T UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY v/ /f' JL- z^? ELEMENTARY VIEW ^ro(£ft(ings in an Action. . SMITH^S >-r^^ -' ELEMENTARY VIEW ^imeetriitgs iit ait %ttmx lit yato TWELFTH EDITION. ADAPTED TO THE PRACTICE OF THE SUPREME COURT By W. D. I. FOULKES, BARRISTER-AT-LAW, ! JOIXT F.DITOR OF THE "LICENSINi: ACTS" ».ND THE "JUDICATURE ACTS." LONDON : STEVENS AND SONS, 119, CHANCERY LANE ; H. SWEET, 3, CHANCERY LANE; AND W. MAXWELL & SON, 29, FLEET STREET. ICiito ^publisfjciS. 187G. LONDON STEVENS AND RICHARDSON, PRINTERS, 5, GREAT QUEEN STREET LINCOLN'S INN FIELDS. W.C. T -r ;l I- ■ ^ I PREFACE. In 183G Mr. John William Smith, the learned editor of the " Leading Cases/' wrote his " Ele- mentary View of the Proceedings in an Action-at- Law." The book was little more than a tract, containing only 174 pages and not divided into chapters. Since then it has gone through eleven editions, and has been considerably increased in bulk by the additions which successive legal changes required. The organic reconstruction of the law of actions effected by the Judicature Acts has made a fresh arrangement of the subject neces- sary, and notwithstanding that Chancery, Probate and Admiralty actions are now brought within the scope of the volume, it has been found possible, by reason of the greater uniformity of the new procedure, to reduce considerably the size of the present book as compared with the Eleventh Edition of " Smith's Action-at-Law." I.J The writer's object has been to reproduce so ^much of Mr. Smith's and his editors' work as is Estill applicable to the subject ; to supplement it with his own reading of the new law, and to I f arrange the whole in as simple and intelligible a CJform as possible. The chronological order of the 756645 \1 PEEFACE. events in an action has, in the main, been strictly followed, except in such subjects as "Summary Proceedings," in which it became necessai'y to abandon the order of time for the pui'pose of grouping. The "Selected Forms" have been arranged with a view of enabling the reader to realise, by means of documentary samples, the general course of an action in the Supreme Court- The Rules of the Supreme Court as amended by the Rules issued by the Judges in December, 1875 and in June, 1876, respectively, have been given at the end of the book, as the student cannot too soon familiarise himself with what is in fact the code of proced-are in an action. The Rules of June, 1876, were inserted while the book was passing through the press, causing some alteration in the sequence of the pages, so that the references to the Rules in the earlier sheets will, here and there, be found short of the mark, generally by one page. The arrangement of the body of the book is not the same as that of the Rules, and where both the original and reprinted matter cover the same ground the writer has taken pains to use his own language rather than that of the Rules, so that the reader may be assisted by a variety both of form and expression to grasp something more than the mere words of the subject. 1, King's Bentch Walk. Jahj, 1876. CONTENTS. CHAPTEK I. The Supreme Court The Three Superior Courts of Common Law The Coiirt of Chancer}' ... The Admiralty, Probate and Divorce Courts The High Court and Court of Appeal . . . The Judges The Divisions ... ... " ... The Officers The Barristers and Solicitors The Sheriff The Sittinj's and Vacations PAGE 1 2 .. 8 .. 11 13 .. 13 .. 15 .. 17 .. 19 .. 20 .. 21 CHAPTER iJ. The Form of the Action and Other Prelijukaries Common Law Forms of Action ... Chancery Actions ... Probate Actions ... Admiralty Actions iu rem Statutes of Limitation ... Parties Joinder of causes of .Action Notice of Action ... ELI JUK ARIES .. 23 25 31 . 32 . 33 . 33 . 3(5 •10 . 40 VIU CONTENTS. CHAPTER III. PAGE The Wkit of Simmons and Appearance ... 43 Contents of the Writ of Summons ... 44 Service of the Writ of Summons ... 51 The Memorandum of Appearance ... 54 Interventions ... 57 CHAPTER IV. The Pleadings .. 58 Previous System of Pleading ... 58 The Statement of Claim ... 70 The Statement of Defence ... 71 Reply ... 74 Demurrer .. 75 Amendment ... 76 General Rules of Pleading ... 79 CHAPTER V. Evidence by Affidavit Contents of the Affidavit Affidavits in the Action ... Affidavits in lutei-locutory Applications 81 82 84 85 CHAPTER VI. Inteelocutory Applications Mude of making Interlocutory Applications Applications for Time Applications for Particulars Setting aside for Irregularity Discovery and Inspection 88 90 91 91 91 CONTENTS. IX Inteklocutory Applications — continued. Orders for E^adence by Commission Remitting to a County Court ... Remitting to Arbitration Security for Costs Holding to Bail ... Ne Exeat Regno Consolidation Orders Transferring from one Division to another Changing Venue... Removing from District Registry Introducing third Parties Interim Preservation, &c., of Property Interlocutory Mandamus Injunction or Receiver Addiojj Parties on Death &c. ... PAGE 95 97 98 99 102 108 108 109 109 111 111 113 113 114 CHAPTER VII. The Trial ... 117 The Five modes of Trial ... 118 Jurors ... 119 Fi.xing the mode of Trial . 123 The Biief and Evidence ... ... 127 Course of the Trial ... 129 Challenges ... 131 Right to Begin ... 133 Adjournment of Trial ... 135 Amending the Pleadings ... 135 Stamping Documents . . . . ... 136 Nonsuit ... 137 Withdrawing a Juror ... 139 Dibcharging Jury ... 139 Verdict ... IJO Entering Judgment ... MO Costs ... 141 Trial before a Judge ... 143 Trial on Writ of Im^uiry .. 144 CONTENTS. CHAPTER VIII. Motions after Tkial a^d Entry of Judgsien Motion for Judgment Motion for a New Trial ... Misdirection Excessive Damages Verdicts against the Weight of Evidence Trial de Novo Setting aside a Verdict ... Mode of Enterino- Judgment ... CHAPTER IX. SuMMARt Proceedings Judgment by Default ... Warrants of Attorney and Cognovits . The Bills of Exchange Act Speedy Judgment Interpleader Proceedings under particular Statutes, Special Case Stet Processus CHAPTER X. Execution On a Judgment for the P.tyment of Money Eieii Eacias Capias ad Satisfaciendum Elegit On a Judgment for the Possession of Land or Habei-e Facins Possessionem ... Chattels CONTENTS. XI ExBCUTlOK — continued. page "Writ of Delivery ... ... .. •■• 175 On a Judgment directing a Specific Act .. 175 Writ of Attacliment 176 Writ of Sequestration ... ... ... .• ••• 176 Order for Committal ... ... ... ... ••• 176 Preliminaries to issuing Writ ... ... ... 1 / / Form of Writ 17^ Concurrent Writs .. ... ... ••• •-. 181 Executing Writs 182 Executing a Fieri Facias ... .. ... .• 186 Sale by Sheriff 193 Bankruptcy 194 Executing Elegit 199 Eealising an Elegit ... . . ... . . ... 202 The Eetum of the Writ 203 The Attachment of Debts 207 Charcdncf Orders... ... ... ... .. ... 211 CHAPTER XI. Appeal 212 Former Practice .. , ... ... ... ... ... 213 The Mode of Appealing ... ... ... ... 214 The JHearing of an Appeal ... ... ... ... 215 Judgment of the Court of Appeal ... ... ... 216 XU CONTENTS. APPENDIX OF SELECTED FORMS. PAGE FoKMs IN AN Action of Fraud 217 Writ of Summons 217 Memorandum of Appearance ... ... ... 218 Statement of Claim ... ... ... ... ... 218 Statement of Defence ... ... ... ... ... 219 Reply 220 Notice of Trial 220 Notice to Produce Documentis .. . ... ... ... 221 Notice to Admit Documents ... ... ... ... 221 Certificate of Officer after Trial by a Jury ... ... 22-3 Judgment 22-3 Praecipe for Fieri Facias ... ... ... .. 224 Writ of Fieri Facias 224 FoKJi.s IN A District Registry 226 Specially endorsed Writ of Summons .. . ... ... 226 Judgment by Default of Appearance ... ... ... 227 Pleadings in an Adminlstkation Action ... ... 228 Statement of Claim ... ... ... ... ... 228 Statement of Defence .. ... ... ... ... 229 Demurrer 229 Reply ■ . 230 Judgment after Trial by a Judge ... ... ... 230 Pleading.s in a Probate Action .. 231 Statement of Claim ... ... ... ... ... 231 Statement of Defence ... ... ... ... ... 232 Reply 233 Forms in an Admikaltv Action in Rem ... ... 234 Warrant of Arrest ... ... ... ... ... 234 Statement of Claim ... ... ... .... ... 234 Statement of Defence .. ... ... ... ... 236 Reply ... ... ... ... ... .. ... 237 CONTENTS. Xlll RULES OF THE SUPREME COURT. ORDER PAGE I. Form and Commencement of Action ... ... 239 II. Writ of Summons and Procedure ... ... 240 III. Indorsement of Claim ... ... .. ... 241 IV. Indorsement of Address ... .. ... ... 24-3 V. Issue of Writs of Summons ... ... ... 244 Place o£ Issue ... ... ... ... 244 Choice of Division ... ... ... ... 244 Generally ... ... ... ... ... 244 In Particidar Actions... ... ... .. 245 VI. Concurrent Writs 246 VII. Disclosure by Solicitors and Plaintiffs ... ... 247 VIII. Renewal of Writ 247 IX. Service of Writ of Summons . ... 248 Mode of Service 248 On particular Defendants .. ... 249 On Partners and other Bodies ... 249 In particular Actions... ... ... 250 Indorsement of Date of Service ... 250 X. Substituted Service ... ... ... ... 250 XT. Service out of the Jurisdiction ... ... ... 251 XII. Appearance ... ... ... ... ... 252 XIII. Defavilt of Appearance ... ... ... 255 XIV. Leave to Defend 258 XV. Application for Account .. . ... 259 XVI. Parties 259 XVII. .Toinder of Causes of Action ... ... ... 205 XVIII. Actions by and against Lmiatics ... 2GC XIX. Pleading Generally ... ... ... ... 2G(; XIV COXTENTR, onnER PAGE XX. Pleading Matters arising pending Actions . , ,. 272 XXI. Statement of Claim . 273 XXII. Defence . 274 XXIII. Discontinuance . 276 XXIV. Heply and subsequent Pleadings . 277 XXV. Close of Pleadings . 277 XXVI. Issues ... . 277 XXVII. Amendment of Pleadings . 278 XXVIII. Demurrer . 279 XXIX. Default of Pleading ... . 281 XXX. Payment into Court . 284 XXXI. Discovery and Inspection . 285 XXXII. Admissions . 289 XXXIII. Inquiries and Accounts . 289 XXXIV. Questions of Law . 290 XXXV. Proceedings in District Hegistries ... . 291 XXXVI. Trial . 294 XXXVII. E^^dence generally ... . 300 XXXVIII. Evidence by Affidavit . 301 XXXIX. Motion for New Trial . 303 XL. Motion for Judgment . 304 XLI. Entry of Judgment . 306 XLII. Execution . .307 XLIII. Fieri Facias and Elegit . 312 XLIV. Attachment ... . 312 XLV. Attachment of Debts . 312 XL VI. Charging of Stock and Distringas ... , 314 XLVII. Writ of Sequestration . 315 XLVIIL Writ of Possession... 315 XLIX. Writ of Delivery of Property 316 L. Change of Parties by Death, &c 316 LL Transfers and Consolidation... 318 LIL Interlocutory Orders as to Mandamus, &c. . . . .319 LIIL Motions and other Applications .320 LIV. Applications at Chambers 322 LV. Co.sts ... 323 CONTENTS. XV ORDER PAGE LVI. Notices and Paper, &c. .. 323 LVII. Time .. 324 LVIII. Appeals .. 325 LIX. EfiFect of Xon- compliance with En.les .. 329 LX. Officei-3. . .. 329 LXI. Sittings and Vacations .. 330 LXII. Exceptions from the Eules .. 332 LXIII. Interi^retation of Terms .. 332 Index .. 335 AN ELEMENTARY VIEW OF THE PROCEEDINGS IN AN ACTION IN THE SUPREME COURT. CHAPTER I. THE SUPEEME COURT. An action is a fomial proceeding instituted in a court of justice for the pui^pose of obtaining redress for a civil injuiy. It is defined by the " Mirror " to be " the lawful demand of one's right," and by Bracton and Fleta, following the language of the Roraan law, to be "jus persequendi in judicio id quod alicui debetur." The term includes not only actions at common law to which it was originally applied, but suits in equity. Admiralty causes, and Probate proceedings to which it is applied by the Judicature Acts.'* An action is, on the other hand, distinguished from those less formal proceedings by m'-'^ion and petition which are in the Judicature Acts termed " matters." The design of the present treatise is to trace in * Ord. I. 1, p. 239. 2 THE SUPEEME COURT. a simple and intelligible manner the steps by which this " demand of one's right " is to be pursued in the Supreme Court of Judicature in England, Before entering on a description of those steps themselves, it seems necessary to describe the tribunal before which they are taken. The Supreme Court of Judicature is now the one Superior Court of law and equity in the kingdom. It has been formed by a consolidation of the High Court of Chancery, the Courts of Queen's Bench, Common Pleas, and Exchequer, and the Probate, Divorce, and Admiralty Courts,'^ each of which has a history of great importance and interest. The Courts of Queen's Bench, Common Pleas, and Exchequer, formerly the three Superior Courts of Common Law, derived their origin from a Court called, from the place in which it was ordinarily held, the " Aula Regis," or " Curia Regis," which under our early Norman princes was the supreme court of justice in England. Of this Court the sovereign himself was the judge, assisted by the gTand justiciary, who in the absence of the sovereign acted as his deputy, and by the other principal officers of state. The Court accompanied the monarch in those tours of his dominions which were frequently made at that time ; and one of the chief objects of these royal progTesses was to afford all the king's subjects the opportunity of appljdng to his Court for justice. It is true that the Avhole legal business of the >• Jud. Act, 1873, s. 3. THE AULA REGIS. 3 kingdom was not, and could not have been, trans- acted in this Court, and that the labours of the Aula Regis were lightened by the Sheriff's County Court and Tourn, and by the Leets and Courts Baron existing in the different manors throughout England. In these inferior courts even many causes of importance, and all petty causes, were decided ; for it was thought beneath the dignity of the King's Court to take cognizance of any dispiite the subject of which was of less value than 4:0s., a considerable sum in those days, and hence the practice which even now obtains of staying- proceedings in an action, when it appears that the plaintiff's demand is less than 40s., and the cause is cognizable by an inferior court. However, though these local tribunals had, in many cases, a jurisdiction concurrent with that of the Aula Regis, still so much more confidence was reposed by the people at large in the wisdom and integrity of the supreme tribunal, which was seldom influ- enced by those local prejudices or actuated by those local interests which were too apt to sway the courts of the lord and the sheriff, that in process of time means were found of reserving almost every matter of importance for the decision of the Aula Regis, and parties were even willing to pay a sum of money to the Crown for permission to sue there, wliich payments, as apj)ears from the records of the Exchequer, con- stituted part of the royal revenue. In consequence of the preference thus shown for the Aula Regis, the business of tha* B 2 4 THE SUPREME COURT. Court became so heavy and frequently so much in arrear, that a numerous train of suitors and advocates were obliged to follow it about in its peregrinations from one end of the kingdom to the other. So great were the inconveniences of this ambulatory system, although diminished by the appointment in the reign of Henry the Second of " Justices in Eyi'e " or " in itinere," whose Courts were substituted for and represented that of the monarch himself in the districts to which they tra- velled, that they occasioned the insertion of a clause in Magna Charta,"Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo/' This clause, enjoining "that Common Pleas should no longer follow the Kins^'s Court, but be held in some fixed place," was complied with by erecting the Court of Common Pleas at Westminster, and as the words " Common Pleas/' so used in contradistinction to "Crown Pleas," included all disputes by which the interests of the Crown were not affected, the consequence of the clause was, that the proceedings in almost all civil actions, instead of being carried on wherever the Aula Regis happened to be, were transacted in the Court of Common Pleas at Westminster. This alteration took place in the reign of King John, and may be looked on as the origin of the centralization of our present system of judicature in the metropolis. The establishment of the Common Pleas at Westminster, while it removed one grievance created another, for, though the suitors had no COURTS OF COMMON LAW. O longer to travel about after the King's Court, yet they had to come from the most distant pai'ts of England up to Westminster. Accordingly, by the Statute of Westminster the Second, passed in the thirteenth year of the reign of Edward the First, the parties who, till that time, had been obliged to appear in person before the Court, except in some cases of special favour, obtained the privilege of prosecuting and defending theii" suits by attorney from their commencement ; and thus it was that the employment of an attorney or, as he is now called, a solicitor originated. After the Common Pleas were stationed at Westminster, the Aula Regis still continued to attend the king's jDerson, and to decide causes in which the Crown was concerned. The gi-eat lawyers however were mostly attracted by the more lucrative business transacted at Westminster, and established themselves in that neighbourhood, where they founded the Inns of Court. Moreover, the importance of the Aula Regis was still further diminished in the reign of Edward the First, who, by the advice of the most eminent lawyers of that day, determined to carry out a more complete distribution of the judicature. The Court of Common Pleas he left, as he found it, in possession of the civil business of the kingdom. TheExchequer he entrusted with the exclusive management of revenue matters, while the King's Bench, which was the remnant of the Aula Reeis, continued to possess the criminal jurisdiction of that ancient Court, and also a superintending jaower over all the inferior tribunals in the kingdom, conmiaiiding (5 THE supre:me court. tliem, by prerogative writ of mandamus, to perfonii what the law required ; by writ of prohibition, to abstain from what it prohibited ; removing their proceedings into itself by certiorari ; and reversing them by writ of error or false judgment. This Court alone retained the close personal connection with the sovereiofn which belonged to the Aula Regis. Edward the First often presided there, and it was distinguished by the presence of the mon- arch, even so late as the seventeenth century, in the person of King James the First. During the Protectorate of Cromwell its name was modified into the " Upper Bench." The sovereign might alwaysorder this Court toaccompany his owti person, a command which the clause in Magna Charta prohibited him from imposing on the Common Pleas, and therefore it was that writs returnable in the latter Court were made returnable "at Westminster;" but in the Queen's Bench, " before the Queen herself, wheresoever she should then be in England." On one occasion, Edward the First commanded the Court of King's Bench to follow him into Scotland, and it actually sat for some time at Roxburgh. However, it was found so much more convenient to hold the Queen's Bench in the same place as the Common Pleas and Exchequer, that it also had, for many centuries, except during the civil wars and the plague, been stationary at West- minster. And, though the Queen's Bench and Exchequer had at first, as has been explained, no jurisdiction over purely civil causes, which were all entrusted to the Common Pleas, yet, by a FICTITIOUS JUEISDICTIOX. 7 series of fictions, they coutrived to draw all per- sonal actions "within their jurisdiction. For the Queen's Bench declared that a person in the cus- tody of its marshal Avas before it for every pur- pose, and, as actions of trespass were considered to be still within its jurisdiction, being of a criminal nature and punishable by a fine paid to the Crown by the defendant, the plaintiff was permitted to issue a writ, called a bill of Middlesex, charging the defendant with a trespass, being then a cause for which a man might be arrested ; whereupon he was taken and committed to the Marshalsea, and, being once there, the plaintiff was allowed to sue him for any cause of action. Afterwards, the judges of the Queen's Bench carried the j^rin- ciple further, and held, that the defendant's appearance or putting in bail would answer the same purpose : maintaining that, in those cases, though not in the real, he was in the con- structive custody of the marshal. Accordingly, until the year 1832, all AVTits issuing out of the Queen's Bench described the cause of action to be trespass, in bailable cases mentioning the real ground afterwards in a " ac etiam " clause, as if it were merely subsidiar}^ to the fictitious claim ; and every declaration by bill in the Queen's Bench stated the defendant to be in the custody of the Marshal of the Marshalsea. The Court of Exchequer, in its turn, adopted a similar mode of extending its jurisdiction; for the plaintiff' in his writ and declaration stated that he was " a vise, whether to ship or cargo ; the action on a hoUomry hand, by which instrument money is lent at a high premium on the chance of the ship arriving safely ; tlie respondentia action, in which the cargo alone has been pledged in the same way ; the action of 2)ossession, when a claim is made, whether by owner, mortgagee, or other person to be possessed of the ship ; the action for salvage, or for toiuage, when reward is claimed for assisting a vessel in distress, or for towing her ; the action for pilotage ; the action for masters and seamiens wages in respect of service on board the ship; and tin- action for necessaries supplied to the ship in port. The plaintiff having decided on the kind of claim, or combination of claims, he proposes to prosecute in the Supreme Court, his next care is to see whether his right of action has been affected by lapse of time. This maiuly depends on an c 3 34 THE FORM OF THE ACTION. important series of Acts of Parliament called the " Statutes of Limitation ; " statutes, the policy of which is excellent, since they tend to prevent litigation, to quiet people's rights, and to set their minds at ease by protecting them against old claims. Without this protection claims might start up after the evidence has been lost, which, had they been brought forward earlier, would have rebutted them. The times of limitation are as foUow: — Twenty years are the limitation for actions of debt or covenant founded on deeds or recog- nisances, and also for actions brought to recover any land or rent, also for actions of redemption, counting from the time when the mortgagee took possession/ Six years are the limitation for actions of trespass to land, detinue, trover, case generally, assumjasit, debt without specialty, arrears of rent, and interest payable out of land.s Four years are the limitation for trespass to the person or goods, and tivo years for slander,^ which period is also the limitation for actions on penal statutes brought by the party aggiieved. Actions on penal statutes brought by a common informer have one year's limitation,^ and so have actions brought to compensate the families of ^ 3 & 4 Will. IV., c. 42 ; 3 & 4 Will. IV. c. 27. g 21 Jac. I. c. 16 ; 3 & 4 Will. IV. c. 27, s. 42. ^ 21 Jac. I., c. 16. ' 31 Eliz. c. 5 ; 3 & 4 Will. IV. c. 42. STATUTES OF LIMITATION. 35 persons negligently killed.J If the party entitled to bring the action be a married woman, an infant under aofe, or insane, further time is allowed. If the intended defendant be beyond seas when the cause of action accrues, the time does not begin to run till his return,^ but in the case of joint debtors, the time begins to run as against those not beyond seas from the time of the accrual of the cause of action, and not from the time those beyond seas return.^ In all the cases of disability or exemption in which the operation of the statute is tem- porarily suspended, there prevails the general rule, that if the disability be once removed, but for one single instant, so that the time of limitation once begins to run, nothing can afterwards stop it. At common law the operation of a Statute of Limitation was not affected by the cause of action being fraudulently concealed from the party entitled to bring the action, but the equitable rule introducing an exception in cases of fraud now prevails in the Supreme Court. It is important to recollect that these Statutes of Limitation, though they prevent an action from being brought after the time of limitation has elapsed, do not in general destroy the right on which such action would have been founded. They take away, as is commonly said, not the plaintiffs right, but his remedy ; so that, if he can in any way avail himself of his right without J 9 & 10 Vict. c. 93. "445 ^nne, c. IC. ' 19 & 20 Vict. c. 97, s. 11. % THE FORM OF THE ACTrO^. bringing an action, he is, even after the time of limitation has expired, at liberty to do so. Thus, a soUcitor has but six years to bring an action on his bill, and, if he allow that time to expire, he cannot sue for its recovery. But still, if he have any of his client's papers in his custody, he will retain his lien upon them until his claim is satis- fied, even though the six years have elapsed. In order to prevent a Statute of Limitation from barring a right of action, it is usual to sue out a writ, and thus commence the action within the limited time, and then, by suing out other Avrits, continue the proceedings, so as to keep the action alive down to the time when it becomes expedient actually to serve the defendant. This proceeding was formerly a matter of course, but now a Avrit cannot be renewed without leave ob- tained upon a summons. Having settled the form of his action and con- sidered whether it is unaffected by the Statutes of Limitation, the plaintiff will proceed to shape his action further by determining the parties proi^er to sue and to be sued. This was formerly a question of great importance, as a mistake at this point, whether in joining too many or too few persons either as plaintiffs or defendants, was often fatal to the whole action. The Judicature Acts, how- ever, relieve the plaintiff from many anxieties on this score, and claims may now be made, either by or against several persons as parties jointly, severally, or in the alternative. If all the parties affected have not been joined, judgment ACTIONS BY AND AGAINST INFANTS. 37 may be claimed against or in favour of those who have been joined, or amendments may be allowed.™ Partners may now sue and be sued in the name of the firm.'^ Corporations sue and are sued in their registered or corporate title, and there are certain associations, especially banking com- panies," provided by statute with a public officer as their litigant representative. A hundred, although not a corporate body, is sometimes though rarely sued for damage done feloniously, as in a riot, unless the damage be no more than 'M)l., in which case, a summary remedy is pro- vided. No individuals are named as defendants, but the inhabitants of the hundred generally ; and the Avrit is sei'ved upon the high constable, who gives notice of it to two justices acting for the hundred.P Where there are numerous parties with the same interest one or more may sue, or by leave may defend for the rest. A writ of summons is a letter missive from the sovereign, issued at the instance of a plaintiff in a civil action for the purpose of compelling the defendant to appear and answer the claim on pain of judgment being given against him in his absence. The form of a writ of summons is given as Form 1 in the Appendix to this book,'= and it consists of the body of the writ and the memoranda which appear on the face of the writ, and the indorsements which appear on the back. The body of the writ is headed with the date of the year in Avhich it was issued, together with a letter and number to identify it in the records of the Court. It next contains the "title," that is the words, " In the High Court of Justice," followed by the name of a Division and the names of the plaintiff and defendant " between " Avhom the action is expressed to be. It is directed to the defendant, whom it commands within eight days after service to enter an appearance at a certain place, and gives him notice that in default of » 2 Will. IV. c. 39. " Ord. i. 1, p. 239. « OrA ii. 3, p. 240. INDORSEMENTS. 45 appearance the plaintiff may proceed to judgment. The body of the writ terminates with the name of the Lord Chancellor as a witness, and the date of the day of its issue.'^ The memoranda consist, first, of a direction to the plaintiff to serve the writ within twelve months, and secondly of an intimation to the defendant where he may enter an appearance. The endorsements are of tliree kinds. First, the " indorsement of claim," being a brief state- ment of the claim in the action, in order that the defendant may know what the suit is about.® Secondly, the " indorsement of address," that is the name and place of business of the solicitor, or firm of solicitors, who issue the writ, if it be issued by a solicitor, also of the prin- cipal solicitor, if issued by a solicitor acting as agent only, and also the address of the plaintiff in whose name it is issued, in order that the " Ord. ix. 3, p. 249. " Ord. ix. 4, p. 249. " Ord. ix. 5, p. 249. p Ord. ix. 6, p. 249. 1 Ord. ix. 8, p. 2.50. ■■ Ord. ix. 10, 11, p. 2oO, ' Ord. ix. 12, p. 250. a 4 THE WrJT OF SUiDJOXS AND APPEAEAXCE, tins date the time allovred for tlie defendant to appear is counted.* In Admiralt}^ actions in rem in -vvhicli, as we have seen, the proceeding is against the ship, cargo, or freight, a warrant for the arrest of the property is a necessary auxiliary to the writ. The form of the warrant is given as Form 22 in the Appendix. The warrant of arrest is only issued from the London office and an affidavit must be previously filed, showing the character of the claim and of the property to be arrested and that the claim has not been satisfied. In particular varieties of this kind of action other details must be given in the affidavit. In a wages action, the nationality of the ship must be stated, and if foreign, it must be proved that notice has been given to the Consul ; in a bottomry action the bond must be produced and a copy amiexed ; and in an action for the distr'.Of.iion of salvage the amount awarded or agreed on nmst be verified, and its holder designated.'^ The affidavit is required as a precaution against vessels being unnecessarily arrested. The warrant of arrest is served, not by the plaintiff, but the Admiralty marshal or his substitutes.^ Service having been effected the history of an action shifts from the plaintiff to the defendant. If he propose to defend the action, his first step is to enter an " appearance," a term derived from the ancient forms of legal procedure according to which the parties were bound to make a personal ' Ord. ix. 13, p. 250, ''' Orel. v. 11, p. 245. ^ Ord. ix. 9, p. 250. THE MEMOKANDUM OF APPEAEANCE. 55 appearance in Court. The subject may be divided into the manner, place, aud time of appearance, and the appearance by persons not named as de- fendants. The manner in which an appearance is effected is b}^ delivering a " memorandum of appearance " to the proper officer.y The form of a memo- randum of appearance is given as Form 2 in the Appendix, and the information given by the defendant in his first step is similar to that given by the plaintiff in the writ. Like the writ the memorandum of appearance is headed with the date of the year, and the letter, number, and title of the cause. The body of the memorandum consists simpl}^ of the words " Enter an appear- ance for X Y in this action." Then folloAv the date at which the memorandum was delivered, the name of the defendant's solicitor if he emjDloy one, the solicitor's address, and if that address be outside the three-mile radius from Temple Bar, an address for service. If the defendant do not employ a solicitor, his own name appears as defending " in person," together with his address and an address for service if necessary. Partners sued in the name of the firm aj)pear individually, but the action still continues as against the firm.=^ If several defendants appear by the same solicitor, as very commonly happens, one memorandum is sufficient. The memorandum concludes with an intimation whether the defendant does or does not dispense witli a statement of claim, which has reference to the next step to be taken by J Orel xii. 6, p. 252. ' Ord. xii. 12, p. 253. 66 THE WRIT OF SUMMONS AND APPEAEAN'CE. the plaintiff. If the action be for the recovery of land, and the appearance be entered by a landlord who is in possession by liis tenant, the memorandum of appearance must state that he appears as landlord/' It may also state in any such case that the person appearing limits his defence to certain land.*" The j)lace of appearance is made important by the creation of District Registries. In the case of a London writ the j^lace for appear- ance is the office of appearances for the Divi- sion to which the plaintiff has assigned his action. In a District Registry writ the place of appearance depends on the question whether the defendant reside or carry on business within the district. If he reside or carry on business within it, he must enter his appearance at the District Registry office.*^ If he neither reside nor carry on business within the district, he has the option of entering his a25pearance either in the District Registry or in London.*^ When an ap- pearance is entered in a District Registry the action is said to jDroceed there, that is, all the steps down to notice of trial are taken in the district. If there are several defendants, and some appear in London and others in a District Registry the action proceeds in London.® When a defendant appears elsewhere than where the writ is issued, he must on the same day give notice by post or otherwise to the plaintiff;^ and when a * Old xii. 19, p. 254. *> Ord. xu. 21, p. 254. « Orel. xii. 2, p. 2.^2. '' Ord. xii. 3, p. 252. « Ord, xii. 5, p. 252. ^ Ord. xii. 6, p. 252. IXTEKVENTIONS. 57 defendant has the option of apiDeariug to a Registry Avrit in London, advantage cannot be taken of liis non-appearance until a letter from London posted on the last evening might have been received by the plaintiffs The time for appearance limited by the writ is eight days from the service. At the expiration of that time the plaintiff may in general enter judg- ment by default, but if the plaintiff do not take this advantage at the earliest moment, the de- fendant may enter an appearance at any time before judgment. In this case, however, so far as the taking of any further step by him is concerned, his appearance is considered as entered at the expiration of the eight days.'' An appearance by a person not named as a defendant may be entered in certain exceptional cases. In Probate actions any person interested in the estate of the deceased may enter an appear- ance on filing an affidavit to that effect.' So, in an Admiralty action any person interested in the ship, cargo, or freight involved may appear on filing an affidavit.^ These proceedings are called '"interventions." Similarly in an action for the recovery of land, any person in possession either by himself or his tenant may by leave enter an appearance on filing an affidavit of his possession.' He must also give notice of his appearance to the plaintiff's solicitor, or the plaintiff suing in person."' 8 Ord. xiii. 5a, p. 25(5. ^ Or A xii. 15, p. 253. ' Ord. .xiL 16, p. 254. " Ord. xii. 17, p. 254. ' Ord. xii. 18, p. 254. " Ord. xii. 20, p. 254. D 3 58 CHAPTEE lY. THE PLEADINGS. The defendant having appeared and both parties being before the Court, the pleadings com- mence. Pleadings may be defined as statements in writing made before the trial by the plaintiff and the defendant alternately, for the pui-pose of exhibiting their respective cases and answering the case of their oj)ponent. By showing what facts are alleged by both parties, what are admitted and ■what are denied, the pleadings suggest to the parties to what point to direct their proof at the trial, and assist the judge in determining Avhat is the real matter in dispute. As each fact stated either by way of claim or defence is brought forward for the sake of its significance in point of law, the pleadings also serve to show each party what his opponent assumes to be the law, and give him the opportunity of raising legal questions. In the early ages of the common law, the pleadings were "altercations " delivered viva voce by the counsel. The writ by which the action was commenced, used to be brought into the Court with the sheriff's return upon it, and the plaintiffs counsel, after it had been read, proceeded to ex- pand the chai'ge contained in it into a connected Ol^AL PLEADING. 59 story, by adding time, place and other circum- stances. Thus, if the writ mentioned the cause of action to be tresj)ass, the pkiintiff's counsel stated where, when and how the tresj^ass was committed, and what special damage had resulted from it. This statement was called the "count," from the Frencli conte, a tale or story. The defendant's counsel, on his part, stated the defence with similar jDre- cision, and this was called the ''plea." The plaintiff's counsel "replied;" the defendant's, if necessar}^, "re- joined ;" and so on, until they had come to a con- tradiction either in law or fact. If either conceived that the last pleading on the opposite side was un- true in fact, he positively denied it, and was then said " to take issue upon it." If he conceived it to be bad in law, he "demuiTed," so called from the French demurrer, to abide, because he abided b}' the determination of the point of law, conceiviug that the insufficiency of his opponent's pleading furnished him with a sufficient answer to his case. Thus was an " issue" produced either of fact or of law. If of law, it was decided by the Court ; if of fact, it was tried, in most cases, by a jury. While the proceedings were going on, the officer of the Court sat at the feet of the judges, entering them on a parchment roll or record. This record bore different names at different times. When the pleadings only were in process of being entered, it was called " the plea roll ; " when the issue had been joined and entered on it, it was called " the issue roll ; " and when the judgment had been re- corded on it, it was called " the judgment roll ; " 60 THE PLEADINGS. being all along the same piece of parchment, biil bearing different names at different periods of tlie suit. When business increased and causes became complicated, the system of viva voce pleading was found inconvenient, and, instead of pronouncing the pleadings aloud, they were drawn on paper, and filed in the office of the Court, or delivered betAveen the parties. The judges heard nothing about them until issue or demurrer, and thus con- siderable time was saved. As to the roll, it was, at first, transcribed from the written pleadings by the officers, as anciently from the viva voce pleadings. AfterAvards, the officers, finding them- selves pressed for time, requested the attornies to transcribe it themselves, and bring it to the office : and the attornies, finding this irksome, began to omit carrying it in at all, except in cases where it was wanted for some particular purpose ; so that, in most cases, the roll existed only in contempla- tion of law". The roll now no longer exists, and the only record corresponding to it are the entries in the cause book and judgment book. The cause book contains an entry of the writ'"* and ap- pearance^ and the judgment book'' of the judgment given in the action. The pleadings do not appear on any record of the Court, but copies of them have to be delivered on entering the action for trial'^ and on entering judgment ®. » Ord. V. 8, p. 245. •> Ord. xii. 11, p. 253. ' Old. xli. 1, p. 304. ^ Ord. xxxvi. 17, p. 29(5. « Ord. xli. 1, p. 304. CHANCERY PLEADING. Gl For some time after the pleadings thus came to be transcribed on paper they were governed by the same natural rules which regulated them wdien pronounced viva, voce. In process of time, however, an artificial s3'Stem was created with many useless allegations, fictions, subtleties and forms by which substantial justice was often defeated, and the result of an action made to turn rather on the skill of the pleaders than the merits of the case. This technical system has been in recent years much modified, especially by the Common Law Procedure Acts, but in the mean- time arose the system of pleading used in the Court of Chancery which as one of the sources of the pro- cedure of the Supreme Court demands attention. The Court of Chancery did not recognise the rule which lay at the bottom of the common law system, and which assumed that every dispute could be reduced to a single issue or controverted point either of law or fact. It allowed the parties to plead at large and to raise any points which they thought maintainable, and as the jurisdiction of the Court was independent of fictions, the pleadings were intelligible to the ordinary reader. On the other hand a confusion was made between the true functions of pleading and evidence, the defendant in his answer being allowed to mix up proof on oath with mere allegations. Moreover the pleadings in the Court of Chancery degenerated into great verboseness, especially in unnecessarily setting out lengthy documents. The pleadings in the Court of Probate C2 THE PLEADINGS. were after the type of the Common Law Courts, but the Court of Admiralty brought to the service of the new Supreme Court a sj^stem of pleading, which was much more simj^le and intelligible than the common law system, and perhaps of the systems in use in the consolidated Courts the nearest approach to that adopted in the Supreme Court. It is interesting to remark that the effect of the rules of pleading introduced of late years has been to bring the common law practice back to its old bounds, and destroy innovations which had crept in on the ancient system. Although, therefore, the modes of pleading used in the old Courts now give place to an entirely new mode of i^leading, it is necessary before entering upon a detailed ex- amination of the new system to refer briefly to the method of pleading formerly used in the Common Law Courts as the source of all the other old systems and of much in the new. The first step in the pleadings was the "declara- tion," in which the plaintiff stated his cause of action in one or more counts. Prior to the Com- mon Law Procedure Act, 1852, all the counts must have belonged to the same form of action, and before the year 1834 it was the common prac- tice to insert in the declaration a great number of counts, not stating different causes of action against the same person, but stating the samie cause of action in different ways. Thus, in an action for breach of promise of marriage, the plaintiff would say, in her first count, "that the defendant jno- THE DECLALATIOX. bo mised to marry her upon request," and in the second, " that he promised to marry her within a reasonable time for that purjDOse." And so, in ahnost every case, several counts were inserted in each declaration, stating the same case in different Avays. This practice was due to the strictness of the legal rules in respect of " variance." A variance or divergence between a material part of the state- ment of the cause of action in the declaration and the evidence adduced at the trial in support of it was fatal, and a ground of nonsuit. Plaintiffs were consequently often nonsuited in the most vexatious manner on account of slight variances between the declaration and the evidence. To such an extreme was this carried, that there is a reported case '^ in which the ]jlaintiffwas nonsuited because, in copying Lord AYaterpark's title in the declaration, the clerk, instead of writing Baron Waterpark, of AVaterpark, had written Baron "Waterpark of Watei/or/^. It Avas in order to prevent the fatal mischief often occasioned by these trifling variances, that pleaders inserted a o-reat number of counts in the declaration, statino" the cause of action in different ways, in the hope that, if the evidence varied from some, it might not from others ; and that one count, at least, might be found free from objection on this score. The consequence of inserting all these counts was to increase the size, and of course the expense, of the declaration; and at last, on the f Walter v. Mo.ce, 2 B. & A. 75G. C4) THE PLEADINGS. recommendation of the Law Commissioners of 1832, it was determined to put an end to the abuse, putting an end at the same time to the reason which occasioned it. Accordingly, power was given to the judges to amend variances be- tween the statements in the pleadings and the evidence : ^ and as this power, thus vested in the judges, rendered the multitude of counts unneces- sary, by creating another mode of obviating the danger of variances, it was directed that several counts should not be allowed, unless a distinct subject-matter of complaint was intended to be established in respect of each.'' Under the present system of pleading counts and pleas, which might be defined as bundles of facts carefully tied together so as to contain ali the elements of a legal claim, or of a legal defence, are no longer used. Pleadings are no longer to be divided into joarts, each constituting a legal result, but are to be chronological narratives of facts given in jDaragraphs, from which any legal result raised by the facts may be gathered. The- power of amendment is therefoi'e the less necessary,, but is still retained in case a party should by in- advertence, or through want of knowledge subse- quently obtained, omit or mis-state a material fact,, which mistake it is no injustice to his opponent tO' allow him to coiTect. A very important part of every declaration was the "venue," which was inserted in the margin thus: « 3 & 4 Wm. IV. c. 42. '' Pleading Rules, H. T. 1834. THE VENUE. 65 — " Middlesex, to wit" — " London, to "svit :" and iu the county named in the venue the action was ultimately tried. Venue was of two kinds, tran- sitory or local. It was transitory Avhen the cause of action was of a sort which might have happened anywhere, in which case the plaintiff might adopt any county he pleased as a venue. It was local when the cause of action could have happened iu one county only, and then the venue must have been laid in that county. Thus, if the action were trespass for breaking the plaintiff's close, the venue must have been laid in the county where the close was situated ; for such a tresj^ass could have hap- pened nowhere else. If it were trespass for as- saulting the plaintiff, the venue was transitory^ for such a cause of action might happen anywhere, and so in general in all cases of contract. Under the new rules of pleading venue is expressly abolished,^ but the plaintiff, if he wish to have the action tried elsewhere than iu Middlesex, must name a place for its trial, subject to the place being altered by an order. In making the order, considerations of convenience now alone apply. The plea was the defendant's answer to the de- claration, and was either a plea in abatement or a plea in bar. A plea in abatement did not contain an answer to the cause of action, but showed that the plaintiff had committed some informality, and pointed out how he ought to have pi-occcded. For instance, there might be a plea in abatement ' Orel xxxvi. ], p. 293. GG THE PLEAr)INC43. for nonjoiuder of a co-contractor as a defendant, stating also that all the co-contractors not joined were resident within the jurisdiction. A plea in bar was a peremptory and substantial answer to the action. Such a plea was either a " traverse " or a plea " in confession and avoidance ; " to pass over the ''plea in estoppel," which alleged that the plaintiff, either by a deed, judgment, or other matter, was prevented from setting up the fact relied on, but was of rare practical occurrence. A plea was said to be a traverse when it denied some essential part of the declaration. It was in confession and avoidance, when it admitted the averments of fact in the declaration to be true, but showed some new matter not mentioned in the declaration which destroyed the plaintiff's right of action. Thus, in an action against the maker of a note, if the defendant pleaded "he did not make the note," that was a traverse. But if he pleaded "that he did make it, but for an illegal consideration, of which the plaintiff was aware," that was a plea in confession and avoidance. Pleas in confession and avoidance were distin- guished as pleas in justification or excuse and j^leas in discharge. The former class showed some justification or excuse of the matter charged in the declaration; those of the latter, some dis- charge or release of that matter. The effect of the former, therefore, was to show that the j)laintiff never had any right of action, because the act chai'ged was lawful; the effect of the latter, to show that, though he had once a right of action, it was discharged or released by some matter sub- THE ge>;ei:al issue. 67 sequent. Of those in justification or excuse, the plea of " son assault demesne," or assault in self-defence, was an example ; of those in discharge, a release. In strict theory, the defendant was allowed but one plea to each count of the declaration ; and for this restriction a very unsatisfactory reason was assigned, namely, that as one defence was sufficient to rebut the action, the defendant could have no occasion to set up more. But it is obvious that a defendant may have several good defences to the same action, and yet may reasonably wish to plead them all, in order that, if by some accident his evidence of one of them should fail, he may rely ujDon another. The strictness with which the defendant was bound down to one plea, gave rise to the vicious practice of comprehending in one plea what were really sevenil distinct answers to the declaration. These comprehensive pleas were called the general issue and were specially applicable to the actions of assumpsit, debt upon simple contract, and case, which are the most ordinary forms of action. They were called respectively " non assumpsit," '■ nil debet," and "not guilty;" and under these general issues almost every conceivable defence was allowed to be given in evidence, so that the defendant ob- tained the advantage of being allowed to set up any defence his evidence would warrant ; while the plaintiff was, on his side, not unfrccjuently surprised by a defence of which the pleadings gave him no notice whatever. Later on in the history of j^leading when permis- sion was constantly given either hy a rule or order GS THE PLEADINGS. under various statutes to plead " several matters," another abuse crept in similar to t1iat occasioned by the right to multiply counts in a declaration. The defendant's pleader was in as much danger of fiiilinw through a variance between the evidence and his plea as the plaintiff was by a variance between the evidence and the declaration. The defendant's pleader guarded against variances by pleading a number of pleas stating the same defence in different ways, in the hope that some one of them would hit the evidence; thus, in an action of trespass " quare clausum fregit," he would plead, in a variety of different pleas, that he had a footway, that he had a cartway, that he had a bridle path, and allege the same way to have accrued by grant, prescription and necessity. The consequence of this of course was that a great deal of expense and prolixity was occasioned. These evils were mitigated from time to time by the multiplication of counts and pleas being for- bidden, and suitors made to rely on the j)ower of amendment at the trial, and by the effect of the general issue being cut down within more reason- able limits. Under the jDresent practice the framing of each defence as a distinct plea is abandoned in like manner as the practice of distinct counts ; jileas in abatement have been abolished,^ and the general issue has now no further effect than the words used would have in their ordinary sense, except in the case of " not guilty by Statute," a privilege belonging to pei'sons " Ord. xix. 1.3, p. 268. NEW ASSIGNMENT. 69 sued for any act done under certain Acts of Par- liament, which is stiJI retained.^ The vagueness of tlie old system of pleading- was not confined to pleas of the general issue, but extended also to the counts in the declaration by reason of their being framed very much in the abstract, and without mention of time, place, and other identifying circumstances. Accordingly, it sometimes happened that the defendant in his plea mistook or appeared to mistake the cause of action set up by the plaintiff. In such case the plaintiff with his reply delivered a "neAv assign- ment " stating that he sued for other causes of action than that pleaded to. Out of gTcat caution the plaintiff sometimes new assigned in this way several times over, but the Common Law Proce- dure Act, 1852, restricted him to one. New assign- ments are now abolished, and the plaintiff, if necessary, must make his claim more definite by amendment.'" The subsequent steps in pleading were the '•' replication," containing the plaintiff's answer to the plea; the "rejoinder," the defendant's answer to the rei>lication ; the "sur-rejoinder," the "rebutter," the "sur-rebutter," and so on. The pleadings seldom reached to sur-rebutter, but they sometimes did, and there was nothing to prevent their going beyond it. But the steps after sur-rebutter had no distinctive names. At each of these steps the jiarty replying, rejoinding, or framing any other pleading, was required either to traverse, or confess ' Orel xix. 16, p. 268. " Oixl. xix. 14, p. 208. 70 THE PLEADINGS. and avoid, tliat is, either to deny some material part of the adversary's last pleading, or to admit such last pleading to he true, but allege some new matter, altering the legal effect of it, and showing that he himself was nevertheless en- titled to judgment. Thus the pleadings went on step by step till at last the parties came, as they necessarily did, to a direct contradiction ; and when the pleadings were comj)lete, the issue was said to be joined. The system of pleading introduced by the Judi- cature Acts very much shortens the number of the alternate statements made by the parties. Unless an order be obtained allowing further steps in pleading," the pleadings consist of the " Statement of Claim," the " Statement of Defence," and the " Reply," which if necessary, may be followed by a joinder of issue, the old names being changed in favour of names which serve better to exjalain the nature of the document. A very convenient practice is borrowed by the Supreme Court from the Court of Chancery by which every pleading- must be printed unless it contain less than 3 folios of 72 words when it may be written or partly printed," but the signature of counsel required in that Court has been abandoned as an unnecessary tax on the suitor.i' The statement of claim which stands in the place of the declaration at law and the bill in equity must be delivered by the plaintiff A\'ithiu six weeks from the defendant's appearance,^ ex- n Ord. xxiv. 2, p. 276. " Ord. xix. «, p. 366. P Ord. xix. 4, p. 366. '^ Ord. xxi. 1 (a), p. 272. THE STATEMENT OF CLAIM. 71 cept in Admiralty actions in rem, in which it must be delivered within twelve days from the appear- ance/ The defendant, except in Probate actions and Admiralty actions in rem, may, if he think that he is sufficiently informed of the nature of the plaintiff's claim by the writ, or that the question in the action is of so simple a kind as not to require pleadings, state in his appearance that he does not require a statement of claim. In that case the plaintiff can only deliver a voluntary statement of which he will have to bear the costs if it be unnecessary.^ On. the other hand, a plaintiff Avho has specially- indorsed his "WTit, may, instead of a statement of claim, deliver a notice referring his opponent to the indorsement if he has nothing to add to it.* Ordinarily a statement of claim consists of a narrative of the facts relied upon by the plaintiff in support of his case. It begins like the writ with the title of the action, and ends with a definite claim for damages or other relief, either alone or in the alternative, and with a general claim for such relief as the Court may think the plaintifif entitled to have." Distinct claims based on distinct facts should be separated.^ Examples of statements of claim are given as Forms 3, 4, 19, and 23 in the Appendix. The statement of defence is the answer of the defendant to the facts relied on by the plaintiff in the statement of claim. It may admit certain ' Orel xxi. 3, p. 273. • Ord. xxi. 1 (I), (e), p. 272. * Ord. xxi. 4, p. 273, " Ord, xix, 8, p. 267. * Ord. xix. 9, p. 267. 