County Court Rules, 1892. order was given, or made an affidavit by himself or his solicitor stating that judgment has been recovered, or the order made, and that it is still unsatisfied, and to what amount, and that any other person (herein-after called the garnishee) is indebted to such debtor, and is in respect of such debt within the jurisdiction of the Court, and could be sued therein with or without leave under section 74 of the Act, enter a plaint to obtain payment to him of the amount of the debt due to the said debtor from the garnishee, or so much thereof as may be sufficient to satisfy the said judgment or order, and thereupon a summons in the form in the Appendix calling upon the garnishee to shew cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor, or so much thereof as may be sufficient to satisfy the judgment or order, shall be issued by the Registrar to the high bailiff for service. 49. Where the garnishee is not in respect of such debt within the jurisdiction of the Court in which the judgment or order was obtained, the person who has obtained such judgment or order, upon lodging with the Registrar of the Court in the district of which the garnishee resides or carries on business a certificate of the judgment or order, and also an affidavit similar to that prescribed by the last preceding Rule, may enter a plaint against the garnishee in such last-mentioned Court, and thereupon a summons shall be issued and all proceedings shall be had and taken thereon as if the judgment or order had been obtained in such Court. 50. The summons shall be personally served on the garnishee, and when so served it shall bind in the hands of the garnishee all debts due, owing, or accruing from him to the debtor liable under the judgment or order. 51. Where the garnishee is a firm or is a company or other corporation the summons need not be served personally, but it may be served as provided by Order VII., with respect to the service of an ordinary summons. 52. Where the garnishee shall pay into Court five clear days before the return-day the amount due from him to the debtor liable under the judgment or order, or an amount equal to the judgment or order, he shall not be liable for any costs incurred by the person who obtained the judgment or order. 53. The Registrar shall forthwith give notice of the payment into Court to the person who has obtained the judgment or order, and if such person elects to accept the money so paid into Court by the garnishee, and shall send to the Registrar and to the garnishee by prepaid post or leave with the Registrar a written notice stating such acceptance, within forty-eight hours after receipt of the notice of payment into Court, all further proceedings against the garnishee shall abate, and the Registrar shall pay the money so paid into Court to the person who obtained the judgment or order in discharge or part discharge of the debt due to such person, and of the costs of issuing the garnishee summons. 54. If the garnishee does not before the return-day of the summons pay into Court the amount due from him to the debtor liable under the judgment or order, or an amount equal to the judgment or order, and does not on the return-day dispute the debt due or claimed to be due from him to such debtor, or if he does not appear on the return-day either in person or by some person duly authorised on his behalf, then the Judge may give judgment for the plaintiff, and may order execution to issue to levy the amount due from the garnishee, or so much thereof as may be sufficient to satisfy the judgment or order. 55. Upon the return-day, should the amount paid into Court under Rule 5 of this order be not accepted, the Judge shall determine as to the liability of the garnishee to pay any further sum on account of the debt claimed to be due from him to the debtor, and as to the party by whom the costs of the proceeding by plaint shall be paid, and make such order as may be in accordance with such determination. 56. If the garnishee appears on the return-day and disputes his liability the Judge may instead of giving judgment order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined. 57. Where the Court in which the garnishee is sued is not the Court in which the judgment or order upon which he is garnished was given or made, the Registrar of such first-mentioned Court shall send forthwith a certificate of the order of his Court to the Court in which such judgment or order was given or made, and shall also send notice from time to time of any payment made on, before, or after the return-day. 58. Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Judge may order such third person to appear, and state VOL. 61.-ORDERS AND RULES, D County Court Rules, 1892. the nature and particulars of his claim upon such debt. After hearing the allegations of such third person and of any other person whom the Judge, by the same or any subsequent order may order to appear, or in case of such third person not appearing when ordered, the Judge may decide in favour of the person who obtained the judgment or order, or may order any issue or question to be tried or determined between the third person and the person who obtained the judgment or order, and may bar the claim of such third person or make such other order as such Judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the Judge shall think just and reasonable. 59. Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the debtor, liable under a judgment or order, to the amount paid or levied, although such proceeding may be set aside, or the judgment or order reversed. 