant’s goods, to the whole of which the plaintiff is entitled, would be a manifest in-

■ j ustice to the defendant.. {v) See the notes to clause 147 of the Act.

(iv) This Buie appears to be quite unnecessary, as clause 13 of the Act provides that all causes and matters cognizable under the Act shall be heard and determined in a summary way: — what is meant by the term “ summary way ” may admit of doubt. The Buie, in fact, has no meaning, because the Act provides for proceedings in replevin; and, of course, an action of replevin must be brought in the ordinary way in which other actions are brought in Local Courts.

(a*) This is a curiously framed Buie: and it seems that it may be dispensed with altogether, as it first provides for the giving of certain notices, by post or otherwise, and then provides that the

• party upon whom the duty of giving the notices is imposed need not prove that he has doneso—thus leaving to the defendant the onus of proving a negative absolute.

(y) This Buie seems to be at variance not only with the Act of 1861, but with the 21st Buie.(z) This Buie is not warranted by the Act, and, there can be no doubt, is altogether void. [See Part

xiv. of the Act of 1861.] The injustice toward a defendant which might result from this Buie being enforced is apparent: he may be forced to appear before a Court or Magistrate at once, without having time to prepare his defence; and although, if he enter an appearance, the Court or Magistrate may postpone the trial on terms, yet twenty-four hours would in most cases be too short a period for a defendant in custody to obtain advice as to the proper defence to be set up. It will be observed that there is a provision in the Act (section 194) for the discharge of a defendant out of custody on making a deposit with the Bailiff of the debt and costs claimed, with the additional sum of £5.

(aa) See sections 77 and 78 of Act, 1861. It is very difficult to put a satisfactory construction upon this Buie. What is meant by it, it is presumed, is that an executor, or administrator can sue or be sued upon a judgment debt due to or from the deceased; if this is all that is intended by the Buie it is unnecessary and would be nugatory. But the words authorizing an executor or administrator to sue or be sued in the same manner upon the judgment seem to have no meaning. [See Williams on the Law of Executors and Administrators]. . . .

.This Buie is nugatory. Section 93 of the Act fully provides for the mode and .time in which a confession of a debt or demand may be made by a defendant; and so far as this Buie attempts to modify the Act, or to allow a Special Magistrate to make an order as to payment of costs, it is presumed the Buie is void.

(cc) See sections 81, 82, and 83 of the Act. This Buie appears, in some measure, to qualify the provisions of these sections of the Act; and it may be a question as to whether the llule is good.

(idd) For a special provision as to the subject matter of this Buie, see Act No. 12 of 1870, section 6. \ee) This Buie is not warranted by the Act, which provides fully for the manner in which executions

on judgments may issue. [See section 126, et seq\.

Adelaide: W. C. Cox, Government Printer, North-terrace.K

mono umelb the civil jurisdiction of the local courts of

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