72 THE PLEADINGS. facts, deny others, and adduce further facts, for the purpose of destroying the legal effect of facts admitted or unadmitted. A duty is im- posed on the defendant by the rules of pleading to admit facts Avhich cannot fairly be denied, otherwise the cost occasioned by denying them will be imj)osed on him/ The defendant's ad- mission of a part of the plaintiff's claim may take the form of payment into Court. Before or at the time of delivering his defence he may pay into Court in any form of action a sum of money in satisfaction of the demand of debt or damages, and afterwards jslead such payment in his statement of defence.^' The money is paid to an officer of the Court who gives a receipt for it, and is paid out to the plain- tiff's solicitor on production of a written authorit\' from his client.^ If the plaintiff accept the sum paid in satisfaction, he gives notice to his opponent to that effect, and is then entitled to his costs- If he do not accept it as sufficient, he so states on the pleadings, and the sufficiency of the amount becomes an issue betw^een the parties." Besides answering the claim of the plaintiff, the statement of defence may also contain a counter-claim, that is, a claim for redress on the part of the defendant from the plaintiff, either alone or in conjunction with others. The area of counter-claims is much less limited than that of set off under the previous law. A set off" was only allowed in cases where there might be an ordinary debtor and creditor account J Orel. xxii. 4, p. 273. ^ Ord. xx-k. 1, p. 283. a Ord. XXX. 3, p. 283. " Ord. xxx. 4, p. 283. COUNTER-CLAIM. 73 between the parties. It could only be pleaded in an action for a liquidated sum, and must itself have consisted of a claim for a liquidated sum. An action may now be employed to clear up all the disputes existing between the j)arties, and a counter-claim may be pleaded in any kind of action and may itself consist of any kind of claim legal or equitable." Fermerly a defendant could only rely on a set off as a defence to the plaintiff's claim, but now a balance of money may be adjudged to a defendant, or an injunction or other relief may be decreed in his favour.^ If the counter-claim involve other persons than the plaintiff, the defendant must add to the title of his statement of defence a fresh title composed of the parties to the counter-claim.® If these persons are defendants in the action, he must deliver his statement of defence to them as well as the plaintiff, but if they are not parties he must serve them with a copy of the statement of defence in- dorsed so as to make it analogous to a writ.*' A person so served may appears and join the pleadings at the reply, which in his case will be in the nature of a statement of defence, and must be delivered within the time allowed for that pleading.^' A counter-claim, however, is always subject to be excluded from tlie action if thought proper by an order.^ Jud. Act, 1873, s. 24 (3). ^ Ord. xxii. 10, p. 275. • Ord. xxii. 5, p. 275. *■ Ord. xxii. 6, p. 275. e Ord. xxii. 7, p. 275. ^ Ord. xxii. 8, p. 275. ' Ord. xxii. 9, p. 275. E 74) THE PLEADINGS. The statement of defence must be delivered within eight days from the dehveiy of the state- ment of claim .^ Although the defendant has dispensed with a statement of claim in his memorandum of appearance he may still deliver a statement of defence.^ In a Probate action, a defendant may, with his defence, give notice that he merely insists on the will being formally proved, and intends to cross-examine the plaintiff's witnesses only."" Examples of statements of de- fence are given as Forms 4, 15, 20 and 24 in the appendix. The reply must be delivered within three weeks after the statement of defence,^ and con- tains a denial or admission of the facts in the defence, or an allegation of fresh facts made for the pm^ose of destroying the legal effect of the facts alleged in the statement of defence. A joinder of issue is a common form of reply. It cannot be used in answer to a counter-claim, and its effect is to deny all the material allegations of the defence.*' If a counter-claim be set up, the reply must deal with it specifically .p Even if the reply contain more specific allegations than a joinder of issue, it is generally enough for the defendant to plead a joinder of issue to the reply. A simple joinder of issue constitutes the close of the pleadings,^ and if the defendant wish to plead " OrA xxii. 1, p. 274. • Ord. xxii. 2, p. 274. " Ord. xxii. 11, p. 276. " Ord. xxiv. 1, p. 277. ° Ord. xix. 21, p. 270. p Ord. xix. 20, p. 270. 1 Ord. XXV., p. 277. DEMURRER. 75 any other pleading after reply he must obtain an order for that purpose.^' If, after all, the pleadings do not succeed in sufficiently defining the issues of fact in dispute between the parties, an order may be obtained for the preparation of issues, or they may be settled by a judge.^ The statements of claim and of defence, and the reply are always liable to be interrupted by a demurrer, which has been retained almost without alteration from the systems of pleading used both at common law and in Chancery. A demurrer is a pleading delivered at the same time as the cor- responding pleading in fact, and alleging that the previous pleading of the oj)ponent, or part of his pleading, is insufficient in law.*^ Thus a demurrer to a statement of claim alleges that the facts stated do not in law give the plaintiff the right of action which he claims. A demurrer to a state- ment of defence alleges that the facts stated do not in law constitute an answer to the statement of claim. If part of a pleading be demurred to, it must be a distinct and substantive part intended to stand by itself. For the purposes of argument the demurrer admits the facts demurred to in point of fact, but an order may be obtained for leave to plead and demur to the same facts, in which case the demurrer and the pleading in fact are combined in the same pleading.'^^ An example of a demurrer is given as Form IG in the appendix, and a ground for demurring in law must always ' Ord. xxiv. 2, p. 277. • Ord. xxvi. p. 277. * Ord. xxviii. 1-3, p. 279. " Ord. xxviii. 4-5, p. 280. E 2 76 THE PLEADINGS. be assigned.^ When a demurrer is delivered, the party whose pleading is demurred to must either amend his pleading or set down the demurrer for argument/ If he think the matter demurred to can be made good in law by adding further facts, he may apply for an order to amend. This order will not be made except on payment of the costs of the demurrer.^ If he neither set down the demurrer nor obtain an order to amend within ten days, the demurrer is held to be sufficient both as to costs and otherwise * If the demurrer be set down, it is argued on the footing that the facts stated in the pleadings are true. If the demurrer be allowed, the matter demurred to is deemed to be struck out of the pleading.^ If it be disallowed, the Court may give leave to the demurring party to plead to the matter demurred to in point of fact.° If a demurrer to the whole or a part of a pleading is allowed upon argument, the unsuccessful party in general pays the costs of the demurrer.** If a demurrer to a whole state- ment of claim be allowed, the defendant has all the costs of the action, unless the amendment of the statement of claim be allowed.® The result of a demurrer may show either party the necessity for altering his statement of facts or adding fresh facts, or for some other reason it tfiay be expedient during the course of * Ord. xxviii. 2, p. 279. ' Ord. xxviii. 6, p. 280. ' Ord. xxviii. 7, p. 280. * Ord. xxAoii. 6, p. 280. b Ord. xx\dii. 10, p. 281. * Ord. xxviii. 12, p. 281. d Ord. xxviii. 8, p. 280. « Ord. xxviii. 9, p. 281. AMENDMENT. 77 the pleadings to make sucli an alteration or addi- tion. This is done by amendment, which may be under an order giving leave or without leave. The terms on which an amendment is allowed when a demurrer is pending have already been stated. In ordinary cases the plaintiff may amend his statement of claim without leave once before delivering his reply ;f and the defendant setting up a counter-claim may amend it without leave once before pleading to the reply .s If there be no defence delivered, the plaintiff has four weeks from the appearance within which to exercise his right of amending, and if there be no reply to a counter-claim the defendant has the same time from the defence. The right is subject in both cases to an application by the opponent within eight days from the delivery of the amended pleading for an order disallowing the amendment, or to amend his own pleading.^ Besides this amendment of course, an oi'der to amend may be applied for at any time either during the pleadings or at the triaL^ The amend- ment may be made with pen and ink on the pleading as unamended, but if 144 words hav6 to be added in any one place, the pleading must be reprinted.'^ The amended pleading must be marked with the date of the amendment,^ and delivered to the opposite party within the time allowed for amending.'" ^ Ord. xxvii. 2, p. 278. e Ori xxvii. 3, p. 278. ^ Ord. xxvii., 4-5, p. 278. ' Ord. xxvii. 6, p. 278. " Ord. xxvii. 8, p. 279. • Ord. xxviL 9, p. 279, » Ord. xxvii. 10, p. 279. 78 THE PLEADINGS. Sometimes the plaintiff finds that he has mis- conceived his claim beyond the power of amend- ment, or for some other cause he may wish to abandon his action. This may be done by dis- continuance ; and a plaintiff may discontinue his action by giving notice before taking the next step after reply without leave.^ In other cases an order to discontinue is required. A subject akin to amending is that of pleading matters arising during the pendency of the plead- incrs. If fresh facts constituting a defence arise after the statement of defence, or after the reply to a counter-claim has been delivered, the defendant or plaintiff may within eight days obtain an order for leave to deliver a further defence or reply, in the nature of what was called under the former system, a pleading "puis darrein continuance."" Where facts, amounting to a defence, which arose since the action was brought, are pleaded, the plaintiff may deliver a confession of the defence, and may generally sign judgment for his costs up to the i)leading of such defence.!' When facts arise amounting to a discharge of the claim, even after judgment, the party in danger of execution or actually in execution, may apply for an order for a stay or other relief. This proceeding was formerly called " audita querela," which was a writ analogous to a writ of error, but which has now been abolished.^ " Orel xxiii., p. 276. ° Ord. xx. 2, p. 272. P Ord. XX. .3. p. 172. i Ord. xlii. 22, p. .311. GENERAL RULES OF PLEADING. 79 In actions for damage by collision at sea, a document, analogous to a pleading, called a " pre- liminary act " must be filed before the pleading by each party. This document contains a statement of particulars which are always material in these cases, such as the state of the weather, the direc- tion of the wind, the course of the vessel, what lights the ship carried, and so on.^" This docu- ment is not delivered between the parties, but is sealed up, and only opened by order of the judge. Its object is to obtain independent statements from both sides of these necessarily material facts, so that the admitted facts in the case may be made clear and the parties prevented from shaping their version of the facts to meet their opponents.' Such being a description of the successive stages of pleading, there are certain principles laid down generally for the guidance of the pleader. Some of these which abrogate speci- fically certain of the former rules of pleading have already been adverted to. The rest may be natur- ally deduced from the theory of pleading as already explained, and from the assumption that each side is fairly to present his case to his opponent. Thus allegations not denied are taken as admitted." Such defences as fraud, or the Statute of Limita- tion or any other defence which may be set up by way of confession and avoidance, must be specially pleaded ; * but a party need not allege a fact which the law presumes in his favour, or the ' OrA xix., 30, p. 271. ' Orel xix. 17, 269. » Ord. xix., 18, p. 269. 80 THE PLEADINGS. burden of proving which lies on the other side.'^ The pleadings on each side are to be consistent with the previous pleading of the same party.^ A claim or counter-claim must not merely be denied in general terms, but each allegation of fact must be dealt with. Documents must be abstracted and not set out at length, unless the precise words are material.y Allega- tions of complex facts like malice or fraudulent intention may be made without setting out the circumstances from which they are infen'ed,^ and generally evidence is not to be pleaded* The new rules require pleadings in an action for the recovery of land, but it is in general enough for a defendant to jDlead that he is in possession, unless he rely on an equitable defence.'' All forms of unfair denial are forbidden, such as deny- ing a fact alleged with circumstances and not also denying it without the circumstances,^ and it may be said generally that the pleadings now in use are intended to be a fair statement in popular language of the facts upon which each party relies for the maintenance of his case. " Ord. xix. 28, p. 271. '^ Ord. xix. 19, p. 269. y Ord. xix. 24, p. 270. " Ord. xix. 25, p. 270. Ord. xix. 4, p. 267. ^ Ord. xix. 15, p. 269- <= Ord. xix. 22, p. 270. 81 CHAPTER V. EVIDENCE BY AFFIDAVIT. The general practice of the High Court is to take the e"\"idence in the action, that is, the evidence directed to the disputed facts raised on the pleadings, by the oral examination of witnesses at the trial after the system in use in the former Courts of Common Law.^ But the ordinary practice of the Court of Chancery was to take the evidence by affidavits which were filed as soon as the pleadings were sufficiently advanced, and this practice is adopted in the High Court whenever the parties think fit to consent to that course. Aa there are many forms of action in which the question is rather of law or judicial discretion than of fact, and in which consent to the use of affidavits is encouraged,b the process of taking evidence by affidavits is an important step in an action ; following in natural order the close of the pleadings. An affidavit is a written statement sworn to or affirmed before a person having authority to » Ord. xxxvii. 1, p. 300. " Ord. xxxviii. 1, p. 301. "= Patterson v. Wooler, 45 I.. J., Ch. 274. E 3 82 EVIDENCE BY AFFIDAVIT. administer oaths. It may be divided into four parts, the title, the description of the deponent, the body or contents, and the "jurat." The title of an affidavit is the same as the title of the writ of summons in the action. The descrij)tion of the deponent includes his true place of residence and addition, but these particulars need not be given in the case of a party to the action. 'I Thirdly, with respect to the contents of the affidavit, the main rule is, that they should be explicit and positive, so that if false, perjury may be assigned upon them. The Judicature Act® is very strict upon this point, and requires affidavits when used as evidence in the action to be confined to facts within the witness's own knowledge. Upon " interlocutory " or incidental applications the deponent is allowed to speak as to his belief, in which case the common form employed is " that he is informed and verily believes." He ought, however, to give the grounds of his belief Argumentative matter ought not to be inserted, and copies of, or extracts from, documents veiy sparingly used, but documeuts_may be referred to as " produced anTP shown " to the deponent. The party who files an affidavit which offends in either of these particulars or in unnecessarily intro- ducing hearsay evidence is liable to bear the costs. Affidavits must be drawn up in the first person and divided into paragraphs, which must be d E. 138, H. T., 1853. ' Ord. xxxatI. 3, p. 301. CONTENTS OF AFFIDAVITS. 83 numbered consecutively, and, as nearly as may be, confined to a distinct portion of the subject/ Fourthly, the jurat consists of a short statement at the foot of the affidavit of the time when, the place where, and the person before whom it was sworn. It may be sworn in Court or before any one of the judges, or before a commissioner appointed to take affidavits in the Supreme Court. Affidavits cannot be sworn before a party's own solicitor or his clerk. In Scotland and Ireland,^' in the Isle of Man and the Channel Islands ^ affi- davits are sworn before commissioners appointed for that purpose. In a foreign country affidavits may be sworn before a mayor, magistrate, or other officer authorized by the law of such country to administer an oath, or before a British consul ^ or British ambassador, vice-consul, and others.'^ When there are several deponents, their names must appear severally in the jurat in this way : " The above-named deponents, A., B., and C, were severally sworn." ^ The deponent signs his name at the side of the jurat, and the person adminis- tering the oath at the foot of it. Persons de- clining from conscientious scruples to be sworn may affirm."^ Persons who object to take an oath and on whose conscience an oath has no binding effect, may depose under a " solemn promise anc, f 15 & 16 Vict. c. 86, s. 37 ; E. 2 M. V., 1854. B 3 & 4 WiU. IV., c, 42, s. 42. »> 22 Vict. c. 16, s. 3. '6 Geo. IV., c. 87, s. 20. " 18 & 19 Vict., c. 42. 1 K. 139, H. T. 3 853. "" C. L. P. Act, 1854, s. 20. 84 EVIDENCE BY AFFIDAVIT. declaration" that they will speak the truth." Affi- davits must have a stamp affixed to them. Whenever an agreement to take the evidence by affidavit is concluded, the plaintiff must within fourteen days or the time specified in the agree- ment or allowed by order file his affidavits and deliver a list of them to the defendant or his solicitor.'' Similarly the defendant within the same period must file his affida\dts and deliver his list.P Seven days after the expiration of the time given to the defendant to file his evidence are allowed to the plaintiff to file and deliver a list of affidavits in reply, which must be strictly confined to this purpose.*! Either party wishing to cross- examine any of his opponent's witnesses may re- quire the production of the witness by his opponent at the trial. If the witness is not produced accord- ingly, his evidence cannot be read. The notice must be given within fourteen days after the ex- piration of the time for filing affidavits in reply .'^ The witness may be subj)oenaed by the party to whom the notice is given in order to enforce his attendance. Evidence given in accordance with this practice must be printed, and Avhen this practice is followed the next step in the action, viz., notice of trial, cannot be given until after all the evidence is filed, the close of the evidence being thus put in the place of the close of the pleadings.' ° 32 & 33 Vict., c. 68; 33 & 34 Vict., c. 49. Ord. xxxviii. 1, p. 301. p Ord. xxxviii. 2, p. 302. 1 Ord. xxxviii. 3, p. 302. "■ Ord xxxviii. 4, p. 302. ^ Ord. xxxviii. 5, p. 302. « Ord. xxx^-iii. 6, p. 302. AFFIDAVITS IX INTEKLOCUTORY MATTERS. 85 The use of affidavits for the purpose of taking the evidence in the action is the most formal and regular proceeding in which they take part, but affidavits are constantly employed in interlocutory applications where the main issues in the action are not in question, but facts have to be proved upon the hearing of a motion or summons for incidental purposes, such as obtaining the inspec- tion of documents, or the interim protection of property. Affidavits were always used for such purposes at common law as well as in Chancery, and they are put to the same use in the Supreme Court, subject to the liability of the deponent to attend and be cross-examined under an order. Questions of tact are generally so little in dispute on interlocutory applications, that a relaxation of the strict rules of evidence is allowed, and the affidavits may contain statements of the belief of the deponent. Upon interlocutory applications notice of the filing of affidavits is sometimes given between the parties, but frequently the counsel or solicitor on one side merely hands them to his opponent before the matter is brought on in order to give him an opportunity of inspecting and remarking upon them. If there be a dispute concerning facts which the Court thinks ought to be further inquired into, it possesses the power, which it sometimes exercises, of directing an issue to try the ques- tion, or of refeiTing it to the Master or other officer to inquire into and report upon. When this is done, the Master will hear the case and 86 EVIDENCE BY AFFIDAVIT. make his report, which either side is at liberty to move for, or object to, after it has been produced and read. This mode of arri^dng at the truth was formerly sometimes adopted in the Common Law Courts by reason of the strict rule, that the party applying for the intervention of the Court was limited to the evidence which he adduced in the first instance, and was entirely precluded fi-om offering fresh affidavits in answer to those of his opponent. This direct premium to unscrupulous- ness held out to the party who swore last, was in some measure removed by the Common Law Pro- cedure Act, 1854,^ which provides that either party, with leave of the Court or a judge, may make affidavits, in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits. Upon the hearing of any motion or summons, it is also open to the Court or judge to order the production of any necessary documents, and the appearance of any necessary ^vitnesses to be examined viva voce, either before the Court, or a judge, or before a Master ; and upon hearing the evidence, or reading the report of the Master, the matter will be disposed of by rule or order, as may be just. Although it is a prima facie rule that in the absence of consent the evidence in the action should be given orally and in open Court, an order may be made allowing any particular fact or facts to be proved by affidavit, or allowing the " 17 & 18 Vict., c. 125., S.S. 45 & 46. EVIDENCE BEFORE EXAMINERS. 87 affidavit or examination on interrogatories of a particular witness to be read at the trial. This order, however, is not made, if it appear that there is a bona fide desire on the part of the opposite party to cross-examine the witness.^ In aid of the extraction of evidence by affidavit there is a general power to order witnesses to be examined before an examiner.y * Ord. xxsvii. 1, p. 300. ? Orel, xxxvii. 4, p. 301. CHAPTER VI. INTERLOCUTORY APPLICATIONS. Interlocutory applications are proceedings taken during the progress of the action for the purpose, in general, of assisting either party in the prosecution of his case, or of obtaining an interim order with reference to the subject matter of the dispute. Several forms of interlocutory applica- tions have already been mentioned, such as the application for leave to employ substituted service and for leave to amend pleadings, and it is now time to point out how these applications are made, and to refer in detail to certain of the most im- portant of them. Applications for interlocutory orders are gene- rally made, in the first instance, to a judge at Chambers or some official of the Court who in certain matters acts as his deputy. Except in a few ex parte proceedings they are begun by sum- mons, which is a document issued in the name of the judge or officer and calls on the party interested to shoAV cause why the order asked for should not be made. The summons is left at the party's address for service. If the party taking out the summons intends to attend by counsel, he should APPLICATION BY SUMMONS. 89 give notice of his intention to his opponent at the time of the service of the summons ; and if the latter intends to appear by counsel to oppose the summons, he must give to the party taking out the summons the best notice he can of such inten- tion before the return of the summons. The summons operates as a stay of proceedings from the time at which it is attendable until disposed of On the return day of the summons in the Queen's Bench, Common Pleas, and Exchequer Divisions of the High Court, the parties, or their solicitors, or counsel, go before one of the Masters, and in the Probate, Divorce, and Admiralty Divi- sion before a Registrar, except in certain specified cases. These cases are applications for the re- moval of an action from one division or judge to another, for the settlement of issues, except by con- sent, for discovery, except by consent, to rescind an order of a District Registrar, for an interpleader, for an injunction and for an order for costs." In the Chancery Division the summons is heard before the Chief Clerk, and in some cases before the junior Clerk. The Master, Registrar, or Chief Clerk, after hearing the parties, either makes the order asked for, or makes no order, either with or without costs. He may also, if he may think fit, refer the matter to the judge.*' If the party on whom the summons is served do not appear, the applicant's solicitor, having waited a reasonable time, is entitled to an order. The order, when obtained, must be drawn » Ord. liv. 2, p. 322. " Ord. liv. 3, p. 322. 90 INTEELOCUTORY APPLICATIONS. up and served forthwith, othenvise it may be treated as abandoned. Orders, if unobe3^ed, are enforced by attachment, the punishment for con- tempt of Court. From the Master, Registrar, or Chief Clerk, there is always an apj)eal to the judge in Chambers. An appeal from the order of a Master is made by taking out a summons within four days from the decision.<= There may be a still further appeal from the judge at Chambers to a divisional Court which is made by motion within eight days. In the Chancery Division there may be an appeal from the judge in Chambers to the judge in Court, which takes place by the judge adjourning the matter into Court if he thinks it had better be heard more deliberately and with the assistance of counsel on both sides. In the Queen's Bench, Common Pleas, and Exchequer Divisions, an appeal from a judge at Chambers to a divisional Court is made by motion, that is to say, counsel or the party in person moves the Court to rescind the order or to allow w^hat the judge has refused.** Two clear days' notice of motion must be given to the opposite party.® Interlocutory applications are so numerous as to make it impossible to describe them all, and so various as to defy classification ; but some detailed account may be given of the most frequent and important of them. The commonest kind of interlocutor}^ applica- tion, is the application for time. As we have <= Orel. liv. 4, p. 323. ^ Orel. Hv. 6, p. 323. « Orel. liii. 4, p. 321. SETTING ASIDE FOR lEEEGULARITY. 01 already seen, the steps in an action have to be taken within a certain prescribed time, but the party who has to take the step often finds that the time limited is insufficient. The time prescribed is almost invariably made subject to an order, but the applicant obtaining the order, in this as in all other cases where the grant of the application is a matter of favour, is if deshed by his opponent placed under terms, as, for instance, that he take short notice of trial. Another very numerous class of interlocutory applications is for jsarticulars, when either party alleges that his opponent's pleading is too vague, and desires to know more precisely what are the items of his claim, set off, or the like. Applica- tions of this class were more numerous under the former than the present system. Of a converse nature to a summons for time is the application to set aside proceedings for irregularity. Thus there are certain rules which regulate the time of entering judgment, and if judgment be entered before the time prescribed, it will be set aside for irregularity. And so, in every case where a rule or regulation of the Court is infringed, the proceeding which infringed it will be set aside, on application. Every aj)plication on this score must be made as speedily as possible, and it will not be acceded to if the party applying has taken a fi-esh step after knowledge of the irre- gularity.^ Of the more important kinds of interlocutory proceedings, the commonest are those arising out ' R. 135, H. T., 1853. 92 INTERLOCUTORY APPLICATIONS. of discovery and inspection. Discovery is a pro- ceeding by one party to an action for obtaining the disclosure of facts or documents from his opponent. The discovery of facts is obtained by interroga- tories or Avritten questions, which a plaintiff or a defendant may deliver to his opponent at any time before the close of the pleadings ^^ although interrooatories before statement of defence are discouraged. It may be of the utmost importance to the party to obtain this discovery from his opponent, in order that he may be able to frame his pleadings coiTectly, or prepare his case for the trial, or obtain evidence of facts within the knowledge of his opponent only, without making him a witness subject to the cross-examination of his own counsel at the trial. After the pleadings are closed, an order must be ob- tained permitting interrogatories to be delivered. Upon delivery of the interrogatories the oppo- site party must either answer them by affidavit, to be filed within ten days,^ or must apply for an order to have the interrogatories struck out.'' If it be shown that any of the inter- rosratories is scandalous, that is, that it con- tains matter introduced merely for the purpose of giving pain, or irrelevant, that is, that it has not sufficient bearing on the questions in the action, or that it is not put bona fide for the purposes of the action, or generally that it is ob- jectionable for other good ground, it will be struck ^ Ord. xxxi. 1, p. 285. ' Ord. xxxi. 6, p. 286. " Ord. xxxi. 5, p. 285. DISCOVERY. 9 J out.' Moreover, when the costs of the ax^tion come to be taxed, if it a^jpear that interrogatories have been administered unreasonably, vexatiously, or at improper length, the costs may be ordered to be bome by the inteiTogating party. °^ An objection to answering an interrogatory may also be taken in the affidavit filed in answer.*^ If no answer be filed, or if it be in the opinion of the interrogating party insufficient, an order may be made requiiing an answer or a further answer. The order may require the answer to be made viva voce.° When it is desired to interi'ogatea corporation an order is required, and an officer or member of the cor- poration is named for the purpose of making the affidavit. 1' Equally important with the extraction of facts from an adversaiy, is the discovery of documents, or the power of compelling him to disclose what documents there are in his posses- sion or control relevant to the case. Any party may obtain an order without filing an affidavit directing any other party to the action to make an affidavit giving a list of these documents.^ So soon as he knows of the existence of a document, the opposing party will of course wish to see it, and therefore the affidavit of documents is re- quired to state which of the documents it is ob- jected to produce.'" The production for the pur- pose of inspecting and copying the documents ' Ord. xixi. 5, p. 285. " Orel. xxxi. 2, p. 285. » Ord. xxxi, 8, p. 286. « Ord. xxxi. 10, p. 286. P Ord, xxxi. 4, p. 285. ** Ord. xxxi. 12, p. 286. «• Ord. xxxi. 13, p. 286. 94 INTERLOCUTORY APPLICATIOXS. disclosed in the affidavit of documents, or referred to in the opposite party's pleadings or affidavits, may be enforced by merely giving a written notice, and if the notice be not complied with, the defaulting party is not permitted to give the docu- ment in question is evidence without a sufficient explanation.^ When the notice to produce the documents has been given, the practice is for the party in whose possession or control they are, to appoint a time and place for their inspection. If he object to the inspection, he must state the documents to which his objection ajDplies, and the ground of it.* If the notice be not given, or if it be accompanied by an objection, an order for in- spection may be applied for.^ Sometimes a part}^ may have reason to believe that documents are in the possession of his opponent which have not been mentioned in the affidavit of documents, or in the pleadings or other affidavits. In that case, if he apply for an order for inspection he must be pro- vided with an affidavit of the circumstances.^ Whether or not a party shall be ordered to allow a document to be inspected is entu"ely in the discre- tion of the judge, who decides as the justice of the case may require, and for that purpose may order the document to be produced to him.y Failure to ans^^■er inteiTogatories, or to discover or permit inspection of documents, may be visited with attachment. The defaulter is also liable to have his defence struck out or his action dismissed.'' » Ord. xxxi 14, p. 287. ' Orel. xxxi. 16, p. 287. •■ Ord. xxxi. 17, p. 287. ^ Ord. xxxi. 18, p. 287. y Ord. xxxi. 11, p. 286. » Ord. xxxi. 20, p. 288. EVIDENCE BY COMMISSION. 95 The general rule, that attachment for disobedience to an order will not be made without personal service of the order, is relaxed in favour of the right of discovery, and service of the order on the solicitor is sufficient ; but the attachment will not be made if it appear that the party has in fact had no notice of the order.-'' In that case the solicitor may be attached for not bringing the order for discovery or inspection to his client's knowledge.^ Somewhat analogous to proceedings by way of discoveiy is the taking of witnesses' depositions in writing for use at a trial with oral evidence. If a witness be in India, or in any of her Majesty's colonies or dominions abroad, the Court can grant a wi'it in the nature of a mandamus to the tribunals there to examine him and return his examination to this country ; and if the witness be in any of such places, or in a foreign state, an order may be made for the issue of a commission, which is a document empowering some person to take evi- dence out of the jurisdiction of the Court. When the ^\dtness is in England, but will be unable to attend the trial by reason of illness or absence beyond the jurisdiction, an order may be made that he be examined before some person, whether or not an officer of the Court.° Where evidence is taken within the jurisdiction, or in any of the Queen's dominions abroad,*^ there are compulsory * Ord. xxxi. 21, p. 288. " Ord. xxxi. 22, p. 288. <= 1 Wm. rV., c. 22, reciting 13 Geo. II., c. 63. * 22 Vict., c. 20. 96 INTERLOCUTOEY APPLICATIOXS, powers to enforce the attendance of witnesses, but when a commission issues to a foreign state the attendance of witnesses is voluntary. An occasional but rare application is that of a party to be allowed to proceed " in forma pauperis." This privilege was first given by a statute of Henry the Seventh® to plaintiffs suing in the Common Law Courts, and an analogous j^ractice arose in Chancery, where it was extended to defendants. The application may be made either before suing or in the course of the action, and the a^jplicant must make an afiidavit that he is not worth five pounds except his wearing apparel, and, if a plaintiff, the matter in question in the action. He must also, if a plaintiff, produce a certificate of counsel that the action is proper to be brought,*^ together with an afiidavit that the facts were truly stated to the counsel.^ The order is a discretionary indulgence, and will not be granted if likely to be used for vexatious purposes. Its effect is to relieve the pauper litigant from the payment of Court fees, and to assign to him a counsel and a solicitor. If he fail, he does not pay costs to the opposite party ; but if he succeed, he obtains no costs, except money out of pocket. A pauper may at any time be dispaupered if the order were im- properly obtained, or if he turn it to pm'poses of vexation, or if he obtain property. The interlocutory applications already noticed may be made either by a j^laintifF or a defendant, « 11 Hen. VII., c. 12. ^ Cons. O. Ch. 7. 6 R. 121, H. T., 1853. EEMITTIXG TO A COUNTY COURT. 97 but there are certain applications wliicli are made particularly by the defendant. The most imj)ortant of these is the application to remit the case to a County Court, which the defendant frequently makes when the claim is for a small amount, or he has reason to believe that the plaintiflf is not a sufficiently substantial person to pay the costs of an action in the High Court if he should fail. If the action be an action of contract, and the claim do not exceed £50, the defendant may, within eight days from the service of the writ, ajsply for an order, referring the case to the County Court in v.'hich the action might have been commenced. If the plaintiff cannot show good cause to the con- trary, the order Avill be made and the case tried in the County Court accordingly .p If the action be an action of tort, however large the claim, the defendant may apply for an order remitting it to a County Court, withuut any restriction of time upon an affidavit that the plaintiff has no visible means of paying the costs of the defendant if ho •should fail in the action. The order will be made unless the plaintiff give security for costs, or satisfy the judge that he has a cause of action fit to be prosecuted in the High Court.^i In actions of contract'' or claims in equity, there is a further power belonging either to the plain- tiff or the defendant to apply for an order remit- ting the case to a County Court. This is done P 30 & 31 Vict. c. 142, k. 7 ; Jud. Act, 1873, s. 67. " 30 & 31 Vict. c. 142, b. 10. «■ 19 & 20 Vict. c. lOS, s. 26. 98 INTERLOCUTORY APPLICATIONS. after issue joined, and claims reduced to £50 by payment into Court, as well as claims which might originally have been brought in the County Court, may be remitted. Claims in equity which might have originally been prefen'ed in the County Court, that is, generally, Avhere the subject matter does not exceed £500, may also be remitted.^ Similarly, where an action has been brought in breach of an agreement to refer disputes to arbitration, an application may be made to stay the proceedings which ought never to have been begun. It is a common practice to insert in partnership and other agTeements, a clause that any disputes arising between the parties shall be referred to arbitration. Before the Common Law Procedure Act, 1854, this clause was in o-eneral useless, unless the parties remained in the same mind when the dispute did arise, by reason of the technical rule of law, which jarecluded parties from ousting the Courts of jurisdiction by such a previous agreement.*^ By the Common Law Pro- cedure Act, 1854, if parties agree in T^Titing to refer existing or future differences to arbitration, and any of them, or any person claiming under them, afterwards bring an action in resj)ect of such differences the proceedings may be stayed by an order." The application to stay the proceedings must be made after the appearance and before the statement of defence. The defendant on making the ^ 30 & 31 Vict. c. 142, s. 8. ' See Crisp v. Bunhury, 8 Bing. 394. " 17 & 18 Vict. c. 125, s. 11. REMITTIXG TO AEEITRATIOX, 99 application should show that at the time of the commencement of the action or suit he was and is ready and willing to join and concur in all acts necessary and proper for causing the matters in difference to be decided by arbitration, but the exercise of the jurisdiction is a matter of discretion. The Court refused to stay proceedings under this provision where the plaintiff bona fide alleged that the question raised was one of fraud. ^ Independently of the County Court Acts or other statutes it is open to the defendant to apply imder certain circumstances for an order stajnng proceedings imless the plaintiff give security for costs. If the plaintiff, Avhether suing in an individual or in a representative capacity, and whether for his own benefit or that of another, permanently reside abroad, or even in Ireland or Scotland, or elsewhere out of the jurisdiction of the Court, the Court or a judge will stay the pro- ceedings in the action until he give security for costs to the satisfaction of an officer of the Court. Where there are several plaintiffs, however, if any one of them reside here, the security will not in general be ordered to be given. But an order may be made in an action by husband and Avife for a personal injury to the wife, if the husband be resident abroad, although the Avife be resident here. The absence abroad must be of a permanent kind ; and where the absence is of a mere tem- porary nature, as in tlie case of an English seaman WaUis V. nirsclt, 2C L. J. C. T. 72. F 2 100 INTEELOCUTOEY APPLICATIONS. serving on board an English or foreign vessel con- stantly sailing to and from this country, he will not be compelled to give this security. As to what is a temporary absence, it perhaps may be taken as a riTle, that it will not be such where the plaintiff would be absent beyond the time when judgment could, in the ordinary course of pro- ceeding, be obtained against him ; there has not, however, been any decision to this effect. Kor v.'ill this security be required to be given on the ground of the plaintiff's absence abroad, when such absence is not voluntary, and the i3laintiff is an Englishman ; as in the case of naval and military officers, and other persons engaged abroad in the public service. It seems, though there are cases to the contrary, that a plaintiff domiciled abroad will not be compelled to give security for costs while he is in this country. A foreigner in this country, though his permanent residence be abroad, will not be compelled to give this security. A peer, whose person is privileged from arrest, or a foreign ambassador or his servant, will not be com- pelled to give security for costs ; although ambassadors and their suites, by a fiction of the jus gentium, are considered as still resident in the state from which they have been sent, and are not amenable to process in the country in Avhich they actually reside. In two cases foreign potentates have been compelled to give such security in causes arising out of commercial transactions ; and, in general, the rank of the plaintiff Avill afford no answer to the ai^plication. A foreign SECURITY FOR COSTS. 101 railway company is bound to give secuvity for costs, notwithstanding that it has personal property in England, and some of its shareholders reside in England, who are responsible to the extent of their unpaid capital. The plaintiff Avill not be compelled to give security for costs merely because he is a pauper, or bankrupt, or insolvent. Nor Avill such security be compelled, though he become bankrupt after action brought, unless the trustees interfere, and the action is carried on for their benefit. But a plaintiff will be ordered to give security for costs, if he be in insolvent circumstances, and sue not for his own benefit, but for that of assignees, to whom he has assigned his property in trust for the benefit of his creditors. It may also be taken as a general rule, that where another person is, in fact, proceeding with an action in the name of the party on the record, and that party is in a state of pauperism and insolvency, the Court will stay the proceedings until security for costs be given. Where a limited comjDany is plaintiff, and there is reason to believe that if the defence be successful the assets will be insufficient to pay the defendant's costs, security for costs may be required.^ But where an order has been made for the compulsory winding up of an insolvent joint stock company, and an action is brought by the official liquidator in the name of the company to recover money due to the company, the defendant y 25 & 26 Vict. c. 89, s, 69. 102 INTEELOCUTORY APPLICATIONS. is not entitled to call upon the jDlaintiff to give security for his costs.'' An executor or the trustee of a bankrupt who is suing as trustee for the benefit of the estate, will not be compelled to give security for costs, upon the ground that he is jjoor and unable to j^ay the defendant's costs.* If the plaintiff is convicted of felony and under sentence of transportation, he may be ordered to give security for costs. Lunacy of the plaintiff is no ground for requiring such security. When the defendant is quasi a plaintiff, as in replevin, and he reside abroad, he may be compelled to find security for costs. So he may be com- pelled to do so when he resides abroad in an issue under the Interpleader Act. But, in other actions, the defendant will not be compelled to give such security. The application for the necurity cannot be made before the defendant has appeared. It should ordinarily bo made before issue joined.^ A converse application to that of the defendant to compel the plaintiff to give security for costs is an application by the plaintiff to hold the defendant to bail, when he is about to quit England. This is now the only remnant of what was formerly the most ordinary mode of proceed- ing for the recovery of debts, and is taken under the Debtors Act, 1869, which abolished arrest on mesne process, and provided a new proceeding, ^ United Forts Insurance Company v. Hill, 39 L. J. Q. B. 227 " Dcnston v. Ashton, 38 L. J. Q. B. 254. •^ E. 22 H, T. 1853. HOLDING TO BAIL. 103 available only against absconding debtors. It applies only to actions in which formerly the defendant would have been liable to arrest. The application may be made at any time before final judgment, and the ijlaintiff must prove to the satisfaction of a judge that he has a good cause of action against the defendant to the amount of 501. or upwards, and that there is probable cause for believing that the defendant is about to quit England, and that his absence will materially pre- judice the plaintiff in the prosecution of his action. An order may then be made committing the defendant to prison for any term not exceeding six months, until he has given security to an amount not greater than the claim, that he will not go out of England without leave of the Court.° In penal actions, in which arrest on final process is still retained, the plaintiff need not prove that the absence of the defendant will materially pre- judice him in the action, and the security is to the effect that any sum recovered shall be paid, or the defendant rendered to prison. The strictness of the proof required does not make this proceeding very frequently available, and the process is chiefly interesting as throwing light on former methods of procedure in civil actions. A curious history belongs to the " actions in which formerly a defendant would have been liable to arrest." Anciently, arrests were only allowed in actions <= 32 & 33 Vict. c. 02, h. G. 104< INTERLOCUTORY APPLICATIONS. of trespass, which were thought to partake of a crhninal nature. Afterwards the power to aiTest was expressly given, in some other actions, by the Legislature ; and at length a legal fiction was invented, by which the defendant was aiTested, ostensibly for a trespass, but really for any other cause of action. When this practice came to be fully recognised, a defendant might have been aiTested for any cause of action, however paltr}' ; and this manifest hardship occasioued the passing of several statutes,'^ the effect of which was, that no one was permitted to be arrested for any cause except a debt, without the special order of a judge. Thus the law of arrest was so completely altered, that the cases in which arrests were allowed as of course became those in which they were anciently never allowed at all, namely, of debts ; while in actions of tresjDass, in which alone an arrest was alloAved at common law, the special order of a judge was at last required to sanction it. If the plaintiff was willing to swear to a debt to the amount of 20/. he might arrest the defendant; but if he made such affidavit incon- siderately, he ran the risk of an action for a malicious arrest and an indictment for j)erjury. Previously to the Debtors' Act, 1869, an important chaifge was introduced into the law upon this subject in the first jeax of the Queen,*" and the writ of capias by which the defendant was arrested became no longer, as formerly, a means of com- d See 12 Geo. I. c. 29 ; 7 & 8 Geo. IV. c. 71. « 1 & 2 Vict. c. 110. PRIVILEGE FROM ARREST. 105 mencing an action. Its effect has now, as we have seen, been still further curtailed by the Debtors' Act. There are some eases where the defendant, by reason of the dignity of his station, or of other circumstances, is privileged from arrest. The royal family, the servants of the queen, peers, and j)eeresses, are so privileged. There is a curious case in Fortescue's Reports^ relating to the privilege of peers, in which the bailiff who arrested a lord was forced by the Court to kneel down and ask his pardon, though he alleged that he had done it by mistake ; for that his lordship had a dirty shirt, a worn-out suit of clothes, and only sixpence in his pocket ; so that he could not believe he was a peer, and arrested him through inadvertence. In the few cases of the sort which have since happened, the Courts have contented themselves with discharging the noble defendants on motion. As to ambassadors, there is a statute passed in the reign of Queen Anne,^ which not only makes all process against them null and void, but renders it a crime to arrest them ; and appoints the chan- cellor and two chief justices a Court, with power to inflict any corporal punishment they pleaso upon the party doing so. This Act, which is re- markable as being the only instance in the English law in which the nature of the punishment is left entirely to the judge's discretion, was passed to f Lord Aford ill [/ton's case, Fort. 165. 8 7 Anne, c. 12. F 3 lOG IXTESLOCUTOEY APPLICATIOXS. pacify Peter tlie Great of Russia, wliose ambas- sador had been arrested in the street, and who threatened to make war upon Great Britain, in consequence of the refusal of our government to hang the two sheriffs of London, the plaintiff, the plaintiff's attorney, and the bailiff w^ho made the arrest. Other public ministers of foreign princes or states at this Court, and their suites and domestic servants, are also jDrotected from arrest by this statute. Members of the House of Commons are so privileged during the session of jDarliament, and for a convenient time, it seems forty days, before and after it, and it appears that members of convocation enjoy the same privilege as members of the House of Commons. The judges are privileged from arrest. Solicitors and officers of the Court, as they lose their privilege from arrest when they are about to leave the country, may be arrested in the same way as other persons. A married woman cannot in general be held to bail. Nor can, in general, executors, administrator!?, and heirs in actions against them for the debts of the deceased. It should here be noticed, that some persons have a temporary privilege from ai'rest. Thus, persons connected with a cause, and attending in the course of it, whether compelled to attend by process or not, such as parties, witnesses, bail, and solicitors, are privileged from arrest whilst going to, attending, and returning from Court, or a judge at Chambers. Barristers enjoy the same pri-s ilege whilst attending upon the Superior Courts for the BAIL IX ACTIONS OF TOET. 107 pui'iDose of being engaged in the business of the same. Also, a barrister whilst on circuit is privileged from arrest, and this whether he has business or not. ClergjTiien likewise are so privileged whilst performing divine service, and while going to church for that j^^'P*^^^ ^^^ returning thence. A bankruj)t also has a tem- porary privilege in this respect for a certain time during the pendency of the bankruptcy pro- ceedings. A defendant may be held to bail for a debt or money demand, as for goods sold and delivered, and money lent. So he may be held to bail in an action for unliquidated damages, but in such case it must be made clearly to appear on affidavit, that the damages sustained are 50?. or upwards. So a defendant may be held to bail in an action on a bond, unless it be a reiDlevin or a bail bond. If it be a bond conditioned for the payment of money, the defendant should be held to bail merely for the princijDal and interest due on it, and not for the penalty. Before the Debtors Act, 1869, the defendant, in actions for tort, could not, in general, be held to bail, but in some cases thi.s was allowed, where it is made manifestly to appear on affidavit that the damages sustained by the plaintiff exceed oOl., and in actions for very violent and cruel assaults, and for mesne profits, defendants were sometimes held to bail. The Debtors' Act, while, on the one hand, it limits holding to bail to the case of an abscondiuo- de- fondant, on the other, extends it to all actions in 108 IXTERLOCUTORY APPLICATIONS. which a cause of action to the extent of 50^. is proved. The application to the judge is made ex parte, and the order, if made, is taken to the sheriff and treated like a writ of execution. It must be executed within a month from its date, and the defendant may at any time apply to rescind the order or be discharged from custody. The security given by the defendant may be a deposit of the amount or a bond with two sureties.^ A writ of ne exeat regno, a high prerogative writ, having its origin in political objects, but issu- ing formerly from the Court of Chancery in aid of civil rights, is a similar proceeding to that just described. It must be expressly prayed for in the action, and is granted on motion upon proof of a debt due from the defendant and that he intends to abscond. Another ordinary application on the part of defendants is, that several actions may be con- solidated, they undertaking to abide by the event of one of them. This application is most fre- quently made in actions against underwriters upon a policy of insurance, where, as the question is the same against each underwriter, it was usual for the defendants to move for what was called the ''consolidation rule," a rule which was in- vented by Lord Mansfield, and the effect of which was to bind the defendants in all the actions by the verdict in one. This practice is now adopted in the High Court, and an order may be applied »■ E. 7 M. T. 1869. CHANGING VENUE. 10& for in tlie ordiuary way.' The jurisdiction -will generally be exercised where many actions are oppressively and vexatiously brought by the same plaintiff, for the purpose of trying the same ques- tions, or where several actions can be conveniently decided in a representative case. Similarly an interlocutory application may be made for the transfer of an action from one Division of the High Court to another, either in order that it may be consolidated with another action or "matter" in another Division, or because another Division is better able to decide the case.J Another kind of interlocutory application gene- rally made by the defendant is to change the place of trial, or the " venue " as it was formerly called. Although venue has been abolished, it is still necessary, for the purpose of understanding the legal principles on which the place of trial is fixed, to be acquainted with some of the rules relating to it. The venue was the county mentioned in the margin of the declaration, and it was said in certain cases to be " local," and in others to be "transitory." The venue was local when it was said that the cause of action could not have taken place in any other county, as, for instance, in actions of trespass cj[uare clausum fregit; it Avas transitory, where the cause of action might have happened in another county, as in actions of trespass for assault and battery. Some actions ' Orel. li. 4, p. 316. ■> Ord. U. 2, p. 316. 110 INTERLOCUTORY APPLICATIONS. were, moreover, rendered local by particular statutes. At common law, tlie rule was, that in a transitory action the plaintiff might lay the venue wherever he pleased. But this was found to create so much vexation, in consequence of plaintiffs laying venues at a great distance from the de- fendant's residence, that it was enacted by statiite ^ that the venue should be laid in the county where the cause of action arose. And, after several other modes of enforcing this statute had been ineffectually tried, the Courts, in the reign of James the First, introduced the practice of chang- ing the venue in a transitory action to another county, upon affidavit that the cause of action, if any, arose in another county, and not in the county in which the venue Avas laid, or elsewhere out of that other county. This was called the common affidavit, and on it the order to change the venue was obtained as a matter of course, subject to the plaintiff being permitted to bring back the venue, on his undertaking to give material evidence in the county in which he first laid it ; and if he failed in performing this, he was nonsuited. There were many cases even of transitory actions, in which it was held that the defendant could not possibly make the common affidavit ; for instance, in actions on bills of exchange, pro- missory notes and specialties, the reason of which is, that there is a maxim of law — contractus est nullius loci ; ^ so that it was held, with what degree ^ 2 PJch. II. c. 2. '2 Inst. 231. EEMOYIXG FROM DISTEICT REGISTRY. Ill of wisdom it is not tlie present object to enquire, that, in such cases, the cause of action cannot be said to have arisen in one county more than another. However, in these cases, though the Courts Avould not allow the venue to be changed upon the common affidavit, they would change it on an affidavit setting forth some good reason, as, for instance, that all the witnesses lived in the county to which it was proposed to change the venue, or that a fair trial could not be had in the county laid. Considerations of this latter kind are now likely to weigli most with the Court to which a general discretion is given to order the 23lace of trial to be changed.