60. The costs of any application for an attachment of debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the Judge. 61. In proceedings to obtain an attachment of debts, the Judge may, in his discretion, refuse to interfere, where, from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious. ORDER XXVII.-INTERPLEADER. Order XXVII., Rules 4 and 12, are hereby annulled, and the following Rules shall stand in lieu thereof: 62. The claimant shall, five clear days at least before the return-day, deliver to the high bailiff, or leave at the office of the Registrar, two copies of the particulars of any goods or chattels alleged to be the property of the claimant, and of the grounds of his claim, and in 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 particulars, and the high bailiff shall forthwith send by post to the execution creditor or his solicitor one of the copies of such particulars. Any money paid into Court under the execution shall be retained by the Registrar until the claim shall have been adjudicated upon: Provided that by consent of all parties, or without such consent if the Judge shall so direct, an interpleader claim may be tried, although this Rule has not been complied with. 63. When goods or chattels have been seized in execution under process of the Court, and any claimant alleges that he is entitled under a bill of sale or otherwise to such goods or chattels, by way of security for debt, the Judge may order a sale of the whole or part thereof, and may direct the application of the proceeds of such sale in such manner and upon such terms as may be just. A duplicate of such order shall be delivered by the Registrar to the high bailiff, who shall thereupon forthwith sell the goods or chattels pursuant to the order, and after deducting the expenses of the sale and the taxes and rent, if any, directed by the order to be paid, shall pay the balance of the proceeds into Court, and such balance shall thereupon be applied by the Registrar in accordance with the directions contained in the order of the Court. ORDER XXXI.-NEW TRIAL. Order XXXI., Rule 1, is hereby annulled, and the following Rule shall stand in lieu thereof: 64. An application for a new trial, or to set aside proceedings, may be made and determined on the day of trial, if both parties be present, or such application may be made at the first Court holden next after the expiration of twelve clear days from such day of trial; provided that the intending applicant, seven clear days before the holding of such Court, delivers to the Registrar at his office, and also gives to the opposite party by serving the same personally on such party, or by leaving the same at his place of abode or place of business, a notice in writing, signed by himself or his solicitor, stating that such an application is intended to be made at such Court, and setting forth shortly the grounds of such intended application; but such notice shall not operate as a stay of proceedings unless the Judge shall otherwise order; and if any money paid into Court under any execution or order in the action shall not have been paid out at the time such notice in writing shall have been given to the Registrar, the Registrar shall retain the same to abide the event of such application, or until the Judge shall otherwise order; and if no such application be made, the money shall, if required, be paid over to the party in whose favour the order was made, County Court Rules, 1892 unless the Judge shall otherwise order; and if such notice be not given in manner aforesaid or such application be not made at the Court mentioned in the notice, no application for a new trial or to set aside proceedings shall be subsequently made, unless by leave of the Judge, and on such terms as he shall think fit; provided that this rule shall not apply to cases falling within the provision of section 91 of the Act. ORDER XXXV.-SUMMARY PROCEDURE ON BILLS OF EXCHANGE ACT, 1855. 65. Particulars of demand shall be filed on the entry of all plaints under the said Bills of Exchange Act, and shall be in the form in the Schedule mutatis mutandis. ORDER XXXIX.-ADMIRALTY ACTIONS. Order XXXIX. is hereby annulled, and the following Order shall stand in lieu thereof: 66. The Judge may try or partly try the action at any place within the Admiralty district of the Court. 6 Where application is made to the Judge for the trial or part trial of an Admiralty action at a place in which a Court is not holden, the party making the application shall file a præcipe undertaking to provide at his expense a place to the satisfaction of the Judge in which the action may be tried, and pay the necessary expenses of the Judge and officer so attending. 68. The days of the sitting of the Court shall be those appointed for the transaction of the ordinary general business of the Court held in the city or town mentioned in the name of the Court, or such other days as the Judge may from time to time appoint on the written application of either party. Provided that where, from the detention of a vessel or otherwise, a prompt determination of the action is desirable, a special sitting shall on the application of any party be appointed by the Judge at as early a date as possible. Such application shall be made on notice being given to the other party, who shall have the right to be heard. Institution of Action. 