RULES FOR CARRYING INTO EFFECT THE JURISDICTION BY THE EMPLOYERS AND WORKMEN ACT, 1875 (38 & 39 VICT. CHAP. 90). * [No. 1.] RULES. 1. A person desirous to enter an action under the Employers and Workmen Act, 1875, shall deliver to the clerk of the court particulars in writing of his cause of action (a), and the clerk of the court shall enter in a book to be kept for this purpose in his office a plaint in writing, stating the names and the last known places of abode of the parties and the substance of the action intended to be brought; and thereupon a summons shall be issued according to the form in the schedule* and be served on the defendant not less than one clear day before the day on which the court shall be holden at which the cause is to be tried ; and no misnomer or inaccurate description of any person or place in any such plaint or summons shall vitiate the same, so that the person or place be therein described so as to be commonly known. (a) A question has been raised in a legal journal, whether a complaint, pursuant to 11 & 12 Vict. c. 43 (one of Jervis's Acts), as well as the delivery of particulars of claim is not necessary to found a summons. But it is apprehended no complaint is necessary. By sect. 1 of the statute referred to, where a complaint is made to a justice in any case in which an order may be made, he may issue a summons. By sect. 8, the complaint need not be in writing; though it may be; (see latter part of sect. 1). Where a complaint is not reduced to writing it practically consists in a complainant appearing before a justice, stating his grievance or cause of complaint and asking for a summons. It is presumed that this rule supersedes the necessity for any complaint of this nature; or at any rate that the delivery of par ticulars in writing of the cause of action is equivalent to a complaint under Jervis's Act. Probably, if the plaintiff could not write, the clerk of the court would write down the particulars for him, though he is not obliged to do so; as a town clerk is, to fill up the nomination paper for a burgess; see 38 & 39 Vict. c. 40, s. 1 (2). Arnold's Municipal Corporations, (p. 90). It would not, however, be sufficient that the clerk should take the particulars orally from the plaintiff, and enter them in his plaint and minute book, as the written particulars must be annexed to the summons. See the next rule. 2. The particulars shall be annexed to and be deemed part of the summons. 3. Such summons may issue in any district in which the defendant or one of the defendants dwelt or carried on his business or was employed at the time the cause of action arose. 4. Any summons which may be required to be served out of the district of the court from which the same shall have issued may be served by an officer of any other court of summary jurisdiction, which service shall be proved by affidavit (b) of the officer who served the summons. (b) The form of affidavit is not given in the schedule; it must, of course, state in what manner the service was effected. See the next rule. 5. The service of the summons shall be either personal or by delivering the same to some person apparently sixteen years old (c), at the house or place of dwelling or place of business or of employment of the defendant, or at the office of the employer for the time being of the defendant. (c) This rule seems rather loosely worded. In strictness it would be complied with by service of the summons on any person of the requisite age, at the defendant's house, &c., though such person were a perfect stranger to the defendant. It would have been better if the service of the summons might have been made as under the Police Courts Act (2 & 3 Vict c. 71, s. 20), by delivering a copy of the summons to the wife, or servant, or some adult inmate of the family of the party at, &c., and explaining the purport thereof to such wife, servant, or inmate. In such a case there is every presumption that the summons would reach the hands of the defendant; but a service on any person, who, even if not a stranger, might be only a fellow-lodger, is hardly sufficient to raise such a presumption. It is to be observed, however, that the same objection lies against the service of the summons required by Jervis's Act (11 & 12 Vict. c. 43, s. 1), which is to be, by "delivering the same to the party personally, or by leaving the same with some person for him, at his last or most usual place of abode." On the question of service, see R. v. Smith, post, Appendix. The sufficiency of the service at the place of business, &c., of the defendant, or at the office of his employer is a great improvement on the former restricted modes of service. The original summons must be served, not a copy (as under the Police Courts Act.) Hearing. Rules 1877 6. No notice shall be required to be given by a defend a deft shall not ant of any set-off or counter-claim that he may wish except by bare to advance at the hearing against the claim of the ast it Дест Court on such terms may fit be permitted to Claims of the Per set off or Counterclaim unless he shall have served or by plaintiff (d)↓ (d) The expediency of this rule seems rather doubtful. A set up against the plaintiff may be taken quite by surprise by a set-off or counterclaim advanced at the hearing by the defendant, and which he any has therefore not come prepared to meet. It is true the hearing may be adjourned. (See the next two rules). But at whose is this to be done? It ought not to fall on the plaintiff expense whom the defendant has taken by surprise; nor can it well fall caused to be on the latter, as the law expressly allows him to take his server antagonist by surprise. res Post letter If the set-off or counter-claim advanced by the defendant should otherwise to exceed in amount the plaintiff's claim, the court would, of course, clear days at give judgment for the defendant for the excess and costs (see the least before Employers and Workmen Act, sect. 3 (1)); but though the return day schedule gives forms of judgment for the plaintiff for debt and notice dibcted to costs (No. 3), and for the defendant for costs where the summons (Pit alt hus address as ment. in the sums stating his intention to rely upon auch sel off or counterclaim defence Withe Action & setting forth the particulars of as a mich set off or counterclaim. the a 71847 Rules of Where serves of any notice is made by put, it shall unless is dismissed (No. 4, see also No. 8, distress for payment of costs Under the first County Court Act of 1846 (9 & 10 Vict. c. 95) Perhaps it is intended that in the case of an adjournment under the circumstances mentioned each party is to pay his own costs. Nothing is said in the County Court Act (9 & 10 Vict. c. 95) as to the costs of an adjournment (see sect. 81.) (1877) 8 If upon the day of the return of any summons, or 9 at any continuation or adjournment of the said court, If on the day named in the summons, or at any |