^ The institution of District Registries, with juris- diction over all proceedings up to notice of trial, introduces a form of interlocutory a23plication for the removal of a case from the registry, which is somewhat analogous to altering the place of trial. In certain circumstances a defendant is entitled to remove the case without any aj)plication, that is, where tlie "writ is specially endorsed and the plaintiff does not, within four days from the de- fendant's appearance, apply for speedy judgment Avithout trial, a proceeding which will hereafter be explained, or an unsuccessful application of this kind has been made, or the writ is not specially endorsed at all."^ A removal of the case as of right takes place by the defendant giving a notice to the Ord. xxxvi. 1, p. 290. " Orel. xxxv. 11, p. 2?1. 112 INTERLOCUTORY APriJCATIOXS, other parties to the action and to the District Registrar." If there be sufficient reason for re- moving the action, any party may apply for an order to do so, and, convei'sely, an order may be made for removing the action from London to a District Registry.? A new form of interlocutory proceeding in favour of the defendant is supjjlied by the Judicature Acts in providing for the introduction of third parties into an action. A third party is a person against whom a defendant has a claim for contri- bution or indemnity in respect of the claim of the plaintiff, or who has such an interest in the action as to make his presence before the Court desirable."^ When a defendant makes such a claim, he may obtain an order to issue a notice to the third party, which must state the fonn and grounds of the claim, and is in the nature of a writ at the de- fendant's suit. With the notice, which ordinarily must begiven within the time allowed for delivering the defence, is served the statement of claim in the action, or the Avrit if there be no statement of claim.*" Where no claim is madeby the defendant, an order may be made, directing the plaintiff to serve such a notice, if it appear desirable that a third party should be brought into the action.^ The third party must enter an appearance in the action within eight days, otherwise he will be bound by the decision in the action, so that if the ° Ord. XXXV. 12, p. 292. p Ord. xxxvi. 1-3, p. 295. ^ Ord. xvi. 17, p. 262. ■• Ord. x^^. 18, p. 262. ' Ord. xvi. 19, p. 262. ORDERS FOR PRESERVATION, ETC., OF PROPERTY. 113 defendant subsequently take proceedirjgs ngainsit him, he will not be able to dis[)ute the validity of tlie judgment given against the defendant in the original action. Power was given by the Judica- cature Act of lH7o^ to dispose of the whole matter having a three-sided aspect in the action first brought; but as this would necessitate the plaintiff VN-aiting for his judgment until the defendant and the third party had decided who was ultimately liable, although the claim of the plaintiff as against the defendant was clear, the judges did not pro- vide a machinery for this purpose in the Rules of Procedure. An interlocutory order for the preservation or custody of the subject matter of litigation may be made where a prima facie liability under a con- tract has been made out by the plaintiff, and the defendant does not deny the contract, but sets up a right to be relieved from it. Under such cir- cumstances the amount in dispute may also be ordered to be brought into Court." The applica- tion for this order may be made as soon as the circumstances ajjpear on the pleadings, or if there be no pleadings they may be proved on affidavit.^ Without any restriction to claims in contract the Court may also make an order for the detention or preservation of property in litigation. An order for its inspection may also be made, samples may be taken from it, and experiments tried ' Sect. 24 (3). " Ord. lii. 1, p. 31G. » Old. lii. r,,i: 317. 114 INTERLOCUTORY APPLICATIONS. under the same authority. For the purpose of enforcing such orders, entry upon any land or Ibuilding in the possession of one of the litigants may be authorised.^ Goods of a perishable nature may also be ordered to be sold, and the proceeds paid into Court.y The Court has also full discre- tion to grant an interlocutory mandamus or injunction, or appoint a receiver.^ In doubtful cases an interlocutory injunction or mandamus is not granted if the applicant can be sufficiently compensated by damages supposing he be found entitled to an injunction at the trial. These applications may be made either ex parte or with notice to the other side. Applications for the preservation, detention, inspection, or sale of pro- j)erty, require a notice to the opposite j)arty.^ It sometimes happens that the title to a specific chattel is not disputed, but one party sets up a claim by way of lien upon it, that is, says that he is entitled to be paid so much money before giving up the chattel. In that case, an order may be made authorising the chattel to be given up by the person claiming it on payment into Court of the sum with Avhich it is alleged to be charge- able.'^ It sometimes happens that in the course of the action some of the j^arties either die or have their legal status changed by marriage or bankruptcy. Anciently, b}^ reason of the strictness with which ^ Ord. lii. 3, p. 317. ^ Ord. lii. 2, p. 317. ^ Act of 1S73, s. 25. a Qrd. Hi. 4, p. 317. " Ord. lii. 6, p. 317. ADDING PARTIES OX DEATH, ETC. 115 the 2)roceeding by action was viewed, tlie effect was to abate or determine the action altogether, but the Courts interfered in certain cases to prevent this inconvenience by allowing the judgment to be entered nunc pro tunc. They would in general allow this fiction where the entry of judgment had been delayed by the act of the Court. There- fore, if a party die after special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set dowTi for argument, and pending the time taken for argu- ment, or whilst the Court are considering their judgment, the Court will allow jiidgment to be entered up after his death nunc pro tunc, in order that a party may not be prejudiced by a delay arising from an act of the Court. But if the judgment was not entered up by reason of the laches of the plaintiff, or those representing him, or by reason of a proceeding in the common course of law, as by j^roccedings on ajapeal, or the like, the Court will not allow the judgment to be so entered. Sometimes, as where an action of slander is brought, and the plaintiff dies before the trial, the cause of action dies with the party, and the action expires beyond power of revival. In cases where the cause of action survives various statu- tory enactments have been passed to keep the action alive, and the Judicature Acts j^rovide that the action shall not abate.° A simple mode of "= Ord. 1. 1,1., 314. 11 G INTERLOCUTORY APPLICATIOXS. substituting the successor in interest is provided, and an order may be made for the addition or sub- stitution of the husband, personal representative, trustee, person born during the litigation, or other necessary or proper party ."^ In the same way on the assignment or devokition of any estate pendente lite the action may be continued by or against the person on Avhom it has devolved.® The order is obtained ex parte, and must be served on all the jDarties to the action/ but application to discharge the order may be made by the person interested.? ^ Ord. 1. 2, p. 314. « Ord. 1. 3, p. 314. f Orel. 1. 5, p. 315. e Ord. 1. 6, p. 315. ir CHAPTER VII. THE TRIAL. The j)leadiiig.-; being concluded, and such interlocutoiy applications as the case may require made, the next step in the order of events is the trial. There are no^v five modes in which an action may be tried, derived from the Courts consolidated in the Supreme Court, each of which in general applied one mode of trial to the cases brought before it. The most ancient form of trial is before a judge and jury, formerly adopted by the Common Lav/ Courts in all cases. Trial by jury is said to liave arisen out of the practice of allowing accused persons to clear themselves by means of com- purgators, who were friends of the accused willing to take an oath of his innocence. In process of time the compurgators became judges rather than witnesses, but the practice long remained of summoning them from tlie neighbourhood of the place where the facts to be tried happened as most lilcely to know the truth of the matter, and on this practice was based much of the now aliolished theory of venue. Jurymen are now to act on the evidence brought before them, but 118 THE TRIAL, they are still supreme as judges of the fact, unless a Divisional Court interferes to set aside their verdict as being manifestly contrar}^ to the whole bearing of the evidence. The Court of Chancery, however, being in its origin not so much a Court of laAv as a Court of conscience did not refer questions of fact to the recognised legal tribunal. The Chancellor determined both the facts and the equity of the case himself, and the Master of the Rolls and the Vice Chancellors followed the same practice. In the Courts of Probate and Divorce questions of fact Avere also tried before a single judge, being the recognised tribunal of the Roman law to which these Courts, from their ecclesiastical origin, paid deference. In the Admiralty Court, which also paid deference to the Roman law, the judge was, from the special character of the questions tried, assisted by nautical assessors, who are the origin of the assessors now in use. Each of these Courts was from time to time enabled by statute to borrow most of the modes of trial used in the others, but it was not until the Judicatui-e Acts that they were all made available to the suitor as the necessities of his case might require. The five modes of trial are before a judge and jury, before a judge alone, before a judge with assessors, before a referee alone, and before a referee with assessors.* In a case of very great importance two or more judges may sit at the trial either with or Avithout a juiy, the trial being then Ovd. xxxvi. 2, p. 293. TRIAL BY JURY. 119 a trial at Bar. Referees are of two kinds, either special or official. Special referees are nominated by the parties or are chosen by reason of their qualifications for the disposal of a particular case, and official referees are officers of the Court already described. Like special referees, assessors are pro- fessional or scientific persons chosen to bring their special knowledge to the assistance of the judge or referee.*^ They are ajspointed by an order which also determines their mode of remuneration. Juries are either common or special, and the quali- fication of jurymen and the mode of summoning and selecting them are subjects of importance, and some complexit}^ Every man in England and Wales, except such specially exempted persons as peers, members of parliament, judicial officers, ministers of religion, practising lawyers and doctors of medicine, between the ages of twenty-one and sixty, who possesses a sufficient property qualification, is qualified and liable to serve on juries. He must have ten jDounds in lands in fee simple, fee tail or for life, or twenty pounds a year in leaseholds held for twenty-one years, or any longer term, or any term deter- minable on a life or lives. Or he must be rated as a householder to the poor rate on a value of not less than thirty pounds in Middlesex, or twenty pounds elsewhere, or he must occupy a house con- taining not less than fifteen windows.^ There are special qualifications in cities and boroughs with " Jud. Act, 1873, s. 56. <= 6 Geo. IV. c. 50 ; 33 & 34 Vict. c. 77. 120 THE TPJAL. Quarter Sessions, and in tlie city of London no man can be retunied to try issues joined in the Higli Court who is not a honseholder, or occupier of a sliop, Avareliouse, counting-house, chambers or office, for the purjDose of trade, within the city, and does not possess lands, tenements or jaersonal estate of the vahie of one hundred pounds. The persons above mentioned are quahiied to serve as common jurors. A special juror must as an additional qualification be legally entitled to be called an esquire, or be a person of higher degTce, or a banker or merchant, or occupy a dwelling- huuse rated on a value of not less than one hundred pounds in a town containing twenty thousand inhabitants and ujDAvards, or rated on a value of not less than fifty pounds elsewhere, or occupy premises other than a farm, rated on a value of not less than one hundred i^ounds, or a farm rated on a value of not less than three liundred pounds. Aliens domiciled in England or Wales for ten years or upwards, if in other respects duly qualified, are qualified and liable to serve on juries. No man attainted of treason or felony, or convicted of any crime that is infamous, unless he has obtained a free pardon, nor any man who is under outlawry, is qualified to serve on juries. The overseers of jDarishes and toAvnships have to make out lists of the persons qualified to serve on juries, and have to specify which are qualified as special jurors, and the justices at special sessions have to certify that such lists are correct to the best of their belief ; and the decision of such justices as to the qualification of persons SPECIAL JURIES. 121. marked as .special jurors in such lists is fiual.'^ Ku person Avhose name is on tliejury book as a juror is entitled to be excused from attendance on th€> ground of any disqualification or exemption, other than illness, not claimed by him at or before the revision of the list by the justices. The lists of jurors are returned to the Quarter Sessions and are formed by the Clerk of the Peace into the Jurors' Book which is delivered to the -sheriff for the purpose of summoning the juries. Formerly the jurors -were summoned under writs to the Sheriff of a very complicated character, but now they are summoned by a precept of a judge, and in country cases by the precept of the judges of Assize.d A printed list or panel of the common and also of the special jurors summoned is kept in the sheriff's office for seven days before the first day of the sittings or assizes. A copy of the jDanel must be kept in the sheriff's ofiice for the inspec- tion of the parties or their solicitors, and a copy is to be delivered to any party requiring it. The plaintiff in any action which is to be tried by jury, except replevin, is entitled to have the cause tried by a sj^ecial jury, upon giving notice in writing to the defendant, at such time as is necessary for a notice of trial, of his intention that the cause be so tried ; and the defendant, or the plaintiff in replevin, is so entitled, on giving the like notice within the time limited for obtaining a rule for a special jury ; but an order may be made "= 33 & 34 Vict. c. 77. '^ C. L. P. A. 1852, ss. 105 and 107; 33 & 34 Vict. c. 77. 122 The trial. at any time tliat a cause be tried by a special jury upon such terms as may be thought fit.^ Where notice has been given to try by special jur}^ either party may, six days before the commission day, give notice to the sheriff that the cause is to be tried by a sjjecial jury, and in default thereof, no special jury need be summoned, and the cause may be tried by a common jury, unless otherwise ordered. Similarly in London six days before the first day of the sittings, notice must be given to the sheriff that the cause is to be tried by a special jury, or in de- fault, no such jury need be summoned, and the cause may be tried by a common jury, unless otherwise ordered/ Where the defendant in any case, or plaintiff in replevin, gives notice of his intention to try the cause by a sjDecial jury, and the place of trial is in London or Middlesex, upon proof that such notice is given for the purpose of delay, an order may be made that the cause be tried by a common jury, or such other order as to the trial of the cause as may seem fit.^ The cause must be marked in the associate's book as a sjoecial jury cause.'^ A party who obtains a special jury, though successful in the cause, has to bear all his own additional expenses attendant on a trial by special jury, unless the judge who tries the cause im- mediately after the verdict certify on the back of e C. L. P. Act, 1852, s. 109. '"C. L.P. Act, 1852, s. 112. B C. L. P. Act, 1852, s. 111. " E. 45 H. T. 185.3. FIXING THE MODE OF TRIAL. 123 the record that the case was proper to be tried b}^ a special jury. Which of the five modes of trial now explained shall be adopted is determined in the first instance by the notice of trial, which is the first step taken towards this central event in the cause. If the plaintiff does not give notice of trial within six weeks from the close of the pleadings the defendant may do so,' but for obvious reasons it is generally the plaintiff who makes the initiative. The notice may be given with the reply or after- wards, and is a ten days' notice unless the defendant has agreed to take short notice, that is four days, or has been put under terms to do so.'^ The notice is entitled in the cause, and names a day of trial either in Middlesex or other county before one of the five tribunals specified. A notice of trial is given as Form 6 in the Appendix. If the plaintiff name a mode of trial other than that of judge and jury, the defendant may give notice that he desires the action to be tried before that tribunal, and if nothing further occurs, that mode of trial Avill be adopted. Either party may, however, apply for an order to try the case in a different mode from that proposed by his opponent.^ There is power to direct a trial without a jury in all cases which might without consent of parties have been tried without a jury before the Ord. xxxvi. 4, p. 295. ^ Ortl. xxxvi. 9, p. 296. ' Orel, x.xxvi, 5, p. 295. G 2 124 THE TRIAL. Judicature Acts.^^ There is conversely a general jDower to direct trial with a jury in all cases,° and also before a referee or with assessors subject to the right of trial by jury." There is further power to refer cases to a special or official referee, where the i^arties consent, or when a prolonged examina- tion of documents or accounts, or a scientific or local investigation, is necessary ^ Different questions in the action may if thought advisable be tried by different modes of trial/i The notice of trial being given, the next step is to enter the case for trial. This is generally done by the party giving the notice of trial, but if he neglect to do so on the day of giving the notice, or the day after the trial is to take place in London or Middlesex, the other side may do so within four days."^ If the trial is to take place in any other county either party may enter it.* On entering the case for trial the party must leave two, generally printed, copies of the pleadings in the action, one of which is for the use of the judge. These copies of pleadings stand in the place of the old " nisi j^rius record " which deserves a brief de- scription as the basis of the practice in trials by jur3^ The nisi prius record was a parchment docu- ment, containing a transcript of the "issue, that is the pleadings up to their close and was, in fact, a history of tlie suit up to the moment of trial. It concluded with an award of a " venue," ■" Orel, xxxvi. 26, p. 298. ° OrA xxxvi. 27, p. 298. ° Jud. Act, 1873, s. 56. p Jud. Act, 1873, s. 57. 'i Ord. xxx\'i. 6, p. 295. ■■ Ord. xxxvi. 14, p. 296. ^ Ord. xxx%-i. 15, p. 297. NISI PRirs, 125 that is a writ commanding the sheriff to summon a jury, and with an entry called the "jurata/' which stated in effect that the proceedings were respited till some day therein named, unless the judge who was to try the cause should before tliat day come, (as he always did) to the j^lace appointed for the trial. The day named was the day on which according to the ancient practice the case would have been tried. In very early times ■when an issue in fact was joined between the parties, it was tried, not as at present, before a single judge, but at the bar of the Court itself in Term time, as is still sometimes done when a trial at Bar takes place. As it was required that the cause should be tried by a jury of the county where the venue was laid, the Court, iu order to procure such a jury, issued the wiit of venire, which commanded the sheriff to have twelve good and lawful men from his county in Court upon a day there specified to try the issue ; and, on that day, anciently, the issue was accordingly tried before the full Court, the jurors being brought from their own county to the place where the Court was sitting. When the Court of Common Pleas had become stationary at Westminster, this practice became a hardship to the parties, witnesses, and jurors, whose attendance was requisite. Accordingly, the legislature found it necessary to interfere, which it did in the following manner. There was a sort of real action, called an " assize," which was tried in the county in which the land in question lay, by judges holding the king's commission for tliat 126 THE TRIAL. purpose, who were called "justices of assize." The " statute of Nisi Prius "' empowered these justices to try other issues, and retui'n the verdicts into the Court above. In order to enable them to do so, the writ of venire was altered, and, instead of ordering the sheriff to bring the jurors to the Court at Westminster, he was ordered to bring them to Westminster on a certain day, "nisi prius," i.e., unless before that day the justices of assize came into the county, in which case the statute rendered it his duty to return the jur}^, not to the Court, but before the justices of assize. Hence it is that judges are said to sit at nisi j)rius, and trials to take place at the assizes ; though the real actions called assizes long ago became obsolete, and are now, indeed, by Lord Lyndhurst's Act^' abolished altogether. Some further considerations demand the atten- tion of the parties before the trial. In actions which concern lands or messuages, and in which it is thought expedient that the jury should have a "view," the officer of the Court will, on aj)plication, draw up a rule for the pui^pose. Tavo persons are aj)pointed as showers, and six jurymen selected as viewers, and the sheriff returns their names to the associate for the purpose of being called at the trial. Power is also given to either party to apply for an order for the inspection by the jury, or by himself or his witnesses, of any real or personal property, the inspection of which ' ] 3 Edw. I. c. 30. " 3 & 4 Will. IV. c. 27, s. 36. THE BRIEF AND EVIDENCE. 127 may be material for the proper determination of the question in dispute.=^ So soon as the action is ripe for trial the parties must prepare their briefs and evidence. The brief contains a statement of the pleadings, case, and evidence, for the information of the counsel employed. The evidence will be either oral or documentary. Where the attendance of witnesses is required the party may procure it by suing out writs of "subpoena ad testificandum," copies of which must be served a reasonable time before the trial on the intended witnesses, their necessary expenses, at the same time, being tendered to them. If a witness neglect to attend,theplaintiff may proceed against him either by way of attachment, to punish his contempt of Court, or by way of action, to indemnify himself from the injury he has sustained in consequence of the witness's absence. The writ of subpoena may be issued to compel the attendance of a witness in any part of England and by means of an order the attendance of a wit- ness in Scotland or Ireland may be compelled.'*' If tlie witness be in prison on civil process, a writ of " habeas corpus ad testificandum " is the proj)er process for obtaining his appearance ; and if a prisoner on criminal process, one of her Majesty's Principal Secretaries of State, or any judge of the High Court, may issue a warrant or order for that purpose.'' As to documentary evidence if the instruments be in the party's own possession, he must bo " C. L. P. Act, 1854, 8. 58 ; Ord., liJ. 3, p. 317. ' 17 & 18 Vict., c. 34. « 10 & 17 Vict. c. 30, s. 9. 128 THE TPJAL, prepared to produce the originals, if in that of his adversary, he must give him a notice to produce them ; and in case they are not produced he will on proof of the notice be allowed to give secondary evidence of their contents, that is a copy or a witness's recollection. The form of a notice to admit is given as Form 7 in the Appendix. If they be in the hands of a third person the attendance of that person Avith them must be enforced by a "subjioena duces tecum." The expense and difficulty of proving documents are considerably diminished by the rule which has of late years been introduced, and which is fully recognised by tlic Judicature Acts, com- jjelling tlic opposite party to admit them or if he refuse and they are afterwards jjroved, subjecting him to the costs of the proof, unless the refusal to admit be held reasonable at the trial.* Moreover, if no notice to admit be given, the party Avho might have given it will not be allowed the cost of proving the document unless the taxing-master think that it was in fact less expensive to prove the document than give the notice. The form of a notice to admit is given as Form 8 in the Appendix. If either party, on the trial of the action becoming imminent, be not sufficiently prepared with his evidence, he may at the last moment, with the consent of his opponent, with- draAv the action, usually on the terms of paying the costs of the day."" All the preliminaries for the trial being disposed * Ord. xxxii. 2, p. 289. " OinI. xxiii. 2, p. 276. COURSE OF THE TRIAL. 129 of, the action will be tried either at the Sittings in London or Middlesex or at the Assizes. During the Sittings, the duration of which has already been stated, Courts are held both in London and Middlesex for the trial of actions by as many judges as may be necessary or available. The Assizes are held in each county twice a year, and in some counties more often before persons appointed under the Queen's Commission, among whom are always two of the judges of the High Court. The trial takes jalace before one of the five tribunals already described, and the most con- venient course Avill be first of all to describe the proceedings at a trial by jury, wdiich is the most solemn of all the forms of trial, and afterwards to point out in what respect the others differ from it. The action, Avhen entered, will be placed in a list, and will eventually find its way into the list of a particular judge on a particular day, when it will be called on in due course in open Court. If the plaintiff thereupon appear, but the defendant is unrepresented, the plaintiff must prove his claim.*' If, on the other hand, the plaintiff is absent, but the defendant appears, he is entitled to judgment dismissing the action unless he has a counterclaim, in which case he must prove it.* Judgment so obtained in default of appearance may, however, be set aside on terms on application within six days either at the Assizes or in Middle- sex,® If, however, both parties appear, and no ' OrA xxxvi. 18, p. 297. <' Ord. xxxvi, 19, p. 297. « Ord. xxxvi. 20, p. 297. G 3 130 THE TRIAL. order has been made to put off the trial, or the plaintiff and defendant have not agreed to withdraw the record, the first step taken is to empanel and swear the jury. The jurors summoned, whose names are entered in the list or panel, are first called over ; but to secure an impartial selection, this is not done in their order on the list, but by chance. The names of all the common jurymen, or all the special jurpuen, as the case may require, are written on separate pieces of paper, which are l^laced in a box, and drawn out one by one by the associate. The first twelve drawn, who answer to their names, are, subject to challenges, the jury to try the case.^ When the jury is a special jnrj, they have sometimes already gone through a preliminary process called nominating and re- ducing special jurors, which was formerly jaractised in choosing all special juries, and which may now be ordered by a rule to be used for the choice of si^ecial jurors at the sittings or assizes.^ The pro- ceeding takes place before the under-sheriff or secondary in the presence of the pai'ties or their solicitors, and is very like the practice in open Court, exceiDt that numbers corresponding to numbers on the panel are put into the box. Either party may object to the name of a special juror, and if he prove him incapacitated, his name is set aside, and so toties quoties until forty-eight be completed. These forty-eight are further reduced f 6 Geo. IV. c. 50, s. 1 (common) ; 33 & 34 Vict. c. 77, s. 16 (special in London and Middlesex) ; C. L. P. Act 1852, s, 108 (special at the assizes). CHALLENGES. 131 to twenty-four by each party striking off twelve, and the twenty-four are returned as the j^anel to try the case. These twenty-four go through the ordinary process of balloting already described to reduce them to twelve.° As the jury are called over, they may, if either party object to them, or any of them, be challenged. Challenges are either to the " array " or to the "l3olls." Challenges to the array are exceiDtions to the entire panel, in consequence of some partiality imputed to the sheriff or other officer who arrayed it. Challenges to the polls are exceptions to particular jurors, and are of four kinds : first, "propter honoris respectum," as, if a lord of parliament were to be empanelled ; secondly, " propter defectum," as, if one of the jurors be an infant, alien, idiot, or lunatic, or have not a suffi- cient estate ; thirdly, " propter affectum," or for partiality, and this is either " principal," i.e., carry- ing with it manifest ground of suspicion, or " to the favour." A challenge is jirincipal when the juror is related within the ninth degree to either paity, or has been arbitrator, or is interested in the cause, or has an action depending with one of the parties, or has taken money for his verdict, or formerly been a juror in the same cause, or is master, servant, counsellor, steward or soli- citor to, or of the same society or corporation with, one of the parties; all these are principal causes of challenge, which, if true, cannot be ^ 6 Geo. IV. c. 50, s. 32. 132 THE TRIAL. overruled, for jurors must be " omni exceptione inajores." A challenge to tlie favour is grounded only on some probable cause of suspicion, as ac- quaintance, or tlie like, the validity of which is determined by " triers." These, if the first juror be challenged, are two indifferent persons named by the Court ; if they find one man indifferent, he is sworn, and he, Avith the two triers, tries the next, and when another is found indifferent and sworn, the two triers are superseded, and the two first sworn on the jury try the rest. Fourthly, " jjropter delictum;" this sj)ecies of challenge may take place when the juror is tainted by some crime or misdemeanor which affects his credit. The ceremony of drawing the jury must, if the parties require it, take place on the trial of each cause ; but they almost always, by consent, allow the same set of twelve jurors to try several causes successively. If it should happen that, by reason of defaidt or challenges, twelve of the jurors contained in the panel are not in attend- ance, there issues, if the trial be at Bar, a writ of " undecim/' " decem," or " octo," " tales," accord- ing to the number that is required to complete the jury. In other cases, the Court, at the request of the parties, may orally command the sheriff to name a sufficient number of men of the county, duly qualified, who, if the deficiency be of special jurors, are to be taken from the common jury panel. The j urors who have made default are, if they can offer no sufficient excuse, liable to be fined. EIGHT TO BEGIN. 133 As soon as the jury has been sworn, the junior counsel for the phiintiff opens, that is, sliortly states the pleadings, and the leading counsel on that side which has the right to begin proceeds to address the jury. This right to begin is frequently a matter of the very greatest importance, for it is an invariable rule that the counsel who begins has, if the opposite side calls Avitnesses, a right to rejily: and it is well known from ex- jierience, that, in a doubtful case, the reply of an able advocate frequently determines the fate of the action. So important is this advantage that the parties will often, either on the pleadings or at the trial, admit facts Avhicli might fairly be dis- puted, Av-ith the view of securing the last word to the jury. The question, which side is entitled to begin, is governed by the general maxim, "Ei in- cunibit probatio qui dicit, non qui negat ; " for as it is very difficult, and sometimes impossible, to prove a negative, it is natural that the onus of proof should be upon the party asserting the affirmative, and this is, generally speaking, the rule of law. For instance, if, to an action on a promissory note, the defendant pleaded " that he did not make the note," the affirmative being on the plaintiff, it would be for him to begin. But, if the defendant had pleaded " that he had paid the note," then the affirmative would be on him, and he would begin at the trial. However, though the above is the general rule, there are exceptions to it. And the judges have resolved, "that in 134 THE TRIAL. cases of slander, libel, and other actions for per- sonal injuries, where the plaintiff seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the afi&rmative of the issue may in point of form be with the de- fendant." And this is the case in other cases, where the plaintiff seeks to recover unascertained damages. Thus, if to an action for improperly- dismissing a solicitor's clerk, the defendant pleads that the plaintiff was guilty of misconduct in the service, the plaintiff is entitled to begin. But if, in an action for damages, the damages are ascertained, and the plaintiff has a prima facie case, on wliich he must recover that amount, and no more, unless the defendant proves what he has affirmed in the pleading, then the defendant begins. It may thus be laid down as a general rule that the party entitled to begin is he who would have a verdict against him if no evidence were given on either side. A new trial will not be granted because a judge has wrongly ruled at nisi jDrius as to which party was entitled to begin, unless such ruling did clear and manifest in- justice. The case having been opened, witnesses are called for the party beginning, and, in the event of his opponent not announcing at the close of the evidence his intention to adduce evidence, the counsel for the party beginning sums up the evidence, and then the counsel for the opposite party addresses the jury. But if he adduces evi- dence, he, at the close of the case of the i^arty AMENDING PLEADINGS. 135 beginning, opens his case, then adduces his evidence, and then smns np ; the counsel of the party beginning having the right to the reply Avhenever any oral or documentary evidence is put in by his ojDponent.^ In the course of the case certain incidental j^ro- ceedings may take place. The first to be noticed is an application to adjourn the trial, which may be granted, if deemed right for the purposes of justice, for such time and subject to such terms and conditions as may be thought fit.' A more frequent application is for an amendment of the record. It has been already explained, that if at the trial any discrepancy appeared between the material statement contained either in the plaintiff's or defendant's pleadings and the evidence adduced in support of them at the trial, this variance was formerly fatal, and the jjarty in whose case it occurred failed in the action, although the merits might be undeniably with him. It has been like- Avise shown how, from time to time, the judge, on application by the counsel at the trial, has been emi^owered to amend variances of this sort, and, as this jDower is beneficial to the ends of justice, amendments are very liberally allowed."^ If the judge grant an amendment at the trial when he ought not, the party injured by it may move for a new trial. And it seems that in some cases a new trial may also be granted if the judge improperly refuse to make an amendment. ^ C. L. P. Act 1854, s. 18. ' Ord. xxxvi. 21, p. 297. ^ Ord. xxvii. 1, G, p. 278. 136 THE TRIAL It frequently happens in the course oi a trial that a party wishes to put in evidence a document which is required by law to be stamped, but which is insufficiently or not at all stamped, and there are important provisions to enable him to do so. All documents not properly stamped, except those which cannot by law be stamped after the execution thereof upon payment of the duty and a penalty, may be read in evidence on the trial of a cause, upon payment to the officer of the Court who has to read the document at the trial, of the amount of duty and penalties payable for stamp- ing such document. If the document has not a sufficient stamp, the deficiency only has to be paid with the penalties. No new trial can now be granted by reason of the judge having im- properly ruled that the stamp upon any document is sufficient, or that the document does not re- quire a stamp.^ Formerly a not uncommon incident of a trial by jury was the tendering of a bill of exceptions. It occurred when the counsel for either party was dissatisfied in point of law with the direction of the judge to the jury, or with his rejection or ad- mission of evidence. A short note of the j)oints was tendered to the judge, and afterwards reduced into the form of a special case, which, by virtue of the statute of Westminster the Second, the judge was bound to seal. Error was then brought on the judgment whereupon the bill of exceptions was 1 C. L. P. Act 1854, ss. 28, 29, and 31. xoysuiT. 13/ considered by the Courts of Error. By the Judicature Act of 1875, bills of exceptions are ex- pressly abolished,™ but not so as to prevent either party insisting on the whole question being left to tlie jury with a proper direction, such right to be enforced by motion ia the High Court of Justice or Court of Appeal, founded on an exception annexed to proceedings." It sometimes happens that, instead of going on to verdict, the trial is suddenly put an end to in a mode not requiring the intervention of the jury. This may happen in four different ways : first, by the plaintiff's suffering a " nonsuit ;" secondly, by the parties agreeing to '•' withdraw a juror;" thirdly, by the judge "discharging the jury" from finding any verdict ; or fourthly, by a reference to arbitration. With regard to a nonsuit, the word is derived from the Latin "non sequitur, or, more nearly, from the French " ne suit pas," because the plain- tiff does not follow up his suit to its legitimate conclusion; for, in the ancient times, before the jury gave their verdict, the plaintiff was called upon to hear it, in order that, if it proved adverse to him, he might be held answerable for the fine which was in those days levied upon an unsuccess- ful plaintiff. If he did not appear when thus called on, he was nonsuited, that is, adjudged to have deserted his action, and the Court gave judg- ment against him for his default. And hence » Ord. Iviii. 1, p. 322. " Jud. Act 1S75, s. 22. 138 THE TRIAL. proceeds the ceremony which takes place even at this day, of calling the plaintiff to come into the Court when about to be nonsuited. Another consequence of the ancient practice is, that a plaintiff cannot be nonsuited against his will; for a default is, in the nature of things, voluntary, and, when he is called on to appear, he may, if he thinks fit, make answer by his counsel, and, if he do, there can be no nonsuit ; and al- though it is usual, and certainly highly proper, for the plaintiff's counsel to yield to the opinion of the judge, when the latter intimates that his case is not made out, and that he ought to suffer a nonsuit, still there have been instances in Avhich the plaintiff's counsel have persisted in appearing, and have even gained a verdict by their pertina- city." It is, however, obviously dangerous to the interests of a client to resist the judge when he is of opinion that there ought to be a nonsuit ; for, if the plaintiff disregard the intimation, he is certain to direct the jury to find a verdict for the defendant. Formerly there was always this ad- vantage in a nonsuit, that although the party non- saxited had to pay costs, he might afterwards bring a fresh action, while a verdict for the defendant was in general final. According to the present practice, a nonsuit is equivalent to a verdict on the merits, but the judge has power to order that it may have the same effect as before."^* This is generally done when there appears a probability See Mv.ncMn v. Clement, 1 B. & A. 252. P Orel. xli. 6, p. 307. WITHDRAWING A JUROE. 130 of the plaintifif obtaining fresh evidence, and there is no reason to the contrary. The "withdrawal of a juror " takes place when neither party feels sufficient confidence to render him anxious to persevere till verdict. In such case, they may, by consent, for it cannot be done otherwise, withdraw a juror, and as that leaves the jury incomplete, there can be no verdict, and the trial comes to an end. The withdrawal of a juror in this Avay always put an end to the cause, and if the action be afterwards proceeded with, an ap- plication may be made to the Court or a judge to stay the proceedings. It sometimes becomes necessary to discharge the jury, either on account of the sudden illness of a juryman, as in Bex v. Edvxtrds, .3 Camp. 207, or because they cannot agree ; in which case, when there is no hope of their resolving on a verdict, it is now the practice to discharge them, though the judge has power, if he thinks fit, to carry them round the circuit, from town to town, in a cart. As to a reference of the cause to the arbitration of a special or official referee, this happens when the issue involves some complicated questions of accounts or boundary, which it would not be ea.sy to render intelligible to the jury, or where there are a number of conflicting claims, some perhaps legal and some equitable, all of which ought to be considered and decided before a final and satis- factory settlement of the whole litigation can bo arrived at. When the progress of the trial is not arrested ])y 140 THE TRIAL. any of tbese occurrences, tlie evidence being heard and the counsel on both sides having addressed the Court the judge sums uj) the evidence to the jury, Avho then return their verdict. The verdict may be either general, that is for the plaintiff or for the defendant, or special, that is finding certain facts and leaving the Court to aj)ply them. The judge then usually directs the judgment to be entered according to the legal result of the verdict. He may at the same time reserve leave to either party to move to set aside the judgment or vary it. This happens when some point of law is raised, the decision of which affects the fate of the cause, but, as there is no leisure to discuss it thoroughly at Nisi Prius, the judge, with the con- sent of the parties, reserves it for discussion before a divisional Court, and in such case it is in general agreed that the Court, before which the point is argued, shall be in the same situation as the judge was before whom it was originally raised, and shall have power to order a verdict or a nonsuit to be entered, as they may think fit. Tliirdly when the effect of the verdict is doubtful the judge may decline to enter the judgment at all, and leave either party to move to enter it.i Another mode, similar in its nature, of obtain- ing the decision of the full Court on the laAV of the case is an agreement between the parties that the jury shall find a verdict subject to a special case, an expedient for obtaining the 1 Ord. xxxvi. 22, p. 297. SPFX'IAL CASE. 141 ilecisioii of the Coiu't already referred to as open to the parties at any earlier stage of the action. In geaeral, where it is intended that a verdict shall be so taken, evidence is given at the trial by each party to prove the facts wpou which he relies, and if there is any disputed question of fact, it is determined by the jury. After the trial the case is drawn by the junior counsel for the plaintiff, and settled by the junior counsel for the defendant ; and if any difference arise between them as to the form of the case, the judge who tried the cause will, uj^ion summons, and being at- tended by the junior counsel on both sides, settle the case from his notes. When the case is settled, it is argued like a demurrer, and the verdict is finally entered for Avhichever party the Court deems entitled to succeed. These special cases are not a very recent invention, for Mr. Justice Buller remarks, in 3 T. R. 131, that there is an instance of a special case having been granted as long ago as the reign of Charles the Second. The direction of the judge for the entry of judg- ment is recorded by the associate in a book kept for the purpose. If the judge so direct, the find- ings of the jury will be recorded in the same book, in which also any certificates granted by the judge are to be entered. At this point in the trial the important question of costs arises. In very ancient times no costs were given in the Courts of Law, but by the )Statute of Gloucester"^ and other early statutes the «■ 6 Edw. I., c. 1, 142 THE TRIAL. successful party iu the Courts of Common Law in almost all actions invariably obtained his costs. In the Court of Chancery on the other hand the costs had always been in the discretion of the judge. The rule in the Supreme Court of Judicature follows that of the Court of Chancery> a general discretion being given to the judge subject to the right of such persons as mortgagees and trustees to have their costs out of a particular fund, and to a prima facie rule, the reason for which is by no means obvious, that where the case has been tried by a jury the successful party has his costs except for good cause shown.s There are also certain Acts of Parliament which further modify the general discretion of the judge, the most important of which are the County Court Acts. In order to discourage the prosecution of actions for small sums in the High Court it is provided that if the plaintiff in an action of con- tract recover no more than £20, or £10 in an action of tort, he shall not recover his costs unless the judge certify that there was sufficient reason for bringing the action in the High Court.' In the same way in actions over which the Admiralty Court had jurisdiction, if the j^laintiff in the High Court do not recover more than he might have recovered in a County Court, or if in an action of salvage the value of the property saved do not exceed £1000, the plaintiff cannot have his costs unless the action be brought under an order of « Ord. Iv. p. 321. « 30 & 31 Vict., c. 142, s. 5. COSTS. 143 the High Court or a County Court, or unless the judge certify that it was a proper Admiralty cause to be tried in the High Court." By other statutes, passed in order to discourage frivolous actions of tort, further limitation is placed on the general discretion of the judge. In any action of trespass, or trespass on the case, if the plaintiff recover less than forty shillings damages, he is not entitled to recover costs unless the judge certify that the action was brought to try a right besides the mere right to damages.'^ In an action of slander, where the plaintiff recovers less than forty shillings, he is, with significant irony, allowed by a Statute of James I. to recover only as much costs as damages, and he will lose even this small satisfaction unless the judge certify under the pre- ceding statute.^' The actual amount of costs is afterwards determined by the taxing master. The party entitled to costs gives notice to the 023posite jDarty, and the propi'iety of his charges is de- termined according to the scale provided by an Order in Council made under the Judicature Acts. The taxation of the master may be reviewed by a judge or divisional Court. Such being the procedure at a trial by jury, the proceedings where another mode of trial is adopted differ very little from it. The most important of the other modes of trial is the trial before a judge. This proceeds precisely as before a jury, so far as 31 &_32 Vict. c. 71, s. 9. -^ 3 & 4 Vict, «. 24. y 21 Jac. I. c. 16. 144 THE TRIAL. circumstances admit, but it often hapjDens, espe- cially in the Chancery Division, that at a trial before a judge the evidence has been taken by affidavit, and is not given orally, or the witnesses are only cross-examined. A trial before a referee is conducted in the same manner as a trial before a judge, and the referee has the same power as a judge, except that he cannot commit for contempt. A referee may submit any question to the Court, or state any facts specially for its opinion.'^ He may hold the trial where he thinks most conve- nient, and adjourn it from one place to another, and have any inspection or view which may be necessary. He must sit "de die in diem" unless otherwise directed. Another form of trial which is conducted in a similar way to the tiial of the action, is a trial under a writ of inquiry. This writ issues upon interlo- cutory judgment being entered — that is, a judg- ment that the plaintiff recover damages without naming the amount. Interlocutory judgment is entered where the defendant fails to appear, or fails to deliver his defence in an action for unlicpiidated damages. Formerly a Avi-it of inquiry was the only mode of ascertaining the quantum of an interlo- cutory judgment, except in some few cases in Avhich the master was allowed to compute them, but now the damages may, under an order, be ascer- tained by any of the five modes of trial in use in the High Court.'"^ A writ of inquiry commands * OrA xxxvi. 34, p. 300. =• Ord. xiii. 6, p. 257. WEIT OF INQUIRY. 145 the sheriff to inquire what the damages are by a jury, and return the inquisition to the Court. The sheriff's deputy sits as judge, and sums up the evidence to the jury, and when he has returned his inquisition, final judgment is given that the plaintiff do recover the amount assessed. Final judgment is entered and execution issued at the expiration of four days from the return, unless the officer before whom the writ is executed certify- that, in his opinion, judgment ought not to be entered till the defendant has had an opportunity to apply to the Court to set aside the assessment and grant a new writ.^ Execution may also be stayed by an order, and even after entering judg- ment and issuing execution, judgment may be vacated, and the execution set aside for the pur- pose of granting a new writ of inquiry, if justice appear to require it. " 1 WiU. IV. c. 7. 146 CHAPTER VIII. MOTIONS AFTER TRIAL AND ENTRY OF JUDGMENT. The history of the gTeat majority of actions ends with the trial, but cases of diflSculty or im- portance have often to be discussed again after- wards. As this discussion is in the nature of an appeal from the judge, referee, or jury who tried the case it generally takes place before a divisional Court composed of several judges, and is begun by motion. The most important of these motions after trial is the " motion for judgment." We have already seen that in some cases the judge abstains from ordering judgment to be entered at the trial, or orders it to be entered subject to leave to either party to move to enter any other judgment. In either of these cases the action comes on again upon motion for judgment.^ Where no judgment has been ordered, the jDlaintiff may set the action down on motion for judgment, or if he neglect to do so for ten days the defendant may set it down.*^ In the same Avay the party to whom leave has been reserved must set down the action on motion " Ord. xl. 2, 3, p. 304. i* Ord. xl. 3, p. 304. MOTIOX FOR JUDGMENT. 147 for judgment if he Avish to take advantage of liis leave within ten days, or the time reserved to him.'^ Notice of the motion must be given to the opposite party, and in the case of motion upon leave reserved it must state the grounds of the motion. When the whole action is not brought to trial but issues only have been directed to be tried, it is obvious that the action cannot be disposed of at the trial. In this case the action may be set down on motion for judgment by the plaintiff or in default by the defendant, so soon as the issues have been tried.^ If more than one issue has been ordered to be tried, and all have not been tried, the party who thinks the remainder unnecessary may apply for leave to set down the action on motion for judgment.® Motion for judgment must also be made when judgment is claimed "" non obstante veredicto," or the defendant moves in aiTCst of judgment. A motion for judgment non obstante veredicto is one which is only made by a plaintifi. There is no instance to be found in the books of such a judgment having been awarded at the instance of the defendant. It is given when, upon an ex- amination of the whole pleadings, it appears to the Court that the defendant has admitted himself to be in the wrong, and has taken issue on some point, which, though decided in his favour by the jury, still does not at all better his case. A motion " in arrest of judgment" is the exact « Orel xl. 2, p. 304. -^ Orel. xl. 7, i>. :3i.i5. e Ord. xl. 8, p. 305. H 2 148 MOTIONS AFTER TRIAL. reverse of that for judgment non obstante vere- dicto. The applicant in the one case insists that the plaintiff is entitled to the judgment of the Court, although a verdict has been found against him. In the other case, that he is not entitled to the judgment of the Court, although a verdict has been delivered in his favour. Like the motion for judgment non obstante veredicto, that in aiTCSt of judgment must always be grounded upon some- thing apparent on the face of the pleadings. Under the altered and less strict system of pleading now in use with its ample powers of amendment and the complete authority given to the judge at the trial these motions Avill be much less frequent if not altogether disused. For tlie same reason a motion for "repleader," the judg- ment on which was that the parties should plead over again after verdict, seems obsolete. Motion for judgment is the regular mode of obtaining judgment Avhere no other mode is expressly pro\dded,^ but no motion for judgment may be made without special leave after the lapse of a year from the time when it might have been made.g Upon a motion for judgment, the counsel for the iJarty moving is heard, and then the counsel for the party opposing. After the reply of the party moving, the Court delivers its judgment, which may direct judgment to be entered, or direct the motion to stand over for further consi- ^ Ord. xl. 1, p. 304. e Qrd. xl. 9, p. 305. MOTION FOR A NEW TRIAL. 14-9 deration, or until furtlier issues have been tried, or may direct inquiries to be made or accounts taken.*^ Next in importance to the motion for judgment is the motion for a " new trial." This proceeding is most common in actions which take place in the Queen's Bench, Common Pleas, and Exche- quer Divisions of the High Court. The motion is not made on notice to the other side, but the party moving is required to make out a prima facie case for disturbing the judgment before the other side is called upon. He must apply to a divisional Court for a rule nisi within four days from the trial if a divisional Court be sitting, or within four days from the commencement of its sittings next after the trial.' The rule calls upon the opposite party to show cause, at the expiration of eight days, or so soon as the case may be heard, why a new trial should not be directed on a spe- cihed ground or grounds. The case is then placed in the new trial paper, and is reached in due course. The counsel for the party served with the rule first shoAVS cause ; his opponent supports the rule, and judgment, either discharging the rule or making it absolute, is then delivered by the judges. A new trial may be obtained in the case of a trial before a judge without a jury, except that the judge's decision cannot be impeached as against the weight of evidence.