69. A plaintiff desiring to institute an Admiralty action shall file a præcipe stating the nature of the action, and when practicable, his name, address, and description, and if the proceedings are commenced through a solicitor, the name of the solicitor, and an address within three miles of the office of the Registrar at which it shall be sufficient to leave all instruments and documents in the action required to be served upon the party commencing such proceedings, and also stating the name of the owner or other person against whom the action is instituted, or that the action is instituted against the vessel or other property to which the action relates. 70. When it is not practicable at the time of filing the præcipe to state therein the name of the plaintiff, it shall be sufficient (subject to the right of the defendant to demand his name) to describe the plaintiff as " Owner of the ship or vessel 71. In Admiralty actions in rem, no service of summons or warrant shall be required where the solicitor of the defendant agrees to accept service and to put in bail or to pay money into Court in lieu of bail. 72. In an Admiralty action for wages against the owners of a foreign vessel, notice of the commencement of the action shall be given to the Consul or Vice-Consul of the State to which the vessel belongs, if there is one resident within the district of the Court, and a copy of the notice shall be annexed to the præcipe. Summons. 73. Immediately upon the filing of the præcipe the Registrar shall enter a plaint and issue a summons for service by the solicitor, should the proceedings have been commenced through a solicitor, or by the bailiff of the Court. Arrest. 74. Where after the commencement of an Admiralty action it is desired to arrest any vessel or property, the plaintiff or defendant on counter-claim must file an affidavit stating the facts which render it probable that the vessel or property will be removed out of the County Court Rules, 1892. jurisdiction of the Court before the claim or counter-claim is satisfied. It shall not be necessary to shew in such affidavit that the vessel or property is likely to be removed immediately. 75. In an Admiralty action for necessaries or for wages the nationality of the vessel shall be stated in the affidavit. 76. Where upon the filing of the affidavit the Judge, or in his absence the Registrar, is satisfied with the evidence, he may issue a warrant for the arrest and detention of the vessel or property, and where he is not satisfied he may require further evidence to be adduced, and he may order the detention of the said vessel or property for the purpose of adducing such evidence. 77. A summons in rem may be served and a warrant of arrest may be executed on Sunday, Good Friday, or Christmas Day, as well as on any other day. Service of Summons or Warrant. 78. Service of a summons or execution of a warrant against the ship, freight, or cargo on board shall be effected by delivering it to the person who is at the time of service apparently in charge of the vessel or property, or, if there is no person apparently in charge, by nailing or affixing it on the main mast or on the single mast of the vessel; and in other cases the summons must be served personally upon the defendant, unless the Judge, or in his absence the Registrar, shall upon facts duly verified upon affidavit allow of substituted service. 79. If the cargo has been landed or transhipped, service of a summons or execution of a warrant to arrest the cargo and freight shall be effected by placing the summons or warrant for a short time on the cargo, and afterwards leaving a true copy of such summons or warrant on the cargo. 80. If the cargo be in the custody of a person who will not permit access to it, service of the summons or warrant may be made upon the custodian. 81. In cases in which proceedings are commenced under section 21, sub-section 2, of the County Courts Admiralty Jurisdiction Act, 1868, in a County Court in the district of which the agent in England of the owner of the vessel or property to which the cause relates resides, the summons shall be served personally upon such agent unless the Judge or Registrar upon facts duly verified upon affidavit allow of substituted service. Appearance in Admiralty Actions. 82. A defendant desiring to enter an appearance in an action shall file a præcipe, and thereupon an entry of his appearance shall be made in the Admiralty Actions Book. 83. The præcipe shall state, when practicable, the name, address, and description of the party on whose behalf the appearance is entered, and when such appearance is entered by a solicitor, the name of the solicitor, and an address within three miles of the office of the Registrar, at which it shall be sufficient to leave all instruments and documents in the action required to be served upon the defendant entering the appearance. 84. Where it is not practicable at the time of entering the appearance to state the name, address, and description of the defendant, it shall be sufficient in actions in rem (subject to the right of the plaintiff to demand further particulars) to state that the appearance is entered on behalf of the 66 owners" of the property proceeded against, or on behalf of "the defendant." 85. Any person claiming to have an interest in the vessel or property may intervene by entering an appearance in an action. If the interest claimed by such person shall not be cognisable by the Court, any party may apply to the Court or to the High Court to have the case transferred to the High Court of Justice. 86. Upon the arrest of any vessel or property an appearance may be entered in the same manner as upon the service of the summons. 