Page:Halsbury Laws of England v1 1907.pdf/270

 —

Action.

48 Sect.

3.

Modern Actions.

Action in personam.

the owners bail it out by giving security for the amount claimed by him, or until the Court gives judgment upon his claim, when, if he be successful, effect may be given to such judgment by sale of the property in order to satisfy it. The effect of such a judgment or sale is that the order of the Court operates directly upon the status of the property, and transfers an absolute title to a purchaser (5). In the case, however, of an ordinary action in personam (c), the judgment of the Court is a personal one (in the nature of a command or prohibition) against the unsuccessful party it may, it is true, be enforced against his goods by subsequent proceedings but even if the sheriff sells them in execution under the judgment he does not thereby transfer to a purchaser an absolute title, but only such title as the owner may in fact have had {d). It must be noted, however, that it is not only in actions ostensibly directed against a res that a " judgment in rem,'" as distinct from a judgment in j^crsonam or " inter partes, can be obtained (e). Thus a decision of the Court condemning goods in a revenue case (/), a grant of probate or administration (g), and a decree in a matrimonial suit (Ji) are judgments in rem, directly determining the status of property or persons, though the proceedings in which they are given are in form proceedings in personam.



Sub-Sect. Importance of distinction,

2.

Actions of Contract and of Tort.

79. The distinction between actions of, or founded on, contract, ^^d actions of, or founded on, tort is still of importance in determining whether a claim involving only a small amount should be

brought in the High Court or the county court. A judge or master must upon application by either party, and in the absence of good cause to the contrary, remit for trial in a county court any " action of contract " brought in the High Court where any part of the plaintiff's claim is contested, and where the claim indorsed on the writ does not exceed ^100, or where such claim, though it originally exceeded ^100, has been reduced by payment, admitted setand where any off, or otherwise to a sum not exceeding ^100 (i) action of tort " is brought in the High Court a judge or master may, upon affidavit showing that the plaintiff has no visible means of paying, if unsuccessful, the defendant's costs, make an order for the action to be stayed or remitted to a county court unless the plaintiff gives security for costs or satisfies a judge of the High

{h) See Castrique v. Imrie (1870), L. E. 4 H. L. 414; Minna Craig Steamshi]) Co. V. Chartered Mercantile Bank of India, [1897] 1 Q,. B. 55, and, on appeal, ihid, 460. See, further, title Admiralty. (c) An action in personam must be distinguished from the old personal action " and also from a personalis actio, which, in the words of the maxim, '

'

" moritur

cum

persona."

Castrique v. Imrie, supra. (e) See, e.g., Fracis Times & Co. v. Carr (1900), 82 L. T. 698, per Williams, L.J. See also title Judgment. {d)

Yaughan

Aguilar (1798), 7 Term Eep. 681, 696, per Lord Kenyon. Wells (1667), 1 Lev. 235. (h) Dacosta v. Villa Real (1734), 2 Str. 961. See also Bater v. Bater, [1906] P. 209. (/) Geyer

v.

(V) J^oell V.

-

{%)

County Courts Act, 1888

(51

&

52 Vict.

c.

43),

s.

65.