^ Where the trial » Orl. xl. 10, 11, p. 305. ' Orel, xxxix. 1, p. .30.3. " C. L. P. Act, 1854, s. 1. 150 MOTIONS AFTER TRIAL. is before a referee, his decision is subject to be set aside by the Court, but not formally on a motion for a new trial.^ But motions for a new trial most usually take place when the action has been tried by a jury; and the whole law on the subject is formed with reference to this mode of trial. The first reported case of a motion for a new trial is that of Wood v. Gunston, Styles, 462, which took place in the year 1665. In ancient times the mode of impeaching the verdict, if not war- ranted by the evidence, was one of the most barbarous and extraordinar}'- that it could have entered into the imagination of man to devise. It was supposed that, if twelve men gave an untrue verdict, they must have been actuated to do so by corrupt motives ; and, therefore, the unsuccessful party was at liberty to sue out a writ called a writ of attaint, which, at first, applied to real actions only, but was extended by a statute of Edward the Third "^ to all actions whatever. Under the authority of this writ of attaint, a jury of twenty-four men was convened to try the validity of the first verdict ; the same evi- dence only was allowed upon the second trial as had been given on the first; and if, upon the second trial, the jury of twenty-four re- turned a verdict contrary to that of the first jury, not only was the first verdict set aside, but the Court pronounced upon the jury who gave it judgment, " that they should lose all civil rights I Jud. Act, 1873, s. 58. ■" 3i Ed. III. c. 7. GROUNDS FOR A NEAV TRIAL. 151 and be perpetually infamous; that they should forfeit all their goods, and the profits of their lands; should be themselves imprisoned, their wives and children driven out of doors, their houses razed, and their lands wasted." Although the barbarity of this proceeding caused it, as may be readily supposed, to become obsolete as civili- zation progi-essed, yet there are instances of its having been resorted to in the reign of Elizabeth, and it was not formally abolished until the reign of George the Fourth.^ When this absurd and cruel process fell into disuse, the Coui'ts finding it absolutely necessary that some mode should exist of rectifying the erro- neous verdict of a jury, began to listen to the applications which have now become frequent for new trials, and they founded their power of doing so on the principle that if the jury gave a wrong verdict, that would not warrant them in pro- nouncing an iniquitous judgment; and, therefore, if there appeared reason to fear that such would be the con.sequence, they had a right to refer the cause to another examination. Accordingly, a motion for a new trial may now be made on any ground which raises a fair probability that the verdict at the first trial was erroneous. The most important of the grounds on which an application for a new trial is based are, that the judge who tried the cause misdirected the jury in point of law, or admitted evidence which ought " 6 Geo. IV. c. 50, s. 60. 152 MOTIONS AFTER TEIAL to have been refused, or rejected evidence whicli ought to have been admitted ; for, in such cases, as the jury have been misinformed of the true point they were convened to try, or have been de- prived of proper, or furnished with improper, materials to build their conclusion on, it cannot be expected that they should have returned a proper verdict. Applications for a new trial for misdirection raise questions in every branch of substantive law, and the admission or rejection of evidence involves the Avhole subject of the law of evidence. It was formerly held that, as it was impossible to estimate the precise effect which an additional fact, hoAvever trivial, may produce upon the minds of others, if the evidence improperly rejected could have had any effect whatever on the jury, there ought to be a new trial. In the same way, where there was a misdirection on a point immediately in issue, a new trial was a matter of right. Now, however, a new trial will not be granted either for misdirection or the' improper admission or rejec- tion of evidence, unless some substantial wrong has been produced by it." The Court will sometimes grant a new trial because the defendant received no d«e notice of trial. A new trial may also be granted on account of the misbehaviour of the successful party. In a reported case, handbills, reflecting on the plain- tiff's character, had been distributed about the o Ord, xxxLx. 3, p. 303. EXCESSIVE DAilAGES. 15 o Court, aud even shown to the jury.P So if any of the jury have misbehaved, as by casting lots to determine the verdict, it is a ground for a new trial.'i But the Court will never pennit jurors to make affidavits disclosing their own misbehavioiu', although affidavits of jurors as to what took place in open Court on the delivery of the verdict are receivable, or it seems, to answer a charge of personal misconduct.^" Another ground on which a new trial is some- times allowed is that of excessive damages. In actions, indeed, for personal torts, such as slander, or malicious prosecution, and especially in actions for criminal conversation or seduction, the Courts are extremely averse to grant a new trial on this ground, unless the damages given are perfectly outrageous.^ New trials have been granted also when the verdict has been obtained by surprise, or the witnesses for the prevailing party are manifestly shown to have committed perjury. In short, whenever it can be made out to the satisfaction of the Court that justice and fairness requii'e that a new trial should be had, there the application may be made, and it is in the power of the Court to accede to it. One of the commonest grounds on which new trials are applied for is, that the verdict has been P Cost^ V. Merest, 3 B. & B. 272. 1 Ratiiadfje v, Ryan, 9 Bing. 333. ■■ See Vaisev. Ddaval, 1 T.R. 11. ' See Price v. Severne, 7 Bing, 316 ; CJiilva'S v. Greaves, 5 M, & Gra. 578 ; Creed v. Fisher. 9 Ex. 472. 154 MOTIOXS AFTER TRIAL. either against the weight of the evidence, or with- out any evidence at all. Where there was no evidence at all to warrant the conclusion come to by the jury, the Court will always grant a new trial. But where there was some evidence upon the winning side, they interfere, if at all, with great reluctance, considering that where there is conflicting testimony, it is the province of the jury not the Court to strike the balance. Still, if the judge who tried the cause express dissatisfaction with the verdict, it is usual, out of respect for his opinion, to submit the case to the investigation of another jury. It is also a general, though not inflexible rule, that a new trial will not be granted on this ground, unless the judge does declare him- self dissatisfied with the verdict. But to prevent litigious persons from forcing others into expenses wholly disproportionate to the real importance of the controversy, the Courts have established a inile that they will not gi'ant a new trial on the ground of the verdict being against the weight of the evidence, where the damages or matter in dispute was less than twenty pounds, and no permanent right in question.^ This rule is sometimes, but very seldom, departed from. In a case in the Ex- chequer, where the verdict was for a sum not ex- ceeding twenty pounds, a new trial was granted, the judge expressing himself dissatisfied with the verdict, and there being an uncontradicted * Bnja.i Y. Philip, 1 C'r. & INIee 26. ; Williams v. Evans, 2 :M. & W. 220. TRIAL DE NOVO. 155 affidavit, that before the defendant's case had been heard, one of the jurymen had said, " The parson," meaning the defendant, " will get served out."^ This rule is not ai3plicable to cases where the new trial is moved for on the ground that the learned judge who tried the cause misdirected the jury, or received improper or excluded proper evidence ; because it is looked upon as of importance to the public that the erroneous exposition of the law, emanating from so high a source, should be corrected, and not allowed to ripen into a pre- cedent, A motion for a trial " de novo," formerly called a " venire de novo," is a proceeding very similar to that for a new trial, and its effect, if granted, is identical ; for when a trial de novo is awarded, another trial of the cause is had, as if a rule for a new trial had been made absolute ; and indeed the old name of the proceeding itself so signifies, for the words venire de novo meant no more than that a new venire or jury process is to be directed to the sheriff. Still there are several distinctions between a motion for a trial de novo and for a new trial. The new trial is grantable for any reason which renders it right, fit, and just that the first verdict should undergo revision. It is otherwise with the award of a trial de novo, which is a proceeding far more ancient than the motion for a new trial. In cases where it is grantable, the Court is bound to grant it, and " Allum V. Boulthee, 23 L. J. Ex. 208. 156 MOTIONS AFTER TRIAL. can exercise no discretion on the subject. Those cases are comparatively few in number, and the grounds for awarding it are not, as in many of the instances in which a new trial is granted, of an equitable descrij)tion, but are of a more technical sort, such as the wi'ongful disallowance of a challenge, or some defect in the finding of the verdict, which renders it uncertain and ambiguous. Nor can the Court, as can sometimes be done in the case of a new trial, impose any condition on the party claiming the trial de novo.^ The Courts have power to grant successive new trials of the same action, and they will do so where the justice of the case obviously requii'es it, though it is a power which they are in the habit of exer- cising sparingly and with reluctance.y Besides motion for judgment and motion for new trial, there is also a process of moving to set r.side a judgTaent. This is done when the judge at the trial has ordered judgment to be entered Avithout reserving leave to the opposite party to move. If the party against whom judgment is thus entered think that according to the finding in point of fact as entered, the judgment was v^Tongiy entered, he may move to set aside the judgment and to enter any other.*^ Motions of this kind are most applicable to cases which have Ijeen tried by jury but may be made in cases of trial before a judge or referee, where the finding s See Witham v. Lewis, 1 Wils. 48, and Edtoards v. Brown, 1 Tyrw. 281. y Fox V. CHfton, 9 Bing. 115. ' Ord. xL 4, p. 304. ENTRY OF JUDGMENT. 157 and judgment are separable.^ The time for moving and for showing cause are the same as in a motion for a new trial."" The trial having taken place, and any motions subsequent to the trial having been made, the next step is the entry of judgment. This is done by the officer in charge of the Judgment Book, to whom must be delivered a copy of the pleadings in the action ;<= and, if the judgment was ordered to be entered at the trial, the Associate's certificate, or the order made, if the judgment were given on motion, or any other necessary document, verified, where required by affidavit in regular form.'^^ The date of the judgment is the day on which it was delivered when pronounced in Court,'' and the day on which the requisite documents are left with the officer in other cases.^ Forms of judgment are given as Forms 10, 13, and 18 in the Appendix. » Ord. xl. 5, p. 304. b Ori xL 6, p. 304. " Ord. xli. 1, p. 306. ^ Ord. xli. 4, 5, p. 306. • OrcL xli. 2, p. 306. ^ Ord. xli. 3, p. 306. 158 CHAPTER IX. SUMMARY PROCEEDINGS. Hitherto we have been following tlie progi'ess of an action in its ordinary course through the pleadings and trial to judgment, but it often haj)- pens that the due sequence of jaroceedings is interrupted, and judgment obtained, or the action otherwise disposed of, without the regular proce- dure being gone through. The commonest of these summary proceedings is obtaining judgment by default. Judgment by default is obtained when one party neglects to take a step in the action which he is bound to take according to the rules of pro- cedure. This frequently happens at the very first step, and judgment is entered in default of appearance. If the defendant does not enter an appearance in the prescribed manner within the eight days named in the writ, the plaintiff may enter judgment against him. In the same way judgment may be entered by the plaintiff in default of the statement of defence due from the defendant.* Conversely, if the plaintiff do " Ord., xxix., p. 281. JUDGMENT BY DEFAULT. 159 not deliver a statement of claim within the six weeks allowed, the defendant may apply to have the action dismissed with costs for want of pro- secution.b Judgment by default is either final or interlo- cutory, according to the nature of the action. It is final when the plaintiffs claim be for a debt or liquidated demand only.° If there be a claim for damages or detention of goods, the judgment is interlocutory, and a writ of inquiry generally issues to assess the damages or the value of the goods, or the assessment may be made under an order by any of the modes of trial in use in the Court.'^ In an action for the possession of land, judgment by default is to the effect that the plaintiff recover possession of the land,*^ and if there be a claim for mesne profits, arrears of rent, or damages for breach of covenant, final judgment may be entered for the land, and interlocutory judgment for the rest of the claim/ Similarly, final judgment may be entered for want of a defence in respect of a liquidated demand, and interlocutory judgment in respect of damages, where both claims have been joined in one action.s The effect of default in Probate actions, and actions assigned by the Judi- cature Acts to the Chancery Division, and all other " Ord. xxix. 1, p. 281. " Ord. xiii 3 (appearance), p. 256 ; Ord. xxix. 2 (defence), p. 281. ^ Ord. xiii. 6 (appearance), p. 257 ; Ord. xxix. 4 (defence), p. 282. * Ord. xiii. 7 (appearance), p. 257 ; Ord. xxix. 7 (defence), p. 282. ^ Ord. xiii. 8 (appearance), p. 257 ; Ord. xxix. 8 (defence), p. 283. s Ord. xxix. C, p. 282. 160 SUMMAKY PROCEEDINGS. actions not expressly mentioned, is not to allow judgment by default, but to allow the action to proceed notwithstanding, and to be entered on motion for judgment.*^ Where an account is claimed by endorsement on the writ, and default of appearance is made, an order for an account may be made immediately, based on an affidavit proving service of the writ, and stating the grounds of the claim.^ On entering judgment by default of ajspearauce, an affidavit of the service of the "wait must be filed.'^ Where the writ is specially endorsed, final judg- ment by default of appearance may be at once entered for the amount claimed, with interest and costs.i Where the writ is not specially endorsed but the action is for a liquidated demand, an affidavit stating the particulars of the claim must be filed, as well as the affidavit of service, when judgment for the amount claimed and costs may be entered in eight days.™ Where default is made in any pleading subse- quent to the statement of defence, no summary pi'oceeding can be taken, but if the plaintiff do not deliver a reply or demurrer, or any party do not duly deliver any subsequent pleading, the pleadings are taken to be closed, and the state- ments of fact in the last pleading admitted.'i ^ Ord. xiii, 9 (appearance), p. 257 ; Ord. xxix. 9, 10 (defence), p. 283. * Ord. XV., p. 259. '' Ord. xiii. 2, p. 256. ' Ord. xiii. 3, p. 256. » Ord. xiii. 5, p. 256. ° Ord. xxix. 12, p. 283. WARRANTS OF ATTOENEY AND COGNOVITS. 1(51 Sometimes default is made by some defendants but not by others. In this case, formerly, the plaintiff in an action of contract could not issue execution against the defaulters until he had re- covered judgment against the others, because if a verdict were eventually returned in favour of any defendant, it was held to accrue to the benefit of all. Now, however, the plaintiff may issue execu- tion against the defaulters at once, and proceed with his action against the others if he think fit.o Where default is made by some out of several defendants, in any action for damages, inter- locutory judgment may be signed against the defaulters, and the damages will be assessed at the time of the trial of the action, unless otherwise ordered.P Sometimes judgment is allowed to pass by default by arrangement between the parties. This happens when the defendant has no defence to the action, and agrees to the jjlaintiff entering judgment against him on the terms of his giving time for the payment of the debt and costs. Such arrangement can be carried out by the defendant executing a "warrant of attorney" or a "cognovit actionem," or by consenting to a judge's order being drawn up, authorizing the plaintiff to sign judgment. These methods of proceeding are sub- ject to many abuses, and have been regulated by statute from time to time for the protection of the deljtor. The warrant of attorney or cognovit must ° Ord. xiii. 4, p. 256. p Orel. xxix. 5, p. 282. 162 SUMMARY PROCEEDINGS. be witnessed by a solicitor, who must be present on behalf of the person giving it, to inform him of the nature and effect of the warrant or cognovit. This is necessary, though the person executing the w^arrant of attorney or cognovit in fact understands the nature and effect of it.'^i The w^aiTant of attorney or cognovit or a true copy must be filed with an ofl&cer of the Court within twenty-one days after its execution, otherwise it will be deemed fraudulent and void : and if the w^arrant of attorney or cogno\'it was given subject to any defeasance or condition, such defeasance or condition must appear. In actions w^here the defendant has appeared by solicitor the consent to the judge's order authorizing the plaintiff to sign judgment must be given by the defendant's solicitor or agent, and wdiere the defendant has not appeared, or has appeared in person, the order cannot be made unless the defendant attends the judge and gives his consent in person, or unless his written consent be attested by a solicitor acting on his behalf; except in the case where the defendant is a barrister, conveyancer, special pleader, or solicitor.^" The judge's order should be filed in the same way as a warrant of attorney or cognovit. Where a judge's order authorising the entry of judgment or the issuing of execution is made by consent, whether subject to any defeasance or '1 32 & 33 Vict., c. 62 ; Debtor's Act, 1869, ss. 24, 25. >• E. 156, 157, H. T. 1853. SNAPPING A JUDGMENT. 163 condition or not, the order must, together with an affidavit of the time of consent being given, and a description of the residence and occupation of the defendant, be filed with an officer of the Court within twenty- one days after the making of the order, otherwise the order and any judgment and execution signed and issued thereon are void. A judgment by default is always liable to be set aside by an order on such terms as to costs or otherwise as may be thought fit. This is done in the exercise of what in the Courts of Common Law was called their equitable jurisdiction. In a proper case the Court will always interfere to prevent its rules and its authority, created as they are for the advancement of justice, from being perverted and abused, so as to produce injustice and oppression. It is plain that the adminis- tration of the laws would be in danger of falling into disrepute, were it not for this salutary exercise of jurisdiction. If a designing person by false representations induce a poor ignorant man to sign a cognovit, or execute a warrant of attorney, the Court "will relieve him. So, if a judgment be signed contrary to good faith, it will be set aside. Again where a defendant, through some accident, has not entered an appearance or delivered his defence within the proper time, and judgonent by defaidt is signed against him, this, though illiberal, when done so hastily as to amount to what is called "-snapping a judgment," is nevertheless regular, because the rules of the 164 SUMMARY PEOCEEDINGS. Court give the plaintiff a right to do it. How- ever, as it would be au extremely hard thing if the defendant were to be shut out of a good de- fence by a slight mistake made perhaps by his solicitor, the Court, to prevent this hardship, will set aside the judgment upon proper terms. It is a general rule that whenever the suitor can point out some great hardshijJ likely to arise from a strict ob.servance of the rules by which the practice of the Court is governed, he may apply for relief, which, ordinarily, will be granted ; unless, indeed, he be wilfully late in making his application, or unless the grant of relief to him would impose hardship on the opposite party. But this relief is granted as a favour, not as a right, and the Court will, in bestowing it, impose any terms it thinks proper. Thus, it almost invariably imposes the payment of any costs which the other party mav have incurred, and frequently, as, for instance, in the case of setting aside a regular judgment, insists upon an affidavit of merits. It would obviously be ridiculous to relieve a defendant from a judgment when he has no meritorious defence to the action, but is only anxious to postpone the pajnuent of a fair debt and set up vexatious, quibbling objections to a just demand. . Next to judgment by default the most im- portant summary remedy is that provided by the Summary Procedure on Bills of Exchange Act.® It was justly thought that a defendant who was ' 18 & 19 Vict. c. 67. THE BILLS OF EXCHANGE ACT. 1G5 alleged so far to have acknowledged the debt as to have signed a bill of exchange or promissory note, ought not to be allowed to put his creditor to the delay and expense of the regular steps in an action, unless he could show a reasonable ground for defending the claim immediately on the issue of the writ. It was accordingly provided by this Act, that actions on bills of exchange or pro- missory notes, brol^ght within six months after they have become due, might be commenced by a peculiar "writ of summons. The plaintiff on filing an afiidavit of the personal service of this writ within the jurisdiction of the Court, or an order for leave to proceed as if personal service had been effected, and a copy of the writ of summons and the indorsements ujDon it, may sign judgment and issue execution, A defendant, however, upon pa}dng into Court the sum indorsed on the "wn-it, or by showing on affidavit a defence to the action upon the merits, or such facts as would make it incumbent on the holder of the bill or note to prove consideration, or such other facts as the judge may deem sufficient, may, within twelve days from the service of the writ, get leave from a judge to appear to it, and defend the action. The defendant will be allowed to appear and defend where there is any defence suggested, either in law or in fact, which there is any reasonable gi'ound for supposing may be supported. No other claim than a claim on a bill of exchange or pro- missory note can be included in writs issued under this Act. If, however, leave be given to defend. 166 SUMMARY PROCEEDINGS. the action falls into its place as an ordinary action. Somewhat similar to the summary procedure on a bill of exchange is the aiDplication for speedy judg- ment allowed by the Judicature Act of 1875 in all actions of contract where the vrrit has been spe- cially endorsed. If the defendant appear, the plaintiff may make an affidavit affirming his own cause of action, and negativing, according to the best of his belief, that the defendant has any ground of defence, and call on the defendant by sum- mons to show cause why final judgment should not be entered for the amount endorsed with interest and costs.*^ This summons is returnable not less than^two clear days after service.^ The order will be made unless the defendant, by producing affi- davits, or by some other means, satisfy the judge that he has a good defence on the merits, or dis- close sufficient facts to entitle him to be allowed to defend.^ The defendant may be ordered to attend and be examined on oath, and compelled to produce books or documents. If he make an affidavit, he must say whether the defence alleged goes to the whole or a part of the claim, and an order may be made for immediate judgment as to part.y If there are several defendants, some may be allowed to defend and others have judgment en- tered against them at once,^ and in any case the defence may be allowed upon such terms as may ' Orel xiv. 1, p. 258. " Ord. xiv. 2, p. 258. ^ Ord. xiv, 3, p. 258. ^ Ord. xiv. 4, p. 258. ^ Ord. xiv. 5, p. 258. INTERPLEADER. 167 appear proper. If the defendant undertake to bring the money into Court, he will generally have leave to defend.* Another very common form of summary pro- ceeding is " interpleader." Sometimes an action is brought against a person in respect of money or property to which he himself has no claim, but which is claimed by some one besides the plaintiff. It is obviously unjust that the defendant should under these circumstances be put to the expense of defending an action in which he has no real interest, while, on the other hand, if he let judg- ment go by default, he may expose himself to an action at the suit of the other claimant. His only way out of this dilemma was formerly by bill in equity, but the proceeding by interpleader, by means of which the action is summarily stopped against the defendant, and the two adverse claim- ants made to decide the matter between them, was given by various statutes, which are now fully applied to the High Court.'' The system created by those Acts is shortly this : — When an action of assumpsit, debt, detinue, or trover, is brought against any person, for money or goods in which he claims no interest, but for which he expects somebody else wiir sue him, he may, after statement of claim, and before defence, apply to a judge at chambers, who will order both tlie claimants to appear. '^ If either of them fail to appear his claim is pronounced to be barred, " Ord. xiv. 6, p. 259. ^ Ord. i. 2, p. 239. "= 1 & 2 Wm. IV., c. 58, s. 1. 168 " SUMMARY PEOCEEDINGS. but if they both apjDear, and if there really be a question between them, an issue, which raises tlie fact in dispute, is in general directed to be tried.*^ The party succeeding on the trial of such issue is then declared by the order to be entitled to the property in dispute. The costs of the proceedings are in the discretion of the judge. It is not, however, always necessary for a person upon whom conflicting claims are made to wait until an action is brought. In the execution of their office, sheriffs are often put in this jDosition, and one branch of the statute ajDplies to them alone. It often happens, especially in cases of bankruptcy, that a sheriff seizes goods under an execution against A., and then finds that B. lays claim to them, and threatens him with an action. In such cases, the Interpleader Act® gives him a right to make an application, by means of which he will obtain the same protection that is afforded to private persons, under the former branch of tlie Act. The Common Law Procedure Act, 1860, made some important alterations in the law relating to interpleader proceedings. By this Act interpleader may be granted though the titles of the claimants have not a common origin, but are adverse to, and independent of, one another.^ The judge may direct the sale of goods seized in execution, when d 1 & 2 Wm. IV. c. 58, s. 3. « 1 & 2 wm. IV. c. 58, s. 6 ; 1 & 2 Vict. c. 45, s. 2. f 23 & 24 Vict. c. 126, s. 12. APPLICATIONS UNDER A STATUTE. 160 they are claimed by a third party under a bill of sale or otherwise by way of security for a debt;^ and in trifling cases, at the re- quest of either party, he may decide the matters in dispute in a summary way;^ or, if the question be rather of laAV than of fact, a special case may be stated for the opinion of the Court. ^ There are also certain cases in which summary jurisdiction is given by a particular statute. These were passed before the union of law and equity in one Court, and mostly had for their object the recog- nition by courts of law of certain well established principles of equity. Thus, by a statute of George the Second, and the Common Law Procedure Act, 1852, a defendant in an action of covenant or ejectment brought by a mortgagee against his mort- gagor may, on paying principal, interest, and costs, or bringing them into court, summarily compel the mortgagee to reconvey the mortgaged lands and deliver up the title deeds. J Similarly, by the Common Law Procedure Act, 1860,^ relief in a summary manner may be given in an action of ejectment brought upon a forfeiture for non-pay- ment of rent, or for not insuring according to the terms of the lease. A most extensive summary jurisdiction over re- plevin bonds and other bonds given by way of e 23 & 24 Vict. s. 13. ^ Ibid., s. 14. ' Ibid., 88. 15, 16. J 7 & 8 Geo. II. c. 20 ; 15 & 16 Vict. c. 76, s. 219. k 23 & 24 Vict. 0. 126,. 83. 1, 2. 170 SUMMARY PROCEEDINGS. security under the County Court Acts is also pos- sessed by the Court.^ It is also invested with a very complete and summary power over the fees of sheriffs and their officers, who are prohibited from receiving any fees other than those allowed by the taxing officer of the Court under the sanc- tion of the judges. If the sheriffs or officers take more, they may be punished summarily, upon ap- plication made to the Court before the end of the next Term, and may be ordered to pay the com- plainant's costs. "^ Applications for the purpose of invoking the summary jurisdiction confeiTed by statute on the Court are made at Chambers in the first instance. The ordinary course of the action may some- times be dispensed with by the parties agreeing to the statement of a special case. This occurs when there is no dispute as to the facts, but the opinion of the Court is desu'ed on the law appli- cable to them, or the inferences to be drawn from the facts ."^ The case is in the form of a narrative, and may be stated at any time after writ. After it is printed and signed by the parties or their solicitors, and filed,*^ it is entered for argument by delivering to the officer a memorandum for that purpose.? If a married woman or infant, or person of un- sound mind, be a plaintiff to the action, leave ' 19 & 20 Vict. c. 108, s. 70. ■»' 1 Vict. c. 55. " Ord. xxxiv. 1, p. 290. » Ord. xxxiv. 3, p. 290. p Ord. xxxiv. 5, p. 290. STET PROCESSUS. 171 is requii-ed for the statement of a special case, and an affidavit must be made verifying the facts stated in the case which affect tlie person under disability.i Finally the parties may by agreement between themselves put an end to the action by entering a " stet processus." This is done with leave of the Court, and its effect is to stay all proceedings, each side paying its own costs. 1 Ord. xxxiv. 4, p. 290. I '1 172 CHAPTER X. EXECUTION. Execution is the process by which the judg- ment of the Court is enforced. It is effected by a writ of execution which is a document directed to the sheriff or other proper jDerson by the Sovereim, commanding him to take certain com- pulsory proceedings for the purpose of carrying the judgment into effect. The most ordinary form of judgment is that by which one party is ordered to pay a sum of money to another party, and the usual mode of enforcing this judgment is by writ of " fieri facias " or " fi. fa." This "smt is a command to the sheriff that, of the goods and chattels of the party, he cause to be made the sum recovered by the judg- ment, together Avith interest at the rate of 41. per cent., and that he have the money and interest to be paid to the party who sued it out, and the writ itself before the Court immediately after the exe- cution of the vn'it.^ If the sheriff make a return to the writ that he holds the goods for want of buyers, the auxiliary "wiit of "venditioni exponas " commanding him to sell may issue. " Form 1 Appendix (F), Jud. Act, 1875. TO ENFORCE PAYMENT OF MONEY. 173 If after making a return to this effect the sheriff go out of office, a writ of " distringas nuper \dce comitem " may issue commanding the present sheriff to distrain his predecessor to sell the goods. If the sheriff return to a writ of fi. fa. that the debtor is a clergyman without lay goods, a writ of " fieri facias de bonis ecclesiasticis " may issue to the Bishop or the Archbishop in case of a vacancy in the bishopric, to levy the debt from the tithes or other profits of the benefice of the clergyman,'' or a "^\Trit of " sequestrari facias " may issue to the same authority to take the benefice into his own hands until the debt be levied out of its profits.'' Formerly one of the most important jirocesses for enforcing a judgment to pay money was a " capias ad satisfaciendum " or " ca. sa," This writ commands the sheriff to take the debtor and keep him safely, so that he may have him in Court immediately after the execution of the writ, to satisfy the execution creditor to the amount of the debt and interest. Since the Act for the abolition of imprisonment for debt this writ can ordinarily only be employed in penal actions or where a solicitor is ordered to pay costs for misconduct, and even in these cases the debtor can only be detained for a year. It may be issued in ex- traordinary cases by order of a judge, for the committal of the debtor for a terra not exceeding six weeks, on proof that he has or has had since ^ F as may be done on an elegit ; but they must be sold, if the debtor do not immediately satisfy the creditor for the debt, costs, and expenses. There is no objection, however, to selling them to the creditor, or to any person in trust for him, at their real value. The sheriff must sell in a reasonable time, and if he neglects to do so, and the execution creditor thereby sustains damage, an action may be maintained against him for his breach of duty. If the sheriff sells more goods than are sufficient to satisfy the writ, he is liable in trover for the goods unnecessarily sold. The sheriff should sell for the best price that can be reasonably obtained, and for ready money and immediate delivery. An assignment of a term of years must be in writ- ing ; but goods may be sold by the .sheriff in any way. Besides the amoimt of the debt, the sheriff also levies his poundage and expenses. The sale or assignment by the sheriff of the goods or chattels of the debtor taken on a fi. fa. conveys an indefeasible title to a bona, fide vendee ; so much so, that, if the writ be afterwards vacated the debtor is not restored to his goods. But, if the writ were void, as if it issued without jurisdiction, or if the goods wore the goods of a stranger, and not of the doljtor, the sale of the sheriff would convey no ^iroperty, and the real owner may recover even against a bonfi fide pur- chaser for value. 194 EXECUTION. With regard to executions against the goods of a bankrupt, the legislature has from time to time made enactments on this subject, in order to prevent any hardship arising from the title of the trustees having reference back to an act of bankruptcy. By the Bankruptcy Act, 1869, sub- ject and without prejudice to the provisions re- lating to the proceeds of the sale and seizure of the goods of a trader, and avoiding certain fraudu- lent preferences, any execution or attachment against the goods of any bankrupt executed in good faith by seizure and sale before the date of the order of adjudication, if the person on whose account the execution or attachment was issued had not, at the time of its being executed by seizure and sale, notice of any act of bankruptcy com- mitted by the bankrupt and available against him for adjudication, is valid.^ It is important, there- fore, in general, where an execution issues against a j)ei"Son who is likely to become a bankrupt, to sell under the execution as soon as possible. An execution creditor only requires the protection of this section where an act of bankruptcy has been committed prior to the seizure. Where the slreriff has under an execution for less than fifty pounds seized a debtor's goods before any act of bank- ruptcy, the judgment creditor's claim to be paid out of the goods is not defeated by the debtor's subsequent bankruptcy, though the sheriff do not sell till after the adjudication.* ' 32 & 33 Vict. c. 71, s. 9.5. * Slater v. Pindcr, 41 L. J. Ex. 66. ACT OF BAXKEl'PTCY. 195 An execution is, however, frequently itself an act of bankruptcy, and in that case it has some peculiar incidents. A trader debtor commits an act of bankruptcy if an execution for not less than fifty pounds is executed by seizure and sale of his goods.'' Where the goods of a trader are taken in execution in respect of a judgment for a sum ex- ceeding fifty pounds, and sold, the sheriff is to retain the proceeds of such sale in his hands for a period of fourteen days, and upon notice being- served on him within that period of a bankruptcy petition having been presented against such trader, is to hold the proceeds of such sale, after deducting expenses, in trust to pay the same to the trustee under the bankruptcy, but if no notice of such petition is served, or if, after such notice, the trader is not adjudged a bankrupt on such petition^ or any other petition of A\hich the sheriff has notice, he may deal with the proceeds of such sale in the ordinary way.<= Sometimes more than one writ is issued against the same person, or a County Court warrant as well as a writ is issued. If two writs of fi. fa. against the same person are delivered to the slieriff, he must execute that writ first which was first delivered to him, even though both were delivered upon the same day; that is to say, ho must apply the proceeds of any sale under them in satisfaction of that writ first, which was first delivered to him ; for when the b 32 & 33 Vict. c. 71, s. G. <= 32 & 33 Vict. c. 71, s. 87. K 2 196 EXECUTION. sheriff seizes the goods, they are in point of hxw in his custody under all the writs which he then has ; and when he sells, he does so also in jDoint of law under all such writs. If the sheriff, when the second writ is delivered to him, has seized goods under the first, he may be said, immediately upon the delivery of the latter writ, to have seized the goods under that also. But if the first writ or the 230ssession held under it, be fraudulent, or be set aside or withdrawn, or be void as against trustees under the Bankruptcy Laws, the second has priority. The goods are bound by the second writ from the date of the delivery of it to the sheriff, subject of course to the first exe- cution . When a writ has issued from the High Court against the goods of a party, and a w^an-ant against the goods of the same party has issued from a County Court, the right to the goods seized is determined by the priority of the time of the de- livery of the writ to the sheriff to be executed, or of the application to the registrar for the issue of the warrant to be executed.^ When the writ becomes returnable, the sheriff may return " fieri feci," i.e., that he has levied the sum named in the writ, or a part of it, which he is ready to pay to the execution creditor ; or that he has taken goods wdiich remain unsold for want of buyers ; or " nulla bona," i.e., that the execution debtor has no goods within his bailiwdck ; or any other legal excuse for not levying. '' 19 & 20 Vict. c. 108, s. 47. VENDITIONI EXPONAS. 197 If the sheriff return that he has taken goods, but that they remain in his hands for want of buyers, and he be still in office, a Avi-it of " vendi- tioni exponas" maybe sued out in order to compel a sale of the goods ; though, indeed, he may and ought to sell without it, and an action on the case might be maintained against him, if he omit sell- ing in a reasonable time, whereby any damage is sustained by the party suing out the fi. fa. This writ is not a process distinct from the fi. fa., but a branch of it ; it is a writ directing the sheriff to execute the fi. fa. in a particular manner. After the delivery of the venditioni exponas to the sheriff, he is bound to sell the goods, and have the money in Court on the return day of it. In making a sale of goods under it, the sheriff is not bound by the value set upon the goods in his return to the fi. fa. ; but otherwise if they be rescued from him or the like, so that he cannot make a sale of them. Where a sheriff goes out of office, after return- ing that he has levied, but that the goods remain in his hands for want of buyers, instead of suing out a venditioni exponas the execution creditor may sue out a " distringas nuper vicecomitem," di- rected to the present sheriff, commanding him to distrain the late sheriff to sell the goods. O)-, if goods sufficient to satisfy only a part of the debt were seized under the first writ, the execution ci-editor may have a distringas for that part, and a fi. fa. for the residue in one writ. The former sheriff must thereupon sell the goods and pay 19S EXECUTIOX. over the money, otherwise he will forfeit "issues" or fines to the amount of the debt. If nulla bona be returned to the fi. fa. an " alias fi. fa." may be sued out, and upon the return of nulla bona to that, a " pluries fi. fa." may be issued. In pra,ctice, in the above cases, where nothing has been in fact levied, it is usual to issue the subse- quent writ Avithout getting the return previously made ; and so long as the return is made in time to show cause against an application to set aside the subsequent writ for iiTegularity for the want of it, that will sufl&ce. If the sheriff has levied part of the debt, the execution creditor, upon the writ being returned, may sue out a fieri facias for the residue, but in this case it is absolutely ne- cessary to get the return made before issuing the subsequent writ, as such writ recites the first, and the sheriff's return to it. If the execution creditor from mistake indorse a fi. fa. for less than he is entitled to, the Court may, on conditions, allow him to take out a fi. fa. for the residue. If nothing, in fact, be levied under a fi. fa. so that nulla bona might be returned to it, the exe- cution creditor may sue out a ca. sa. or elegit. So, if fieri feci be returned as to part, he may sue out a ca. sa., when it will lie, or an elegit for the residue. As soon as the sheriff seizes the goods under the Avrit, the debtor is thereby absolutely discharged to the extent of the lev}^, Avhether the sheriff sells the goods or return the writ or not, or though they EXECUTING ELEGIT. 199 aftenvards be rescued from him ; and lie may plead this to a scire facias or action on the judg- ment ; or if another Avrit be sued out against him for the same debt, he may be relieved upon motion. But if judgment be obtained against several per- sons, and the goods of one of them be seized but not sold, this will not discharge the others, be- cause it is no actual satisfaction. The sheriff is liable to the execution creditor for the amount of the lev}^ If fieri feci be re- turned, the money may be recovered by rule of Court or by action. The mode of executing an elegit must next be considered. Upon the receipt of the elegit, the sheriff must empanel a jury, who are to inquire of all the goods and chattels of the debtor, and ap- jDraise the same, and also to enquire as to his lands and tenements and their value. Upon the inqui- sition had, the sheriff is to deliver to the execution creditor all the goods and chattels of the debtor, except his oxen and beasts of the plough, at the value set upon them by the jury, and if the goods be sufficient to satisfy the debt, the lands cannot be extended. If, however, the goods be insufficient, the sheriff is to proceed to make and deliver execu- tion to the execution creditor of all the lands of the debtor, after being valued by the jury, and must return the writ in order that the execution may bo recorded in the Court. It is not, however now necessary, as it was formerly, to describe the lands by metes and bounds in the inquisition. The sheriff delivers only legal possession of the lauds. 200 EXECUTION. Actual possession may be recovered by bringing ejectment; but it is not necessary to bring eject- ment if possession can be obtained without doing so. Where a reversion is extended, ejectment cannot be brought. At common law, lands in which a party was beneficially interested, as cestui que trust, could not be extended under an elegit issued against him; but the Statute of Frauds® makes some species of trust property to which the defendant was entitled at the time of execution sued so ex- tendable. The statute of the first year of the Queen already referred to, greatly extended the effect of the writ of elegit. As a general rule, the elegit creditor may now extend the whole of the debtor's lands instead of a moiety. Subject to the rights of the lord of the manor, the debtor's customary and copyhold lands may be extended, which could not be done before the Act. Lands over Avhich the debtor has any disposing power which he may, without the assent of any other jDorson, exercise for his own benefit, may be extended. This could not be done before the Act, and even estates tail in possession were not liable to be extended after the death of the debtor. Trust estates are now put upon the same footing as to the time at which they are bound by the judgment, as estates held in the debtor's OAvn name.^ It seems that an advoAvson in gTOSS cannot be « 29 Car. II. c. 3, s. 10. ' 1 & 2 Vict. c. 110, s. 11. LAND ASSIGNED BY DEBTOE. 201 extended under an elegit ; nor can the glebe loelongiug to an ecclesiastical benefice, or tlie churchyard, because they are each " solum Deo consecratum : " nor can a rent seek ; nor any tenement Avhich cannot be granted over, as the office of a filacer or the like ; nor an equity of redemption. The Bankruptcy Act, 18G0, provides that, subject and without prejudice to the provisions of that Act avoiding certain settlements and fraudulent preferences, any execution or attachment against the land of the bankrupt, executed in good faith by seizure before the date of the order of adjudication shall be valid if the execution creditor had not notice of any act of bankruptcy.^ The time at which the land of a judgment debtor is bound by a writ of execution has gone through several changes, as in the case of execution upon goods. A judgment entered before the 23rd July, 1860, bound all the land which the debtor possessed at the time the judgment was entered, but in order to affect purchasers, mortgagees, and creditors the judgment must have been registered. Further, judgments entered after that date as against bona fide purchasers and mortgagees only affected the land possessed by the debtor at the time a writ had been issued, registered and exe- cuted.^ Finally, a judgment entered since the 29th July, 1864, does not affect land until it has actually been delivered in execution.^ E 32 & 33 Vict. c. 71, s. 95. ^ 23 & 24 Vict. c. 38. ' 27 & 28 Vict. c. 112, s, 1. K 3 202 EXECUTIOX. If no land be extended upon an elegit, the exe- cution creditor may of course have an elegit into another county ; or even if lands be extended, the creditor, on a suggestion that the debtor has more lands in the same or another county, may have another elegit, directed to the sheriff of such county. But where land is extended upon an elegit, no other writ of execution but an elegit can be sued out against the debtor's person or propert}^, unless the creditor be evicted from the lauds extended. The execution creditor having thus obtained j)o.ssession of the lands may retain them until he has satisfied the judgment out of the rents and profits. In that case, when the judgxnent is satisfied, the debtor may recover the land back, either by an action of ejectment, or by a "scire facias ad rehabendam terram." Before the judg- ment is so satisfied, the debtor, upon tendering to the plaintiff in Court whatever may be deficient in the amount of the judgment, may recover the land by a scire facias ad rehabendam terram. Or the debtor may proceed in equity ; or apply to the Court out of which the elegit issued, to refer it to one of the Masters to ascertain the amount of the rents and profits received and to order that if it ajjpear that the debt is satisfied, possession shall be delivered to the debtor. It is expressly jirovided by the statute that the elegit creditor shall render an account in the Court out of which the execution is sued, as a EETUP.X OF THE WRIT. 203 tenant by elegit was subject to in a Court of Equity before the Act.^ ^^ith regard to judgments entered since the 29th July, 1864, a more effectual remedy is given to the creditor than satisfying his judgment as tenant by elegit. He may obtain an order in the Chancery Division of the High Court for the sale of the debtor's interest for the purpose of applying the proceeds to the satisfaction of his judgment.^ The next consideration is the return of the writ. It is not usual for the sheriff to return Avrits of execution unless ruled or ordered to do so, although in strictness he is bound to return them when executed. In some cases it is absolutely necessary that the writ shoidd be returned. Thus, if lands be extended on an elegit, it and the inquisition lield under it must be returned, otherwise the tenant by elegit will have no title. Also, where the full amount of the judgment is not realised by the writ, and it is expedient to issue another A\Tit to enforce payment of the remainder, it is, as we have seen, essential that the first writ should be returned, in order to recite the return in the fresh writ. It may sometimes be advisable to compel the sheriff to return the writ, in order to prevent improper conduct in the officer. The sheriff cannot be ruled to return the writ where there has been any collusion between the sheriff's officer and the plaintiff or his solicitor, or where the action or exe- cution has been compromised, or where the writ " 1 & 2 Vict c. 110. ' 27 fc 23 Vict. c. 112, ss. 4, 5, 6. 204 EXECUTIOX. lias been executed by a special b'ailifF "^ or the like ; and if so ruled the sheriff may apply to the Court or a judge to set aside the rule. The sheriff can only be thu^ ruled to return the writ whilst he is in office, or with'n six calendar months after he goes out of it. The party issuing the writ may in general rule the sheriff to return it if it become necessary for him to have such return. The party against whom the wa-it is issued may rule the sheriff to return it after the object of the writ has been effected, but it seems that this cannot be done by such party before that time, except on special grounds. No judge's order is required for the return of a writ^ but a side-bar rule issues. The rule calls upon the sheriff to return the writ within a certain time after notice to be given to his under-sheriff. All rules upon the sheriffs of London and Middle- sex to return writs are four-day rules, and upon other sheriffs, eight-day rules."^ A copy of the rule with the name of the officer by wdiom the writ was executed indorsed on it must be served at the office of the sheriffs deputy. The time limited by the rule for making the return may be enlarged by order and this is often allowed where the justice of the case requires it for the sheriff's protection ; as where there are adverse claims to the goods seized under a fi. fa. The sheriff must return the wa-it within the " PalUster v. PaUlstcr, 1 Chit. Eep. 614, n. ; Harding v. Bolder, 2 M. & G. 914 ; 3 Sc. N. R. 293. » E. 130, H. T. 1853. EFFECT OF RETURX. 205 time limited or, if the offices be closed, as soon as they open, otherwise he will be in contempt, and subject to an attachment.'^ In ovder to make sheriffs punctual in their return of writs, it is ordered that " the officer with whom it is filed shall endorse the day and hour when it was filed.'"P The return must bo certain, but so much cer- tainty is not required in it as in pleading. When the bailiff of a liberty has the execution and return of a WTit, the sheriff may return that he commanded the bailiff to execute the writ ; and if the bailiff has not made a return, the sheriff should return that fact accordingly ; or if he has made a return, the sheriff should return it. The return is conclusive betw^een the same jDarties in the same action, but not against other j^arties, or in another action.^i Even in another action, however, the return is prima facie evidence of the facts stated in it. The sheriff is generally concluded by his return ; and the bailiff of a liberty is, it seems, concluded by it, although false^ and his remedy over is against the sheriff. But the sheriff's officer is not, for the purpose of his own justification, so concluded. In a return to a WTit of fi. fa, the sheriff" is not bound by the value of the goods he returns. The Court will not, in general, try the truth of a return on affidavits. But if the return bo false, R. 131, H. T. 1853. p R. 131, H. T. 1853. '^ Jackson v. Hill, 10 Ad. & El. 477 ; Sttmson v. Farnham, 41 L. J. Q. B. 52. 20 G EXECUTION the party who is injured by it may maintain an action against the sheriff.'^' Therefore, if the sheriff return "non est inventus," when he has taken, or might have taken, the defendant, he is liable to an action. So, if he return nulla bona to a writ of fi. fa., when he has had an opportunity of making a levy, the execution creditor may bring an action against the sheriff for the false return. The return may in general be amended. If the writ of execution be irregular, or ought not to have issued, it will, like other processes of the Court, be set a-side, and, if goods or money have been levied under it, they will be ordered to be restored. So, if the execution has been irre- gularly executed, such restoration or discharge will be ordered. But the execution will not, in general, be set aside where too large a sum has been levied ; all the Court or a judge will do in such a case is to comjDel the execution creditor to refund the overplus. In setting aside the execution, the Court, unless the debtor "was entitled to it as a matter of right, will in general restrain him from bringing any action, unless a strong case of damage be shown ; and even where the debtor is entitled to set aside the execution, ex debito justitise, the Court will not in general give him his costs of the rule for that purpose, unless he will consent not to bring any action. ^ Although the -writ be U'regular ' See Wylie v. Bircli, 4 Q. B. ZQQ ; Stimson v. Farnham, 41 L. J. Q. B. 52. » Cash V. Wdh, 1 B. & Ad. 375 ; Rhodes v. UuU, 26 L. J. Exch. 265. 1 ATTACHMENT OF DEBTS. 207 yet, unless it be set aside, the party at whose suit it is issued and his solicitor may justify under it. But after it has been set aside for iiTegularity, or on the ground that it was issued in bad faith, they cannot do so ; and the latter is liable in trespass, as well as the former, for an arrest or the like made under it.* Whether set aside or not, the sheriff and his officer, and all persons acting under the sheriff, are, in general, protected by it, however irregular, provided it be not void on the face of it, or did net issue without jurisdiction, and l^rovided he or they do not join in the same plea with the party." The setting aside of the writ does not prevent the party from issuing and exe- cuting another writ. Writs of execution may be amended like other proceedings. A mode of executing a judgment by the "at- tachment of the debts" of the judgment debtor, was first given by the Common Law Procedure Act, 1854, and is now adoj^ted by the High Court. It is somewhat analogous to the ancient proceeding by "foreign attachment" in use in the IMayor's Court of London and similar municipal Courts. By a foreign attachment, however, debts are at- tached for the purpose of compelling the defendant to appear and put in bail in the action ; whereas the attachment in the }Iigli Court only comes into use after judgment. ' Codnngton v. Lloyd, 8 Ad. & EL 419 ; Smith v. Sydney, 39 L. J. Q. B. 144. " Woolley V. Clarke, 5 B. & ALL 744 ; /Vt(7/>s v. Biron, 1 Str. £09. 208 EXECUTION. Witli this view a judgment creditor may obtain an order that the judgment debtor be orally examined before an officer of the Court as to what debts are owing to him, and for the production by the debtor of books and documents.