87. Where an appearance has been entered the Registrar shall upon application by either the plaintiff or the defendant give to each party in the action a notice under the seal of the Court, stating the day upon which the action has been directed by the Judge to be heard. 88. Where no appearance has been entered within the time limited by the summons, the plaintiff shall, on filing an affidavit of due service of the summons, be at liberty to sign final judgment for the amount named in the particulars in claims of a liquidated nature with costs to be taxed by the Registrar, or interlocutory judgment with costs to be taxed in actions for damages, and in the latter event the damages shall be assessed by the Registrar under the rules provided for the assessment of damages. County Court Rules, 1892. Release of Property. 89. Bail in Admiralty actions may be taken before the Registrar or his clerk, if nominated by the Judge under section 83 of the County Courts Act, 1888, or before a commissioner to administer oaths, but in every case the sureties shall justify, unless the adverse party shall give notice in writing dispensing with affidavits of justification. 90. The bail bond and affidavits of justification shall be prepared by the party giving bail, or his solicitor, the latter shall be in the form in the Appendix, with such variations as may be necessary. 91. If bail is to be taken before the Registrar, a notice containing the names and addresses of the sureties and of the time appointed by him for taking the bail, shall be served by the party giving bail or his solicitor before 6 o'clock on the day before that which is appointed for taking the bail, and the sureties shall attend at the time appointed for the purpose of executing the bail papers and of being cross-examined as to their means if required. 92. If bail is taken before a Commissioner, notice of such bail shall be given, and an affidavit of service thereof filed in the forms contained in the schedule of forms hereto, subject to such variations as may be necessary, but the property shall not be released without consent until the expiration of twenty-four hours from the time of service of such notice. 93. On receipt of notice of bail having been taken before a commissioner, the property shall not be released, if before the expiration of such twenty-four hours the party requiring such bail or his solicitor shall have given notice to the party giving bail or his solicitor and to the Registrar that he requires such sureties to attend before the Registrar for the purpose of being cross-examined as to their means. 94. If in the opinion of the Registrar notice of attendance of the sureties for such crossexamination shall have been given without sufficient cause, the costs of their attendance for cross-examination, and the expenses of the detention of the property kept under arrest in consequence of such notice, shall be paid by the party requiring such attendance. 95. Where in an Admiralty action the amount sued for is paid into Court, together with costs, or the security completed, or the plaintiff requires it, the Registrar shall deliver to the party applying for the same an order directed to the high bailiff of the Court, authorising and directing him, upon payment of all costs, charges, and expenses attending the custody of the property, to release it forthwith. 96. Notwithstanding the last preceding rule, the property in an Admiralty action for salvage shall not be released, except with the consent of the plaintiff, until its value has been agreed or an affidavit of value filed on behalf of the party seeking the release, unless the Court or the Judge shall otherwise order. 97. If the plaintiff is dissatisfied with the value mentioned in the affidavit filed under the preceding rule he shall be entitled to have the value ascertained by appraisement, and for such purpose shall file a præcipe. The costs of such appraisement shall be in the discretion of the Court. Transfer of Action. 98. Where an action is transferred to another County Court or to the High Court by order either of the Court in which the action was commenced or of the said High Court, the Registrar shall transmit the record of the proceedings to the proper officer of the Court, in the same manner as is prescribed by Order XXXIII., Rule 7, of these Rules, for the transmission of proceedings transferred under section 90 of the Supreme Court of Judicature Act, 1873, and sections 68 and 126 of the Act. 99. Where the proceedings have been transferred by an order of the High Court, a copy of the order transferring the proceedings shall be left with the Registrar. Second or Cross Action. 100. Where it shall appear to the Judge that the plaintiff in an Admiralty action (hereafter called the second action) was or is the defendant in an action (hereafter called the first action) in another Court arising out of the same transaction, and that he did not propose to the plaintiff in the first action that by agreement jurisdiction should be given to the Court in which the first action was commenced to hear and determine the second action, the Judge may, if he shall think fit, refuse the plaintiff in the second action his costs. 101. Where a second or cross action for damage has been commenced by a defendant in an action for damage, and the second action has been commenced, by agreement or otherwise, in the Court in which the first action was commenced, or has been transferred to the said Court by order of any other Court, the Court may direct that both actions may be tried at the same time and upon the same evidence. |