^ A judge may, either before or after such oral examination, upon the ex parte application of the judgment cre- ditor, upon affidavit stating that judgment has been recovered, and that it is still unsatisfied, and that any other jaerson is indebted to the judgment debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person to the judgment debtor shall be attached to an- swer the judgment debt. Such third person or "garnishee," may be ordered to appear to show cause why he should not pay the judgment cre- ditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt.y All debts due to the debtor, in which he is bene- ficially interested, and for which he can sue, can in general be attached. Debts due to a corjDora- tion, unless exempted by Act of Parliament, may be so attached. So may joart of a debt. It seems that the proceeds of an execution may be attached in the sheriff's hands for a debt due by the execu- tion creditor. Rent oAving to the judgment debtor may be attached.^ A judgment debtor Avho is an executor or administrator is within the garnishee Orel. xlv. 1, p. 312. ? Ord. xlv. 2, p. 312. ^ MitchcU V. Lc(, 36 L. J. Q. B. 154. WHAT MAY BE ATTACHED. 209 clauses of the Common Law Procedure Act, 1854; and, therefore, a debt due to such judgment debtor, in his representative capacity, may be attached by a judgment creditor of the executor in the same right. On a joint judgment against several, a debt due to any one or more of the judgment debtors may be attached. As a general rule, debts or money "which the debtor cannot sue for cannot be attached. A superannuation allowance granted by a resolution of the board of directors of the East India Com- jDany to a retired clerk under the authority of a statute cannot be attached, as the same is only a gratuity, and the grant is not by deed. Nor can unliquidated damages, even after verdict, but be- fore judgment; nor dividends payable under a bankruptcy ; nor debts in which the debtor is not beneficially interested ; nor money ordered to be paid by a rule of Court ; nor the property of an intestate in the hands of the ordinary. The pro- perty of a foreign ambassador or a foreign potentate cannot be attached. Where there are mutual debts between the debtor and the garnishee, the judgment creditor can only recover the balance ao'ainst the garnishee. Service of the order for the attachment of a a debt on the garnishee, or notice to him of the order given in such manner as may be directed binds the debt in his hands.* The attachment of a judgment debt overrides a solicitor's lien on or a Ord. xlv. 3, p. 313. 210 EXECUTION. coutrol over the judgment, in respect of general costs due to him from the garnishee.'' If the garnishee does not pay into Court the debt due from him, or the judgment debt, and does not disj^ute the debt claimed to be due from him, or if he does not appear upon summons, then the judge may order execution to issue summarily to levy the amount due from the garnishee towards satisfaction of the judgment debt.'^ Where an order is made upon a garnishee to pay an accruiug debt, execution cannot be issued against him until the debt is due. If the garnishee disj^ute his liability, the judge may order any issue necessary for determining the question to be tried.*^ A third person alleged to hold a lien on the debt may be ordered to appear, and any necessaiy order may be made.e Payment made by, or execution levied upon, the garnishee under any such proceeding is a valid discharge to him as against the judgment debtor to the amount paid or levied, although the pro- ceeding be set aside or the judgment reversed.^ A garnishee is not protected if he pay the debt to the judgment creditor before a judge's order has been obtained directing such payment.^ lu each of the Divisions there is kej)t a debt attachment book, wlierein entries are made of the b C. L. P. Act. 1854, s. 62. " Ord. xlv. 4, p. 313. d Ord. xlv. 5, p. 313. « Ord. xlv. 6, 7, p. 313. 'Ord. xlv. 8, p. 314. ^ Turner v. Jones, 2-3 L. J. Ex. 262. CHAKGIXG OEDEE. 211 attachment and proceedings thereon. Copies of such entries may be taken by any person.^ The costs of the ajDiDlicatiou for the attachment and incidental thereto are in the discretion of the Court or a judge.^ Another form of execution analogous to the attachment of debt is a " charging order." This order directs that any government stock, funds or annuities, or any stock or shares of or in a public company in England, whether incorporated or not, standing in the name of the debtor in his own right, or in the name of any person in trust for him, shall stand charged with the payment of the judgment debt and interest. The charge cannot be enforced for six calendar months after the order, and is relinquished by the creditor taking the debtor in execution on the judgment.'^ ^ Orfl. xlv. 9, p. 314. ' Ord. xlv. 10, p. 311. •^ 1 & 2 Vict. c. 110, Es. 14-lG ; 3 & 4 Vict. c. 82. 212 CHAPTER XI. APPEAL. An aj)peal is a, proceeding by which a judgment in the High Court of Justice is called in question before the Court of Appeal. It takes the place of error and appeal in the Courts of Common Law, and of appeal in Chancery, to which latter pro- ceedings it is very closely assimilated. Error was an appeal against a judgment grounded either on the suggestion of some fact affecting the validity and regularity of the action, as, for instance, that the unsuccessful party was an infant, and appeared by attorney ; or on some error in jDoint of law apparent on the face of the proceedings. When it was grounded upon a sug- gestion of a fact, it was brought in that one of the Courts at Westminster in which the judgment was given. Such a proceeding was called error " coram vobis," or if the judgment were one of the Queen's Bench, " coram nobis." Error in law was brought from either of the three Courts at Westminster to a Court of Appeal. Until 1830 errors from the Common Pleas Avere prosecuted in the Queen's Bench, and errors from the Exchequer ERROR AXD APPEAL. 213 and the Queen's Bench ou its original side to the Exchequer Chamber, but in that year it was jsro- vided that errors from either of the three Courts of Common Law shoukl be heard in the Court of Exchequer Chamber by judges of the other tvvo Courts. EiTor was originally brought by writ sued out of the Court of Chancery, and directed to the per- son in the Court below who had the custody of the record ; as, in the Queen's Bench and Common Pleas, to the Lord Claef Justice ; in the Exche- quer, to the Treasurer and Barons. It commanded the inferior Court to certify the record to the Court of Appeal, which was directed to examine it and affirm or reverse the judgment according to law. By the Common Law Procedure Act, 18.52, a "wiit of error was made unnecessary, and the proceeding to error became a step in the cause. The proceeding called "appeal" as distinguished from error in the Courts of Common Law, owed its origin to the Common Law Procedure Act, 18-52. It was applicable to cases in which the Court of first instance granted or refused to grant a new trial or enter a verdict or nonsuit, such grant or refusal, as it did not appear on the record, not being a subject for error. The aj)peal always lay if the point were reserved at the trial, or if the rule were for misdirection, and one of the judges dissented. The facts raising the question were stated in a special case. In the Court of Chancery an appeal was allowed from the order or decree of the Master of the U 214 APPEAL. Eolls or a Vico-Cliancellor to tlie Lord Chancellor or the Lords Justices of Appeal, who were ap- pointed in 1851 to assist him in his appellate duties. The form of appeal was by a petition to the Lord Chancellor, and the appeal was looked upon as a rehearing. The Judicature Acts provide a uniform proce- dure of appeal, by way of rehearing, for the )Supreme Court of Judicature. Proceedings in error are abohshed,-'^ and there is to be no sj^^cial case or petition, but the appeal is brought by a simple notice of motion.'' An appeal may be carried to the Court of Appeal upon any order or judgment of the High Court of Justice. No ap- peal can be brought on an irterlocutory order after the expiration of twenty-one days, or on a final judg- ment after one year, without the leave of the Court Appeal.'^ Four days' notice of appeal must be en in the, case of an interlocutory order, and irteen days' notice in the case of a judgment.'* The notice of appeal must be served on all parties directly affected by the appeal, but the Court may adjourn the case for the purpose of serving other parties, and may amend the notice in any wa3^^ If the party appealed against desire himself to call the decision in question, he need not bring a cross apjDeal, but may give notice that he intends to contend that the decision of the Court below should be varied.*^ In the case of a final judgment, this a Ord. Iviii. 1, p. 325. ^ Or A IviiL 2, p. 325. « Ord. Iviii. 15, p. 328. "^ Ord. Mii. 4, p. 325. " OrJ. Ivii. 3, p. 325. ^ Ord. Iviii. 6, p. 326. HEAEIXG OF APPEAL. 215 notice must be an eight days' notice ; in the case of an interlocutory order, two days' notice.^ The appeal is entered by the appellant produc- ing to the officer of the Court the order or judg- ment, or an office copy of it, and leaving a copy of the notice of appeal.^ It is then entered in the list of appeals. An appeal may be made against the refusal by the High Court of an ex parte application, by moving ex parte within four days from the date of the refusal.* So soon as the notice has expired, and the case is reached in the list, the appeal is heard. ^ Two counsel are heard on each side, and the appellant's counsel has the right of reply. If the appeal be on a question of fact, the evidence is brought before the Court of A23peal on the affidavits, or the notes of the judge taken at the trial.^ The Court of Aj)peal may receive further evidence either by o examination of witnesses in Court or by affida;vi or depositiou taken before an examiner. If the appeal be against an interlocutory order, or the facts have occurred since the decision appealed against, leave to produce further evidence is cot necessary. In other cases, special grounds must be shown, and special leave obtained. The Court of Appeal has all the powers of the High Court, and may make any order which ought to have been made. They may do this without restriction, al- though the notice of appeal refer only to part of 8 Ord. IviiL 7, p. 326. •> Ord. Iviil. 8, p. 327. i Ord. Iviii. 10, p. 327. " Ord. Iviii. 11, p. 327. e :Vl^^HP 21G APPEAL. the decision, and although the respondent has not given notice of an intention to contend that the decision should be varied.^ They may reverse the judgment of the High Court on the question of costs, and they may make such order as to the costs of appeal as they think fit ; the general rule being that the successful jsarty is to obtain the costs of appeal. No appeal, however, can be brought on a question of costs only, except by leave of the Court making the order.™ Formerly bringing error operated as a stay of execution on giving bail o-r making a deposit. Under the present practice, an order is required for an appeal to operate as a stay, and a condition of this order is usually that the appellant find security." From the judgment of the Court of Appeal an appeal lies, as formerly from the Lord Chancellor and the Exchequer Chamber, to the House of Lords, but the proceedings in the Court of Appeal bring to a close the history of an action in the Supreme Court. ' OrA Iviii. 5, p. 325. ■» Judi. Act, 1873, s. 49. n Ord. Iviii. 16, p. 328. APPENDIX OF SELECTED FORMS. I. Forms in an Action ob^ Fraud. II. Specially indorsed Writ and Judgment by DEFAULT in A DISTRICT EeGISTRT. III. Pleadings in an Administration Action. rv. Pleadings in a Probate Action. V. Warrant and Pleadings in an Admiralty Action in rem. I. FORMS IN AX ACTION OF FRAUD. Form 1, Writ of Summons. 1876. B. No. 233. In the High Court of Justice. Queen's Bench Division. Between A.B. Plaintiff, and C.I). Defendant. Victoria, l)y the gi'ace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To C. D. of U. V. Street, in the county of Middlesex. We command you, That within eight days after the ser- vice of this writ on you, inclusive of the day of such sendee, you do cause an appearance to be entered fur you * These fomis are chosen from the Appendices to the Judica- ture Act of 1875, as samples of the documentary proceedino-s iu an action. They are filled up and arranged in groups. L 218 APPENDIX OF SELECTED FOEMS. in the Queen's Bench Division of Our High Court of Jus- tice in an action at the suit of A.B. ; and take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, The Right Honom-able Hugh MacCahnont Baron Cairns, Lord High Chancellor of Great Britain, at West- minster, the 1st day of January, one thousand eight hundred and seventy-six. N.B. — This Avrit is to be served within twelve calendar months from the date thereof, or, if renewed, from the date of such renewal, including the day of such date, and not aftenvards. The defendant may appear hereto by entering an appear- ance either personally or by solicitor at the office of the Queen's Bench Division, Inner Temple, London. Indorsements on the ^vrit made hefore issue. Tlie plaintiff's claim is for damages for fraudulent mis- representation on the sale of a business. This writ was issued by E.F., of 14, K. B. W., Temple, London, solicitor for the said plaintiff, who resides at 20, K. Street, London, N. "• Indorsement made on the writ after service. This writ was served by X. Y. on CD., the defendant, on Monday, the 3rd day of January, 1876. (Signed) X.Y. High Coiu^ of Justi Queen's Bench " Form 2. Memorandum of Appearance. 1876. B. No. 233. Enter an ap2Jearanci^^^^|2§^^M'^ actiou. Dated this 10th day ol ~ Solicitor for the defendant. The place of business of Z. is 99, 0. S., Lincoln's Inn. His address for ser\dce is the same. Tlie said defendant requii'es a statement of claim to be filed and delivered. ACTION OF FRAUD. 219 Form 3. 1S76. B. No. 233. In the Higli Court of Justice. Queen's Bench Division. Writ issued 1st Januaiy, 1876. Between A.B. Plaintift; and CD. Defendant. Statement of Claim. 1. On or aljout 3rd March, 1875, the defendant caused to be inserted in the DaUy Telegraph newsjDaper an advertise- ment, in which he offered for sale the lease, fixtiu'es, fittings, goodwill, and stock-in-trade of a baker's shop and business, and described the same as an increasing business, and doing twelve sacks a week. The advertisement directed application for particulars to be made to L.M. 2. Tlie i")laintiff haraig seen the advertisement applied to L.M., who placed him in communication with the de- fendant, and negociations ensued between the plaintiff and the defendant for the sale to the jilaintiff of the defendant's bakery in C. L. Street, London, with the lease, fixtiu'es, fittings, stock-in-trade, and goodwill. 3. In the course of these negociations the defendant re- peatedly stated to the plaintiff that the business was a steadUy increasing business, and that it was a business of more than twelve sacks a week. 4. On the 5th of April, 1875, the plaintiff, believing the said statements of the defendant to be true, agreed to pur- chase the said premises from the defendant for 500^., and paid to him a deposit of 2001. in respect of the piirchase. 5. On the 15th April, the purchase was completed, an assignment of the lease executed, and the balance of the purchase money paid. On tlie same day the plaintiff entered into possession. ^^^ 6. Tlie plaintiff' soon afterwartl^B*overed that at the time of the negociations for the s^^fcrchase by him and of the said agreement, and C)f U|^Hfc)letion thereof, the said business wa.s, and ^BJM^^^^I declining business ; and at each of tho^iJB^^Rifl^^Ta long time before, it had never been a business of more tlian eight sacks a week. And the said premises were not of the value of 500^., or of any saleable value whatever. 7. The defendant made the false representations herein- before mentioned well knowing tliem to Ije false, and frau- dulently, with the intention of inducing the plaintiff to make the said purcliase on the faith of them. The plaintiff' claims 600^. damages. L 2 220 APPENDIX OF SELECTED FORMS. Form 4. 1876. B. Xo. 233. In the High Court of Justice. Queen's Bench Division. Between A.B. Plaintiff, and CD. Defendant. Statenient of Defence. 1 . The defendant says that at the time when he made the representations mentioned in the third paragraph of the statement of claim and throughout the whole of the transactions between the plaintiff and defendant, and do^\Ti to the comjjletion of the piu'chase and the relinquishment by the defendant of the said shop and busines.s to the plaintiff, the said business was an increasing business, and was a business of over twelve sacks a week. And the de- fendant denies the allegations of the sixth paragraph of the statement of claim. 2. The defendant re^Deatedly during the negociations told the plaintiff that he must not act upon any statement or representation of his, but must ascertain for himself the extent and value of the said business. And the defendant handed to the plaintiff' for this purpose the whole of his books, showing fully and truthfully all the details of the said business, fi-om which books the natm^e, extent, and value thereof coidd be fully seen, and those books were examined for that piu-pose Ijy the plaintiff, and by an accoimtant on his behalf. And the plaintiff made the purchase in reliance upon his o'\\"n judgment, and the result of his own inquiries and investigations, and not upon any statement or repre- sentation whatever of the defendant. Form 5. IS 76. B. Xo. 233. In the High Court of Justice. Queen's Bench Division. Between A.B. Plaintiff", and CD. Defendant. Reply. The plaintiff' joins issue upon the defendant's statement of defence. ACTION OF FRAUD. 221 Form 6. Notice of Trial. In the High Court of Justice. Qiieen's Bench Division. A.B. V. CD. Take notice of trial of tliis action by a Judge and a special jury in Middlesex, for the 1st day of March next. E.F., plaintiif 's solicitor. Dated 15th Febraary, 1876. To Z., defendant's solicitor. Form 7. Notice to prochtce Documents. In the High Coml of Justice. Queen's Bench Division. A.B. V. CD. Take notice that the plaintiff hereby requires you to produce and show to the Court and jury on the trial of this action all books, papers, letters, copies of letters, and all writings, and other documents in yoiu' custody, possession, or power, containing any entry, meniorandirm, or minute relating to the matters in question in the action, and par- ticularly the books relating to the defendant's business as a baker in C. L. Street, and all letters ■written by the jslaintiff to the defendant, also all letters written Ijy the plaintiff's solicitor to tlie defendant's solicitor, and the notices to admit and produce in this action. E.F., Plaintiff's solicitor. Dated 18th February, 1876. To Z., defendant's solicitor or agent. Form 8. Notice to admit Documents.* In the High Coiut of Justice. Queen's Bench Division. A.B. V. CD. Take notice that the plaintiff in this cause proposes to adduce in evidence the several documents hereunder * The notices to produce and to admit documents will in most cases be also given mutatis mutandis by the defendant to the plaintiff. 222 APPENDIX OF SELECTED FORMS. specified, and tliat the same may be inspected by the defendant, his solicitor or agent, at my offices, at 14, K. B. "W., Temple, London, on 21st February next, between the houi's of eleven and two ; and the defendant is hereby required, witliin forty-eight hours fi'om the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed, as they piu'port respectively to have been ; that such as are specified as copies are true copies ; and su.ch documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered respectively ; saving all just exceptions to the admissibility of all such docmuents as evidence in this cause. E. F., solicitor for plaintiflf. Dated, 18th February, 1876. To Z., solicitor for defendant. Origin.vls. Description of Documents. Dates. Letter — Defendant to Plaintiflf Letter — Defendant's Solicitor to Plaintiff's Solicitor ... 24 March, 1875. 1 May, 1875. Copies. Description of Documents. Dates. Original or Duplicate served, sent, or delivered, when, liow, and by whom. Letter — Plaintiff to De- fendant 26 March, 1875. Sent by General Post, 26 March, 1875. ACTION OF FEAUD. 223 Form 9. Certificate of Officer after Trial hy a Jury. lath March, 1876. 1876. B. No. 233. In the High Court of Justice. Queen's Bench Division. Between A.B. Plaintiif, and CD. Defendant. I ceitify that this action was tried before the Honourable Ml'. Justice P. Q., and a special juiy of the county of IVIiddlesex, on the 12th and 13th days of March, 1876. The jiuy found for the ijlaintiif with' 400^. damages. The Judge tlii-ected that judgonent should be entered for the plaintitf for 400?. with costs of suit. E.F., Associate. Form 10. Judgment. I5th March, 1876. 1876. B. No. 233. In the High Court of Justice. Queen's Bench DivisioD. Between A.B. Plaintiif, and CD. Defendant. The action having on the 12th and 13th of March, 1876, been tried before the Honourable ]\Ir. Justice P. Q. and a spe- cial juiy of the county of Middlesex, and the jury having found for the plaintiff -with 400?. damages, and the said Iklr. Justice P. Q. ha^ing ordered that judgment be entered for the plaintiff' tor 400?. and costs of suit. Therefore it is adjudged that the plaintiff recover against the defendant 400?. and 50?. for Ins costs of suit. 224 APPENDIX OF SELECTED FORMS. Form 11. 187G. B. No. 233. Pnecipe for Fieri facias. In the High Court of Justice. Queen's Bench Division. Between A.B. Plaintiff, and CD. Defendant, Seal a wTit of fieri facias directed to the sheriff of Middlesex to levy against CD. of 8, U. V. Street, the sum of 400^. and interest thereon at the rate of 4l. per centum per annum from the 15th day of March, and 43/. 63. 8d. costs. .Judgment dated 15th day of March, 1876. Taxing master's certificate, dated 16th day of March, 1876. X T., solicitor for plaintiff. Form 12. Writ of Fieri Facias. 1876. B. No. 233. In the High Coiu-t of Justice. Queen's Bench Division. Between A.B Plaintiff, and CD. Defendant. Victoria, liy the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the sheriff of Middlesex greeting. "We command you that of the goods and chattels of C. D. in yom- baili^^•ick jov. cause to be made the sum of 400^. and also interest thereon at the rate of 41. per centum per annimi from the 15th day of March, which said sum of money and interest were lately before us in our High Court of Justice in a certain action wherein A.B. is plaintiff and CD. is defendant by a judgment of our said Couit, bearing date the 15th day of March, adjudged to be paid by the said CD. tu A.B., together with certain costs in the said judgancnt mentioned, and which costs have been taxed ;uid allowed hj one of the taxing masters of oui" said Court at the sum of 431. 6s. 8d., as appears Ijy the certificate of the said ACTION OF FRAUD, 225 taxing master, dated the 16th day of March. And that of the goods and chattels of the said CD. in yoiu' bailiwick you further cause to be made the said simi of 43?. 6s. 8d. toge- ther -wdth interest thereon at the rate of Al. per centiun jDer annum fi'om the 1 6th day of ]\Iarch, and that yoii have that money and interest before us in our said Court immediately after the execution hereof to be paid to the said A.B. in piu-suance of the said judgment. And in what manner you shall have executed this oiu* writ make appear to us in our said Court immediately after the execution thereof. And have there then this ■m-it. Witness, the Eight Honourable Hugh MacCalmont Baron Caii'ns, Lord High Chancellor of Great Britain, at West- minster, this 26th day of April, one thousand eight hundi-ed and seventy six. L 3 226 II. SPECIALLY INDORSED WRIT AND JUDGMENT BY DEFAULT IN A DISTRICT REGISTRY. Form 12. IVrit of Summons. 1876. F. No. 102. In the High Court of Justice. Exchequer Division. Between RF. Plaintiff, and G.H. Defendant. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen,Defender of the Faith. To G.H. of E. in the county of Northampton. We command you, That -within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the Exchequer Division of Cm' High Court of Justice in an action at the suit of E.F. ; and take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, The Right Honourable Hugh MacCalmont Baron Cairns, Lord High Chancellor of Great Britain, at Westminster, the 1st day of February, one thousand eight himdred and seventy-six. N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, fromtlie. date of such renewal, includiiig the day of such date, and not afterwards. The defendant may appear hereto by entering an appear- ance, either personally or by solicitor at the District Registry Office, 25, W. Street, Northampton, or the Exchequer office at Stone Buildings, Lincoln's Inn, in the county of Middlesex. ACTION IN A DISTRICT REGISTRY. 227 Indorsements on writ made before issue. The plaintiffs claim is 64^. ISs. for the price of goods sold, and 1^. 8s. 4d. for costs ; and if the amount claimed be paid to the plaintilf or his solicitor within four days from the service hereof, further proceeduigs will be stayed. The follo'uing are the particulars : — 1873— 31st Dec. £ s. d. Balance of account for butcher's meat to this date 35 10 1874 — 1st January to 31st March. Butcher's meat supplied . 1874— 1st Feb., paid Balance due 'ITie ^mt was issued by S.T., of 7, K Street, North- ampton, solicitor for the said plaintitf, who resides at 21, L. M. Street, Northampton. Indorsement rivxde on the writ after service. This writ was served by A. W. on G.H. the defendant on Thursday, the 3rd day of Febraary, 1876. (Signed) A.W, . 74 5 109 15 . 45 . £64 15 Form 13. Judgment ly Default of A'lipearance. 1876. F. No. 102. In the High Court of Justice, Exchequer Division. Between E.F. Plaintiff, and G.II Defendant. 28th February, 1876. The defendant not having appeared to the writ of sum- mons herein, it is this day adjudged that the plaintiff recover against the said defendant 64i. 15s., and costs to be taxed. 228 III. PLEADINGS IN AN ADMINISTIIA.TION ACTION. FoKil 14. 1876. B. No. 33. In the High Court of Justice. Chancery Division. Master of the Rolls. Writ issued 22nd February, 1876. In the matter of the estate of A.B., deceased. Between E.F. Plaintiff, and G.H. Defendant. iState'inent of Claim. 1. A.B. of A'., in the county of L., died on the 1st of July, 1875, intestate. The defendant G.H. is the adminis- trator of A.B. 2. A.B. died entitled to lands in the said coimty for an estate of fee simple, and also to some other real estate and to personal estate. The defendant has entered possession of the real estate of A.B., and received the rents thereof. The legal estate in such real estate is outstanding in mort- gages under mortgages created by the intestate. 3. A.B. was ne^-ei' married ; he had one brother only, who pre-deceased him without ha\dng been married, and two sisters only, both of whom also pre-deceased him, namely M.N. and P.Q. The plaintiff is the only child of M.N., and the defendant is the only child of P.Q. The plaintiff claims — 1. To have the real and personal estate of A.B. ad- ministered in this coiut, and for that purpose to have all proper directions given and accounts taken, 2. To have a receiver appointed of the rents of his real estate. 3. Such further or other relief as the nature of the case may require. ADMINISTRATIOX ACTION. 229 FoRJI 15. 1876. B. No. 33. Ill the High Court of Justice. Chancery Division. Master of the Rolls. In the matter of the estate of A.B., deceased. Between E.F. Plaintiff, and G.H. Defendant. Statement of Defence, 1. The plaintiff is an illegitimate child of M.N. She was never married. 2. The intestate Avas not entitled to any real estate at his death, excej)t a copyhold estate situate in the county of R,, and held of the manor of S. According to the custom of that manor, when the copyholder dies without issue, and without leaATiig a brother, or issue of a deceased lorother, the copyhold descends to his elder sister and her issue in preference to his younger sister and her issue. P.Q, was older than M.N. 3. The personal estate of A.B. was not sufficient for the payment of his debts, and has all been applied in payment of his fimeral and testamentary expenses, and part of his debts. Form 16. Demurrer. B. No. 33. In the High Court of Justice. Chancery Division. Master of the Rolls. A.B. v. CD. The defendant demurs to the plaintiff's statement of claim, and says that the same is Imd in law on the ground that the heir of the said A.B. is not a party to the action, and on other grounds, sufficient in law to sustain this demurrer. 230 APPENDIX OF SELECTED FORMS. Form 17. 1876. B. No. 33. In tlie High. Court of Justice, Chancery Division. Master of the Rolls. In the matter of the estate of A.B.^ deceased. Between E.F. Plaintiff, and G.H. Defendant. The ijlaintiff joins issue with the defendant upon his defence. Form 18. Judgment at Tried by Judge without a Jtiry. 1876. B. No. 33. In the High Court of Justice. Chancery Division. Master of the Eolls. 7th day of May, 1876. In the matter of the estate of A.B.^ deceased. Between B.F. Plaintiff, and O.H. Defendant. Tliis action coining on for trial the 1st day of May, before the Right Hon. Sir G. Jessel, Master of the RoUs, in the presence of counsel for the plaintiff and the defen- dant, ripon hearing the probate of the -will of A.B., the answer of the defendant E.F., to interrogatories, the ad- mission in writmg, dated 5th of April, and signed by Mr. JI.Y., the solicitor for the plaintiff, and by Mr. P.(^., the solicitor for the defendant, the aifidavits of E. F., R. t'S., and T. U., filed the 5th day of April, the affidavit of 6r. IT. 0. V. and 0. P., filed the 5th day of April, the evidence of K. L. and M. N., taken on their oral examination at the trial, and an exhibit marked X., being an indentiu'e dated, &c., and made between, &c., and what was alleged by counsel on both sides : This court doth declare, &c. And this Court doth order and adjudge, &c. 231 IV. PLEADINGS IN A PEOBATE ACTION. Form 19. 1876. B. No. 99. In tlie Higli Court of Justice, Probate, Divorce and Admiralty Division. Writ issued, 12th March, 1876. Between A.B. Plaintiff, and E.F. Defendant. Statement of Claim. 1. C. T., late of Bicester, in the county of Oxford, gentle- man, deceased, who died on the 2()th of January, 1875, at Bicester, being of the age of 21 years, made his last will, with one codicil thereto, the said will bearing date the first day of October, 1874, and tlie said codicil the first of Januar}^, 1875, and in the said vnll appointed the plaintiff sole executor thereof. 2. The said will and codicil were signed by the deceased in the presence of two witnesses present at the same time, the said mil in the presence of H. P. and J. E., and the said codicil in the presence of ./. D. and G. E., and who subscribed the same in the presence of the said deceased. 3. The deceased was at the time of the execution of the said will and codicil respectively of sound mind, memory, and understanding. Tlie plaintiff claims : That the Court shall decree probate of the said ^vill and codicil in solemn fonn of law. 232 APPENDIX OP SELECTED FORMS. Form 20. 1876. B. No. 99. In the High Court of Justice. Probate, Divorce and Adiuii'alty Division. Between A.B. Plaintiff, and CD. Defendant. Statement of Defence. The defendant says as follows : 1. The said will and codicil of the said deceased were not duly executed according to the i)ro visions of the statute 1 Vict. c. 26. 2. Tlie deceased at the time the said mil and codicil re- spectively purport to have 1 )een executed was not of sound mind, memory, and understanding. 3. The execution of the said \vill and codicil was ob- tained by the undue influence of the plaintiff [and others acting \\4tli him, whose names are at present unknown to the defendant.] 4. The execution of the said ^vill and codicil was ob- tained by the fraud of the plaiutiff, such fi-aud, so far as is within the defendant's present knowledge being \state the nature of the f raud.\ 5. The said deceased at the time of the execution of the said will and codicil did not know and approve of the con- tents thereof, or of the contents of the residuary clause in the said will [as the case may he."] 6. The deceased made liis true last will, dated the 1st day of Janizary, 1873, and in the said will ajjpoiuted the defendant sole executor thereof. [Propound this will as in paragraphs 2 and 3 of claim.] The defendant claims : 1. That the Court will pronomice against the said will and codicil propounded by the plaintitf : 2. That the Court will decree probate of the said will of the said deceased, dated the 1st of January, 187-3, in solemn form of law. PROBATE ACTION. 23 o Form 21. 1876. B. No. 99. In the High Coiu't of Justice. Probate, Divorce and Admiralty Division. Between A.B. Plaintiff, and CD. Defendant. 1. The plaintiff joins issue upon the statement of defence of the defendant, as contained in the first, second, third, fourth, and fifth paragraphs thereof. 2. The plaintiff says that the said ■\\-ill of the said de- ceased, dated the 1st of January, 1873, was duly revoked by the will of the said 1st of October, 1874, proi^ounded Ity the plaintiff in his statement of claim. 234 V. WAEEANT AND PLEADINGS IN AN ADMIRALTY ACTION IN EEM. Form 22. Warrant of Arrest. 1876. B. No. 88. In the High Coiirt of Justice. Probate, Divorce, and Aclniii-alty Division. B etween A.B. and CD., Plaintiffs, and The Owners of the " American." "Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Marshal of the Probate, Divorce, and Admiralty Di\'ision of our High Court of Justice, and to all and singular his substitutes. We hereby command you to aiTest the ship or vessel, " American," of the port of Liverjiool, and the cargo laden therein, and to keep the same under safe arrest until you shall receive fiu'ther orders from Us. Witness the Eight Honourable Hugh iMacCabnont Baron Cairns, Lord High Chancellor of Great Britain, this 7 th day of May, 1876. Form 23. 1876. B. No. 88. In the High Court of J ustice. Probate, Divorce and Admiralty Division. Writ issued 1st May, 1876. THE "a:\ieeican." Between A.B. and CD. PlaintiflFs, and E.F. and G.B. Defendants. Statement of Claim. 1. Shortly before 8 a.m. on the 9th of December, 1874, the brigantine " Katie," of 194 tons register, of which the ADMIRALTY ACTION IN REM. 235 jDlaintiffs were owners, manned by a crew of eight hands all told, whilst on a voyage from Dnhlin to St. John's, New- touiidland, in ballast, was in latitude about 46° N., and longitude 40° 42' W., by account. 2. The wind at such time was about W. by S., a strong breeze, and the weather was clear, and the " Katie " was under double-reefed mainsail, reefed mainstaysail, middle staysail, lower topsail, reefed fore staysail, and jib, sailing full and by on the port tack, heading about N.W. ^ N., a»- stitutes, whether the property to be arrested lie situate within the port of London or elsewhere within the jurisdiction of the Court, and the solicitor issuing the warrant shall, \\dthin six days from the service thereof, file the same in the registry^ 10. In Admiralty actions in rem , servdce of a writ of simimons against ship, freight, or cargo on board, is to be effected by nailing or affixing the original writ for a short time on the mainmast, or on the smgle mast of the vessel, and on t; iking off the process, leaving a true copy of it naikd or fixed in its place. 11. If the cargo has been landed or transhipped, service of the writ of summons to arrest the cargo and freight shall lie effected by placing the MTit for a short time on the cargo, antl on taking off the process liy leaving a true copy upon it. 12. If the cargo be in the custody of a person who will not permit acces.* to it, service of the writ may be made u]ion the custodian. Indorse- ment of date of service. Generally. 13. The person serving a writ of summons shall, within three days at most after such service, indorse ou the wiit the day of the month and week of the service thereof, other^\dse the plaintiff shall not be at lilierty, in case of non-appearance, to proceed by default ; and every aiiida\T^t of service of sucli writ shall mention the day on which such indorsement was made* OEDS. X. XL SERVICE OF WRIT. 251 ORDER X. Substituted Service. Every api^lication to the Court or a iudcje, undci* Affidavit for Order IX. Rule 2, for an order for ^'ulis'tituted or ^gr^^'''"^^"* other sen'ice, or for the substitution of notice for service, shall he supported hy an aftidavit setting forth the grounds upon A\-hich the application is made. ORDER XI. Service out of the Jurisdiction, 1. Service out of the jurisdiction of a writ of sum- when service mons or notice of a" writ of summons* may he allowed P"'. "f.'^*^ by the Court or a judge whenever the whole or any may be part of the subject-matter of the action is land or allowed, stock, or other property situate within the juris- diction, or any act, deed, will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dis- solved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, was made or entered into within the juiistliction, and when- ever there has been a lireach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction. 1a. Wlaenever any action is brought in respect of Exercise of any contract which is sought to be enforced or re- git^ng leave scinded, dissolved, annulled, or otherwise alfected in any such action, or for the Ijreach Avhereof damages or other relief are or is demanded in such action when such contract was made or entered into within the juristliction, or whenever there has been a breach within the jurisdiction of any contract wherever made, the judge, in exercising his discretion as to granting leave to serve such writ or notice on a defendant out of the jurisdiction, shall have regard * A British subject is served wth a writ and a foreigner witli a notice. (Bcddlnfjton v. BeddliKjton, 45 L. J. Prob. 44.) A foreign corporation may now be served with a notice of a writ of summons. ( Wedman v. Akticbola'/ft. 45 L. J. Ex. 327.) EtJLES OF THE SUPREME COURT. to the amount or value of tlie property in dispute or sought to be recovered, and to the existence in the place of residence of the defendant, if resident in Scotland or Ireland, of a local Court of liiuiteil jurisdiction, having jurisdiction in the matter in question, and to the comparative cost and convenience of proceeding in England or in tlie place of such defendant's residence, aiid in all the above-mentioned cases no such leave is to be granted without an affi- davit stating the particulars necessary for enabling the Judge to exercise his discretion in manner afore- said, and all such other particulars (if any) as he may require to be shoAVTi. 2. In probate actions sersdce of a writ of summons or notice of a writ of summons may by leave of the Court or judge be allowed out of the jurisdiction. 3. E\'ery application for an order for leave to ser\'e such writ or notice on a defendant out of the juris- diction shall be supported by evidence, by affidavit, or otherwise, showing in what place or country' such defendant is or probably may be found, and whether such defendant is a British subject or not, and the grounds upon which the application is made. 4. Any order giving leave to ell'cct such service or give such notice shall limit a time after such ser^ace or notice witliin whicli such deiemlant is to enter an appearance, such time to de]>end on the place or coimtry wdiere on Avithin which the AXTrit is to be served or the notice given. 5. Notice in lieu of service shall be given in the manner in Avliich writs of summons are served. ORDER XII. Appearance. 1. Except in the cases otherwise provided for by these rules a defendant shall enter his apj^earance in London. 2. If any defendant to a writ issued in a district registry resides or carries on business witliin the district, he shall appear in the distiict registry. 3. If any defendant neither resides nor carries on business in the district, lie may ajiipear either in the district registry or in London. 4. If a sole defendant apj^ears, or all the de- fendants appear in the district registry, or if all the defendants who appear, appear in the (histrict registry ORD. XII. APPEARANCE. -^^ iind the otliers make default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district registry. . 5. If the defendant appears, or any of the de- Lonj","," fendants appear, in London the action shall proceed in London ; provided that if the Court or a judge shall be satisfied that the defendant appearing in London is a merely formal defendant, or has no sub- stantial cause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London. 6. A defendant shall enter his appearance to a ^^ode of writ of summons by delivering to the proper officer ■''PPe^''=^"ce- a memorandum in writing, dated on the day of the delivering the same, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. A defendant who appears else- where than A\here the writ is issued shall on the same day give notice to the plaintilf of his appearance either by notice in writing served in the ordinary way or by prepaid letter posted on that day in due course of post. 7. The solicitor of a defendant appearing by a Address for solicitor shall state in such memorandum his place *^''^"^'^- of business, and, if the appearance is entered in the Lomlon office, a place, to be called his address for service, which shall not be more than three miles from Temple Bar, and if the aiD]iearftnce is entered in a district registry, a place, to be called his address for servdce, which shall be within the district. 8. A defendant appearing in person shall state in Appearance such memorandum his address, and, if the appearance '" P'^''-''""- is entered in the London office, a place, to Ijc called ^jj-e,'^^'''',,"'^ his address for service, which shall not be more than three miles from Temple Bar ; and if the a})pearance is entered in a district registry, a place to be called his address for service, which shall be within the district. 9. If the memorandum does not contain such Illusory ad- address it shall not be received ; and if any such '^'^'^^^■ address shall be illusory or fictitious, the appearance may be set aside by the Coiut or ajudge, on the ap]ilication of the plaintiff. in. The memorandum of appearance shall be in Form of mc- the Form No. 6, Appendix (A), Part I.,* with such morandum. * ycop. 218. 254 RULES OF THE SUPEEME COURT. Entry of me- morandum. Appearance of partners. Firm of one person. Appearance by one solicitor. Solicitor not entering appearance. Time for appearance, Intervention in Probate actions. In Admi- raltj' actions. Recovery of land — ap- pearance by person not defendant. Appearance by landlord. variations as the circumstances of the case may require. 11. Upon receipt of a memorandum of appearance, the officer shall forthwith enter the appearance in the cau.se book. 12. "Wliere partners are sued in the name of their firm, they shall a]5]3ear individually in their own names. But all subsequent proceedings shall, never theless, continue in the name of the firm. 12a. Where any person carrying on business in the name of a firm apparently consisting of more than one person shall be sued in the name of the firm, he shall appear in his own name ; but all subse- quent proceedings shall, nevertheless, continue in the name of the firm. ] 3. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum. 14. A solicitor not entering an appearance in pur- suance of his written undertaking so to do on behalf of any defendant shall be liable to an attachment. 15. A defendant may appear at any time l)efore judgment. If he appear at any time after the time limited for appearance he shall, on the same day, give notice thereof to the plaintiff's solicitor, or to the plaintift' himself if he sues in person, and he shall not, imless the Coiul or a judge othermse orders, be entitled to any fui'ther tune for delivering his defence, or for any other piiqjose, than if he had appeared according to the A\'rit. 16. In Probate actions any person not named in the Anut may intervene and appear in the action as heretofore, on filing an aflidavit showing how he is interested in the estate of the deceased. 17. In an Admiralty action in rem any person not named in the writ may intervene and apj^ear as heretofore, on filing an affida^dt showing that he is interested in the res under arrest, or in the fund in the registry. 18. Any person not named as a defendant in a writ of summons for tlie recovery of land may, by leave of the Court or j udge, appear and defend, on filing an affidavit showing that he is in possession of the land either liy himself or his tenant. 19. Any person appearing to defend an action for the recovery of land as landlord, in respect of property whereof he is in possession only by his OPvD. XIII. DEFAULT OF APPEAEANCE. 255 tenant, shall state in his appearance that he appears as landlord. 20. Where a person not named as defendant in any Recovery of writ of summons for the recovery of land lias oh- j^"*^"^^"' tained leave of the Court or judge to appear and pearance by defend, he shall enter an appearance according to the person not foregoing rules, intituled in the action against the ut for detention of unliquidated goods and pecuniar}' damages, or either of them, no damages, statement of claim need be delivered, but interlo- cutory judgment may be entered and a writ of incjuiry shall issue to assess the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of smumons. Lut the Court or a judge may order that, instead of a •writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any cj^uestion arising in an action maybe tried. 7. In case no appearance shall be entered in an \yhere Re- action for the recovery of land, within the time 'g°"^gj! , ^( limited for appearance, or if an appearance be entered land. but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover pos- session of the land, or of the part thereof to wnich the defence does not apply. 8. Where the plaintiff has endorsed a claim for Where claim mesne profits, arrears of rent, or damages lor breach ^"ofiir'&c of contract, upon a writ lor the recovery of land, he and land. ' may enter judgment as in the last preceding rule mentioned for the land ; and may proceed as in the other preceding rules of this order as to such other claiai so endorsed. 9. In actions assigned by the 34th section of the In Chancery act to the Chancery Division, and in Proljate actions, actions? * and in all other actions not by the rules in this order otherwise specially provided for, in case the party served with the writ does nut appear within the time limited for appearance, upon the filing by the plain- tiff of a projjer affidavit of service, the action may proceed as if such paily had appeared. 258 RULES OF THE SUPREME COURT. Summary application by plaintiff for judg- ment. Time of ap- plication. Defendant may show cause why judgment should not be signed. Judgment for part. Judgment against one of many defendants. ORDER XIV. Leave to defend where Writ specially Endorsed. 1. Where tlie defendant appear.? on a ^mt of sum- luons .specially indor.sed, under Order III. Rnle 6, the plaintifi' may, on affidavit verifying the cause of action, and swearing that in his Ijelief there is no defence to the action, call on the defendant to show cause before the Court or a judge why the plaintiff should not be at liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs ; and the Court or judge may, unless the defendant, by affidavit or otherwise, satisfy the Court or judge that he has a good defence to the action on the merits, or disclose such facts as the Court or judge may think sufficient to entitle him to be permitted to defend the action, make an order empowering the plaintiff to sign judg- ment accordingly. 2. The application by the plaintiff for leave to enter final judgment under the last preceding rule shall be made by simimons retm-nable not le.ss than two clear days after service. 3. The defendant may show cause against such application by offering to bring into court the sum indorsed on the writ, or by affidavit. La such affi- davit he shall state whether the defence he alleges goes to the whole or to part only, and if so, to what part, of the plaintiff's claim. And the judge may, if he think tit, order tlie defendant to attend and be examined iipon oath ; or to produce any books or documents or copies of or extracts therefrom. 4. If it appear that the defence set up by the de- fendant applies only to a part of the plaintirt''s claim, or that any part of his claim is admitted to be due, the plaintiff" shall have judgment forthwith for such j)art of his claim as the defence does not apply to or as is admitted to be due, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into Court by the sheriff', the taxation of costs, or otherwise, as the judge may tliink fit. And the defendant may be allowed to defend as to the residue of the plaintiff''s claim. 5. If it appears to the judge that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has OEDS. XV. XVI. ACCOUNT AND PAETIES. 259 not such defence and ouglit not to be permitted to defend, the former may be permitted to defend, and the plaintiff sliall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former. 6. Leave to defend may be given unconditionally Terms of or subject to such terms as to giving security, or |j\^f^^j° otherwise, as the Court or a judge may think tit. ORDER XV. Applicatiox for Account where Writ indorsed UNDKR Order III. Rule 8. 1. In default of appearance to a summons indorsed Summary under Order III. Rule 8, and after appearance unless °'''^^'" ^^'^ the defendant, by affidavit or otherwise, satisfy the Coiu't or a judge that there is some preliminary ques- tion to be tried, an order for the account claimed, with all directions now usual in the Court of Chan- cery in similar cases, shall be forthwith made. 2. An application for such order as mentioned in Mode and the last preceding rule shall be made by siuumons, timeofappU- und be supported by an affida^^.t filed on behalf of the order fur plaintifi", stating concisely the groiuids of his claim accoum. to an account. The application may be made at any time after the time for entering an appearance has expired. ORDER XVI. Parties. 1. All persons may Ije joined as plaintiffs in whom Joint, tlie right to any reHef claimed is alleged to exist, ^ftrr'iTitive'^ whether jointly, severally, or in the alternative. And claims by j udgment may be given for such one or more of the piaintiffb. plaintitt's as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuc- cessfid, shall be entitled to his costs occasioned liy so joining any person or persons wlio shall not be found entitled to relief, unless the court in disposing of the costs of the action shall otherwise direct. 200 RULES OF THE SUPREME COURT, Substitution of other jierson for wrong plain- tiff. Joint, several and alterna- tive claims against defendants. Defendant need not be wholly in- terested. Defendants severally liable may be joined, and jointly liable separated. Joinder of two defend- ants in case of doubt. Beneficiaries may be re- presented by their trustees. 2. Where an actiou lias been commenced in the name of the WTong person as plaintiff, or where it is doubtlul whether it has been commenced in the name ijf the- right plaintiff or plaintiffs, the Conrt or a judge may, if satisfied tliat it has been so commenced through a l)on§, fide mistake, and that it is necessary for the detei'uiiuation of the real matter in dispute so to do, order any person or persons to be .sub- stituted or added as plaintifi' or plaintiffs upon such term^ as may seem j ust. 3. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment. 4. It shall not be necessary tliat every defendant to any action shall be interested as to all the relief thereby prayed for, or as to every cause of actiou included therein ; but the court or a judge may make such order as may appear just to prevent any defendant from being em.barrassed or put to expense by being required to attend any proceedings in such action in which he may have no interest. 5. The plaintiff' may, at his option, j oin as parties to the same action all or any of the persons seve- rally, or jointly and severally, liable to any one contract, including parties to bills of exchange and promissory notes. 6. Where in any action, whether founded upon contract or otherwise, the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that in such action the ([uestion as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties to the action. 7. Trustees, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as representing such parties in the action ; but the Court or a judge may, at any stage of the proceedings, order any of such parties to be made parties to the action, either in addition ORD. XVI. PARTIES. 261 to or in lien of the previously-existing parties thereto. 8. Married women and infants may respectively Married sne as plaintiffs by their next friends, in the manner women and practised in the Conrt of Chancer}' before the '" '^"'^' passing of this act ; and infants may, in like manner, defend any action by their guardians appointed for that pnipose. Married women may also, by the leave of the Court or a judge, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court or a j udge may requii'e. 9. Where there are numerous parties having the Numerous same interest in one action, one or more of such parties may parties may sue or 1)6 sued, or may be authorized by sentedTny the Conrt to defend in such action, on behalf or for one. the benefit of all parties so interested. 9a. In any case in which the right of an heir-at- Represent- law or the next of kin or a class shall depend upon ^"? unascer- the construction which the Court may put upon an sons^ ^^'^' instrument, and it shall not lie known or be difficult to ascertain who is or are such heir-at-law or next of kin or class, and the Coiu't shall consider that in order to save expense or for some other reason it will Ije convenient to have the question or c|uestions of construction determined before such heir-at-law, next of kin, or class shall have been ascertained by means of inquiry or otherwise, the Court may appoint some one or more persons to represent such heir-at- law, next of kin, or class, and the jiidgment of the Court in the presence of such person or persons shall be binding upon the party or parties or class so represented. 10. Any two or more persons claiming or being Partners liable as coijartners may sue or be sued in the name Jo'"*^'' '"/¥ P .-, ■ j_- n T ^ • i J name of their 01 their respective hnns, it any ; and any party to firms. an action may in sucli case apply l)y summons to a judge for a statement of the names of the persons who are copartners in any such firm, to be furnished in such manner and verified on oath or otherwise, as the judge may direct. 10a. Any person carrying on business in the name Firm of one of a fiiin apparently consisting of more than one person, person may Ijc sued in the name of such firm. 11. Subject to the provisions of the act and these Incorpora- rules, the provisions as to parties, contained in sec- t'O" "^f <-'''•'>"- tion 42 (jf 15 & 16 Victoria, chapter 86, shall be in dui^asTt? force as to actions in the High Court of Justice. parties. 262 RULES OF THE SUPREME COURT. Adding parties. Maintenance 12- Siiljject as last aforesakl, in all ProLate actions of Probate the rules as to parties, lieretofore in use in the foTarlre'^' Coiut of Probate, shall continue to he in force. A , \ 13. No action shall he defeated hy reason of the Amendment ..., „ ,. i ,^ r-< , in case of misjoinder ol parties, and the Court may in every misjoinder of actioii deal with the matter in controversy so far as parties. regards the rights and interests of the parties actually before it. The Court or a judge may, at any stage of the proceedings, either upon or -without the applica- tion of either party, and on such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, whether as plaintifls or as defendants, improperly joined be struck out, and that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added. Xo person shall be added as a plaintiff suing ■nithout a next friend, or as the next friend of a plaintiff under any disai)ility, 'uathout his own consent thereto. AU parties whose names are so added as defendants shall be sensed with a summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedmgs as against them shall be deemed to have begun only on the service of such summons or notice. 14. Any application to add or strike out or su1> stitute a plaintiff or defendant may be made to the Court or a judge at any time before trial by motion or summons, or at the trial of the action in a sum- mary manner. 15. Where a defendant is added, unless otherwise ordered by the Court or judge, the plaintiff shall file an amended copy of and sue out a wiit of sum- mons, and serve such new defendant mth such writ or notice in lieu of service thereof in the same manner as original defendants are served. 16. If a statement of claim has been delivered previously to such defendant being added, the same shall, unless otherwise ordered by the Court or judge, be amended in such manner as the making .such new defendant a party shall render desii-able, and a copy of such amended statement of claim shall be delivered to such new defendant at the time when he is served ■nith the writ of summons or Application to amend. Service by plaintifl' of amended writ on new defendant. Delivery of amended statement of claim. ORD. XVI. PARTIES. 263 notice or afterwards, within four clays after his appearance. 17. Where a defendant is or claims to be entitled Claim by to contribution or indemnity, or any other remedy l^^^"'^^"^ or relief over against any other person, or where party, from any other cause it appears to the Court or a judge that a question in the action should be de- termined not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the Coiut or a judge may on notice being given to such last-mentioned person, make such order as may be proper for having the question so determined. 18. "Where a defendant claims to be entitled to Notice to contribution, indemnity, or other remedy or relief t'^''"'' paity^ over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice to that effect, stamped -wdth the seal with which writs of summons are sealed. A copy of such notice shall be filed with the proper officer, and served on such person according to the rules relating to the service of writs of smumons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a judge, be served within the time limited for de- livering his statement of defence. Such notice may Form of be in the form or to the effect of the Form No. 1 in "otice. Appendix (B) hereto with such variations as circum- stances may require, and therewith shall be served a copy of the statement of claim, or if there be no statement of claim, then a copy of the writ of sum- mons in the action. 19. When under Eule 17 of this order it is made Third party to appear to the Court or a judge at any time before '?'^''''='^ ''V or at the trial that a question in the action should be ■"" °^' determined, not only as between the plaintilf and defendant, but as between the plaintiff and the defendant and any other person, or between any or either of them, the Court or a judge, before or at the time of making the order for having such question determined, shall direct such notice to be given by the plaintiff at such time and to such person and in such manner as may be thought proper, and, if made at the trial, the judge may postpone such ti'ial as he may think fit. 20. If a person not a party to the action, who is Appearance sensed as mentioned in I'ule IS, desires to dispute ^'^,.1'!'"' 264 RULES OF THE SUPREME COURT. the j)laintiiPs claim in the action as against the de- fendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days fi'om the service of the notice. In On default, default of his so doing, he shall be deemed to admit admit 'iudo-- ^^^ Validity of the j udgment obtained against such merit against defendant, whether obtained by consent or othermse : defendant, provided always, that a person so served, and failing to appear within the said period of eight days may apply to the Court or a judge for leave to appear, and such leave may be given upon such tenns, if any, as the Court or a judge shall think fit. Further 21. If a person not a party to the action, served proceedings under these rules appears pursuant to the notice, ance^of^third the party giving the notice may apply to the Court party. or a judge for directions as to the mode of having the question in the action determined ; and the Court or judge, upon the hearing of such application, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or such amendment in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions as to the Court or a judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the 2:)erson so served shall be bound or made liable by the decision of the question.* * This does not enable the defendant to ob!: -in relief against the third party. The process is intend _ 1 to make the jvidgmeut in the action indisputable afterwards by the third party, against whom the defendant must bring fresh action if he desire reKef. (Per Mellish, L. J. Trc- leaven v. Bray, 45 L. J. Ch. 113.) ORD. XYII. JOINDER OF ACTIONS. 265 ORDER XVII . Joinder of Causes of Action. 1. Subject to the following rules, the plaintiff may All causes of unite in the same action and in tlie same statement ^^^[°'} may of claim several causes of action, hut if it appear to subje'ct^o the Court or a judge that any such causes of action severance. cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof. 2. No cause of action shall, unless by leave of the Exception in Court or a judge,* be joined with an action for the [anj^^"^"^ recovery of land, excej^t claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held. 3. Claims by a trustee in bankruptcy as such shall in bank- not, unless by leave of the Court or a judge, be ^p'^^J'- joined with any claim by him in any other capacity. 4. Claims by or against husband and wife may be By or joined with claims by or against either of them ^Ind and"^" separately. wife. 5. Claims by or against an executor or adminis- By or trator as such may be joined with claims by or ^°^^J"=' ^■'^^' against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant .sues or is sued as executor or administrator. 6. Claims by plaintiffs jointly may be joined ■\\ith Joint claims claims by them or any of them separately against ^jel^erai^^"*' the same defendant. 7. The last three preceding rules shall be subject to Ei;le 1 of this order, and to the rules hereinafter contained. 8. Any defendant alleging that the plaintiff lias Application united in the same action several causes of action an'^^^^'^ which cannot be conveniently disposed of in one ' * A claim for the administration of personalty wan allowed to Ix; joined with a claim for the recovery of land where both personalty and land were comprised in the same gift. ( Whetstone v. Lewis, 45 L. J. C'h. l^.^ N 266 RULES OF THE SUPREME COURT. action, may at anytime apply to the court or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding. Order for 9. If, on the hearing of such application as in the "oindeHn-'^ last preceding rule mentioned, it shall appear to the convenient. Court or a judge that the causes of action are such as cannot all be conveniently disposed of in one action, the Court or a judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of claim has been de- livered, the copy of the writ of summons, and the indorsement of claim on the writ of summons, to be amended accordingly, and may make such order as to costs as may be just. OEDER XVIII. Actions by and against Lunatics and Persons OP Unsound Mind. Lunatics In all cases in which lunatics and persons of im- may sue and gouud miud not SO fouiid by inquisition might Chancei^^ '" respectively before the passing of the act have sued before act. as plaintiffs, Or would have been liable to be sued as defendants in any action or suit, they may respec- tively sue as plaintiffs in any action by their com- mittee or next friend in manner practised in the Com't of Chancery before the passing of the said act, and may in like manner defend any action by their committees or guardians appointed for that purpose. ORDER XIX. Pleading Generally. New plead- 1. The following rules of pleading shall be sub- '"s- stitiited for those heretofore used in the High Court of Chancery, and in the Comets of Common Law, Admiralty, and Probate. Statement of 2. Unless the defendant in an action at the time complaint, gf his appearance shall state that he does not require the deliver}- of a statement of complaint, the plaintiff' shall within such time and in such manner as here- ORD. XIX. PLEADING GENERALLY. 267 inafter prescribed, deliver to the defendant after his ajjpearance, a statement of his complaint, and of the relief or remedy to wliich he claims to he entitled. Tlie defendant shall within such time and in snch Defence, manner as hereinafter prescribed, deliver to the plaintiff a statement of his defence, set-off, or counter- claim (if any), and the plaintiff shall in like manner deliver a statement of his reply (if any) to such de- Reply, fence, set-off, or counter-claim. Such statements shall be as brief as the natiu'e of the case ■nn^ll admit, and the Coiu't in adjusting the costs of the action shall inquire at the instance of any jjarty into any Costs, unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable wiili the same. 3. A defendant in an action may set-off, or set up. Set-off and by way of counter-claim against the claims of the cfaim^"^' plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set- off or counter-claim shall have the same effect as a statement of claim in a cross action, so as to enaljle the Court to pronounce a final judgment in the same action, Ijoth on the original and on the cross claim. But the Coiu't or a jiulge may, on the application of the plaintiff before trial, if in the opinion of the Court or judge such set-off or counter-claim cannot be conveniently disposed of in the pending action, or oiight not to be allowed, refuse permission to the defendant to avail himself thereof. 4. Every pleading shall contain as concisely as Pleading not may be a statement of the material facts on ■which g^ij^Wc^e" the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation. Dates, smns, and numbers shall be expressed in figures and not in words.' Signature of counsel shall not be necessary. Forms Forms of .similar to those in Appendix (C)* hereto may be p'cadmg. used. 5. Every pleadmg which shall contain less than Printing and ten folios of 72 words each (every figure Ixiug ".""r^-r counted as one word) may be either printed or ^' '"" "^^^' written, or partly printed and partly written an See pp. 218, 228 231 .and 234. N 2 268 RULES OF THE SUPREME COURT. Delivery of pleadings. Formal contents of pleadings. Statement of claim. Separation of distinct claims and counter- claims. Set-off and counter- claim. Denial of right of exe- cutor, &c. every other pleading, not being a petition or sum- mons, shall 1)6 printed. 6. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered in the manner now in nse to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer. 7. Everj' pleading in an action shall be delivered l)etween parties, and shall be marked on the face Avith the date of the day on which it is delivered, and •\\dth the reference to the letter and number of the action, the division to which and the judge (if any) to whom the action is assigned, the title of the action, the description of the pleading, and the name and place of business of the solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same if he does not act by a solicitor. 8. Every statement of claim shall state specifically the relief which the plaintiif claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counter-claim made, or relief claimed by the de- fendant, in liis statement of defence. If the plaintiff's claim be for discovery only, the statement of claim shall show it. 9. Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counter-claim founded upon separate and distinct facts. 10. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claun, he shall, in his statement of defence, state specifically that lie does so by way of set-off or covmter-claim. 11. If either party ^vishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically. ORD. XIX. PLEADIXG GENERALLY. 269 12. In Probate actions where the plaintiff disputes interest the interest of the defendant, he shall allege in his actions, statement of claim that he denies the defendant's interest, 13. No plea or defence shall be pleaded in abate- No plea in. ment. abatement. 1-4. No new assignment shall hereafter be necessary No new or used. But everji;hing which has heretofore been assignment. alleged by way of new assignment may hereafter be iutroduced by amendment of the statement of claim. 1 5. No defendant in an action for the recovery of Recovery of land who is in possession by himself or his tenant, '■^"'*- need plead his title, unless his defence depends on an eqtdtable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any ground of de- fence which he can prove, except as hereiabefore mentioned. 16. Nothing La these rules contained shall affect Not guilty the right of any defendant to plead not guilty by by statute. statute. And every defence of not guilty by statute shall have the same effect as a plea of not guUty by statute has heretofore had. But if the defendant so plead he shall not plead any other defence without the leave of the Court or a judge. 1 7. Every allegation of fact in any pleading in an Allegation action, not being a petition or summons, if not denied "°j^ denied speciffcally, or by necessary implication, or stated to admitted. V)e not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of iinsound mind not so found by iucjuisition. 18. Each party in any pleading, not being a peti- Raising tion or summons, must allege all such facts not 'ssues. appearing in the previous pleadi)igs as he means to rely on, and must raise all such grounds ot defence or reply, as the case may be, as if not raised on the pleadings would be likely to take the opposite party by surprise, or would raise new issues of fact not arising out of the pleadings, as, for instance, fraud, or tliat any claim has been barred by the Statute of Limitations or has been released. 19. No pleading, not being a petition or summons, Departure. 270 RULES OF THE SUPEEME COURT. Specific answer to claim and counter- claim. Joinder of issue. Unfair denials forbidden. Denial of contract. Statute of Frauds. Documents to be ab- stracted. Allegation of malice. shall, except by way of amendment, rai.«e any new ground of claim or contain any allegation of fact in- consistent vrith the previous pleadings of the party pleading the same. 20. It shall not be sufficient for a defendant in his defence to deny generally the facts alleged by the statement of claim, or for a plaintiff in his reply to deny generally the facts alleged in a defence by way of counter-claim, but each party must deal specifically Avith each allegation of fact of which he does not adinit the truth. 21. Subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each i^arty in his pleading, if any, subsequent to reply, may join issue upon the previous pleading. Sucli joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts wliich the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. 22. When a party in any pleading denies an alle- gation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particu.lar amoimt, but he must deny that he received that sum or any part thereof, or else set out how much he receiA'ed. And so when a matter of fact is alleged with tUvers circrunstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given. 23. "\^nien a contract is alleged in any pleading, a Ijare denial of the contract by the opposite party shall be construed only as a denial of the makirig of the contract in fact, and not of its legality or its suffi- ciency in law, whether with reference to the Statute or Frauds or otherwise. 24. Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, -without setting out the whole, or any part thereof, imless the precise words of the document, or any part thereof, are material. 25. Wherever it is material to allege malice, frau- ilulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege ORD. XIX. PLEADING GENERALLY. 271 tlie same as a fact wdtliout setting out the circum- stances from wliicli tlie same is to be inferred. 26. Wherever it is material to allege notice to any Allegation person of any fact, matter, or thing, it shall he suffi- °'^ no"ce. cient to allege such notice as a fact, imless the form or the precise terms of such notice be material. 27. AVlierever any contract, or any relation be- of implied tween any persons, does not arise from an express agreement, agreement, but is to be implied from a series of letters or conversations, or otherwise fi'om a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or cii'cumstances mth- out setting them out in detail. And if, in such case, the person so pleading desires to rely in the alterna- tive upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the altematiA^e. 28. Neither party need in any pleajiing allege any Presump- niatter of fact which the law presumes in his favour, ^""tJ'^e^^'' or as to which the burden of proof lies upon the alleged. other side, unless the same has first been specifically denied. [E.g. — Consideration for a bill of exchange, where the plaintift' sues only on the bill, and not for the consideration as a substantive groimd of claim.] 29. Where an action proceeds in a district registry i;".'i'"S '" all pleadings and other documents ref^uired to be re-\"try. filed shall be filed in the district registry. 30. In actions for damage by collision between Collision of vessels, imless the Court or a judge shall otherwise ^^*^^'^- order, each solicitor shall, before any pleading is de- livered, file with the proper officer a document to be called a Preliminary Act, which shall be sealed up Preliminary and shall not be opened until ordered by the Court or a judge, and wliich shall contain a statement of the following particulars : — (a.) The names of the vessels wliich came into collision, and the names of their masters. (6.) The time of the collision. (c.) The place of the collision. (d) The direction of the wind. (e.) The state of the weather. (/.) The state and force of the tide. (fj.) The course and speed of the vessel when the other was first seen. (7i.) The lights, if any, caiTied by her. 272 RULES OF THE 8UPEEME COURT. Opening of preliminary acts. (i.) The distance and bearing of the other vessel when first seen. (k.) The lights, if any, of the other vessel which were first seen. (I.) Whether any lights of the other vessel, other than those first seen, came into ^dew before the collision. (?)i.) What measures were taken, and when, to avoid the collision. (/?.) The jxarts of each vessel which first came into contact. If both solicitors consent, the Court or a judge may order the preliminary acts to be opened, and the evidence to be taken thereon, without its being necessary to deliver any pleadings. defence. ORDER XX. Pleadikg Matters arising pending the Action. Before 1. Any ground of defence which has arisen after ri'jfl';!"^"'^ of action brought, but before tlie defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may be pleaded by the defendant in his statement of defence, either alone or together with other grounds of defence. And if, after a statement of defence has been dehvered, any ground of defence arises to any set-off or counter- claim alleged therein by the defendant, it may be pleaded by the plaintiff in his reply, either alone or together Avith any other ground of reply. 2. Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant maj', and where any ground of defence to any set-off or coimter-claim arises after reply, or after Ihe time limited for delivering a repl\^ has ex- pired, the plaintiff may, within eight days after such ground of defence has arisen, and by leave of the Court or a judge, deliver a furtlier defence or further reply, as the case may be, setting forth the same. 3. Whenever any defendant, in his statement of defence, or in any further statement of defence as in tlie last rule mentioned, alleges any ground of defence which has arisen after tlie commencement of the After state- ment of defence. Confession of defence. OP.D. XXI, STATEMENT OF CLAIM. 2?3 action, the ])laintifF may deliver a confession of such defence, which confession may be in the Form No. 2 in Appendix (B) hereto, with such variations as circumstances may require, and he may thereupon siL,'n judgment for his costs up to the time of the pleading of such defence imless the Court or a judge shall, either before or after the delivery of such con- fession, otherwise order. OKDER XXI. Statement of Claim. 1. Subject to Rules 2 and 3 of this Order, the T'^^^ of''^' delivery of statements of claim shall be regulated as ''^^""i'- follows : — (ft.) If the defendant shall not state that he does not require the delivery of a statement of claim the plaintiff shall, unless othenvise ordered by the Court or a judge, deliver it M*ithin six weeks fi-om the time of the defendant's entering his appearance. (b.) The plaintiff may, if he think fit, at any time Voluntary after the issue of the writ of summons, deliver a state- statement, ment of claim, with the ^mt of summons or notice in lieu of writ of summons, or at any time afterwards, either before or after appearance, and although the defendant may have appeared and stated that he does not require the delivery of a statement of claim : pro- vided that in no case where a defendant has appeared shall a statement be delivered more than six weeks after the appearance has been entered, unless other- wise ordered by the Court or a judge. (c.) Where a plaintiff delivers a statement of claim Cosu of un- Asithout being required to do so, the Court or a judge "ta"metu of may make such order as to the costs occasioned claim, thereby as shall seem just, if it appears that the delivery of a statement of claim, was unnecessary or improper. 2. In Probate actions the plaintiff shall, unless In Probate othermse ordered by the Couit or a judge, deliver his *'="*'"^- statement of claim within six weeks from the entry of appearance by the defendant, or from the time limited for his appearance, in case lie has made default ; but where the defendant has appeared the plaintiff sliall not be compelled to deliver it until the 274 RULES OF THE SUPREME COURT. expiration of eight days after the defendant has filed his affidavit as to scripts. In Admiralty 3. In Admiralty actions in rem the plaintiff shall, actions. withia twelve days from the appearance of the de- fendant, deliver liis statement of claim. Notice that 4. Where the writ is specially endorsed, and the dorsemen't is defendant has not dispensed with a statement of statement of clalm, it shall be sufficient for the plaintiff to deliver claim. r^g ]jig statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, iinless the Court or a judge shall order him to deliver a further statement. Such notice may be either wnitten or printed, or partly WTitten and partly printed, and may be in the Form No. 3 in Appendix (B) hereto, and shall be marked on the face in the same manner as is required in the case of an ordinaiy statement of claim. And when the l^laintiff is ordered to deliver such further statement it shall be delivered •within such time as by such order shall be directed, and if no tune be so limited, then within the time prescribed by Rule 1 of this Order. Time for delivering defence. Where de- fence volun- tary. Where leave given to defend. Costs of im- ORDER XXII. Defence. 1. Where a statement uf claim is delivered to a defendant he shall deliver his defence within eight days fi'om the dehvery of the statement of claim, or from the time limited for appearance, whichever shall be last, imless such time is extended by the Court or a judge. 2. A defendant who has appeared in an action and stated that he dues not require the deliver}^ of a state- ment of claim, and to whom a statement of claim is not delivered, may deliver a defence at any time Avitliin eight days after his appearance, imless such time is extended by the Court or a judge. 3. Where leave has been given to a defendant to defend under Order XIV. EiUe 1, he shall deliver liis defence, if any, withiu such time as shall be limited by the order giving him leave to defend ; or if no time is thereby limited, then within eight days after the order. 4. Where the Court or a judge shall be of opinion proper denial ^y^^^ j^j^^y allegations of fact denied or not admitted by ORD. XXII. DEFENCE. 275 the defence ought to have been admitted, the Court or non- may make such order as shall he just with respect to adm'ssion of any extra costs occasioned by their having been denied or not admitted. 5. Where a defendant by his defence sets up any Counter- counter-claim which raises tjuestions between him- ^.'^^v^ '"' self and the plaintiff along with any other person or othlrs than persons, he shall add to the title of liis defence a plaintiff, further title similar to the title in a statement of complaint, setting forth the names of all the persons who, if such comiter-claiui were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff. 6. Where any such person as in the last preceding claim ride mentioned is not a party to the action, he shall ^fi^n^t^^*^" be summoned to appear by being served with a copy party. of the defence, and such service shall be regulated by the same rules as are hereinbefore contained witli respect to the service of a wiit of summons, and every defence so served shall be indorsed in the Form No. 4, in Appendix (B) hereto, or to the like effect. 7. Any person not a defendant to the action, who is Appearance served with a defence and counter-claim as aforesaid, ^>' ^^"^ must appear thereto as if he had been served with a ''^"^' writ of summons to appear in an action. 8. Any person named in a defence as a party to a Reply in counter-claim thereby made may deliver a reply defence°by ^\-ithin the time within which he might deliver a third party, defence if it Avere a statement of claim. 9. Where a defendant by his .statement of defence Application sets up a counter-claim, if the plaintitf or any other '°u,'j[^g".'''^ person named in manner aforesaid as party to such claim, counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter claim, but in an independent action, he may at any time, before reply, apjjly to the Coiu't or ;i judge for an order that such counter-claim may be cxcUided, and the Court or a jiulge may, on the hearing of such application, make such order as shall be jiist. 10. Where in any action a set-olfor comiter-claim Judgment for is estabUshed as a defence against the plaintiff's 'i|;;[^;;^;'"^ ^"-^ claim, tlie Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the 276 RULES OF THE SUPREME COURT. Notice in Probate ac- tions of in- tention to cross-exa- mine. defendant such relief as he may be entitled to upon the merits of the case. 11. In Probate actions the party opposing a \viY\. may, with his defence, give notice to the party setting lip tliie vd]l that he merely insists ujion the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall be subject to the same liabilities in respect of costs as he would have been imder similar cii'cumstances according to the practice of the Court of Probate. Before de- fence by notice. Afterwards by leave. Withdrawal of defence. \\'ithdrawal by consent. ORDER XXIII. DlSCONTINUA>-CE. 1. The plaintiff may, at any time before receipt of the defendant's statement of defence, or after the re- ceipt thereof before taking any other proceeding in the action (save anj- interlocutory application), by notice in writing, wholly discontinue his action or with- draw any part or parts of his alleged cause of com- plaint, and thereupon he shall pay the defendant's costs of the action, or, if the action be not only dis- continued, the defendant's costs occasioned by the matter so Anthdra^ni. Such costs shall be taxed, and such discontinuance or Anthdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise pro^dded, it shall not be competent for the plaintiff to withdraw the record or discontuiue the action without leave of the Court or a judge, but the Court or a judge may, before, or at, or after the hearing or trial, iipon such terms as to costs, and as to any other action, and othermse as may seem fit, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court or a judge may, in like manner, and with the like discretion as to terms, upon the appli- cation of a defendant, order the ^^'hole or any part of his alleged grounds of defence or coi;nter-claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdi-aw his defence, or any part theieof, without such leaA^e. 2. When a cause has been entered for trial, it may be ■nathdraA\-n by either plaintiff or defendant ORDS. XXIV.-XXVI, PLEADINGS AND ISSUES. 277 iijion producing to the proper officer a consent in ■writing, signed by the parties, 3. A defendant may sign judgment for the costs of Costs, an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued. OEDER XXIV. Reply and Subsequent Pleadings. 1. A plaintiff shall deliver his reply, if any, Avithin Time for three weeks after the defence or the last of the"^*^''^' defences shall have been delivered, unless the time shall be extended by the Court or a judge. 2. No pleading siibsequent to replj' other than a Pleadings joinder of issue shall be pleaded A^ithout leave of the t"'jep'iy^by Court or a judge, and then upon such tenns as the leave. Court or judge shall think fit. 3. Subject to the last preceding rule, every plead- ing subsequent to reply shall be delivered Avithin four days after the delivery of the previous pleading, unless the time shall be extended by the Court or a judge. ORDEE XXY. Close of Pleadixgs. As soon as either jmrty has joined issue upon any Joinder of pleading of the opposite party simply without adding J,^,^^^ '■^^^^ any further or other pleading thereto, the pleadings pleadings, as between such parties shall be deemed to be closed. OEDER XXVI. Issues. Where in any action it appears to a judge that the Settlement of statement of claim or defence or reply does not suffi- i^'*"^^ ^^ ciently define the issues of fact in dispute between ■"" ^*' tlic parties, he may direct the parties to ])repare issues, and such issues shall, if the parties dilfer, be settled by the judge. 278 RULES OF THE SUPEEilE COURT. Striking out embarrassing and intro- ducing neces- sary matter. Amendment without leave, by plaintiff. Without leave, by defendant. Disallowance of amend- ment. Counter- amendment. Amendment by leave. ORDER XXVII. Amexdmext or Pleadikgs. 1. The Court or a judge may, at any stage of the proceedings, allow either party to alter his statement of claim or defence or reply, or may order to be struck oi;t or amended any matter in such statements respectively which may be scandalous, or which may tend to prejudice, embarass or delay the fair trial of the action, and all such amendments shall be made as may be necessarj' for the i^urpose of determining the real c^uestions or question in controversy between the parties, 2. The plaintiff may, -without any leave, amend his statement of claim once at any time before the expira- tion of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. 3. A defendant who has set up in his defence any set-off or counter-claim may, -v^dthout any leave, amend such set-off or counter-claim at any time before the expiration of the time allowed him for pleading to the reply, and before pleading thereto ; or in case there be no reply, then at any time before the expiration of twenty-eight days from the filing of his defence. 4. Where any party has amended his pleading mider either of the last two preceding rules, the opposite party may, -ndtliin eight days after the delivery to him of the amended pleading, apply to the Court or a judge to disallow the amendment, or any part thereof, and the Coiu't or judge may, if .satis- fied that the justice of the case requires it, disallow the same, or allow it subj ect to such terms as to costs or othermse as may seem just. 5. Where any party has amended his pleading under Rule 2 or 3 of tliis Order, the other party may apply to the Court or a judge for leave to plead or amend his former pleading within such time and upon such terms as may seem just. 6. In all cases not provided for by the preceding rules of this Order, application for leave to amend any pleading may be made by either party to the Court or a judge in chambers, or to the judge at the trial of the action, and siich amendment may be ORD. XXVIII. DEMUERER. 279 allowed upon such terms as to costs or otherwise as may seem just. 7. If a party Avho has oLtained an order for leave Lapse of to amend a pleading delivered by him does not amend °J^|„^{" the same ^^■ithin the time limited for that piu"pose Ijy the order, or if no time is thereby limited, then ■\\dthiu fourteen days from the date of the order, such ordur to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a judge. 8. A pleading may be amended by written altera- Amendment, tions in the pleading which has been delivered, and whether to be Ijy additions on paper to be interleaved therewith if printed."'^ °'^ necessary, unless the amendments require the inser- tion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in AVTiting would render the pleading difficult or inconvenient to read, in either of wliich cases the amendment must be made by delivering a print of the pleading as amended, 9. Whenever any pleading is amended, such plead- Date of ing, wlien amended, shall be marked with the date ['(^'mTrlced of the order, if any, under Avhich the same is so amended, and of the day on which such amendment is made, in manner follo^ving, viz. : " Amended day of 10. 'Whenever a pleading is amended, such Delivery of amended pleading shall be delivered to the opposite Xadfn^. party within the time allowed for amending the same. ORDER XXVIII. Demurrer. 1. Any party may demur to any pleading of the Todibtmct oppo.site party or to any part of a pleading setting up allegation. a distinct cause of action, ground of defence, set-off, coimter-claim, reply, or as the case may be, on the groimd that the facts alleged therein do not show any cause of action or ground of defence to a claim or any part thereof, or set-off, or counter-claim, (jr reply, or as the case may Ije, to ^vhich effect can be given by the Comt as against the party demun-ing. 2. A demurrer shall state specifically whether it (.nnuidof is to the whole or to a part, and if so, to what i)art, demurrer. 280 EULES OF THE SUPREME COURT. Time of de- murrer. Demurrer to part and de- fence to rest. Demurrer and pleading to same alle- gation. Entry for argument. Amendment pending demurrer. Costs of demurrer. of the pleading of the opposite party. It shall state some ground in la^y for the demurrer, lint the party demurring shall not, on the argument of the demuiTer, be limited to the ground so stated. A demurrer may be in the Form 28 in Appendix (C)* hereto. If there is no ground, or only a frivolous ground of demurrer stated, the Court or judge may set aside such demurrer, with costs. 3. A demurrer shall be delivered in the same man- ner and A\itliin the same time as any other pleading in the action. 4. A defendant desiring to demur to part of a statement of claim and to put in a defence to the other part, shall combine such demurrer and defence in one j)leading. And so in every case where a party entitled to put in a further pleading desires to demu.r to part of the last pleading of the opposite party he shall combine such demurrer and other pleading. 5. If the party demurring desires to be at liberty to plead as well as demur to the matter demurred to, he may, before demiirring, apply to the Court or a judge for an order gi^4ng him leave to do so ; and the Court or judge, if satisfied that there is reason- able ground for the demurrer, may make an order accordingly, or may reserve leave to him to plead after the demurrer is overruled, or may make such other order and upon such terms as may be just. 6. When a demurrer either to the whole or part of a pleading is delivered, either party may enter the demiu'rer for argiunent immediately, and the party so entering sucli demurrer shall on the same day give notice thereof to the uther party. If the demurrer shall not be entered and notice thereof given within ten days after delivery, and if the party whose pleading is demurred to does not within such time serve an order for leave to amend, the demurrer shall be held sufficient for the same purposes and with the same result as to costs as if it had been allowed on ai'gument. 7. While a demurrer to the whole or any part of a pleading is pending, such pleading shall not be amended unless by order of the Court or a judge ; and no such order shall be made except on payment of the costs of the demurrer. 8. Where a demurrer to the whole or part of any pleading is allowed upon argument, the party whose See p. 229. OED. XXIX. DEFAULT OF PLEA.DIXG. 281 pleacluig is deuiuiTed to shall, iiuless the Court other- wise order, pay to the demurring j)arty the costs of the demurrer. 9. If a demurrer to the -whole of a statement of Costs on suc- claim be allowed, the plaintiff, subject to the power murrerlo' of the Court to allow the statement of claim to be whole claim, amended, shall pay to the demurring defendant the costs of the action, unless the Court shall otherwise order. 10. Where a demuiTcr to any pleading or part of Striking out a pleading is allowed in any case not falling -within S^g^urred to the last preceding rule, then (subject to the power of the Court to allow an amendment) the matter demurred to shall as between the parties to the demurrer be deemed to be struck out of the pleadings and the rights of the parties shall be the same as if it had not been pleaded. 11. Where a demurrer is overruled the demurring Costs on un- party shall pay to the opposite party the costs occa- demurrer, sioned by the demiu'rer unless the Court shall other- ^\-ise direct. 12. Where a demurrer is overruled the Court may Pleading make such order and upon such terms as to the Court °^'^'' ^^'5^. shall seem right fur allowing the demurring party to demurrer raise by plead.ing any case he may be desirous to set up in opposition to the matter demurred to. 13. A demurrer shall be entered for argument by Form of delivering to the proper officer a memorandum of '^^'""'^■■'^'■• entry' in the Form No. 29 in Appendix (C). ORDER XXIX. Default of Pleading. 1. If the plaintiff, being bound to deUver a state- Dismissal of ment of claim, d(jes not deliver the same within the ^^^"oP^ time allowed for that pui'pose, the defendant may, at secution. "^^ the expiration of that time, apply to the Court or a judge to dismiss the action with cost.s, for Avant of prosecution ; and on hearing of such application the Court or judge may, if nu statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the Court or judge shall seem just. 2. If the plaintiffs claim be only for a debt or Default by liquidated demaml, ami the defemlant does not, ''e'?'"'-'"''" within the time allowed for thiit purpose, deliver a debt*" ° 282 RULES OF THE SUPREME COURT. several de^ fendants makes de fault. Default by defendant in action for un^ liquidated damages. defence or demurrer, tlie plaintiff may, at the expira- tion of such time, enter final judgment for the amount claimed, with cost,?. Where one of 3. '\r\'lien in any such action as in the last preceding rule mentioned there are several defendants, if one of them make default as mentioned in the last pre- ceding rule, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment ■without prejudice to his right to proceed with his action against the other defendants. 4. If the plaintiffs claim be for detention of goods and pecimiarj^ damages, or either of them, and the defendant makes default as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant, and a writ of inquiry shall i.-^sue to assess the value of the goods, and the damages, or the damages only, as the case may be. But the Court or a judge may order that, instead of a ^vlit of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried. 5. "SVhen in any such action as in Rule 4 men- tioned there are several defendants, if one of them make default as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant so making default, and proceed with his action against the others. And in such case, damages against the defendant making default shall be assessed at tlie same time with the trial of the action or issues therein against the other defendants, unless the Com-t or a judge shall otherwise direct. 6. If the plaintifTs claim be for a debt or liqui- dated demand, and also for detention of goods and peciuiiary damages, or pecuniary damages only, and the defendant makes default as mentioned in Rule 2, the plaintiff may enter final judgment for the debt or liquidated demand, and also enter interlocutory judgment for the value of the goods and the damages or the damages only, as the case may be, and proceed as mentioned in Rule 4. 7. In an action for the recovery of land, if the defendant makes default as mentioned in Rule 2, the plaintift" may enter a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land, with his costs. Where one of several de- fendants makes de- fault. Claim sounding in debt and damages. In action fo recovery of land. ORD. XXIX. DEFAULT OF PLEADING. 283 8. "Where the plaintiff has endorsed a claim for Mesne mesne profits, arrears of rent, or damages for breach P''o'"s. of contract upon a A\Tit for the recoverj"- of land, if the defendant makes defaxilt as mentioned in Eule 2, or, if there he more than one defendant, some or one of the defendants make such default, the plaintiff may enter judgment against the detaulting defendant or defendants, and proceed as mentioned in Eules 4 and 5. 9. In Probate actions, if any defendant make in Probate default in filing and delivering a defence or de- actions, murrer, the action may proceed, notwithstanding such default. 10. In all other actions than those in the j)receding In other mles of this Order mentioned, if the defendant j^„ f^""" makes default in delivering a defence or demurrer, judsment. the plaintitt' may set doA\'n the action on motion for judgment, and such judgment shall! )e given as upon the statement of claim the Court shall consider the plaintiff to be entitled to. IL "Where, in any siich action as mentioned in where one of the last preceding rule, there are several defendants, fendants ^ then, if one of such defendants make such defaidt makes as aforesaid, the plaintiff may either set down the default. action at once on motion for j udgmeut against the defendant so making default, or may set it down against him at the time when it is entered for trial or set dowai on motion for judgment against the other defendants. 12. If the plaintiff" does not deliver a reply or Close of demurrer, or any party does not deliver any subse- ^d'auk'^^ ^^ (juent pleading, or a demurrer, within the period allowed for that purpcjse, the pleadings shall be deemeleading last de- livered shall be deemed to be admitted, 13. In any case in which issues arise in an action Default by other than between plaintiff" and defendant, if any '^ird pany. l^arty to any such issue makes default in delivering any pleading, the opposite party may apply to the Cuurt or a judge for such judgment, if any, as upon the pleadings he may appear to be eutitleil to. And the Court may order judgnnent to be entered ac- cordingly, or may make such other order as may be necessary to do complete justice between the parties. 14. Any jiidgnient by default, whether under tliis Scttin- order or imder any other of these rules, may be aside judg- 284 RULES OF THE SUPREME COURT. mentby set asicle by the Court or a judge, upon sucli terms default. a,s to costs or otlieiwise as such Court or judge may think fit. ORDER XXX. Payment into Court in Satisfaction. Time for 1. "Where any action is brought to recover a debt or court.^"' '"'° damages, any defendant may at any time after ser- vice of the wiit, and before or at the time of delivering his defence, or by leave of the Court or a judge at any later time, pay into court a sum of money by way of satisfaction or amends. Payment into court shall be pleaded in the defence, and the claim or cause of action in respect of which such payment shall be made shall be specified therein. ^° meiu '^ 2. Such sum of money shall be paid to the proper paymen . ofiicer, who shall give a receipt for the same. If such payment be made before delivermg his defence the defendant shall thereupon serve upon the jilain- tiff a notice that he has paid in such money, and in respect of what clauu, in the Form No. 5 in Ap- pendix (B) hereto. Payment out 3. ]\Ioney paid into coiu't as aforesaid mav, unless to pianniff. otherwise ordered by a judge, be paid out to the plaintiff, or to his solicitor on the Amtten authority of the plaintiff. No aflBdavit shall be necessary to verify the plaintiff's signature to such written authority unless specially required by the officer of the court. Notice to 4, The plaintilf, if payment into court is made acceptance, bcforc deUveriug a defence, may Avithin four days after receipt of notice of such payment, or if such payment is first stated in a defence delivered then may before reply, accept the same in satisfaction of the causes of action in respect of which it is paid in ; in wliich case he shall give notice to the defendant in the Form No. 6 in Appendix (B) hereto, and shall be at liberty, in case the sum paid in is ac- cepted in satisfaction of the entire cause of action, to tax liis costs, and, in case of non-pajinent within forty-eight hours, to sign judgment for his costs so taxed. ORD. XXXI. DISCOVERY AND INSPECTION. 285 OEDER XXXI. Discovery and Inspection. 1. The plaintiff may, at the time of delivering interroga- his statement of claim, or at any subsequent time [°Jg"; ^f' not later than the close of the pleadings, and a defendant may, at the time of delivering his defence, or at any sulisequent time not later than the close of the pleadings, without any order for that purpose. No order and either party may at any time, Ijy leave of the necessary, Court or a judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof, stating which of such interrogatories each of such persons is rec|uired to answer : provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose. 2. The Court in adjusting the costs of the action Costs of shall at the instance of any party inquire or cause -J^jgrro-^"^'^ inquiry to be made into the propriety of exhibiting gating. such interrogatories, and if it is the opinion of the taxing master or of the Court or judge that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occa- sioned by the said interrogatories, and the answers thereto shall be borne by the party in fault. 3. Interrogatories may be in the Form No. 7 in Form. Appendix (B) hereto, with such variations as circum- stances may requii-e. 4. If any party to an action be a body corporate interrogat- or a joint stock company, whether incorporated or"J^^offi«rof not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply at chambers for an order allowing him to deliver interrogatories to any mem- ber or officer of such corporation, company, or body, and an order may be made accordingly. 5. Any party called upon to answer inten'ogatories. Application whether by himself or by any member or officer, jntcrro'^a-"' may, within four days after service of the interroga- tories, tories, apply at chambers to strike out any inter- rogatory, on the gi'ound tliat it is scandaloiis or irrelevant, or is not put bontl hde for the purj^oses of the action, or that the matter inquired after is not 286 RULES OF THE SUPREME COURT. Time and mode of Answer when printed. Objection to answering. Sufficiency of answer, determina- tion of. Failure to answer- Production of documents on oath. Discovery of documents. Affidavit of documents to specify ob- jections. sufficiently material at that stage of the action, or on any other ground. And the judge, if satisfied that any interrogatory is objectionable, may order it to be struck out. 6. Interrogatories shall be answered by affidavit, to be filed within ten days, or within such other time as a judge may allow. 7. An affidavit in answer to interrogatories shall, imless otherwise ordered by a judge, if exceeding ten folios, be printed, and may be in the Fomi No. 8, in Appendix (B) hereto, with such variations as circumstances may require. 8. Any objection to answering any interrogatory may be taken, and the ground thereof stated in the affida^dt. 9. No exception shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be deter- mined by the Court or a judge, on motion or .sunuuons. 10. If any person inten-ogated omits to answer, or answers insufficiently, the party inteiTogating may apply to the Coiu^t or a judge for an order requiring liim to answer or to answer fiu'ther, as the case may be. And an order may be made requiring him U) answer, or answer fuilher, either by affidavit, or by viva voce examination, as the judge may direct. 11. It shall be lawful for the Court or a judge, at any time during the pendency therein of any action or proceeding, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in ques- tion in such action or proceeding, as the Court or judge shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear just. 12. Any party may, without filing any affidavit, apply to a judge for an order directing any other party to the action to make discovery on oath of the docmnents which are or have been in his possession or power, relating to any matter in question in the action. 13. Tlie affidavit to be made by a party against whom such order as is mentioned in the last preced- ing rule has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it may be in the Fonn No. 9 in Ap- ORD. XXXI. DISCOVERY AND INSPECTION. 287 penclix (B.) hereto, with such variations as circiuu- stances may require. 14. Every party to an action or other proceeding Inspection shaU be entitled, at any tiine before or at the hearing °efe?,™dTo"n thereof, by notice in waiting, to give notice to any pleading. other party, in whose pleadings or affida\dts reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof ; and any partj^ not complying 'n-ith su.ch notice shall not afterwards be at liberty to put any such document in e^ddence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the action, or that he had some other sufficient cause for not complying with such notice. 15. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in the Fonn No. 10 in Appendix (B) hereto. 16. The party to whom such notice is given shall, Fixing of A\-ithin two days from the receipt of sucli notice, if s™ct[on '"" all the dociunents therein referred to have been set forth by him in such affidavit as is mentioned in Rule 13, or if any of the dociunents referred to in such notice have not been set forth by him in any such affidavit, then ■within four days from the receipt of such notice, deliver to the party giving the same a notice, stating a time ^Aithin three days from the deliveiy thereof, at which the documents, or siich of them as he does not object to produce, may be inspected at the office of his solicitor, and stating which, if any, of the dociunents he objects to pro- duce, and on what groimd. Such notice may be in Notice. the Form 11 in Appendix (B) hereto, with such variations as circumstances may re(|uire. 17. If the party served with notice under Eule 15 Order for omits to give such notice of a timu for inspection, or '"^P^*^ '°"- objects to give inspection, the party desiring it may apply to a judge for an order for inspection. 18. Every application for an order for in.spection Application of documents shall be to a judge. And except in uo,l"in''otT,cr the case of documents referred to in the pleadings or cases by affidavits of the party against whom the application ^fTidavit. is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, 288 EULES OF THE SUPREME COURT. Reservation of question. Disobedi- ence of order. Foundation for attach- ment. Attachment of solicitor. Use at trial of answers to interroga- tories that tlie party applying is entitled to inspect them, and that they are in the possession or power of the other party. 19. If the part}' from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Couit or a judge may, if satisfied that the right to the discovery or inspection sought depends on the detemiination of any issue or question in dispute in the action, or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection. 20. If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintift', be lialile to have his action dismissed for want of prosecution, and, if a defendant to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Couit or a judge for an order to that efiect, and an order may be made accordingly. 21. Service of an order for discovery or inspection made against any party on his solicitor shall be suth- cient service to found an application for an attach- ment for disobedience to the order. But the part}' against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order. 22. A solicitor upon whom an order against any party for discovery or inspection is served imder the last rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment . 23. Any party may, at the trial of an action or issue, use in e^ddence any one or more of the answers of the opposite party to interrogatories without putting in the others : provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any other of them are so connected with those put in that the last- mentioned answers ought not to be used without them, he may direct them to be put in. XXXII.-XXXIII. ADMISSIONS & IXQUIRIES. 289 OEDER XXXII. Ai»Jiissio]ss. 1. Any pai'ty to an action may give notice, by his Notice to own statement or otherwise, that he admits the truth ^'^™" ^^^'^" of the whole or any part of the case stated or referred to in the statement of claim, defence, or reply of any other party. 2. Either party may call upon the other party to Notice to aihnit any document, saraig all just exceptions ; and ^"^'"J' '^°'^"' in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the action may be, unless at the hearing or trial the court certify that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed imless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a sarong of expense. 3. A notice to admit docimients may be in the Form. Form No 12* in Appendix (B) hereto. 4. An affidavit of the solicitor or his clerk, of the Evidence of due signature of any admissions made in pursuance ^ '"'^'^'o"- of any notice to admit documents, and annexed to the affida\dt, shall be sufficient evidence of such admissions. ORDER XXXIII. Inquiries and Accounts. The Court or a judge may, at any stage of the pro- Preliminary ceedings in a cause or matter, direct any necessaiy accounts and inquiries or accounts to be made or taken, not\\dth- '"^"'"^^• standing that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter shovild proceed in the ordinary manner. See p. 221. 290 RULES OF THE SUPREME COURT. Special case by agree- ment. Preliminary questions of law. All special cases to be printed. Where mar- ried woman party. Entry of case for argu- ment. ORDER XXXIV. Questions of Law. 1. The parties may, after the writ of summons has been issued, concur in stating the questions of law arising in the action in the form of a special case for the opinion of the Court. Every such special case shall be cli^dded into paragraphs numliered consecu- tively, and shall concisely state such facts and docu- ments as may be necessary to enable the Court to decide the questions raised thereby. Upon the argu- ment of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to cLraw from the facts and documents stated in any .such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial. 2. If it appear to the Cotirt or a judge, either from the statement of claim or defence or reply or other- wise, that there is in any action a cj^uestion of law, wliich it would be convenient to have decided before an)^ evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court or judge may maive an order accordingly, and may dii-ect such question of law to be raised for the opinion of the Court, either by special -case or in such other manner as the Court or judge may deem expedient, and all such further proceedings as the decision of such c[uestion of law may render unnecessary may thereupon be stayed. 3. Every special case shall be printed by the plaintiff, and signed by the several parties or their solicitor.?, and shall be filed by the plaintiff. Printed copies for the use of the judges shall be delivered by the plaintiff. 4. No special case in an action to which a married woman, infant, or person of unsound mind is a party shall be set down for argument without leave of the Coiu't or a judge, the application for which must he supported by sufficient e^^dence that the statements contained in such .special case, so far as the same affect the interest of such married woman, infant, or person of unsound mind, are true. 5. Either part\' may enter a special case for argu- ment by delivering to the proper officer a memo- ORD. XXXV. DISTRICT REGISTRIES, 291 randum of entry, in the Form No. 13 in Appendix (B) liereto, and also if any married woman, infant, or person of nnsoiind mind be a party to the action, producing a copy of the order gi'STUg leave to enter the same for argument. OEDER XXXV. Pkoceedings IX District Registries. 1. Where an action proceeds in the district Jurisdiotion registrj", all proceedings, except where by any of the '" registry, rules of the Supreme Comt it is otherwise provided, or the Coiut or a judge shall otherA\'ise order, shall be taken in the district registry, down to and in- cluding final judgment and every final judgment and every order for an account by reason of the defaidt of the defendant, or by consent shall be entered in the district registry in the proper book, in the same manner as a like judgment or order in an action pro- ceeding in London would be entered in London. WTiere the writ of sunmions is issued out of a district registry and the plaintiff is entitled to enter interlocutory judgment under Order XIII., Rule 6, or where the action proceeds in the district registry and the plaintift' is entitled to enter interlocutory judgment under Order XXIX. Rule 4 or 5, in either case such interlocutory judgment, and, when damages shall have been assessed, final judgment shall be entered in the district registry, imless the Com't or judge shall otherwise order. '\^Tiere an action proceeds in the district registry, Entr>' of final judgment shall be entered in such registry, ^>"^'^ J;'^s- imless the judge at the trial or the Court or a judge registry, shall otherwise order. Actions in the Queen's Bench, Common Pleas, and Exche(|uer Divisions shall be entered for trial with the associates and not in the distiict registries. 2. Subject to the foregoing rules, where an action Entr>-of proceeds in the district registry the judgment and all J"'ii>'»'^"t '" such orders therein as recj[uire to be entered, except orders made by the district registrar under the au- thority and j urisdiction vested in hun under these rules, shall be entered in London, and au office copy of every judgment and order so entered shall be transmitted to the district registry to be filed with the proceedings in the action. o 2 292 RULES OF THE SUPREME COURT. Issue of exe- cution from registry. Jurisdiction of district registrar. Reference to judge. Appeal to judge. Appeal no stay. Control of registrar by Court. In Chancery Division. 3. Where an action proceeds in the district registry all writs of execution for enforcing any judgment or order therein shall issue from the district registry, unless the Court or a judge shall otherwise direct. Where final judgment is entered in the district registry costs shall be taxed in such registry unless the Coiu't or a judge shall otherwise order. 4. Where an action proceeds in a district registry the district registrar may exercise all such authority and jurisdiction in respect of the action as may he exercised Ijy a judge at chambers, except such as by these rules a master of the Queen's Bench, Common Pleas, or Exchequer Divisions is precluded from exercising. 5. Every ai^plication to a district registrar shall be made in the same manner in which aj^plications at chambers are directed to be made by these rules. 6. If any matter appears to the district registrar proper for the decision of a judge, the registrar may refer the same to a judge, and the judge may either dispose of the matter or refer the same liack to the registrar with such directions as he may think fit. 7. Any person aflfected by an order or decision of a district registrar may appeal to a judge. Such ap- peal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the district registrar had jurisdiction only by consent. Such appeal shall be l>y summons witliin f oiu- days after the decision complained of, or such fvu'ther time as may be allowed by a judge or the registrar. 8. An appeal from a district registrar shall be no stay of proceedings unless so ordered by a judge or the registrar. 9. Every district registrar and other oflicer of a distiict regdstry shall be subject to the orders and directions of the Coiu't or a judge as fully as any other officer of the Court, and every proceeding in a district registry shall be subject to the control of the Court or a judge, as fuUy as a like proceeding in London. 10. Every reference to a judge by or appeal to a judge from a district registrar in any action in the Chancery Division shall be to the judge to whomtlie action is assigned. 11. In any action which would, under the fore- going rules, proceed in tlie district registry, any ORD. XXXV. DISTRICT REGISTRIES. 293 defendant may remove the action from tlie district Removal of registry as of right in the cases, and within the re'istrv'^bv times, following : defendant as Where the writ is specially indorsed under ° "^ Order III. Eule 6, and the plaintiff does not %vithin fonr days after the appearance of such defendant give notice of an application for an order against liim under Order XIV. then such defendant may remove the action as of right at any time after the expiration of such four daj'^s and before delivering a defence, and before the expiration of the time for doing so : 'Where the vnit is specially indorsed and the plain- tiff has made such application as in the last para- graph mentioned, and the defendant has obtained leave to defend in manner pro^dded by Order XIV. ; then such defendant may remove the action as of right at any time after the order giving him leave to defend, and before delivering a defence and before the expiration of the time for doing so : Where the writ is not specially indorsed any de- fendant may remove tlie action as of right at any time after appearance, and Ijefore delivering a defence, and before the expiration of the time for doing so. 11 A. In an Admiralty action in rem any person In action in who may have duly intervened and appeared may ''^"'• remove an action from a district registry' as of right. 1 2. Any defendant desirous to remove an action as Mode of re- of right imder the last preceding rule may do so by moval. serving upon the other parties to the action, and de- livering to the district registrar, a notice, signed by liiinseli' or his solicitor, to the effect that he desires the action to be removed to London, and the action shall be removed accorflingly : provided, that if the Com-t or a judge shall be satisfied that the defendant giving such notice is a merely formal defendant, or nas no substantial cause to interi'ere in the conduct of the action, such Court or judge may order that the action may proceed in the district registiy notwith- standing such notice. 1.3. In any case not provided for by the last two Removal by preceding rules, any party to an acticn proceeding in or'|^'''^y a district registry may apply to the Court or a judge, '^'^ ^"^ ''*"^' 294 RULES OF THE SUPREME COURT. or to the district registrar, for an order to remove the action from the district registry to London, and snch Court, judge, or registrar may make an order accord- ingly, if satisfied that there is sufficient reason for doing .so, upon such terms, if any, as shall seem just. Removal Any party to an action proceeding in London may apply to the Court or a judge for an order to remove the action from London to any district registry, and such Coiu't or judge may make an order accordingly, if satisfied that there is sufficient reason for doing so, upon such terms, if any, as shall seem just. 14. A^Tienever any proceedings are removed from sionof docu- i\^Q district registry to London, the district registrar removal. shall transmit to the proper officer of the High Court of Justice all original documents (if any) filed in the district registry, and a copy of all entries in the books of the district registry of the proceedings in the action. 15. Every district registrar shall account for and pay over to the Treasmy all moneys paid into Court at the registry of which he is registrar, in such manner and at such times as may be from time to time directed by the Treasury. from London to registry. Transmis- ORDER XXXVI. Trial. Placeoftrial. 1. There shall be no local venue for the trial of Abolition of any action, but when the plaintiff proposes to have local venue, the action tried elsewhere than in JVIiddlesex, he shall in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, 136 the county of Middlesex. Any order of a judge as to such place of trial, may be discharged or varied by a di\dsional court of the High Court. 2. Actions shall be tried and heard either before a judge or judges, or before a jndge sitting with as- sessors, or before a judge and jury, or before an official or special referee, ^ith or without assessors. Modes of trial. ORD. XXXYI. TRIAL, 295 3. Subject to the provisions of tlie follo\mig rules, Notice of the plaintiff may, •ndtli his reply, or at any time 'y^' ^ after the close of the pleadings, give notice of trial ^ *'° of the action, and thereby specify one of the modes mentioned in Eule 2 ; and the defendant may, iipon giving notice within foiu' clays from the time of the service of the notice of trial, or mthin such extended time as a Court or judge may allow, to the effect that he desires to have the issues of fact tried before a judge and jury, be entitled to have the same so triecl. 4. Subject to the provisions of the following Notice of rales, if the plaintiff does not -svithin six weeks after f"ndant '*^' the close of the pleadings, or within such extended time as a Court or judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial, and thereby specify one of the modes mentioned in Rule 2 ; and in such case the plaintiff, on giving notice within the time fixed by Eule 3 that he desires to have the issues of fact tried before a judge and jury,* be entitled to have the same so tried. 4a. The defendant, instead of giving notice of Dismissing trial, may apply to the Court or judge to dismiss the ^^^^^""of"'^ action for want of prosecution ; and on the hearing prosecution. of such application, the Court or a judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court or judge may seem just. 5. In any case in which neither the plaintiff nor Change of defendant has given notice under the preceding rules ™°^® °*^'"* that he desires to have the issues of fact tried before a judge and jurj-, or in any case within the 57th section of the act, if the plaintiff or defendant desires to have the action tried in any other mode than that specified in the notice of trial, he shall apply to the Court or a judge for an order to that effect, within four days from the time of the service of the notice of trial, or within such extended tune as a Court or judge may allow. 6. Subject to the provisions of the preceding rules, Trial of diffc- the Court or a judge may, in any action at any time [fonsTy^' or from time to time, order that different questions different of fact arising therein be tried by different modes of n»°dcs. The word " shall " seeuis to have been left out here. 296 RULES OF THE SUPREME COURT. Trial before more judges than one. Contents of notice of trial. Length of notice of trial. Short notice. Lapse of notice of trial. For London or Middle- Elsewhere. Counter- mand of notice of trial. Entry for trial. trial, or that one or more questions of fact be tried before the others, and may appoint the place or places for such trial or trials, and in all cases may order that one or more issues of fact be tried before any other or others. 7. Every trial of any question or issue of fact by a jury shall be held before a single judge, unless siich trial be specially ordered to be held before two or more judges. 8. Notice of trial shall state whether it is for the trial of the action or of issues therein ; and in actions in the Queen's Bench, Common Pleas, and Exchequer Divisions, the place and day for which it is to be entered for trial. It may be in the Form No. 14 in ApiJendix (B), with such variations as cii'cumstances may require. 9. Ten days' notice of trial shall be given, unless the party to whom it is given has consented to take short notice of trial ; and shall be suilicient in all cases, unless other-ndse ordered by the Court or a judge. Short notice of trial shall be foui' days' notice. 10. Notice of trial shall be given before entering the action for trial. 10a. Unless within six days after notice of trial is given the cause shall be entered for trial by one party or the other, the notice of trial shall be no longer in force. This rule is not to apply in any case in which notice of trial has been already given,* or to trials not in London or JVIiddlesex. 11. Notice of trial for London or Middlesex shall not be or operate as for any particular sittings ; but shall be deemed to be for any day after the expiration of the notice on which the action may come on for trial in its order upon the list. 12. Notice of trial elsewhere than in London or Middlesex shall be deemed to be for the first day of the then next assizes at the place for which notice of trial is given. 13. No notice of trial shall be countermanded, except by consent, or by leave of the Com-t or a judge, which leave may be given subject to such terms as to costs, or other^\dse, as may be just. 14. If the party giving notice of trial for London or Middlesex omits to enter the action for trial on the That is, before the 1st December, 1875. ORD. XXXVL TRFAL. 297 day or day after giving notice of trial, the party to whom notice has been given may, ludess the notice has been countermanded under the hxst rule, within four days enter the action for trial. 15. If notice of trial is given for elsewhere than in London or Middlesex, either party may enter the action for trial. If both parties enter the action for trial,itshall be tried in theorderof the plaintiff's entry. 16. The list or lists of actions for trial at the List of ac- sittings in London and Middlesex respectively shall "°Y ^°^ be prepared, and the actions shall be allotted ibr trial without reference to the di^dsiou of the High Court to wliich such actions may be attached. 17. The party entering the action for trial shall Copy of deliver to the officer two copies of the whole of the f^Jr^u'd^^ pleadings in the action, one of which shall be lor the ^^" use of the judge at the trial. Such copies shall be in print, except as to such parts, if anj^, of the plead- ings as are by these rules permitted to be written. 18. If, when an action is called on for trial, the Default of plaintiff apjjears, and the defendant does not appear, appearance then the plaintiff may prove his claim, so far as the ^' "^'^ ' bm-den of proof lies upon him. 19. If, when an action is called on for trial, the defendant appears, and the plaintiff hee, or any igsue or question to be tried or determined according to the preceding rules of this order, and may bar the claim of such third jjerson, or make such other order as such Court or 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 Court or judge shall think just and reason- able. 8. 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 judgment debtor, to the amount paid or levied, although such proceeding may be set aside, or the judgment reversed. 9. There shall be kept by the proper officer a debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovei-ed, and otherwise ; and copies of any entries made therein may be taken by any per- son upon application to the proper offi.cer. 10. Tlie costs of any application for an attach- ment of debts, and of any proceedings arising from or incidental to such application, shall be in the dis- cretion of the Court or a judge. Order charging stock. Distringas. OEDEE XL VI. Charging of Stock or Shares and Distringas. 1. An order charging stock or shares may be made by any divisional Court or by any judge, and the proceedicigs for obtaining such order shall be such as are directed, and the effect shall be such as is pro- vided by 1 & 2 Yict. c. 110, ss. 14 and 15, and ,3 & 4 Vict. c. 82, s. 1. 2. Any person claiming to be interested in any stock transferable at the Bank of England st:mding in the name of any other person may sue out a writ of distringas piu'suant to the statute 5 Vict. XL VII., XLVIII. SEQUESTEATION & POSSESSION. 315 c. 8,* as heretofore. Such writ to be issued out of any office of the High Court in London, where writs of summons are issued. ORDER XL VII. Writ of Sequestration. Where any person is by any judgment directed to Writ of pay money into Court or to do any other act in a f^^ d!so^be-°" limited time, and after due service of such judgment dience of refuses or neglects to obey the same according to order of the exigency thereof, the person prosecuting such '^°"'"'^- judgment shall at the expiration of the time limited for the perfonnance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ of sequestra- tion shall have the same effect as a writ of seques- tration in Chancery has heretofore had, and the proceeds of such sequestration may be dealt with in the same manner as the proceeds of wi'its of seques- tration have heretofore been dealt with by the Court of Chancery. ORDER XLVIII. Writ of Possessiox. 1. A judgment that a party do recover posses- Writ of ~ ' ■ ■ " possessir of land. sion of any land may be enforced by writ of p°^,*,^^^'°" possession in manner heretofore used in actions of ejectment in the Superior Courts of Common law. 2. Where by any judgment any j^erson therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment shall, without any order for that purpose, be entitled to s\ie out a writ of possession on filing an affidavit showing due service of such judgment and that the same has not been obeyed. * This appears to be a clerical error for .5 Vict. c. 5. p 2 316 RULES OF THE SUPREME COURT. OEDEE XLIX. AVrit of Delivery. Specific A writ for delivery of any property other thau delivery of land or money may be issued and enforced in the c atte s. manner heretofore in use in actions of detinue in the Superior Courts of Common Law. OEDER L. Change of Parties by Death, y these rules shall be made in a summary way by summons. 2. Ill the Queen's Bench, Common Pleas and Ex- chequer Divisions a master, and in the Probate, Di- vorce and Admiralty Division a registrar, may transact all such business and exercise all such authority and jurisdiction in respect of the same as under the act, or the schedule thereto, or these rules, may be transacted or exercised by a judge at chambers, except in respect of the following pro- ceedings and matters ; that is to say,— All matters relating to criminal proceedings or to the liberty of the subject : The removal of actions from one division or judge to another division or judge : The settlement of issues, except by consent ; Discoveiy, whether of documents or otherwise, and inspection, except by consent : Appeals from district registrars : Interpleader other than such matters arising in interpleader as relate to practice only, except by consent : Prohibitions : Injunctions and other orders under sub-section 8 of section 25 of the act, or under Order LII., Rules 1, 2, and 3 resjiectively : Awarding of costs, other than the costs of any proceeding before such master : Reviewing taxation of costs : Charging orders on stock funds, annuities, or share of dividends or annual produce thereof : Acknowledgments of married women. Leave to serve out of jurisdiction. 2a. The aiitliority and jurisdiction of the district registrar or of a Master of the Queen's Bench, Com- mon Pleas, or Exchequer Divisions shall not extend to granting leave for service out of the jurisdiction of a writ of summons or of notice of a Amt of summons. Reference 3. If any matter appears to the master j^roper by master to for the decision of a judge, the muster may refer the same to a judge, and the judge may either dispose of jud; ORDS. LV,, LVI. COSTS AND NOTICES. 328 the matter, or refer the same liaok to the master with such directions as be maj' thiuk fit. 4. Any person afifected by any order or decision Appeal from of a master may ajjpeal there from to a judge at p^^ier to chambers. Such appeal shall be by summons, ^" ^^' within foui' days after the decision complained of, or such further time as may be allowed by a judge or master. 5. An appeal from a master's decision shall be no No stay, un- stay of proceeding unless so ordered by a judge or less ordered. master. 6. In the Queen's Bench, Common Pleas, and Exchequer Division, every ajjpeal to the Coiu't from any decision at chambers shall be by motion, and shall be made within eight days after the decision appealed against. OEDER LV. Costs. Subject to the provisions of the act, the costs of Costs— dis- and incident to all proceedings in the High Court ^retionary. shall be in the discretion of the Court ; but nothing Saving for herein contained shall deprive a trustee, mortgagee, "^^ ^*' or other person of any right to costs out of a par- ticular estate or fund to which he would be entitled according to the rules hitherto acted upon in Coui'ts of Ei^uity : provided that where any action or issue is tried by a juiy, the costs shall follow the Saving, event, unless upon application made at the trial, where jurj-. for good cause shown, the judge before whom such action or issue is tried, or the Court, shall otherwise order. ORDER LVI. Notices and Paper, &c. 1. All notices required by these rules shall be in Notices to writing, unless expressly authorized by a Court or 1^*^ wntteu. j iidge to be given orally. 2. Proceedings required to be printed shall be Mode of printed on cream w^ove machine drawing foolscap P"n"ns- folio paper, 19lb3. per mill ream, or thereabouts, in 324 RULES OF THE SUPREME COURT. pica type leaded, with au iuuer margin about three- quarters of an inch wide, and au outer margin about two inches and a half wide. 3. Any affidavit may be sworn to eitlier in print or in manuscript, or partly in print and jjartly in manuscript. OEDER LVII. Time. Month to be 1. Where by these rules, or by any judgment or lunar, order given or made after the commencement of the act, time for doing any act or taking any proceeding is limited by months, not expressed to be lunar mouths, such time shall be computed by calendar months. Sunday, &c. 2. Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Chi'istmas Day, and Good Friday shall not be reckoned in the computation of such limited time. 3. Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken, if done or taken on the day on which the offices shall next be open.* Long vaca- 4. No pleadings shall be amended or delivered in "°"' the long vacation unless directed by a Court or a judge. 5. The time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by these rules for filing, amending, or delivering any pleading, unless otherwise directed by a Court or a judge. Enlarge- ^ g. A Com't or a judge shall have power to enlarge men o imc. ^^ abridge the time appointed by these rules, or * This rule applies to the time for making a motion, so that if the eight days for moviug to rescind an order at chambers expire on a Sunday, the motion may be made on Monday. (Taylor v. Jones, 45 L. J., C. P., 110). ORD. LVIII. APPEALS. 325 fixed by any order enlargino- time, for doing any act or taking any proceeding, upon such terms (if any), as tlie justice of the case may require, and any sucli enlargement may be ordered, although the applica- tion for the same is not made until after the expira- tion of the time apj)ohited or allowed. OEDER LVIII. Appeals. 1. Bills of exceptions and proceedings in error Bill of ex- shall be abolished. abEn of. 2. All appeals to the Court of Appeal shall be by ^ ° ' '°" ° , way of rehearing, and .shall be brought by notice of j^y rehear- motion in a summary way, and no petition, case, or ing. other formal ]>roceeding other than such notice of motion shall be necessary. The appellant may by the notice of motion appeal from the whole or any part of any judgment or order, and the notice of motion shall state whether the whole or part only of such judgment or order is complained of, and in the latter case shall specify such part, 3. The notice of appeal shall be served upon all Notice of ]jarties directly affected 1iy the appeal, and it shall ^^^^^ ' not be necessary to serve parties not so affected ; but the Coui-t of Appeal may direct notice of the appeal to be served on all or any jmrties to the action or other jiroceeding, or upon any person not a party, and in the meantime may postpone or adjoiu-n the hearing of the appeal upon such terms as may seem just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had beeu originally parties. Any notice of appeal may be amended at any time as to the Court of Appeal may seem tit. 4. Notice of appeal from any judgment, whether fm;d or iutei'locutory, shall be a fourteen days' notice, and notice of appeal from any interlocutory order shall be a four days' notice. 5. The Court of Appeal shall have all the powers Powers of and duties as lo amendnu nt and otherwise of the Appeal! Court of First Instance, together with lull discre- tionary power to receive further evidence upon Further questions of fact, such evidence to be either by oi'al ^^' "^'^^' J26 RULES OF THE SUPREME COURT. Costs. Appeal by respondent. Notice by re' spondent. Time. examinatiou iii Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given -without sijecial leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such fui'ther evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall have power to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exer- cised by the said Court notwithstanding that the notice of appeal may be that part only of the deci- sion may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or jjarties, although such respondents or parties may not have appealed from or com- plained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may seem just.* 6. It shall not, under any circumstances, be neces- sary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the Court below should be varied, he shall, within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be aflected by such contention. The omission to give such notice shall not diminish the powers conferred by the act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjoui-nment of the appeal or for a special order as to costs. 7. Subject to any special order which may be made, notice by a respondent under the last pre- ceding rule shall in the case of any appeal from a * The successful party prima facie has his costs not- withstanding the contrary rule which prevailed in Chan- cery {Olivant v. WrigM, 45 L. J. Ch, 1). OKD. LVIII. APPEALS. 327 final judgment be an eight days' notice, and in the case of an appeal from au interlocutory order a two days' notice. 8. The party appealin.L;- from a judgment or order Entry of shall produce to the proper officer of the Court of 5^^^^^'/°'' i^ppeal the judgment or order or an ofiice copy thereof, and shall leave with him a coi^y of the notice of appeal to be filed, and such officer shall thereupon set down the apjjeal by entering the same in the proper list of appeals, and it shall come on to be heard according to its order in such list, imless the Court of Appeal or a judge thereof shall otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal. 9. The time for appealing from any oixler or winding-up. decision made or given in the matter of the winding Bankruptcy. up of a company under the provisions of the Com- apj^eal."'^ panics Act, 1862, or any act amending the same, or any order or decision made in the matter of any bankruptcy, or in any other matter not being an action, shall be the same as the time limited for appeal from an interlocutory order under Eule 1 5. 10. "Where an ex parte ajjplication has been Ex parte refused by the Court below, au application for a applications. similar purpose may be made to the Court of Ai^peal ex parte within four days from the date of such refusal, or within such enlarged time as a judge of the Court below or of the Appeal Court may allow. 11. When any question of fact is involved in au Qucationuf appeal, the evidence taken in the Court below ^^'='- bearing on such question shall, subject to any s|)ecial order,* be brought before the Court of Appeal as follows : (a.) As to any evidence taken by affidavit, by the Evidence. production of printed copies of such of the aftidavits as have been printed, and olfice copies of such of them as have not been printed. * Au order may be made dispensing witli ofRcu copies of attidavits and reijuiriiig an ottieer to attend with the originals on the ground of expense (iSkkles v. AojtIs, 45 L. J., C. P., 148.) 328 EULES OF THE SUPKEME COURT. Judge's notes. Printing of evidence. Verified notes. Interlocu- tory order, no bar. Time for appeal. Appeal no stay except as ordered. Application to court be- low in first instance. (6.) As to auy evidence given orally, by the pro- duction of a copy of the judge's notes, or such other materials as the Court may deem expedient. 12. Where evidence has not been printed in the Court below, the Court below or a judge thereof, or the Court of Appeal or a judge thereof, may order the whole or any part thereof to be printed for the purpo.se of the appeal. Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, imless the Court of Appeal or a judge thereof shall otherwise order. 13. If, upon the heai'ing of an appeal, a question arise as to the ruling or direction of the judge to a jurj' or assessors, the Court shall have regard to veri6ed notes or other evidence, and to such other materials as the Court may deem expedient. 14. No interlocutory order or rule from which there has been no appeal shall operate so as to bar or prejudice the Court of Appeal from giving such decision upon the appeal as may seem just. 15. Xo appeal from any interlocutory order shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, and no otiier appeal shall, except by such leave, be brought after the expiration of one year. The said respective periods shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of such refusal. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under sjsecial circumstances by the Court of Appeal. 1 6. An appeal shall not operate as a stay of execu- tion or of proceedings under the decision appealed from, except so far as the Court appealed from, or any judge thereof, or the Court of Appeal, may so order ; and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct. 17. Wherever under these rules an application may be made either to the Court below or to the Court of Appeal, or to a judge of the Court below or of the Court of Appeal, it shall be made in the first instance to the Court or judge below. 18. Everj" application to a judge of the Court of ORDS. LIX., LX. IRREGULARITIES — OFFICERS. 329 Appeal shall be by motion, and the provisions of Order LIII. shall apply thereto. 19. In order to constitute divisional Courts for the ^(ConnT determination of appeals from inferior Courts uu- Appeal from der section 4.5 of the Judicature Act, 1873, each inferior", division of the High Court of Justice shall, before the 1st of Januaiy 1876, select one of the judges of such Division to act until the 1st of January, 1877, and so on before every 1st of Januaiy subsequent to ihe 1st of January, 1876, to act for the twelve months next ensuing. Any two or more of the judges so selected shall constitute a divisional Court for the purpose of the said section. Any other judge of the High Court of Justice may, by arrangement between himself and any one of the judges so selected, act for such last-mentioned judge in any particular case or cases, or on any particular day or days. The judges so selected shall make such arrangements as they shall think tit, as to the manner in which application may be made to them, or any of them, in Court or Chambers, under tlie 6th sect, of 38 & 39 Vict. c. 50, relative to appeals by motion under that Act. otlDER LIX. Effect of No^'-CoMPLIA^•cE. Non-com jjliance with any of these rules shall not Non-com- render the jjroceedings in any action void unless the pi'^nce to be Court or a judge shall so direct, but such pro- only. ceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon si;ch terms as the Court or judge shall think fit. ORDER LX. Officees. 1. All officers who at the time of the commence- Officers meut of the said act shall be attached to the Court fro^' cour'ts of Chancery shall be attached to the Chancery to Divisions. Division of the said High Court -, and all officers who at the time of tlie commencement of the .said act shall be attached to the Court oi' Queen's Leixh 330 RULES OF THE SUPREME COURT. shall be attached to the Queen's Bench Division oi the said High Court ; and all officers who at the time of the commencement of the said act shall be attaclied to the Court of Common Pleas shall be attached to the Common Pleas Division of the said High Court ; and all officers who at the time of the commencement of the said act shall be attached to the Court of Exchequer shall be attached to the Exchequer Division of the said High Court ; and all officers who at the time of the commencement of the said act shall be attached to the Court of Probate, the Court of Divorce, and the Court of Admmdty resiDectively, shall be attached to the Pn^bate, Divorce, and Admiralty Division of the said High Court. Officers to 2. Officers attached to any division shall follow a°"°eal.s ^^^^ appeals from the same division, and shall ]jerform in the Court of Ajjpeal analogous duties in reference to such a2jpeals as the registrars and officers of the Court of Chancery usually performed as to re- hearings in the Court of Appeal in Chancery, and as the masters and officers of the Courts of Queen's Bencli, Common Pleas, and Excheqiier respectively performed as to appeals heard bj^ the Court of Ex- chequer Chamber. ORDER LXI. Sittings and Vacations. Number and I. The Sittings of tlie Court of Appeal and the time of sit- sittings in London and Middlesex of the High Court tings. ^£ jy^^igg si^all be four in every year, viz., the Michaelmas sittings, the Hilary sittings, the Easter sittings, and the Trinity sittings. Michaelmas, The Michaelmas sittings shall commence on the Hilary, 2nd of November, and terminate on the 21st f dnTty ^""^ December ; the Hilary sittings shall commence on sittings. the 11th of January, and terminate on the Wed- nesday before Easter ; the Easter sittings shall com- mence on the Tuesday after Easter week, and ter- minate on the Friday before Whitsunday. The Trinity sittings shall commence on the Tues- day after Whitsun week and terminate on the 8th of August. ORD. LXI. SITTINGS AND VACATIONS. 381 2. The vacations to be observed in the sevei'al Vacations, courts and offices of the Supreme Court shall be four in every year, viz., the Long vacation, the Cbristmas vacation, the Easter vacation, and the Whitsun vacation. The Long vacation shall commence on the 10th of August, and termiimte on the 24th of October. The Christmas vacation shall commence on the 2-ith of December, aud terminate on the 6th of January. The Easter vacation shall commence on Good Friday, and terminate on Easter Tuesday, and the Whitsun vacation shall commence on the Saturday before Whitsunday, and shall terminate on the Tuesday after \Miitsunday. 3. The days of the commencement and tei-mination of each sitting and vacation shall be included in jsuch sitting and vacation respectively. 4. The several offices of the Sujjreme Court shall Opening of be open on every day of the year, except Sundays, ° ^"*- Good Friday, Monday aud Tuesday in Easter week, Whit Monday, Christmas Day, and the next following working day, aud all days appointed by ])roclamation to be observed as days of general fast, humiliation, or thanksgiving. 4a. The offices of each district registrar of the Opening of High Court of Justice shall be open on every day District aud hour in the year on which the offices of the of|fes"^ registrar of the County Court of the place in which the district registry is situate are required to be kept open. .5. Two of the judges of the High Court shall be Vacation selected at the commencement of each Long vacation HWt^^Coun for the hearing in London or ISIiddlesex during vacation of all such a])plications as may require to be immediately or promptly heard. Such two judges shall act as vacation judges for one year from their appointment. In the abseuce of arrangement between the judges, the two vacationjudges shall be the two judges last aiipointed (whether as judges of the said High Court or of any Court whose juris- diction is by the said act transferred to the said High Court) who have not already served as vaca- tion judges of any such Court, and if there .shall not be two judges for the time being of tlie said High Court who shall not liave so served, then the two vacationjudges shall be the judge (if any) who has not so served and the senior judge or judges who 832 EULES OF THE SUPREME COURT. Sittings of vacation judges. Vacation judges may act at any lime. has or have so served once only according to seniority of appointment, whether in the said High Con it or such other Court as aforesaid. The Lord Chancellor shall not Ije liable to serve as a vacation judge. 6. The vacation judges may sit either separately or together as a divisional Court as occasion shall require, and may hear and dispose of all actions, matters, and other business to whichever rlivision the same may be assigned. No order made by a vacation judge shall be reversed er varied except by a divisional Court or the Court of Appeal, or a judge thereof, or the judge who made the order. Any other judge of the High Court may sit in vacation for any vacation judge. 7. The vacation judges of the High Court may dispose of all actions, matters, and other business I'f an urgent nature during any interval between the sittings of any division of the High Court to which .such business may be assigned, although such in- terval may not be called or known as a vacation. OEDER LXn. Exceptions from the Rules. Practice un- Nothing in these rides shall affect the practice or affected by procedure in any of the following causes or matters : — Criminal proceedings : Proceedings on the Crown side of the Queen's Bench Division : Proceedings on the Revenue side of the Exchequer Division : Proceedings for Divorce or other Matrimonial Causes : ORDER LXIII. Interpretation of Terms. Interpreta- The pro^^sions of the 100th section of the act shall tion. fipply to these rules. In the construction of these rules, unless there is ORD. LXIII. INTERPRETATIOX OF TEEMS. 333 anything in tliesubject or context repugnant thereto, the several words hereinafter mentioned or referred to shall have or include the meanings following : — "Person" shall include a body corporate or politic : "Probate actions" shall include actions and other matters relating to the grant or recall of pro- bate, or of letters of administration other tlian common form business : "Proper officer" shall, unless and until any rule "Proper to the contrary is made, mean an officer to be officer." ascertained as follows : — (a.) Where any duty to be discharged imder the act or these rules is a duty which has here- tofore been discharged by any officer, such officer shall continue to be the proper officer to discharge the same : (b.) Where any new duty is under the act or these rules to be discharged, the proper officer to discharge the same shall be such officer, having previously discharged analogous duties, as may from to time be directed to discharge the same ; in the case of an officer of the Supreme Court, or the High Court of Justice, or the Court of Appeal, not attached to any division, by the Lord Chancellor ; and in the case of an officer attached to any division, by the president of the division ; and in the case of an officer attached to any judge by such judge : "The act" and "the said act" shall respectively The Act. mean the Supreme Court of Judicature Act, 1873, as amended by this A.ct. INDEX. ABATEMENT, plea in, 65 abolition of pleas in, 68, 269 of action, none, if right survdve, 115, 316 ACCOUNT, action of, 32 indorsement for, 50, 242 preliminary order for, 50, 259 taking of, assigned to Chancery Di\'isiou, 47 ACTION, definition of, 1, 239 forms of, at common law, 25 real, 25 mixed, 26 personal, 26 ex delicto, 27 ex contractu, 29 of mandamus, 30 Chancery, 31 Probate, 32 Admiralty, 33 by and against an infant, 37, 261 by and against a married woman, 37, 261 by and against a lunatic, 39, 266 joinder of, 40, 265 notice of, 41 consolidation of, 108, 318 to be assigned to Chancery Division, 47 to be assigned to Probate, &c.. Division, 48 ADDRESS FOR SERVICE, on \vrit, 45, 243 on memorandum of appearance, 55, 253 336 INDEX. ADJOUENMENT, of trial, 135 ADMINISTRATION ACTION, nature of, 32 assigned to Chancery Division, 47 ADMIEALTY ACTION IN REM, afSdavit before warrant in, 54, 245 service of summons and warrant in, 53, 54, 250 intervention in, 57, 254 to be assigned to Probate, &c.. Division, 48, 244 ADMIEALTY, COUET OF, consolidated in Supreme Court, 2 origin and jurisdiction of, 11 actions derived from, 33 ADMISSION, of documents, 128, 289 of facts, 72, 274, 289 AFFIDAVIT, definition of, 81, 82 evidence by, 81 consent to take evidence by, 81, 300 title of, 82 description of deponent in, 82 contents of, 82, 301 jixrat of, 83 before whom sworn, 83 filing, by plaintiff, 84, 301 filing, by defendant, 84, 302 in reply, 84, 86, 302 cross-examining on, 84, 300 in interlociitory matters, 85, 301 of documents, 93, 286 in answer to interrogatories, 92, 286 AMENDMENT, of parties, 36, 260 of pleadings, 76, 278 at trial, 135 ANNUITY action of, 30 APPEAL, cowct of, 13, 14 from master, &c., to judge, 90, 323 from judge to Divisional Court, 90, 323 to Court of Appeal, 212, 325 INDEX. S:j7 APPEAL — continued. takes place of error and appeal, 212, 213, 325 in former Courts of Common Law, 213 in Chancer}', 213, 214 under Judicature Acts, 214, 325 in what cases allowed, 214 time for appeal, 214, 328 notice of appeal, 214, 325 cross appeal, 214, 326 entry of, 215, 327 on ex parte application, 215, 327 heariny of, 215 emlence on, 215, 327 costs of, 216, 326 APPEAPtAXCE, meaning of, 54 how entered, 55, 252 memorandum of, 55, 253 form of memorandum of, 218 by landlord in ejectment, 55, 254 time for, 56 by person not named in wi-it, 57, 254 AEBITEATION, remitting actions to, 98, 99 referring actions to, at trial, 139 AEEAY challenging, 131 AEREST, of absconding defendants, 102, 103 AEEEST OF JUDGMENT, motion in, 147 ASSESSOES, trial with, 118, 119, 298 AETICLED CLERKS, service as, for admission as solicitor, 20 ASSIZES, trial at the, 128, 129 ASSUMPSIT, action of, 30 ATTACHMENT, writ of, 176, 312 of debts, 207, 208, 312 338 INDEX. ATTAINT, •writ of, 150, 151 ATTORNEY, now called solicitor, 19, 20 See Solicitor. AUDITA QUERELA, disused, 78, 311 AULA EEGIS, origin of, 2 jurisdiction of, 3 disintegration of, 3, 5 compared with Sujireme Court, 11 BAIL, holding defendant to, 102 only in case of absconding defendant, 103 BANKING COMPilNIES, suing and sued by public officers, 3G BANKRUPTCY, adding parties on, 114, 31 G executing goods of banknipt, 194 writ of execution for £50, act of, 195 BAR, plea in, G5, 66 BARRISTERS, officers of Supreme Court, 18 BEGIN, right to, 133 BILL OF EXCEPTIONS, former practice, as to, 5, 136 abolished, 137, 325 BILLS OF EXCHANGE ACT, proceedings under, 164, 241 BISHOP, writs directed to, 173 BRIEF preparation of, 127 BOTTOMRY ACTION, nature of, 33 CANCELLATION OF DOCUMENTS, action for, 32 assigned to Chancery Division, 47 INDEX. 339 CAPIAS AD SATISFACIEXDUM, form of writ of, 173 when employed, 173 dimiTiished importance of, 174 CASE, action on the, 27 special case, at the trial, 140, 141 special case, without pleadings, 170, 171, ?00 CERTIFICATE, of judge for costs, 142 for costs of special jury, 122 of associate, 157, 298 form of associate's, 223 CHALLEXGE OF JUEOES, at the trial, 131 CHAXX'ERY, COURT OF, consolidated in Supreme Court, 2 origin of, 8 judges of, 9 interference ■4\'ith common law courts, 10 actions derived from, 31 CHANCERY DIVISION, section of High Court, 15 actions exclusively assigned to, 47 interlocutory orders in, 89, 90 CHARGING ORDER, how obtained, 211, 314 CHATTELS, writ of delivery of, 175, 316 CHIEF CLERKS, duties of, 18 COGNOVIT, judgment under, 161 witnessed by solicitor, 102 filed, 102 COLLISION, pleadings in action for, 234 pjreliminary act in action for, 73 COLONIES, examination of witnesses in, 95 COMMISSION, evidence on, 95 Q 2 340 I^■I)Ex. COMMITTAL, order for, when obtained, 176, 307 COMMON PLEAS, COUET OF branch of Aula, Regis, 2 stationed at Westminster, 4 exclusive jiuisdiction of, in real actions, 48 COMMOA^ PLEAS DIVISION, section of High Court, 15 actions assigned to, 48 interlocutory orders in, SO, 90 CONCUEEENT WEITS, of summons, 52, 24G of execution, 181 CONFESSION, of defence, 78, 272 and avoidance, 66 CONSOLIDATING ACTIONS, order for, 108, 318 CONSTABLE, action against, 41 CONTRACT, actions of, 27, 29 CORPORATIONS, how made parties, 36 service of writ on, 53, 250 interrogating officer of, 93, 285 COSTS, at common law, 141 by statute, 141, 142 under Judicature Acts, 142, 323 under County Court Acts, 142 for damages vmder 40s., 143 under Statute of James I., 143 taxation of, 143 of ai)peal, 216, 326 COUNTER-CLAIM, defendant may set up, 72, 267 extended area of, 73 against parties other than plaintiffs. 73 975 exclusion of, 73, 275 ' ' " balance adjudged to defendant on, 73, 275 COUNTS, meaning and use of, 50, 63 no longer used, 04 INDEX. S41 COUNTY COUETS, remitting actions to, 96, 97 actions of contract, 97 actions of contract after issue joined, 97, 93 actions of tort, 97 equity actions, 97 certificate of costs under acts relating to, 142 COURT OF APPEAL, permanent Division of Supreme Court, 13 Judges of, 14 COVENANT, action of, 29 CURIA REGIS, otherwise Aula Regis, 2 CUSTODY OF PROPERTY, order for, 113, 319 DAMAGE, action in rem, of, 33 forms of pleading in action of, 234 DAMAGES, ^\Tit of enquiry to ascertain, 144, 159, 257 othermodes of ascertaining may be ordered, 159, 257 DEATH OF PARTY, order to substitute on, 114, 31 fi DEBT, action of, 29 indorsements in action of, 49, 50, 242 DEBTORS' ACT, 1869, holding to bail, under, 102 DECLARATION, under old pleading, 62 DEFAULT, judgment by, 158, 255, 281 DELIVERY, writ of, 175, 31G DEMURRER, originally, oral, 50 under present system, 75, 279 setting down and hearing, 75, 76, 280 costs of, 76, 280 form of, 229 DETINUE, action of, 28 oi2 INDEX. DISCHAEGIXG JURY, at the trial, 137, 139 DI3C0XTIXUANCE, by consent, 77, 276 by leave, 78, 276 DISCOVERY, of facts, 92, 2S5 of documents, 93, 286 DISSOLUTEOX OF PARTNERSHIP, action for, 32 assigned to Chancery Division, 47 DISTRICT REGISTRIES, institution of, 17 writs issued from, 56. 244 ajjpearance in, 56, 252 proceeding in, 56, 252 removing actions from, 111, 292, 293 DISTRINGAS Nt'PER YICECOMITEM, writ of, 173, 197 DIVISIONS, of Supreme Court, 13 of Higli Court, 15 DIVISIONAL COURTS, of High Court, 16 DIVORCE ACT, position of divorced wife under, 38 DIVORCE COURT, consolidated in Supreme Coiu-t, 2 creation of, 11 business of, not by action 1 1 DOCUMENTS, discovery of, 93, 286 affidavit of, 93, 286 inspection of, 93, 94, 287 stamping at trial, 133 DOV^EE, writ of riu'ht of, 25 unde nihil habet, 26 EJECTMENT, origin of, 26 now ordinary action, 26 See Recovery of Land. INDEX. S43 ELEGIT, form of writ, 17^, 312 mode of executing, 199, 312 ENTRY OF JUDGMENT, how effected, 157, 306 EQUITY, origin of, S ndministered in Supreme Court, 12 actions derived from, 31 ERROR, in what cases, 212 < how brought, 213 to what Court, 213 abolished, and appeal substituted, 211, 325 ESCAPE, action against Sheriff for, 174 EVIDENCE, in general oral, 81, 300 by affida\'it, 81, 301 on interlocutory matters, 85, 3C1 on commission, 95 on appeal, 215, 325 must not be pleaded, 80, 267 EXCESSIVE DAMAGES, new trial on the gi'ound of, 153 EXCHEQUER, COURT OF, consolidated in Supreme Court, 2 branch of Aula Regis, 2 original jurisdiction of, 5 fictitious jurisdiction of, 7 EXCHEQUER DIVISION, section of Supreme Court, 15 interlocutory orders in, 89, 90, 322 EXECUTION, defined, 172 writs of, described, 172-177 writ of fi. fa., 172, 310 venditioni exponas, 172, 197 distringas nuper vicecomitem, 173, 197 fi. fa. de bonis ecclesiastici.'i, 173 writ of ca. sa., 173 writ of elegit, 174, 312 writ of possession, 175, 315 writ of delivery, 175, 316 writ of attachment, 176, 312 34-i INDEX. BXECJITlO^s— continued. order for committal, 176, ?>07 writ of ser^uestration, 176, 315 preliminaries to, 177 flir«i:tion of writ, 1 78 wril; must follow judgment, 179 vrrits in force for a year, 180, 310 concurrent writs, 181 executing writs generally, 183 entering house, 184, 185 producing warrant, 185 executing fi. fa., 186 what goods may be seized, 187 seizing choses in action, 188 goods assigned by debtor, 1 89 fraudulent assignment, 190 BiUs of Sale Act, 191 paying arrears of rent, 192 sale of goods under, 193 goods of bankrupt, 194 act of bankruptcj', 195 several ^vl•its against one person, 196 executing elegit, 199 what lands taken, 199, 200 land assigned by debtor, 201 creditor tenant by elegit, 202 satisfying judgment out of land, 203 return of writ, 204 attachment of debts, 207, 312 what debts may be attached, 203 order for attachment, 208 charging order, 211, 314 EXECUTION OF TRUSTS, action for, 32 EXECUTORS, carrying on action, 115 judgment quando, &c., against, 177 FIERI FACIAS, form of writ of, 172, 224, 312 executing ^^Tit of, 186, 312 sale of goods under, 193 act of bankruptcy, 195 de bonis ecclesiasticis, 173 FORECLOSURE ACTIOX, nature of, 32 FOREIGN ATTACHMENT, origin of attachment of debts, 207 INDEX. 845 rORMA PAUPERIS, suing in, 9(5 iDoth plaintiff and defendant may sue in, 9G effect of, 96 FORMS OF ACTION, origin of, 23 division of, at law, 25 FRAUD, how alleged, SO, 270 forms of writ in action of, 217 forms of pleading, &c., in action of, 218 forms of judgment and fi. fa. in action of, 223 GARNISHEE, attachment of debts of, 20S, 313, 314 GENERAL ISSUE, vmder former pleading system, 67 under present practice, 68 not guilty by statute, 68, 69, 269 GROWING CROPS, seizure of, under fi. fa., 188 GUARDIAN AD LITEM, infants defend by, 37, 261 HABEAS CORPUS, ad testificandum, 127 HIGH COURT, permanent division of Supreme Court, 13 judges of, 13 divisions of, 15 HOLDING DEFENDANT TO BAIL, history of law as to, 102 the Debtors' Act, 1869, 102, 103 when arrest now allowed, 1 U3 in what actions, 103, 104, 107 privilege from arrest, 105 temporary privilege from arrest, 106 application and order for arrest, 108 HOUSE OF LORDS, appeal to from Supreme Court, 216 HUNDRED, how sued, 37 HUSBAND AND WIFE, joinder of claims by and against, 40, 2G5 service on husband, for wife, 53, 249 Q 3 o4b INDEX. IMPEISOi>rMEXT, of absconding defendant, before judgment, 103 abolished generally in civil actions, 1 73 on proof of defendant's means, 173, 174 IXDIA, witnesses in, 95 IXDOESEMENTS, of claim, 45, 241 of addi-ess, 45, 243 general, 48, 241 special, 49, 242 of debt and costs, 50, 242 of claim for account, 50, 242 of service, 40, 250 of representative capacity, 43, 242 IXFANTS, how made parties, 37, 2C1 how served, 53, 249 INJUNCTION, may be claimed in action, 31 mandatory, 31, 319 interlocutory, 113,319 INQUIRY, writ of, 144 INSPECTION, of documents, 93, 94, 2S7 of property, 113, 319 INSURING, ejectment for not, 169 INTEREST ACTION, nature of, 32 notice to cross-examine only in, 74, 276 INTERLOCUTORY APPLICATIONS, what are, 88 mode of making, 88, 89, 322 in Q. B., C. P., and Ex. Divisions, 89, 90, 322 in Probate, &c., Division, 89, 90 in Chancery Division, 8V, 90 for time, 90 for particulars, 91 setting aside for irregularity, 91 discovery and inspection, 91, 92, 93, 285 evideEce on commission, 95 INDEX. 34"; INTERLOCUTORY XPT'LlGATlONii— continued. suing in forma pauperis, 96 remitting to a County Court, 07 remitting to arbitration, 98, 99 security for costs, 99 holding to bail, 102 ne exeat regno, lOS consolidation order, 108, 31 S changing venue, 109 removing from District Registry, 111, 291, 293 introducing third parties. 111, 263 preserving property, &c., 113, 319 adding parties on death, &c., 115, 31G IXTERLOCFTORY JUDGMENT, when entered, 159, 257, 2S2 INTERPLEADER, by defendant in action, 167 by sheriff, 163 Interpleader Acts applied to High Coiu't, 1G7, 239 matter summarily decided in, 169 INTERVENTIONS, in Probate actions, 57, 254 in Admiralty actions in rem, 57, 254 INTERROGATORIES, when delivered, 92, 285 on what grounds disallowed, 92, 285 penalty for not answering, 94, 288 IRREGULARITY, setting aside proceedings for, 91 ISSLTES, of law or fact under former pleading, 59 settling, by order, 74, 277 JOINDER, of causes of action, 40, 265 of parties, 36, 260 of issue, 74, 270 JUDGES, of High Court, 13 of Court of Appeal, 14 tenure of office, and qualifications of, 15 distributed among Divisions, 16 trial by, 143 JUDGE'S ORDER, mode of obtaining, 88, 322 master's, chief clerk's, &c., equivalent to, 89 848 IKDEX. JUDGMENT, entry of, at trial, 140, 297 judge may decline to enter, 140, 297 motion for after trial, 147, 304 non obstante veredicto, 147 motion in arrest of, 147 entry of, 157, 306 liy default of appearance or pleading, 158, 160,250,281 final, 159 interlocutory, 159 under warrant of attorney or cognovit, 161 setting aside siimmary, 163 under Bills of Exchange Act, 164, 241 speedy judgment on specially indorsed writ, 166, 25S JUDICATURE ACTS, meaning of " action" in, 1 creation of Supreme Court by, 12 code of procedure of, 12, 239 prevalence of equity under, 12 abolition of Terms by, 21 indorsement of claim requii-ed by, 25, 240 ejectment under, 26 parties under, 36, 259 jileading vmder, 64, 266 third parties under, 111, 263 reviving action under, 115, 316 bills of exceptions abolished by, 137, 325 costs under, 143, 323 ajipeal under, 212, 325 JUEAT, of affidavits, 83 JUEATA, in former ni.-i prius record, 125 JUEOKS, common and special, 119 qualifications of, 119 qualifications of special, 120 lists of, 120 jurors' book, 121 challenging, 131 praying tales, 132 fining, 132 withdrawing a juror, 137, 139 JURY, origin of trial by, 117 panel, 121 summoning, 121 special when nnd how obtained, 121, 122 INDEX. 34D JURY — continued. costs of special, 122 notice of trial by, 123, 295 power to direct trial without, 123, 293 power to direct trial with, 124, 29S view by, 12o drawing, 130 challenging, 131 discharging, 137 JUSTICE OF PEACE, notice of action to, 40 LAXD, seizure of, in execution. If 9 action for recovery of, 2<3 See Recovery of Land LAW AND EQUITY, administered together in Siipreme Coiirt, 12 LEVARI FACIAS, writ of, 174 LIMITATION, statutes of, 33 effect of statutes, 35 LIQUIDATED DEMANDS, what are, 49 indorsements in case of, 49, 242 LORDS, HOUSE OF, appeal to, from Supreme Court, 216 LUNATICS, how made parties, 39, 266 how served, 53, 249 MANDAMUS claim for, 31 action of, 30 for examination of witnesses, 95 MARRIED WOMEN, how made parties, 37 Property Act, 1870, 38 MARRIAGE, husband made party on, 115, 316 MASTERS, duties of. 17 350 INDEX. MATTER, distinguished from action, 1 MISDIRECTIOX, new trial in case of, 152 MIXED ACTIOXS, nature of, 25 ejectment, 26 MONEY, seizure cf, in execution, 1S8 MORTGAGOR, summary remedy of, by statute, 16D MOTIONS AFTER TRIAL, for judgment, 146, 148, 304 where no judgment entered at trial, 146, 304 where leave reserved, 146, 304 non obstante veredicto, 147 arrest of judgment, 147, 148 for new trial, 149, 303 grounds for new trial, 151 misdirection, 152 irregular trial, 153 excessive damages, 153 verdict against weight of evidence, 154 trial de novo, 156 to set aside judgment entered at trial, 156, 3C4: NECESSARIES, action in rem f»r, 33 NEW ASSIGNMENT, now abolished, 69, 269 NEW TRIAL, motion for, 149, 303 grounds of, 150, 151 NISI PRIUS, trial at, meaning of, 124, 126 record, 124 NON OBSTANTE VEREDICTO, judgment, 147 NONSUIT, practice as to, 137 former effect of, 138 present effect of, 138, 307 '^ NOT GUILTY, BY STATUTE," plea of, retained, 68, 69, 209 IXDEX. 351 NOTICE, of action, 41 in lifiu of service, 57, 24S in lieu of ^^Tit, 52, 251 of appeal, 214, 325 of trial, 124,295 to produce documents, 123 to admit documents, 123, 239 XUXC PEO TUXC, JUDGMENT, entry of, 115 OFFICERS OF SUPREME COUET, transferred from former Courts, 17 ORAL EVIDENCE, general rule in High Court, SI, 000 OUTLAWRY, practice substituted for, 51 PARLIAMENT, privilege of, 105, lOG PARTICULARS, applications for, 91 PARTIES, new law as to, 3 5, 259 added on death, &c., 115,310 PARTITION, action for, 32 PARTNERS, how made parties, 33, 2G1 PAUPER, action by, 96 PAYMENT OF MONEY INTO COl'RT, la satisfaction, 72, 233 PEERS, cannot be arrested, 105 PERSONAL ACTIONS, nature of, 25 divisions of, 20 PILOTAGE, action in rem for, 33 352 INDEX. PLEA, in abatement, Go, 269 in bar, 65, 6'i in confession and avoidance, 66 several, 67 jniis darrein continuance, 78 roU, 59 PLEADINGS, oral, in early times, 58, 59 later, at Common Law, 60, 61 in Chancery, 61 declaration, 62 counts, 59, 63 variances, 63, 68 plea, 65 new assignment, 69, 269 replication, rejoinder, &c., 69 statement of claim, 70, 273 time for delivery of claim, 71, 273 forms of claim, 218, 228, 231, 231 statement of defence, 70, 71, 274 time for delivering defence, 73, 274 forms of defence, 219, 229, 232, 2-6 set off and counter-claim, 72, 73, 275 reply, 74, 277 delivering reply, 74, 277 form of reply, 220, 233 matters arising during action, 78, 272 demurrer, 75, 278 form of demurrer, 229 amendment of, 76, 278 preliminary act, 78, 271 general rules of, 79, 266 POINT RESERVED at the trial, 140, 297 POLLS, challenging, 131 PORTIONS, action for, 32 POSSESSIOX OF SHIP, action for, 33 PRECIPE, of fi. fa., 224 PRELIMINARY ACT, in action of damage, 78, 271 INDEX. 353 PRESEEVATIOX OF PROPERTY, order for, 113, 319 PROPOimDING A WILL, action for, 32 PROBATE ACTIONS, affidavit befoj-e writ in, 50, 215 interventions in, 57, 254 to be assigned to Probate, &c. Divi-^ion, 43 PROBATE, COURT OF, consolidated in Supreme Court, 2 creation of, 11 actions derived from, 32 PROBATE, DIA^ORCE, & ADMIRALTY DIYISIOX, section of High Court, 15 interlocutory orders in, 89, 90 PUBLIC OFFICER, representing a company, 36 PUIS DARREIX CONTINUANCE, pleading substituted for, 78, 272 QUARE lilPEDIT, action of, 26 QUEEN'S BENCH, COURT OF, consolidated in Supreme Court, 2 remnant of Aula Regis, 5 fictitious jurisdiction of, 7 QUEEN'S BENCH DIVISION, section of High Court, 15 interlocutory orders in, S9, 90 REAL ACTIONS, three remaining, 25 REBUTTER, under former system of pleading', 69 RECOVERY OF LAND, ACTION FOR, service of writ where vacant possession, 53, 250 appearance by landlord in, 55, 254 appearance by person not defendant in, 57, 254 execution in, 175, 305 RECTIFICATION OF DOCUMENTS, action for, 32 REDEMPTION ACTION, nature of, 32 354 iXDEx. EEFEREE, trial by, 119, 14i,299 must sit de die in diem, 144, 299 special, 119 official, 13, 298 EEGISTRAES, duties of, 18 EEJOINUER, under former sjstem of pleading, 69 RENEWAL, of writs, 35, 247 REPLEVIN, action of, 28 REPLICATION, under former system of jileading, 69 REPLY, answer to defence, 74 -time of delivering, 74, 277 to counter-claim by third party, 74, 275 joinder of issue, 74, 270 general form of, 220 form, of, in Probate action, 233 affidavits in, 84, 86, 302 RESPONDENTIA ACTION, nature of, 33 RETURN OF WRITS, of execution, 204 REVIVAL OF JUDGMENTS, when necessary, 177, 310 REVOCATION ACTION nature of, 32 RIGHT TO BEGIN, ai; trial, 133 SALE OF PROPERTY, in litigation, when perishable, 113, 31 D SALVAGE, action in i-em for, 33 SCIRE FACIAS, action of, 30 on judgment against corporation, 177, 173 INDEX. SECURITY FOR COSTS, application against defendant for, 99 when order made for, 99, 100 in replevin, 102 SEQUESTRATIOX, M-rit of, 176, 315 SERJEANTS-AT-LAW, officers of Supreme Coiul, IS judges need not be, 15 SERVICE, of wi-it of summons, 51, 243 substituted, 51, 218, 251 out of jurisdiction, 52, 251 on infants, married women and lunatics, 53, 249 in Admiralty actions in rem, 53, 250 in actions for recovery of land, 53, 250 indorsement on writ of, 53, 250 of warrant of arrest, 54, 250 SET-OEF, limited area of, 72 See Counter-Claim SHAREHOLDERS IX COMPANY, execution against, 177, 17S SHERIFF, officer of the Supreme Court, 20 fees of, 20, 170 inter{ileader by, G7, 103 ^\Tits of execution, directed to, 173 fi. fa., executed bj', 1S3 elegit executed by, 190 inquii-y before, 141 SITTINGS OF SUPREME COURT, year rlivided into, 21, 330 vacations, 22, 331 SOLICITORS, officers of Supreme Court, 19 signed bill of, before actiou , 40 address of, indorsed on writ, 4.'>, 243 undertaking to accept service, 51, 213 SPECIAL CASE, verdict subject to, 1 40 Bt:ited without pleadings, 170, 290 bob INDEX. SPECIAL ENDORSEMENT, on writ, of liquidated demand, 49, 242 in lieu of statement of claim, 49, 274 speedy judgment on writ with, 166, 258 SPECIAL JUEY, qualifications of, 120 when may be had, 121 striking, 130 expenses of, 122 SPECIAL VERDICT, at the trial, 140 SPECIFIC ACT, execution to enforce, 175 SPECIFIC DELIVERY, of chattels, 175, 307, 316 of land, 175, 307, 315 SPECIFIC PERFORMANCE, action for, 32 STAMPING DOCUMENTS, at the trial, 136 state:ment of claim, first step in pleading, 70, 273 time of delivering, 71, 273 notice referring to ■writ in lieu of, 71, 274 dispensing with, 71 form of, in action of fraud, 217 form of, in administration action, 223 form of, iu probate action, 231 form of, in admiralty action in rem, 234 statement of defence, second step in pleading, 71, 274 time of delivei-ing, 73, 274 payment into Court, 72, 284 set off and counter-claim, 72, 267 form of, in action of fraud, 219 form of, in administration action, 229 form of, in probate action, 232 form of, ia a.lmiralty action in rem, 236 STATUTES OF LIMITATIONS, times limited by, 33 STAYING PROCEEDINGS, where agreement to refer, 93 INDEX. STET PROCESSUS, entering, 171 STOCK, charging-, 211, 314 SUBPCEXA, ad testificandum, 127 duces tecum, 128 SUBSTITUTED SERVICE, of writ, 51, 248, 251 SUMMAEY PROCEEDINGS, defined, 158 judgment by default, 159, 256, 281 under Bills of Exchange Act, 1G5 speedy judgment, 166, 258 interpleader, 1G7 under particular statutes, 169 liy sjaecial case, 170 by stet processus, 171 SUMMING UP, of judge at trial, 140 SUMMONS, WRIT OF defined, 44, 239 foi-ms of, 217, 226 body of, 44 memoranda on, 45 indorsements on, 45, 4S name of Division on, 47 issue of, 50, 244 service of, 51, 248 service out of jurisdiction, 52, 251 service on particular defendants, 53, 249 ser^-ice in particular actions, 53, 250 concurrent, 52, 246 out of district registry, 46, 244 on bills of exchange, 164 SUPREME COURT, how formed, 2 jurisdiction of, 11 permanent Divisions of, 13 officers of, 1 7 sittings of, 21 vacations of, 22 SURREBUTTER, under former system of pleading, 03 358 INDEX. TAXATIOX, cf costs, 1 43 TAXING MASTERS, duties of, 18 TESTE OF WRITS, in name of Lord Chancellor or Chief Justice, 45, 241 THIRD PARTIES, introducing into action. 111, 263 who are. 111, 112, 263 notice to, 112, 263 Rules less extensive than Jud. Acts, as to, 112, 113 TIME, ai^plications for, 90 TITLE, of action, 44 fresh title on counterclaim, 73, 275 TORT, actions of, 27 TRANSFER, of actions from one Division to another, 109 TRAVERSE, meaning of, 70 TRESPASS, action of, 27 on the case, 27 TRIAL, modes of, in former Courts, 118, 119 the five modes of, in Supreme Court, 118, 294 by jury, 118 by judge, 118, 143, 144 by judge and assessors, 119, 298 by referee, 119, 298, 299 by referee v/ith assessors, 119 at bar, 118, 119_, 296 mode of determining form of, 123, 295 notice of, 123, 295 entering action for, 123, 296 preparing brief, &c., for, 127 course of the, 129, 133 non-appearance at, 129, 297 amending pleadings at, 135 nonsuit at, 137, 3U7 under ■\vi-it of enriuiry, 144 INDEX. TEIAL DE XOYO, motion for, 155 grounds of, 156 TEIEHS, in case of challenge, 132 TEOVEE, action of, 23 TOWAGE, action in rem for, 33 VACATIONS, in the Supreme Court, 22, 330 judges during, 22, 331 VARIANCE, meaning of, 63, 68 amendment of, 64 VENDITIONI EXPONAS, ^vrit of, 172, 197 VENIRE DE NOVO, motion for, 155 AVENUE, under former system, 64 under new rules, 65, 294 changing, 109, 294 VERDICT, delivery of, 140 subject to special case, 140 VIEW, by jiiry, 126 WAGES, action in rem for, 33 WARRANT OF ATTORNEY, judgment under, 161 witnessed by solicitor, 162 filed, 162 WEIGHT OF EVIDENCE, verdicts against, 154 at trial by judge, 150 new trial not granted if claim below £20, 155 WIFE, actions by and against, 37 360 INDEX. AVITHDEAWING JUROE, at the trial, 137, 139 AVITHDEAWING ACTION, at the trial by consent, 128, 276 V/ITNESSES, compelling attendance of, 127 examination of, before trial, 95 WKIT3, definition of, 43 of summons, 44 See Summons, Fi. fa., &g. 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Ids. Smith. — ndc "Mercantile Law." COMMON LAW.— Braithwaite.— FmZc "Oaths." Fisher. — Vide " Digests." Orders and Rules of the High Court of Justice, Coinmon Law Divisions. — Published by Authority, as issued. Smith's Manual of Common Law. — A Manual of Common Law, comprising the fimdamental principles and the points most usually occurring in daily life and practice ; for the Prac- titioner, Student, and General Reader. By JOSIAH W. SMITH, B.C.L., Q.C., Judge of County Com'ts. Seventh Edition, ^\^th Notices of the Judicature Acts. 12mo. 1876. lis, "Admirabiy conceived and executed Eminently lucid and concise . . . . . A pocket-book of pith and essence of common law." — Leguleian. " ilr. Josiali Smith possesses, in an eminent degree, that kind of logical skill which exhibits itself in the simple arrangement, but exhaustive division, of wide and complicated subjects, and is, moreover, gifted wth the rare power of accmate condensation." — Solicitors' JouituU. " To more advanced students, and to the practitioner, whether barrister or attorney, we think the 'Manual of Common Law ' a most useful and convenient companion. . . . . It is compiled with the scrupulous care and the ability which distinguish Mr. Smith's previous works."— /arwi. •' Smith's ' ' anuals of Common Law imd Equity must he resorted to as the open sesames to the learnin, requisite in the Final Examination of the Incorporated Law Socieiy." — From Dr. Kollit's Lee tire, p. '. ;. *,* All standard Lav: Worlcs arclci'' in StocTCfin lav: calf and other hindvngt 119, CHANCERY LANE, LONDON, W.C. COMMONS AND INCLOSURES.— Chambers' Digest of the La-w relating to Commons and Open Spaces. — Including Piiblic Parks and Recreation Grounds ; with Official Documents, Bj-e-Laws, Statutes and Cases. By GEORGE F. CHAMBERS, of the Inner Temple, Esq., Barrister-at-Law. Im- perial 8vo. 1877. 6s. 6d. Cooke on Inelosures.— The Acts for facilitating the In- closure of Commons in England and Wales ; with a Treatise on the Law of Rights of Commons, in reference to these Acts, &c., &c. With Forms as settled by the Inclosure Commissioners. By G. WINGROVE COOKE, Esq., Barrister-at-Law. Fourth Edition. 12mo. 1864. 16«. COMPANY LAYf —Vide "Joint Stocks." COMPANIES, LIABILITIES OF PROMOTERS OF.— Finlason's Report of the Case of T^A^yeross v. Grant, in the Court of Common Pleas and the Com-t of Appeal, ^vith the Judg- ments, as re\T.sed by the Judges, and an Inti-oduction and Notes containing notices of the previous cases on the subject. By W. F. FINLASON, of the JNliddle Temple, Esq., Barrister-at-Law. 8vo. 1877. Net, 2s. 6d. COMPANY PRECEDENTS.— Palmer.— Fide "Conveyancing." CONSTITUTIONAL LAW.-Bowyer's Commentaries on the Constitutional Law of England.— By Sir GEO. BO^VYER, D.C.L. Second Edition. Royal 8vo. 1846 11. 2s. CONTRACTS. — Addison on Contracts. — Being a Treatise on the Law of Contracts. By C. G. ADDISON, Esq., Author of the '■ Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo. 1875. IZ. 18s "At present this is by far the beat book upon the Law of Contract possessed by the Profession, and it is a thoroughly practical book." — Laui Times. Leake on Contracts. — The Elements of the Law of Con- tracts. Second Edition. By STEPHEN MARTIN LEAKE, of the Middle Temple, Barrister-at-Law. {In the press.) Pollock's Principles of Contract at Law and in Equity ; being a Treatise on the General Principles relating to the Validity of Agreements, mth a special \'iew to the comparison of Law and Equity, and with references to the Indian Contract Act, and occasionally to American and Foreign Law. By FREDERICK POLLOCK, of Liucoln'sInn,Esq.,Barrister-at-Law. 8vo. 1876. II. is. The Liord Chief Justice In his judgment in MtfroiioWun liaibca;/ Company v. BriMjden and olliers, said, "The Law is w^ell put by Mr. Frederick Pollock in his very able and learned ■work on Contracts.''_ir/« Times, February 19, 1877. " He has succeeded in writing a book on Contracts which the working lawyer will find as useful for reference as any of its predecessors, and which at the same time will give the siiideut what ho will seek for in vain elsewhere, a complete rationale of the law." — Law Magazine and Review, August, 1870. " Mr. Pollock's work ought, in our opinion, to take a high place among treatises of its class. The ' fusion of law and equity ' so far as that fusion is possible, is in his pages an accomplished fact." — I'aU Hall Gazette. March 3, 1876. " A work which, in our opinion, shows great ability, a discerning intellect, a compre- hensive mind, and painstaking industry. The book ought to be a success. '" — Law Journal, March 18, 1870. "There is no part of the work that does not please bs by the freshness of the style and the ingenuity of the treatment. The author may be congratulated on having achieved a marked success in a field where others before him have written well." — Solicitor's Journal, April 8, 1H7G. Smith's Law of Contracts.— By the late J. W.SMITH, Esq., Author of " Leading Cases," &c. Sixth Edition. 11. VINCENT T. THOMPSON, Esq., Barrister-at-Law. Svo. 1874. 16s * ^* All standard L much useful knowledge as he aufcht otherwise take years ot desultory questioning and observing to acquire." — Solicitors' Journal. "The young solicitor will find this work almost invaluable, while the members of the hif^hei- branch of the profession may refer to it with advantage. We have not met with any book that furnishes so simple a guide to the management of business entrusted to articled clerks."— S/ic^f/rf Post. Martin's Student's Conveyancer. — A Manual on the Principles of Modern Conveyancing, illustrated and enforced by a Collection of Precedents, accompanied by detailed Remarks. Part I. Purchase Deeds. By THOMAS FREDERIC MARTIN, SoHcitor. Demy 8vo. 1877. 5s. 6d. " We have no doubt that the student will find in Mr. Martin's treatise a good guide to the practical part of conveyancing." — Law Times, June 23, 1877. " It should be placed in the hands of every student." Palmer's Company Precedents.— Conveyancing and other Forms and Precedents relating to Companies' incorporated under the Companies' Acts, 1862 and 1867. Arranged as follows : — Agreements, Memoranda of Association, Articles of Association, Resolutions, Notices, Certificates, Provisional Orders of Board of Trade, Debentures, Reconstruction, Amalgamation, Petitions, Orders. With Copious Notes. By FRANCIS BEAUFORT PALMER, of the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1877. 1/. 5s. " To those concerned in getting up companies, the assistance given by Mr. Palmer must be very valuable, because he does uot confine himself to bare precedents, but by intelligent and learned commentary hghts up, as it were, each step that he takes. The volume before us is not, therefore a book of precedents merely, but, in a greater or less de- gree, a treatise on certain portions of the Companies' Acts of 1862 and 1S67. There is an elaborate inde.x, and the work is one which must commend itself to the profession." — Law Times, June 9, 1877. "The precedents are as a rule exceedingly well drafted, and adapted to companies for almost every conceivable object. So especially are the forms of memoranda and articles of association ; and these will be fouud extremely serviceable to the conveyancer. . . . All the notes have been elaborated with a thoroughly scientific knowledge of the principles of company law, as well as with copious references to the cases substantiating the iirinciples. . . We venture to predict that his notes will be fouud of great utility in guiding opinions on many complicated questions of law and practice. "—Z^ic Journal, June 2:3, 1877. Prideaux's Precedents iii Conveyancing. — With Dissertations on its Law and Practice. Eighth Edition. By FREDERICK PRIDEAUX, late Professor of Real and Personal Property to the Inns of Court, and JOHN WHITCOMBE, Esqrs.. Barristers-at-Law. 2 vols. Royal Svo. 1876. 31. 10s, "Prideaui has become an indispensable part of the Conveyancer's library The new edition has been edited with a care and accuracy of which we can hardly speak too highly." — Solicitors' Journal, October 1-1, 1876. " We really c,in hardly imagine a conveyancer being required to prepare any instru- ment which he will uot find sketched out in the work under notice We may also be allowed to add our tribute of praise to these Precedents for their conciseness, perspicuity, precision, and perfection of drafting." — Law Journal. September 23, 1S76. CONVICTIONS.— Paley on Summary Convictions.— Fifth Edition. By H. T. J. MACNAMARA, Esq., Barrister-at- Law. Svo. 1866. II. Is. Stone. — Vide " Petty Sessions." *^* All standard Law Works are kept in Stock, in law calf and otiur bindings. 119, CHANCERY LANE, LONDON, W.C. 9 COPYRIGHT. -Phillips' Law of Copyright.— The Law of Copyright in Works of Literature and Art, and in the Appli- cation of Designs. With the Statutes relating thereto. By CHARLES PALMER PHILLIPS, of Liucohi's Inn, Esq., Barrister-at-Law. 8vo. 1863. 12s. " Mr. Phillips' work is at once an able law-book and a lucid treatise, in a popular forms on the rights of authors and artists." — Jurist. CORONERS.— J ervis on the Office and Duties of Coroners. — With Forms and Precedents. Third Edition. By C. W. LOVESY, Esq., Puisne Judge, British Guiana. 12nio. 1866. 12.'!. COSTS.— Carew^'s Precedents of Bills of Costs, for obtaining Grants of Probate and Letters of Administration in the Principal Registry of the Court of Probate. 1869. 5s. Morgan and Davey's Treatise on Costs in Chancery.- By GEORGE OSBORNE MORGAN, M.P., one of Her Majesty's Counsel, late Stowell Fellow of University CoUege, Oxford, and Eldon Scholar ; and HORACE DAVEY, M.A., one of Her Majesty's Counsel, late Fellow of University College, Oxford, and Eldon Scholar. With an Appendix, containing Forms and Precedents of Bills of Costs. 8vo. 1865. 11. Is. Morris' Solicitors' Fees and Court Fees, under the Judicature Acts.— With Copious Index. By WILLIAM MORRIS, Solicitor. 12mo. 1876. 4s. Scott's Costs in the Superior Courts of Com~ mon Law, and Probate and Divorce, and in Conveyancing ; also in Bankruptcy (Act of 1869). Proceedings in the Crown Office, on Circuit and at Sessions, and in the County Court, &c. With an Appendix, containing Costs vmder Parliamentary Elections Act, 186S. By JOHN SCOTT, of the Inner Temple, Esq., Barrister-at- Law. Third Edition. Royal 12mo. 1868-73. IZ. 4s. " Mr Scott's work is well known to the profession. It is an extensive collection of taxed bills of costs in all branches of practice, supplied to hivsi probably by the taxing masters. Such a work speaks for itself. Its obvious utility is its best recommenda- tion." — Law Times. Scott's Costs under the Judicature Acts, 1873 and 1875; ccmtaining the " Additional Rules " and Scale of Costs ; together -with Precedents of Taxed Bills. By JOHN SCOTT, Esq., Barrister-at-Law. Royal 12mo. 1876. 5s. 6d Summerhays and Toogood's Precedents of Bills of Costs in the Chancery, Queen's Bench, Common Pleas, Exchequer, Probate and Divorce Divisions of the High Court of Justice, in Conveyancing, Bankruptcy, &c., with Scales of Allowances and Court Fees, &c., &c. Second Edition. Royal 8vo. 1877. 15s. "Webster's Parliamentary Costs. — Private Bills, Election Petitions, Appeals, House of Lords. By EDWARD WEBSTER, Esq., of the Taxing OflBce, House of Common.s, and of the Examiners' Office, House of Lords and House of Commons. Third Edition. Post 8vo. 1867. 20s. "The object of this work is to give the scale of costs allowed to Solicitors in relation to private bills before Parliament, the conduct of Election Petitions and Appeal Cau.ses, and the allowance to Witnesses. The connection of the author with the Taxing OtSco of the House of Commons i^ivcs authority to the work." — Solicitor/ Journal. * ,* All standard Law Works are Tcept in Stock, in law calf and other bindinf/n. )u STEVENS AND SONS LA.W PUBLICATIONS. COUNTY COURTS.— The Consolidated County Court Orders and Rules, 1876, with Forms and Scales of Costs and Fees, as issued by the Lord Chancellor and Committee of County Court Judges. Authorized Edition. Super-royal 8vo. 1875. Net, 3s. County Court Rules, 1876. Authorised Edition. Net,6d. Pitt-Lewis' County Court Practice. — A Complete Practice of the County Courts, including Admiralty and Bankraptcy, embodying the Act, Kules, Forms and Costs, with Table of Cases and FuU Index. By G. PITT-LEWIS, of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, sometime Holder of the Studentships of the Four Inns of Court. {I7i preparation.) CRIMIMAL LAW.— Archbold's Pleading and Evidence in Criminal Cases. — With the Statutes, Precedents of Indictments, &c., and the Evidence necessary to support them. By JOHN JERVIS, Esq. (late Lord Chief Justice of Her Majesty's Court of Common Pleas). Eighteenth Edition, including the Practice in Criminal Proceedings by Indictment. By WILLIAM BRUCE, of the Middle Temple, Esq., Barrister-at-Law, and Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 1875. ' 1?. lis. 6d. Cole on Criminal Informations and Quo "War- ranto.— By W. R. COLE, Esq., Barrister-at-Law. 12mo. 1843. 12s. Greaves' Criminal Law Consolidation and Amendment Acts of the 24 & 2S Vict.— With ISTotes, Observations, and Forms for Summary Proceedmgs. By CHARLES SPRENGEL GREAVES, Esq., one of Her Majesty's Covmsel, who prepared the Bills and attended the Select ConmiitteeB of both Houses of Parliament to which the Bills were referred. Second Edition. Post 8vo. 1862. 16s. Roscoe's Digest of the Law of Evidence in Criminal Cases.— Eighth Edition. By HORACE SMITH, Esq. , Barrister-at-Law. Royal 12mo. 1874. IZ. lis. 6d. Russell's Ti^eatise on Crimes and Misdemea- nors.— Fifth EcUtion. By SAMUEL PRENTICE, Esq., one of Her Majesty's Coimsel. 3 vols. Royal 8vo. 1877. 5?. 15s. 6d. "We may safely assert that the fifth edition of ' Kussell on Crimes' hiw, under the ciireiul hand of .Mr. Prentice, fully reached the standard attained to by the preceding editions." — Law Journal, January 27, 1877. "No more trustwojthy authority, or more exhaustive expositor than 'Rnssell' can be joiisulled." — Law Magazine and lievieto. February, 1877. "Alterations have been made in the arrangement of the work which without iuteriering with tlie geueral plan are sufficient to show that great cai-e and thought have been bestowed We are amazed at the patience, industry and skill which are exhibited lu the collection and arrangement of all this mass of learning." — The Times, December 26, 1876. This treatise is so much more copious thau any other upon all the subjects contained in it, that it affords by far the best means of acquiring a knowledge of the Criminal Law in general, or of any offence iu particular ; so that it will be found peculiarly useful as well to those who wish to obtain a complete knowledge of that law, as to those who desire to be informed on any portion of it as occasion may require. This woik also contains a very complste treatise on the i/aw of Evidence in Criminal Cases, and in it the manner of taking the depositions of witnesses, aud the examinations of prisoners before uiai-'istrate.s, is fully exjilaiued. "What better Digest of Criminal L^aw could we possibly hope for thau •Russell ou Crimes?' " — Sir James Fitzjames Slep/ien's Speech on CudiUcalion. *^* All standard Law Works are kept in Stock, in law calf and other bindings- 119, CHANCERY LANE, LONDON, W.C. 11 DECREES Seton.— Vide " Equity." DIARY. — Lawyer's Companion (The), Diary, and Law Directory.— ^Foi- the use of the Legal Profession, Pul>lic Com- panies, Justices, Merchants, Estate Agents, Auctioneers, &c., &c. Published Annually. Thirty-second Issue for 1878. {In the pi-ess.) The Work is 8vo. size, strongli/ bound in cloth, and published at the following Prices : — s. d. 1. Two days on a page, plain 5 2. The above, interleaved for Attendances . . .70 3. Two days on a page, ruled, with or without money columns 5 6 4. The above, interleaved for Attendances . . . .80 5. Whole page for each day, plain . . . . . .76 6. The above, interleaved for Attendances . . .96 7. Whole page for each day, ruled, with or without money colmnns 86 8. The above, interleaved for Attendances . . .10 6 9. Three days on a page, ruled blue lines, without money columns . . 5 The Diary, printed on JOYNSON'S imper of superior quality, contains incnioranda of Legal Business throughout the Year. The La\A^yer's Companion for 1878, wiU be edited by JOHN THOMPSON, of the Inner Temple, Esq., Barrister-at-Law; and contains a Digest of Kecent Cases on Costs ; jNIonthly Diary of County, Local Government, and Parish Business ; Forms of Jurat ; Summary of Legislation of 1877 ; Alphabetical Index to the Practical Statutes; a Copious Table of Stamp Duties; Legal Time, Interest, Discount, Income, Wages and other Tables ; Probate, Legacy and Succession Duties ; a London and Provincial Law Directory, and a variety of matters of practical utility. " A publication wliich has long ago secured to itself the favour of the profession, and which, as heretofore, justifies by its contents the title assumed by it. The new volume presents aU the attractive teatm-es of its predecessors, combined with much matter compiled specially for the coming year." — Luic Jov/nw.l, November 4, 1876. " The present issue contains all the tnfonnation which could be looked for in such a work, and gives it in a most convenient form and very completely. We may unhesitatingly recommend the work to our readers." — HolicUors' Juiiriud, Novem))er 25, 1S76. " The • Lawyer's Companion aiul Diary ' is a book that ought to be in the possession of every lawyer, and of every man of business." " The ' Lawyer's Companion ' is, indeed, what it is called, for it combines everything required for reference in the lawyer's office." — Law Kmes. DICTIONARY — Wharton's Law Lexicon.— A Dictionary of .Jurisprudence, explaining the Technical Words and Phrases employed in the several Departments of English Law ; including the various Legal Terms used in Commercial Transactions. Together with an E.xplanatory as well as Literal Translation of the Latin Maxims contained in the Writings of the Ancient and Modern Commentators. Sixth Edition. ErUarged and revised in accordance with the Judicature Acts, by J. SHIRESS WILL, of the Middle Temple, Esq., Barrister-at-Law. Super royal 8vo. 1876. 2/. 2s. " .^s a work of roferc:nce for the library, the handsome and elaborate edition of ■VVhartou's Law Lexicon ' which Air. Sliiiess Will ba.s produced, must supersede all former asues of that well-kuuwu work.''— /,««> Magazine and Review, August, 1876. " No law library ih complete without a law dictionary or law lexicon. To the practi- tioner It is always useful to have at hand a book where, iu a small compa.ss, lie can find an explanation of terras of inlrequeut occmreuce, or obtain a reference to statiues on most sulijccts, or to books wherein particular subjects are treated of at full length. To the student it is almost indispensable." [Continued. *,* All standard Law Worhs arc kept in Stock, in law calf and othf Mndinys. B 2 12 STEVENS AND SONS' LAW PUBLICATlUNS. DICTIONARY. — Wharton's Law l^ex.ieon.— continued. "We have simply to notice that the same ability and accuracy mark the present filition which were conspicuous in its predecessor. Mr. Will has clone all that was ren- dered necessary by the Judicature Acts, in the shape of incorporation and elimiuation, and has brought the Statute Law down to the date of publication." — Law Times, March i, IbTtJ. " Wharton's perennial Law Lexicon has just been adapted to the new condition of the Law, brought about by the Judicature Act. The task of revision has been ably per fjrmed by Mr. Shiress Will.'' — Saturday Review, April 15, 1876. DIGESTS.— Bedford.— FiVie " Examination Guides." Chamber's — Vide " Public Health." Chitty's Equity Index. — Chitty's Index to all the Keported Cases, and Statutes, in or relating to the Principles, Pleading, and Practice of Equity and Bankruptcy, in the several Courts of Equity in England and Ireland, the Privy C'ouncU, and the House of Lords, from the earliest period. Third Edition. By J. MACAULAY, Esq., Barrister-at-Law. 4 vols. Royal 8vo. 1853. 71. 7s. Fisher's Digest of the Reported Cases deter- mined in the House of Lords and Privy Council, and in the Courts of Common Law, Divorce, Probate, Admiralty and Bank- ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ; with References to the Statutes and Rules of Court. Foimded on the Analytical Digest by Han-ison, and adapted to the present practice of the Law. By R. A. FISHER, Esq., Judge of the County Coiu-ts of Bristol and of Wells. Five large volumes, royal 8vo. 1870. 121. 12s {Continued Annually.) " Mr. Fisher's Digest is a wonderful work. It is a miracle of human industry." — Mr. Justice Willes. " The lact is, that we have already the best of all possible digests. I do not refer merely to the Works which pass under that title — though, I confess, I think it wonld be very .lifficult to improve upon ilr. Fisher's 'Common Law Digest' — I refer to the innumerable text books of every branch of the law. What better digest of criminal law could we possibly hope for than 'Kussellou CrLmes,' and the current lloscoe and Archbold, to say nothing of the title, ' Criminal Law,' in 'Fisher's Digeat.''" — Sir -J umcs Fitzja/nes Stephen, Q.C.,mli is Address to the Law Amendment Society onCodification in India and England, Session 1872-3. Leake. — Vide "Real Property." Notanda Digest in Law, Equity, Bankruptcy, Adniiralty, Divorce, and Probate Cases.— By H. TUDOR BODDAM, of the Inner Temple, and HARRY GREENWOOD, of Lincoln's Inn, Esqrs., Barri.sters-at-Law. The NoTjViJDA Digest, from the commencement, December, 1862, to October, 1876. In 1 volume, half -bound. I^et, 31. 3s. Ditto, in 2 volumes, half-bound. Net, 31. 10s. Ditto, Third Series, 1873 to 1876 inclusive, half-bound. JVet, 11. lis. 6d. Ditto, for 1876, with Indexes, sewed. Net, 12s. 6d. Ditto, Fourth Series, Plain Copy and Two Indexes, or Adhesive Copy for insertion in Text-Books. Annual Subscription, payable in advance. Net, 21s. *^* The Cases imder the Judicature Acts and Rules of Coiu-t commence in No. 4 of 1876. The numbei"s are now issued regularly every alternate month. Each number will contain a concise analysis of every case reported in the Law Reports, Law Journal, Weekly Reporter, Lav: Times, and the L'ish Law Reports, up to and including the cases contained in the parts for the current mouth, with references to Text-books, Statutes, and the Law Reports Consolidated Digest. *,„* All stanelard Law Works are kept in Stuck, in law calf anel other bindings. 119, CHANCEKY L^VNE, LONDON, W.C. 13 DiQESTS.— Continued. An ALPHABETICAL INDEX of the subjects contained in each ndmber will form a new feature in this series. Pollock. — Fide "Partnership." Roscoe'S. — Vide " Criminal Law " and "Nisi Prius." DISCOVERY. — Seton.— FzV?e "Equity." DIVORCE. — Browne's Treatise on the Principles and Practice of the Court for Divorce and Matrimonial Causes: — With the Statutes, Rules. Peejs. and Forms relating thereto. Third Edition. By GEORGE BROWNE, Esq., B.A., of the Inner Temple, Barrister-at-Law, Recorder of Ludlow. 8vo. 1876. 11. is. " We thinl: this Edition of Mr. Browne's Treatise has been edited with commendable care. The book, as it now stands, is a clear, practical, and, so far as we have been able to test it, accurate exposition of divorce law and procedure." — Solicitors" Journal, April 22, 1876 Macqueenon Divorce and Matrimonial Causes. — Including Scotch Marriages and Scotch Law of Divorce, &c. With numerous Precedents. Second Edition, greatly enlarged. By JOHN ERASER MACQUEEN, Esq., one of Her Majesty's Comisel. 8vo. 1860. 18s. OOMICIL.— Phillimore's (Sir R.) La^A^ of Domicil.— 8vo. 1847. 9s DUTCH LAW,— Vanderlinden's Institutes of the Laws of Holland.— 8vo. 1828. 1?. 18s. EASEMENTS.— Goddard's Treatise on the La^w of Easements. -By JOHN LEYBOURN GODDARD, of the Middle Temple, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1877. 16s. "The book is invaluable: where the cases are silent the author has taken pains to ascertain what the law would be if brought into question."— Zaw Journal. "Nowhere has the subject been treated so exhaustively, and, we may add, so scientifl- cally, as by Mr. Goddard. We recommend it to the most careful study of the law student as Weil as to the library of tiie practitioner."— iaw Timf.i Woo I rye h. — Vide "Lights." ECCLESIASTICAL. — Finlason's Folkestone Ritual Case. — The .Tudgment of the Judicial Committee in the Folkestone Ritual Case, with an Historical Introdviction and brief Notes. By W. F. FINLASON, of the Middle Temple, Esq., Barrister-at-Law. 8vo. 1877. Net, 2s. 6d. Phillimore's (Sir R.) Ecclesiasrieal La\A^. — The Ecclesiastical Law of the Church of England. With Supplement, containing the Statutes and Decisions to end of 1875. By SiR ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches Court of Canterbury ; Member of Her Majesty's Most Honourable Privy Council. 2 vols. 8vo. 1873-76. 3?-. 7s. 6d. *,* The Supplement may be had separately, price 4s. 6d., sewed, Stephens. — Viile "Church and Clergy." ELECTIONS.— FitzGerald.— FzVZe " Ballot." Rogers on Elections, Registration, and Election Agency. — With an Appendix of Statutes and Forms. Twelfth Edition. By F. S. P. WOLFERSTAN, of the Inner Temple, Esq., Barrister-at-Law. V2mo. 1876. 11. 10s. "The book maintains its reputation as a well ananged magazine of all tlie authorities on the subject.' — Law Journal, August 19, 1876. "Mr. Wolferstan ha.'* added a new chapter on election agency, which contains a care- ful and valuable digest of the decisions and dicta on this thorny anhjed."— Solicitors' /oi'.r/ire(, October 28, 1S76. *,* All standard Law Works are kept in Stock, in law calf and other hindin/jn. 11 STEVENS AND SONS' LAW PUBLICATIONS. ENGLAND, LAWS OF.— Bowyer.— Fide "Constitutional Law." Broom and Hadley. — Ficie " Commentaries." Syms' Code of English Law (Principles and Practice) for handy reference in a Solicitor's office. By F. R. SYMS, Solicitor. 12mo. 1870. 16«. EQ[i\TY, and Fidd CHANCERY. Seton's Forms of Decrees, Judgments, and Orders in the High Court of Justice andCourts of Appeal, having especial reference to the Chancery Division, with Practical Notes. Fourth Edition. By R. H. LEACH, Esq., Senior Registrar of the Court of Chancery ; F. G. A. WILLIAMS, of the Inner Temple, Esq. ; and H. W, MAY, of Lincoln's Inn, Esq., Barristers-at-Law. In 2 vols. Vol.1. Royal 8vo. 1877. U. 10s. "This Volume contains Judgment by Default and at Trial; Motion for Judgment; Transfer and Payment of Funds into and out of Court ; Proceedings in Chambers; Dis. covery and Production; Injunctions; Stop Orders and Charging Orders; ye Exeat Attachment of Debts ; Transfer and Consolidation of Actions ; Prohibition Patents ; Interpleader ; Issues ; Ilefereea and Arbitration Receivers ; Trustees (including Trustees Act) ; Charities ; Orders affecting Solicitors; and Taxation of Bills of Costs, &c.. &c. " Cannot fail to commend itself to practitioners. Nothing need be said as to the value of the work, which is one of settled authority, and we have only to congratulate the profession upon the fact that this edition comes out under circumstances peculiarly calculated to enhance its value." — Law Times, February 24, 1877. " The imprctsion derived from our perusal of the book is that it represents the result of conscienti^ us and intelligent labour on the part of the editors, and we think it deserves, and will obtain, the confidence of the profession." — Solicitors' Journal April 7, 1877. (Vol. II. in the press.) Smith's Manual of Equity Jurisprudence. — A INIanual of Equity Jurisprudence founded on the Works of Story, Spence, and other writers, and on the subsequent cases, comprising the Fundamental Principles and the points of Equity usually occur- ring in General Practice. By JOSIAH W. SMITH, B.C.L., Q.C., Judge of County Courts. Eleventh Edition. 12mo. 1873. 12s. 6 d. "To sum up all in a word, for the student and the jurisconsult, the Manual is the nearest approach to .an equity code that the present literature of the law is able to furnish "- Law Times. "It win be found as useful to the practitioner as to the student." — Solicitors' Journal. " Mr. Smith's Manual has fairly won for itself the position of a standard •work.''— Jurist. " It retains and that deservedly, the reverence of both examiners and students." — From a Lecture on a Course of Reading by A. K. Rollit, LL.D., Gold Medallist of the University of London, and Prizeman of the Incorporated Law Society. "There is no disguisiug the truth ; the proper mode to use this book is to learn its pagee by heart." — Laic Magazine and Review. Smith's (Sidney) Principles of Equity.— 8vo. 1856. 11. 5s. EVIDENCE.— Archbold.— P^ide " Criminal." Roscoe. — Vide "Criminal.' Roscoe. — Vide " Nisi Prius." EXAMINATION GUIDES— Bedford's Guide to the Preli- minary Examination for Solicitors. — Fourth Edition. 12mo. 1874. A'^et, 3s. Bedford's Digest of the Preliminary Examina- tion Questions on English and Latin, Grammar, Geography, History, French Granamar, and Arithmetic, with the Answers. 8vo. 1875. 18«. Bedford's Preliminary Guide to Latin Gram- mar.— 12mo. 1872. Act, 3s. Bedford's Intermediate Examination Guide to Bookkeeping. — Second Edition. 12mo. 1875. Nct,2s.6d. Bedford's Final Examination Guide to Bank- ruptcy. — Second Edition. 12mo. 1873. 4s. '*^* All standard Law Works are kept in Stock, in law coif and other bindings. 119, CHANCERY LANE, LONDON, W.C. 15 EXAMINATION G[}\DES. -Continued. The following are published the day after each Examination : — Bedford's Preliminarv. — Containing the Questions of the Preliminary Examinations. Edited by E. H. BEDFOED, Soli- citor. Sewed. Net, Is. Bedford's Intermediate. — Containing the Questions and Answers at the Intermediate Examinations. Edited by E. H. BEDFORD, Solicitor. Trmity Term. 1877. No. 35. Sewed." Net, Is. *,* Nos. 1 to 34. 6d. each. Bedford's Pinal. —Containing the Questions and Answers at the Final Examinations. Edited by E. H. BEDFORD, Solicitor. Trinity Term. 1877. No. 34. Sewed. Net, Is. *^* Nos. 1 to 33. 6cZ. each. ButUn.— Vide "Articled Clerks." Mead..— Vide "Statutes." Lynch and Smith. — Vide "Judicature Acts." Rubinstein and W a r d . — Vide " Articled Clerks." EXECUTORS.— Williams' La-w of Executors and Ad- ministrators. — A Treatise on the Law of Executors and Ad- ministrators. Seventh Edition. By the Rt. Hon. Sir EDWARD VAUGHAN WILLIAMS, late one of the Judges of Her Majesty's Court of Common Pleas, and WALTER VAUGHAN WILLIAMS, Esq. , Barrister-at-Law. 2 vols. Royal Svo. 1873. 3?. 16s. FACTORY ACTS. — Notcutt's Factory and Workshop Acts. — Comprising all the Laws now in force (including the Act of 1874) for the regulation of Labour in Factories and Workshops, with Introduction, Explanatory Notes, and Notes of decided cases, by GEORGE JARVIS NOTCUTT, of the Middle Temple, Esq., Barrister-at-Law. 12mo. 1874. 9«, FARM, LAW OF. — Addison ; Cooke.— F/cZe "Agricultural Law." Dixon's La^w of the Farm — A Treatise on the Law of the Farm. Fourth Edition. By HENRY PERKINS, of the Inner Temple, Esq., Barrister-at-Law. (In the Press.) FIXTURES. -Amos and Ferard on Fixtures. — Second Edition. Royal Svo. 1847. I6s. Woodfall.— -See "Landlord and Tenant." FORMS — Chitty's Forms. Eleventh Edition. By THOMAS CHITTY, Esq. {In preparation.) Corner's Forms of Writs and other Pro- ceedings on the Crown side of the Court of Queen's Bench.— 8vo. 1844. 7s. 6d. 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Shelford's Law of Highways. — The Law of Highways ; including the General Highway Acts for England and Wales, and other Statutes, with copious Notes of the Decisions thereon ; with Forms. The Third Edition. With Supplement by C. MANLEY SMITH, Esq., one of the Masters of the Queen's Bench. 12mo. 1865. 15s. *^* The Supplement may be had separately, price 3s. sewed. INCLOSURES.— FwZe "Commons." INDIAN LAW — Montriou; the Hindu ^A^ill of Bengal. With an Introductory Essay, &c. Eoyal 8vo. 1870. Net, 11. 10s. Norton's Leading Cases on the Hindu Law of Inheritance.— 2 vols. Royal 8vo. 1870-71. ]Vet,2l.l0s. INFANTS.— Ebsworth's Law of Infants.— A Handy Book of the Law of Infants. By JOHN EBS WORTH, Esq., SoUcitor. r2mo. 1861. 3«. Forsyth's Law relating to the Custody of Infants in Cases of difference between Parents or Guardians. — 8vo. 1850. Ss. INJUNCTIONS.— Seton.— Fzd€" Equity." INSURANCE. — Arnould on the Law of Marine Insu- rance.— Fifth Edition. By DAVID MACLACHLAN, Esq., Barrister-at-Law. 2 vols. Royal 8vo. 1377. (Just ready.) 3?. Hopkins' Manual of Marine Insurance. — 8vo. 1867 18s. Lowndes. — Vide "Average." INTERNATIONAL LAW. — Amos' Lectures on Inter- national Law. — Delivered in the Middle Temple Hall to the Students of the Inns of Court, by SHELDON AMOS, M.A., of the Inner Temple, Bai-rister-at-Law ; Professor of Jurisprudence (including International Law) to the Inns of Court ; Professor of .lurisprudence in University College, London. Royal 8vo. 1874. 10s. 6d. Kent's International Law. — Kent's Commentary on International Law, Revised, with Notes and Cases brought down to the present time. Edited by J. T. ABDY, LL.D., Judge of County Courts. Second Edition. (In the j^^'ess.) '■Dr. Abdy has done all Law Students a great service in presenting that portion of Kent's Commentaries which relates to public international Law in a single volume, neither large, diffuse, nor expensive." " Altogether Dr. Abdy has performed his task in a manner worthy of his reputation; His book will be useful not only to Lawyers aud Law Students, for whom it was primariiy iutended, but also for laymen. It is well worththestudy of every member of an enlightened .xud civilized community." — Solicitors' Journal, March 15, 1867. Levi's International Commercial Lavvr. — Being the Principles of Mercantile Law of the follomng and other Countries — viz. : England, Ireland, Scotland, British India, British Colonies, Atistria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, Greece, Hans To\vns, Italy, Netherlands, Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, United States, and Wiirtembere. By LEONE LEVI, Esq. , F. S. A. , F. S. S. , of Lincohi's Inn, Barriste^r- at-Law, Professor of the Principles and Practice of Commerce at King's College, London, &c. Second Edition. 2 vols. Royal 8vo. 1863. II. 15«. *^* All standard Law Wwks are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 17 INTERNATIONAL LkVf -Continued. Prize Essays on International Law— By A. P. SPRAGUE, Esq., Counsellor of Law in the United States, and M. PAUL LACOiMBE, Advocate in France. With an Introduc- tion by His ExceUency DON ARTURO DE MARCOARTU, Ex-Deputy to the Cortes. Royal 8vo. 1876. 7s. 6d. Vattel's Law of Nations.— By JOSEPH CHITTY, Esq. Royal 8vo. 1834. 11. Is. Wildman's International Law. — Institutes of Inter- national Law, in Time of Peace and Time of War. By RICHARD WILDilAN, Barrister-at-Law. 2 vols. 8vo. 1849-50. 11. 2s. 6d. INTESTATE SUCCESSiONS—Colin's Essay on Intestate Successions. — According to the French Code. By BAR- THELEMY HARDY COLIX, of the Middle Temple. 12mo. 1876. 6s. "A very intelligent essay."— Zaw Times, February 24, 1877. JOINT STOCKS.— Jordan's Joint Stock Companies.— A Handy Book of Practical Instructions for the Formation and Management of Joint Stock Companies. Fifth Edition. 12mo. 1875. Net, 2s. Qd. Palmer — Vide " Conveyancing." Thring's (SirH.) Joint Stock Companies' La^w. — The Law and Practice of Joint Stock and other Public Companies, in- cluding the Statutes, with Notes, and the Forms required in Making, Administeringj and Winding-up a Company, with a Supplement containing the Companies' Act, 1867, and Notes of Recent Decisions. By Sir HENRY THRING, K.C.B., The Parliamentary Counsel. Third Edition. By GERALD A. R. FITZGERALD, of Lincoln's Inn, Esq., Barrister-at-Law, and Fellow of St. John's College, Oxford. 12mo. ]875. U. •'This, as the work of the original dratightsman of the Companies Act of 1862, and well-known Parliamentary counsel, Sir Henry Thrinsr, is naturally the highest authority on the subject."— ?%« THmes, April 21, 187i.;. JUDGMENTS. — Pask's Judgments, Executions, and Crown Debts. — The Judgments Law Amendment Acts relating to Real Property, 22 & 23 Vict., c. 35, and 23 & 24 Vict. , c. 38, 23 & 24 Vict. c. 115, and 27 & 28 Vict. c. 112. With Notes, f'eferences to Cases, and Index : forming an Appendix to " The Practice of Registering," &c. By JAMf^S PASK, Chief Clerk to the Registrar to the Court of Common Pleas, Westminster. Third Edition. 12mo. 1866. Sewed. Net, 2s. Seton.— Vide " Equity." JUDICATURE ACTS.— Braithw^aite.— FiWc "Oaths." Clowes' Compendious Index to the Supreme Court of Judicature Acts, and to the Orders and Rules issued thereunder. By W. CLOWES, Esq., one of the Registrars of the Court of Chancery. Second Edition, revised and enlarged. {Uniform in size tvith the Queen's Pi-inter's Edition of the Acts ancl Rides.) 1875. Half bound. 10s. 6^/. *»* The above, with the Acts and Rules (Authorized Edition), Orders in Cotmcil, and additional rules, court fees, &c., complete in one Volume, hound in limp leather. 11. 5s, ' *»• AU standard Law Works are kept in Stock in law calf and other bindings. 18 STEVENS AND SONS' LAW PUBLICATIONS. JUDICATURE ACTS -ConUr^ried. Leys' Complete Time-Table to the Rules under the Supreme Court of Judicature Act, 187S. Show- ing all the periods fixed by the Rules within or after which any proceed- ings may be taken. By JOHN KIRKWOOD LEYS, M.A., of the Middle Temple, Esq., Bamster-at-Law. EoyalSvo. 1875. Net, Is. 6d. Lynch and Smith's Introdoiction to the Final Examination. — Being a collection of the questions set by the Incorporated Law Society, with the answers adapted to meet the recent extensive alterations made by the JUDICATURE ACT, 1873. By H. FOULKS LYNCH, SoUcitor, and ERNEST AUGUSTUS SMITH, SoUcitor, Clifford's Inn, Prizeman ; Senior Prizeman of the Incorporated Law Society, and Brodrip Gold Medalist, 1872. Vol. I. The Principles of the Law. Post 8vo. 1874. 12s. Lynch's Epitome of Practice in the Supreme Court of Judicature in England. With References to Acts. Rules, and Orders. For the Use of Students. Royal 8vo. Third Edition. Incorjjorating the Appellate Jurisdiction Act, 1876, and the Rules of the Supreme Court, December, 1875, and June, 1876. 1876. Net, Is. Morgan. — Vide "Chancery." Scott.— Vide " Costs." Stephen's Judicature Acts 1873, 1874, and 1875, consolidated. With Notes and an Index. By Sir JAMES STEPHEN, one of Her Majesty's Counsel. 12mo. 1875. 4s. 6d. "Wilson's JudicatureActs,Rules and Forms. With Notes and a copious Index, and additional Rules, forming a Com- plete Guide to the New Practice. By ARTHUR WILSON, of the Inner Temple, Esq., Barrister-at-Law. Royall2mo. 1875. 18s. *<,* A LARGE PAPER EDITION OF THE ABOVE (for marginal notes), with Additional Rtdes. Royal 8vo. 1875. H 5s. (A Second Edition of the above is in active prqxiration.) "The references are ample, and the description of the matter referred to is clear. The result of a very careful examination of Mr. Wilson's book is that it is executed with great care and thoroughness, and that it will be of the utmost value to all those on whom the task falls, whether as practitioners or as administrators of the law. of applying and adapting the new practice and procedure." — Solicitors' Journal, October 23, 1S75. " We have nothing but praise to bestow upon the annotating ot the rules. We have no doubt it will maintain a position in the front rank of the works upon the all-engrossing subject with which it deais."— Laic Times, nctober 16, 1S75. " Mr. Wilson has appended to the Acts and Rules, especially the latter, a valuable body of notes, which we are sure wUl be found useful." — Law Journal, Oct. 30, 1S75. " Mr. Arthur Wilson, as might have been expected, is particularly successful in deal- ing with the Rules of Court, to which, indeed, liis notes are an almost indispensable accompaniment." — Law Magazine, November 1875. JURISPRUDENCE.— Amos, Law as a Science and as an Art. — An Introductory Lecture delivered at University College at the commencement of the session 1874-5. By SHELDON AMOS, Esq., M.A., Barrister-at-Law. 8vo. 1874. Net, Is. 6d. Phillimore's (J. G.) Jurisprudence.— An Inaugural Lecture on Jiuisprudence. and a Lectvure on Canon Law, delivered at the Hall of the Inner Temple, Hilary Term, 1851. By J. G. PHILLIMORE, Esq., Q.C. 8vo. 1851. Sewed. 3s. 6d. *^* A U standard Law Works are kept in Stock, in law calf and other bindings 119, CHANCERY LANE, LONDON, W.C. 19 JUSTICE OF THE PEACE.— Arnold's Summary of the Duties of a Justice of the Peace out of Sessions. — Summary Convictions. By Sir THOMAS JAMES ARNOLD, Chief Metropolitan Police Magistrate. 8vo. 1860. IZ. 6s. Burn's Justice of the Peace and Parish Officer. — Edited bv the following Barristers, under the General Superinten- dence of JOHN BLOSSETT MAULE, Esq., Q.C., Recorder of Leeds. The Thirtieth Edition. VoL I. containing titles "Abatement" to " Dwellings for Artizans ;" byTHOS. SIRRELL PRITCHARD, of the Inner Temple, Esq., Recorder of Wenlock. Vol. II. containing titles " Easter Offering " to "Hundred ;" by SAML. BOTELER BRISTOWE, Q.C., M.P., of the Inner Temple, Esq. VoL III. containing titles " Indictment " to " Promissory Notes ;" by LEWIS W. CAVE, Q.C., of the Inner Temple, Esq., Recorder of Lincoln. Vol. IV. containing the whole title " Poor ;" by JAMES EDWD. DAVIS, Esq., Stipendiary Magistrate for Stoke-upon-Trent. (Sold separately, price \l. lis. 6d.) Vol. V. con- taining titles "Quo Warranto" to "W^eck;" by JOHN BLOSSETT MAULE, Esq., Q.C., Recorder of Leeds. Five vols. 8vo. 1869. ins Since the publication in 1845 of the former Edition of Burn's Justice of the Peace and Parish Officer the whole range of the Law which Magistrates had to adaiinister has undergone more or less alteration, and, indeed, the time which has elapsed since that publication appeared has doubtless worked as great a change in the Magistrates them- selves : so that to very many of the Gentlemen now composing the body of Justices the Encyclopedic Work of Burn must be, if not entirely unlaiown, at least unfajiiliar as a book of reference. Paley. — Vide "Convictions." Stone. — Vide " Petty Sessions." JUSTINIAN, INSTITUTES OF .-Cumin.— Fide "Civil Law." Greene. — Vide "Roman Law." Mears. — Vide "Roman Law." Voet. — Vide "Civil Law." LAND DRAINAGE.— Thring's Land Drainage Act.— With an Introduction, Practical Notes, an Appendix of Statutes relating to Drainage, and Forms. By THEODORE THRING, Esq., Barrister-at-Law. 12mo. 1861. 7s. LAND TAX — Bourdin's Land Tax.— An Exposition of the Land Tax ; its Assessment and Collection, with a statement of the rights conferred by the Redem. tion Acts. By MARK A. BOUR- DIN, of the Inland Revenue Office, Somerset House (late Registrar of Land Tax). Second Edition. Crown 8vo. 1870. 4s. LANDLORD AND TENANT.— ^A^oodfall's Law of Landlord and Tenant. — A Practical Treatise on the Law of Landlord and Tenant, with a full Collection of Precedents and Forms of Procedure. Eleventh Edition. By J. M. LELY, of the Inner Temple, Esq., Barrister-at-Iiaw. LAW, GUIDE TO.— A Guide to the Law for General Use. By a Barrister. Twenty-first Edition. Crown 8 vo. 1877. ^'et, Zs. 6d. "There may be many students of both brauches of the profession who will find the following pages an assistance to them in the course of their reading, not m substitution of but together with, or preliminary to, the voluminous and highly technical works which they have necessarily to examine." *,* All standard Law Works are kept in Stock, in law calf and olfcer bindinr/t. 20 STEVENS AND SONS' LAW PUBLICATIONS. LAW LIST — Law List (The).— Comprising the Judges and Officers of the different Courts of Justice, Counsel, Special Pleaders, Draftsmen, Conveyancers, Attorneys, Notaries, &c., in England and Wales ; to which are added the Circuits, Judges, Treasurers, Registrars, and High BailiflFs of the County Courts, District Registries and Registrars under the Probate Act, Lords Lieu- tenant of Counties, Recorders, Clerks of the Peace, Town Clerks, Coroners, Colonial Judges, and Colonial Lawyers having English Agents, Metropolitan Police Magistrates, Law Agents, Law and Public Officers, Circuits of the Judges and Counsel attending Circuit and Sessions, List of Sheriffs and Agents, London Commis- sioners to Administer Oaths in the Supreme Court of Judicature in England, Conveyancers Practising in England under Certificates obtained in Scotland, &c., &c., and a variety of other useful matters so far as relates to Special Pleaders, Draftsmen, Conveyancers, Attorneys, Solicitors, Proctors and Notaries. Compiled by WILLIAM HENRY COUSINS, of the Inland Revenue Office, Somerset House, Registrar of Stamped Certificates, and of Joint Stock Companies. Published annually. By authority. 1877. Net, 10s. 6fZ. LAW REPORTS.— FicZe pages 29-30. LAWYER'S COMPANION.— F^Ze "Diary." LEGACIES.— Roper's Treatise on the Law of Lega- cies.— Fourth Edition. By H. H. WHITE. 2 vols. Royal 8vo. 1847. 3/. 3s. LEXICON.— FicZe "Dictionary." LICENSING.— Lely and Foulkes' Licensing Acts, 1828, 1869, 1872, and 1874; Containing the Law of the Sale of Liquors by Retail and the Management of Licensed Houses ; with Notes to the Acts, a Summary of the Law, and an Appendix of Forms. Second Edition. By J. M. LELY and W. D. I. FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. " Messrs. Lely and Foulkes's plan is to print in full the principal Acts, and to inter- polate between the sections of each of these statutes all subsidiary enactments, distin- guishing them by brackets and marginal notes .... These notes are usually sensible and to the point and give evidence both of care and knowledge of the subject." — Solicitors' Journal. LIEN.— Cross' Treatise on the Law of Lien and Stoppage in Transitu.— 8vo. 1840. 15s. LIGHTS— Woolrych's Practical Treatise on the Law of Window Lights.— Second Edition. 12mo. 1864. Qs. LOCAL GOVERNMENT.- Ficfe "PubUc Health." LUNACY. — Elmer's Practice in Lunacy.— SLxth Edition. By JOSEPH ELMER, of the Office of the Masters in Lunacy. 8vo. 1877. 21s. MAGISTERIAL LAW.— Burn.— FjVie " Justice of Peace." Leeming and Cross. — Vide " Quarter Sessions." Paley. — Vide " Convictions." Pritchard. — Vide " Quarter Sessions." Stone. — Vide " Petty Sessions." *^*All standard Laio Worlcs are kept in Stock, in laic calf and ot/ier bindings. 119, CHANCERY LANE, LONDON, W.C. 21 MAINTENANCE AND CHAMPERTY. — Tapp on Main- tenance and Champerty. — An Inquiry into the present state of the Law of Maintenance and Champerty, principally as affecting Contracts. By WM. JOHN TAPP, of Lincohi's Inn, Esq. , Barrister-at-Law. 12mo. 1861. 4s. 6d. MANDAMUS. — Tapping on Mandamus. — The Law and Practice of the High Prerogative Writ of Mandamus as it obtains both in England and Ireland. Royal 8vo. 1848. 1?. Is, MARINE INSURANCE — Vide "Insurance." MARTIAL LAW.— Finlason's Treatise on Martial Law, as allowed by the Law of England in time of Rebellion ; with Practical Illustrations drawn from the Official Documents in the Jamaica Case, and the Evidence taken by the Royal Commission of Enquiry, with Comments Constitutional and Legal. By W. F. FINLASON, Esq., Bai-rister-at-Law. 8vo. 1866. 12s. MERCANTILE LAW— Boyd.— Firfe "Shipping." Brooke. — Vide "Notary." Russell. — Vide "Agency." Smith's Mercantile L,a^^^. — A Compendium of Mercantile Law. By the late JOHN WILLIAM SMITH, Esq. Ninth Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., one of Her Majesty's Counsel. Royal 8vo. 1877. 1?. 18s. Tudor's Selection of Leading Cases on Mercan- tile and Maritime Law.— With Notes. By O.D.TUDOR, Esq., Barrister-at-Law. Second Edition. Royal 8vo. 1868. 1?. 18s. METROPOLIS BUILDING ACTS-Woolrych's Metropolis Building Acts, together with such Clauses of the Metropolis Management Acts, 1855 and 1862, and other Acts, as more par- ticidarly relate to the Buildings Acts, with Notes, Explanatory of the Sections and of the Aichitectural Terms contained therein. Second EcUtion. By NOEL H. PATERSON, M.A., of the Middle Temple, Esq., Banister-at-Law. 12mo. 1877. 8s. Qd. MINES. — Rogers' Lav/ relating to Mines, Minerals, and Quarries in Great Britain and Ireland; with a Summary of the Laws of Foreign States and Practical Directions for obtaining Government Grants to work Foreign Mines, Second EcUtion Enlarged. By ARUNDEL ROGERS, Esq., Bar- rister-at-Law. 8vo. 1876. 11. lis. Qd. " Mr. Arundel Rogers' Second Edition, wliicli is increased by about 200 pages, will affurd a really useful worlc of reference alike for the Government Inspector and for tiic practising Barrister wlio is engaged in cases involving tlie Law of Mines." — Law Mayazine, May, 1877. "Most comprehensive and compli^te."— iciw Times, June 17, 1876. "Although issued as a Second lulition, the work appears to have been almost entirely re-written and very mucb improved. . . . The volume will prove invaluable as a work of legal reference." — TAt iliiui'/j Joimmt, May 13, 187C. MORTGAGE.— Coote's Treatise on the Law of Mort- gage.— Third Etlition. Royal 8vo. 1850. Net, 11. MORTMAIN. — Rawlinson's Notes on the Mortmain Acts ; shewing their operation on Gifts, De\ises and Bequests for Charitable Uses. Designed for the Use of Solicitors in Adminstra- tion Suits in the Chancery Division of the High Court of Justice. By JAMES RAWLINSON, Solicitor. Demy 8vo. 1877. Inter- leaved. 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